<PAGE> 1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------
PLASMA-THERM, INC.
(NAME OF SUBJECT COMPANY)
OERLIKON-BUHRLE HOLDING AG
OERLIKON-BUHRLE USA, INC.
VOLCANO ACQUISITION CORP.
(BIDDERS)
COMMON STOCK, $.01 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
727900102
(CUSIP NUMBER OF COMMON STOCK)
ALLEN I. ISAACSON, P.C.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004
(212) 859-8000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
------------------------
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
TRANSACTION VALUATION* AMOUNT OF FILING FEE
---------------------- --------------------
- --------------------------------------------------------------------------------------------
<S> <C>
$162,500,763 $32,500
- --------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------
</TABLE>
* For purposes of calculating fee only. This amount is based on a per share
offering price of $12.50 for 13,000,061 shares of common stock. Pursuant to
the Agreement and Plan of Merger, dated as of December 20, 1999 (the "Merger
Agreement"), by and among Plasma-Therm, Inc. (the "Company"), Oerlikon-Buhrle
USA, Inc. and Volcano Acquisition Corp. (collectively, the "Bidders"), the
Company represented to the Bidders that, as of such date, it had 11,252,311
shares of common stock issued and outstanding, 1,732,750 shares of common
stock reserved for issuance upon exercise of outstanding stock options and
warrants and agreements to issue options to purchase up to 15,000 shares of
common stock between the date of the Merger Agreement and the Closing Date
(as defined in the Merger Agreement). The Company has also advised the
Bidders that it has approximately 759,117 shares of common stock reserved for
issuance pursuant to the terms of the Company's employee stock purchase plan.
The amount of the filing fee, calculated in accordance with Rule 0-11 under
the Securities Exchange Act of 1934, as amended, equals 1/50 of one percent
of the aggregate of the cash offered by the Bidders.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
<TABLE>
<S> <C> <C> <C>
AMOUNT PREVIOUSLY PAID: N/A FILING PARTY: N/A
FORM OR REGISTRATION NO.: N/A DATE FILED: N/A
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
This Tender Offer Statement on Schedule 14D-1 relates to a tender offer by
Volcano Acquisition Corp., a Florida corporation ("Offeror") and a direct
wholly-owned subsidiary of Oerlikon-Buhrle USA, Inc., a Delaware corporation
("Parent") and a direct wholly-owned subsidiary of Oerlikon-Buhrle Holding AG, a
company organized under the laws of Switzerland ("OBH"), to purchase all
outstanding shares of Common Stock, par value $.01 per share (the "Shares"), of
Plasma-Therm, Inc., a Florida corporation (the "Company"), at a purchase price
of $12.50 per Share, net to the seller in cash, without interest, upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated December
27, 1999 (the "Offer to Purchase"), and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer"), copies of which are filed as Exhibits (a)(1) and (a)(2)
hereto, respectively, and which are incorporated herein by reference. Offeror
has been formed by Parent, a holding company wholly owned by OBH that holds all
of OBH's United States subsidiaries, in connection with the Offer and the
transactions contemplated thereby.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Plasma-Therm, Inc. The address of
the principal executive offices of the Company is 10050 16th Street North, St.
Petersburg, Florida 33716.
(b) The information set forth in the Introduction and Section 1 ("Terms of
the Offer; Expiration Date") of the Offer to Purchase is incorporated herein by
reference.
(c) The information set forth in Section 6 ("Price Range of Shares") of the
Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a) through (d), (g) This Schedule 14D-1 is filed by OBH, Parent and
Offeror. The information set forth in the Introduction and Section 9 ("Certain
Information Concerning OBH, Parent and Offeror") of the Offer to Purchase and in
Schedule I thereto is incorporated herein by reference.
(e) and (f) None of Offeror, Parent or OBH or, to the best of their
knowledge, any of the persons listed in Schedule I of the Offer to Purchase has
during the last five years (i) been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) been a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting activities subject
to, federal or state securities laws or finding any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a) and (b) The information set forth in the Introduction, Section 8
("Certain Information Concerning the Company"), Section 9 ("Certain Information
Concerning OBH, Parent and Offeror"), Section 11 ("Background of the Offer") and
Section 12 ("Purpose of the Offer and the Merger; Plans for the Company; The
Transaction Documents") of the Offer to Purchase is incorporated herein by
reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in Section 10 ("Source and Amount of Funds")
of the Offer to Purchase is incorporated herein by reference.
(b) and (c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a) through (e) The information set forth in the Introduction, Section 12
("Purpose of the Offer and the Merger; Plans for the Company; The Transaction
Documents") and Section 13 ("Dividends and Distributions") of the Offer to
Purchase is incorporated herein by reference.
1
<PAGE> 3
(f) and (g) The information set forth in Section 7 ("Effect of the Offer on
the Market for Shares; Stock Quotation; Exchange Act Registration and Margin
Securities") of the Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) None.
(b) Not Applicable.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the Introduction, Section 1 ("Terms of the
Offer; Expiration Date"), Section 9 ("Certain Information Concerning OBH, Parent
and Offeror"), Section 10 ("Source and Amount of Funds"), Section 11
("Background of the Offer"), Section 12 ("Purpose of the Offer and the Merger;
Plans for the Company; The Transaction Documents"), Section 13 ("Dividends and
Distributions") and Section 14 ("Certain Conditions to the Offer") of the Offer
to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the Introduction and Section 16 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Not Applicable.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in the Introduction, Section 1 ("Terms of the
Offer; Expiration Date"), Section 9 ("Certain Information Concerning OBH, Parent
and Offeror"), Section 11 ("Background of the Offer"), Section 12 ("Purpose of
the Offer and the Merger; Plans for the Company; The Transaction Documents"),
Section 13 ("Dividends and Distributions") and Section 14 ("Certain Conditions
to the Offer") of the Offer to Purchase is incorporated herein by reference.
(b) and (c) The information set forth in Section 15 ("Certain Regulatory
and Legal Matters") of the Offer to Purchase is incorporated herein by
reference.
(d) The information set forth in Section 7 ("Effect of the Offer on the
Market for Shares; Stock Quotation; Exchange Act Registration and Margin
Securities") of the Offer to Purchase is incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase, a copy of which is
attached as Exhibit (a)(1), and the Letter of Transmittal, a copy of which is
attached as Exhibit (a)(2), is incorporated herein by reference in its entirety.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase, dated December 27, 1999.
(a)(2) Letter of Transmittal.
(a)(3) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to Clients.
(a)(5) Notice of Guaranteed Delivery.
</TABLE>
2
<PAGE> 4
<TABLE>
<S> <C>
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(7) Summary Announcement, dated December 27, 1999.
(a)(8) Joint Press Release, dated December 20, 1999.
(a)(9) Press Release issued by OBH on December 20, 1999.
(b) Not applicable.
(c)(1) Agreement and Plan of Merger dated as of December 20, 1999,
among Parent, Offeror and the Company.
(c)(2) Form of Amendment to Employment Agreement between the
Company and certain named Executive Officers.
(c)(3) Confidentiality Agreement, between Parent and the Company,
dated as of September 1, 1999.
(c)(4) Termination, Noncompetition and Mutual Release Agreement,
between the Company and Ronald S. Deferrari, dated December
20, 1999.
(c)(5) Tender and Voting Agreement among Parent, Offeror and the
Shareholders listed on Schedule A thereto, dated as of
December 20, 1999.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
3
<PAGE> 5
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
OERLIKON-BUHRLE HOLDING AG
By: /s/ THOMAS EMCH
------------------------------------
Name: Thomas Emch
Title: General Counsel
OERLIKON-BUHRLE USA, INC.
By: /s/ BEAT BAUMGARTNER
------------------------------------
Name: Beat Baumgartner
Title: Chairman and President
VOLCANO ACQUISITION CORP.
By: /s/ PETER RUOF
------------------------------------
Name: Peter Ruof
Title: Secretary
Dated: December 27, 1999
4
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION NO.
- ------- ---------------
<S> <C>
(a)(l) Offer to Purchase, dated December 27, 1999
(a)(2) Letter of Transmittal
(a)(3) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to Clients
(a)(5) Notice of Guaranteed Delivery
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9
(a)(7) Summary Announcement, dated December 27, 1999
(a)(8) Joint Press Release, dated December 20, 1999
(a)(9) Press Release issued by OBH on December 20, 1999
(c)(1) Agreement and Plan of Merger dated as of December 20, 1999,
among Parent, Offeror and the Company
(c)(2) Form of Amendment to Employment Agreement between the
Company and certain named Executive Officers
(c)(3) Confidentiality Agreement, between Parent and the Company,
dated as of September 1, 1999
(c)(4) Termination, Noncompetition and Mutual Release Agreement,
between the Company and Ronald S. Deferrari, dated December
20, 1999.
(c)(5) Tender and Voting Agreement among Parent, Offeror and the
Shareholders listed on Schedule A thereto, dated as of
December 20, 1999
</TABLE>
<PAGE> 1
EXHIBIT(a)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
PLASMA-THERM, INC.
AT
$12.50 NET PER SHARE
BY
VOLCANO ACQUISITION CORP.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON-BUHRLE USA, INC.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON-BUHRLE HOLDING AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON TUESDAY, JANUARY 25, 2000, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED BELOW) OF
THE OFFER AT LEAST THAT NUMBER OF SHARES EQUIVALENT TO A MAJORITY OF THE TOTAL
ISSUED AND OUTSTANDING SHARES ON A FULLY DILUTED BASIS. SEE SECTIONS 12 AND 14.
------------------------
THE BOARD OF DIRECTORS OF PLASMA-THERM, INC. (THE "COMPANY") HAS
UNANIMOUSLY APPROVED THE OFFER, THE MERGER AND THE MERGER AGREEMENT REFERRED TO
HEREIN AND HAS DETERMINED THAT THE MERGER IS ADVISABLE AND THE OFFER AND THE
MERGER ARE FAIR TO AND IN THE BEST INTERESTS OF THE SHAREHOLDERS OF THE COMPANY
AND RECOMMENDS THAT THE SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER
ALL OF THEIR SHARES PURSUANT THERETO.
------------------------
IMPORTANT
Any shareholder desiring to tender all or any portion of such shareholder's
Shares (as defined below) should either (i) complete and sign the related Letter
of Transmittal (or a facsimile thereof) in accordance with the instructions in
the Letter of Transmittal and mail or deliver the certificate(s) representing
the tendered Shares, and all other required documents, to the Depositary or
tender such Shares pursuant to the procedure for book-entry transfer set forth
in Section 3 or (ii) request his broker, dealer, commercial bank, trust company
or other nominee to effect the transaction for him. A shareholder whose Shares
are registered in the name of a broker, dealer, commercial bank, trust company
or other nominee must instruct such person if he desires to tender such Shares.
A shareholder who desires to tender Shares and whose certificates
representing such Shares are not immediately available or who cannot comply with
the procedures for book-entry transfer on a timely basis may tender such Shares
by following the procedure for guaranteed delivery set forth in Section 3.
Questions and requests for assistance may be directed to D.F. King & Co.,
Inc., the Information Agent, at its address and telephone number set forth on
the back cover of this Offer to Purchase. Additional copies of this Offer to
Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery (as
defined below) and other related materials may be obtained from the Information
Agent or from brokers, dealers, commercial banks and trust companies.
------------------------
December 27, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
1. Terms of the Offer; Expiration Date..................... 3
2. Acceptance for Payment and Payment for Shares........... 4
3. Procedure for Tendering Shares.......................... 5
4. Withdrawal Rights....................................... 7
5. Certain Federal Income Tax Consequences................. 7
6. Price Range of Shares................................... 9
7. Effect of the Offer on the Market for Shares; Stock
Quotation; Exchange Act Registration and Margin
Securities................................................ 9
8. Certain Information Concerning the Company.............. 10
9. Certain Information Concerning OBH, Parent and
Offeror................................................... 13
10. Source and Amount of Funds.............................. 14
11. Background of the Offer................................. 14
12. Purpose of the Offer and the Merger; Plans for the
Company; the Transaction Documents........................ 15
13. Dividends and Distributions............................. 27
14. Certain Conditions to the Offer......................... 27
15. Certain Regulatory and Legal Matters.................... 29
16. Fees and Expenses....................................... 32
17. Miscellaneous........................................... 32
SCHEDULE I -- DIRECTORS AND EXECUTIVE OFFICERS OF OBH,
PARENT AND OFFEROR........................................ I-1
</TABLE>
i
<PAGE> 3
To the Holders of Common Stock of
PLASMA-THERM, INC.:
INTRODUCTION
Volcano Acquisition Corp., a Florida corporation ("Offeror") and a direct
wholly-owned subsidiary of Oerlikon-Buhrle USA, Inc., a Delaware corporation
("Parent") and a direct wholly-owned subsidiary of Oerlikon-Buhrle Holding AG, a
company organized under the laws of Switzerland ("OBH"), hereby offers to
purchase all outstanding shares of Common Stock, par value $.01 per share (the
"Shares"), of Plasma-Therm, Inc., a Florida corporation (the "Company"), at a
purchase price of $12.50 per Share, net to the seller in cash, without interest
thereon (the "Offer Price"), upon the terms and subject to the conditions set
forth in this Offer to Purchase and in the related Letter of Transmittal (which,
together with any amendments or supplements hereto or thereto, collectively
constitute the "Offer").
Offeror is a corporation newly formed by Parent in connection with the
Offer and the transactions contemplated thereby. For information concerning OBH
and Parent, see Section 9.
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer.
Offeror will pay all fees and expenses of The Bank of New York, which is acting
as the Depositary (the "Depositary"), and D.F. King, which is acting as
Information Agent (the "Information Agent"), incurred in connection with the
Offer. See Section 16.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER,
THE MERGER AND THE MERGER AGREEMENT AND HAS DETERMINED THAT THE MERGER IS
ADVISABLE AND THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO AND IN THE BEST
INTERESTS OF THE SHAREHOLDERS OF THE COMPANY, AND RECOMMENDS THAT THE
SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER ALL OF THEIR SHARES
PURSUANT THERETO.
CIBC WORLD MARKETS CORP., THE COMPANY'S FINANCIAL ADVISOR (THE "FINANCIAL
ADVISOR"), HAS DELIVERED TO THE BOARD OF DIRECTORS OF THE COMPANY A WRITTEN
OPINION DATED DECEMBER 20, 1999 TO THE EFFECT THAT, AS OF SUCH DATE AND BASED
UPON AND SUBJECT TO CERTAIN MATTERS STATED IN SUCH OPINION, THE $12.50 PER SHARE
CASH CONSIDERATION TO BE RECEIVED BY HOLDERS OF SHARES (OTHER THAN PARENT AND
ITS AFFILIATES) PURSUANT TO THE MERGER AGREEMENT WAS FAIR, FROM A FINANCIAL
POINT OF VIEW, TO SUCH HOLDERS. SUCH OPINION IS SET FORTH IN FULL AS AN ANNEX TO
THE COMPANY'S SOLICITATION/ RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 (THE
"SCHEDULE 14D-9"), WHICH IS BEING MAILED TO SHAREHOLDERS OF THE COMPANY
CONCURRENTLY HEREWITH.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE OF THE OFFER AT LEAST
THAT NUMBER OF SHARES EQUIVALENT TO A MAJORITY OF THE TOTAL ISSUED AND
OUTSTANDING SHARES ON A FULLY DILUTED BASIS (THE "MINIMUM CONDITION"). SEE
SECTIONS 12 AND 14.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated
as of December 20, 1999 (the "Merger Agreement"), among Parent, Offeror and the
Company, pursuant to which, after the purchase of the Shares pursuant to the
Offer and the satisfaction or waiver of certain conditions, Offeror will be
merged with and into the Company (the "Merger"). Following the consummation of
the Merger, the Company will be the surviving corporation (the "Surviving
Corporation"). In the Merger, each outstanding Share (other than Shares held by
the Company or owned by OBH, Parent or Offeror or any other direct or indirect
subsidiary of OBH and other than Shares held by shareholders, if any, who
perfect their dissenters' rights under the Florida Business Corporation Act
("Florida Law"), if applicable, (the "Excluded Shareholders")) will be converted
into, and become exchangeable for, the right to receive $12.50 per Share in cash
(the
1
<PAGE> 4
"Merger Consideration"), without interest thereon, less any required withholding
taxes upon the surrender of certificates formerly representing such Shares and
the Company will become a direct wholly-owned subsidiary of Parent. See Section
12.
If by 12:00 Midnight, New York City time, on Tuesday, January 25, 2000 (or
any other date or time then set as the Expiration Date), any or all conditions
to the Offer have not been satisfied or waived, Offeror reserves the right (but
shall not be obligated), subject to the terms and conditions contained in the
Merger Agreement and to the applicable rules and regulations of the Securities
and Exchange Commission (the "Commission"), to (i) terminate the Offer and not
accept for payment any Shares and return all tendered Shares to tendering
shareholders, (ii) waive all the unsatisfied conditions and, subject to
complying with the terms of the Merger Agreement and the applicable rules and
regulations of the Commission, accept for payment and pay for all Shares validly
tendered prior to the Expiration Date and not theretofore withdrawn, (iii)
extend the Offer and, subject to the right of shareholders to withdraw Shares
until the Expiration Date, retain the Shares that have been tendered during the
period or periods for which the Offer is extended or (iv) amend the Offer.
There can be no assurance that Offeror will exercise its right to extend
the Offer or that the Company will request an extension. Any extension, waiver,
amendment or termination will be followed as promptly as practicable by public
announcement thereof. In the case of an extension, Rule 14e-1(d) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), requires that
the announcement be issued no later than 9:00 am., New York City time, on the
next business day after the previously scheduled Expiration Date in accordance
with the public announcement requirements of Rule 14d-4(c) under the Exchange
Act, subject to applicable law (including Rules 14d-4(c) and 14d-6(d) under the
Exchange Act, which require that any material change in the information
published, sent or given to shareholders in connection with the Offer be
promptly disseminated to shareholders in a manner reasonably designed to inform
shareholders of such change). Without limiting the obligation of Offeror under
such rules or the manner in which Offeror may choose to make any public
announcement, Offeror will not have any obligation to publish, advertise or
otherwise communicate any such public announcement other than by issuing a
release to the Dow Jones News Service.
In the Merger Agreement, Offeror has agreed that it will not, without the
prior consent of the Company, extend the Offer if all of the conditions to the
Offer have been satisfied, except that Offeror may, without the consent of the
Company, extend and re-extend the Offer (a) on one or more periods of time not
to exceed ten business days for each particular extension (i) if on the
scheduled Expiration Date of the Offer any of the conditions to the Offer shall
not have been satisfied or waived, (ii) for such period as may be required by
any rule, regulation, interpretation or position of the Commission or its staff
applicable to the Offer, (iii) for any period required by applicable law, and
(b) if on such expiration date there has been validly tendered and not withdrawn
more than 50% but less than 80% of the outstanding Shares, for an aggregate
period of twenty days beyond the latest expiration date that would otherwise be
permitted; provided, however, that Parent may not extend the Offer beyond June
30, 2000. The Merger Agreement provides that if certain conditions to the Offer
are not satisfied by the Expiration Date, at the request of the Company, the
Offeror shall extend and re-extend the Offer on one or more periods of time for
periods not to exceed five business days for each particular extension;
provided, however, that Parent shall not be required to extend the Offer at the
request of the Company beyond June 30, 2000. In addition, Offeror has agreed
that, without the prior written consent of the Company, it will not (i) decrease
the price per Share offered in the Offer, (ii) change the form of consideration
offered or payable in the Offer, (iii) decrease the numbers of Shares sought in
the Offer, (iv) change the conditions to the Offer, (v) impose additional
conditions to the Offer, and (vi) amend any term of the Offer; in each case, in
any manner adverse to the holders of Shares; or waive the Minimum Condition.
If Offeror makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer
(including, with the consent of the Company, the Minimum Condition), Offeror
will disseminate additional tender offer materials and extend the Offer to the
extent required by Rules 14d-4(c), 14d-6(d) and 14e-l under the Exchange Act.
The minimum period during which an offer must remain open following material
changes in the terms of the offer or information concerning the
2
<PAGE> 5
offer, other than a change in price or a change in the percentage of securities
sought, will depend upon the facts and circumstances then existing, including
the relative materiality of the changed terms or information. With respect to a
change in price or a change in the percentage of securities sought, a minimum
period of ten business days is generally required to allow for adequate
dissemination to shareholders. As used in this Offer to Purchase, "business day"
has the meaning set forth in Rule 14d-1 under the Exchange Act.
Based on the representations and warranties of the Company contained in the
Merger Agreement, and information provided by the Company, as of December 20
1999, (i) 11,252,311 Shares were outstanding, (ii) no class or series of
preferred stock of the Company had been established, (iii) options to purchase
1,732,750 Shares were granted pursuant to the Company's 1995 Stock Incentive
Plan (the "Company Stock Plan") were outstanding Company Options, (iv) 759,117
Shares were reserved for future grants under the Company Stock Plan. In
addition, the Company has offered to grant to two new employees options to
purchase an aggregate of 15,000 Shares between the date of the Merger Agreement
and the Closing Date. Pursuant to the Merger Agreement, all stock options
outstanding immediately prior to the Effective Time will be cancelled and the
holder of each option will be entitled to receive, for each Share subject to
such option, an amount in cash equal to the excess, if any, of $12.50 over the
exercise price of such option, without interest.
Based on the foregoing, the Minimum Condition will be satisfied if
6,500,031 Shares are validly tendered and not withdrawn prior to the Expiration
Date. The number of Shares required to be validly tendered and not withdrawn in
order to satisfy the Minimum Condition will increase to the extent additional
Shares are deemed to be outstanding on a fully diluted basis.
The consummation of the Merger is subject to the satisfaction or waiver of
a number of conditions, including, if required, the approval of the Merger by
the requisite vote or consent of the shareholders of the Company. Under Florida
Law and the Company's articles of incorporation, the shareholder vote necessary
to approve the Merger will be the affirmative vote of the holders of a majority
of the outstanding Shares, including Shares held by Offeror and its affiliates.
Accordingly, if Offeror acquires a majority of the outstanding Shares, Offeror
will have the voting power required to approve the Merger without the
affirmative vote of any other shareholders of the Company. Furthermore, if
Offeror acquires at least 80% of each class of outstanding shares (which would
include each of the outstanding shares of Common Stock) pursuant to the Offer or
otherwise, Offeror would be able to effect the Merger pursuant to the
"short-form" merger provisions of Section 607.1104 of the Florida Law without
any further prior notice to, or any action by, any other shareholder of the
Company. In such event, Offeror intends to effect the Merger as promptly as
practicable following the purchase of Shares in the Offer. The Merger Agreement
is more fully described in Section 12.
Concurrently with the execution and delivery of the Merger Agreement,
Parent and Offeror entered into a Tender and Voting Agreement, dated as of
December 20, 1999, with each of the directors and executive officers of the
Company who holds more than 1% of the Shares outstanding on a fully diluted
basis (the "Significant Shareholders"), and who collectively have beneficial
ownership (as defined pursuant to Rule 13d-3 of the Exchange Act) of 24% of the
Shares outstanding on a fully diluted basis. Pursuant to the Tender and Voting
Agreement, the Significant Shareholders have, among other things, entered into a
voting agreement with Parent and Offeror, granted an irrevocable proxy to
Offeror's designees with respect to their Shares and agreed to tender their
Shares in the Offer.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER. THIS OFFER TO PURCHASE CONTAINS FORWARD-LOOKING
STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES, INCLUDING THE RISKS ASSOCIATED
WITH SATISFYING THE CONDITIONS TO THE OFFER. CERTAIN OF THESE RISK FACTORS, AS
WELL AS ADDITIONAL RISKS AND UNCERTAINTIES, ARE DETAILED IN THE COMPANY'S
PERIODIC FILINGS WITH THE COMMISSION.
1. TERMS OF THE OFFER; EXPIRATION DATE.
Upon the terms and subject to the conditions to the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Offeror will accept for payment and pay for all Shares validly
tendered prior to the Expiration Date and not withdrawn in accordance with
Section 4. The
3
<PAGE> 6
term "Expiration Date" means 12:00 Midnight, New York City time, on Tuesday,
January 25, 2000, unless Offeror (subject to the terms of the Merger Agreement)
shall have extended the period of time during which the Offer is open. In the
event Offeror has extended the Offer, the term "Expiration Date" shall mean the
latest time and date at which the Offer as so extended by Offeror shall expire.
Consummation of the Offer is conditioned upon (i) satisfaction of the
Minimum Condition, (ii) the expiration or termination of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), (iii) the expiration or termination of the waiting period under the
Exon-Florio Amendment to the Omnibus Trade and Competitiveness Act of 1998 (the
"Exon-Florio Amendment") and (iv) satisfaction of the other conditions set forth
in Section 14. Subject to the terms and conditions contained in the Merger
Agreement, Offeror reserves the right (but shall not be obligated) to waive any
or all such conditions.
The Company is providing Offeror with its list of shareholders and security
position listings for the purpose of disseminating the Offer to holders of
Shares. This Offer to Purchase and the related Letter of Transmittal and other
relevant materials will be mailed by Offeror to record holders of Shares and
will be furnished by Offeror to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose nominees,
appear on the shareholder lists or, if applicable, who are listed as
participants in a clearing agency's security position listing, for subsequent
transmittal to beneficial owners of Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Subject to and in accordance with the terms and subject to the conditions
of the Offer (including, if the Offer is extended or amended, the terms and
conditions of any such extension or amendment), Offeror will accept for payment
and will pay for all Shares validly tendered prior to the Expiration Date, and
not properly withdrawn in accordance with Section 4, as soon as practicable
after the Expiration Date. Any determination concerning the satisfaction or
waiver of such terms and conditions will be within the reasonable discretion of
Offeror, and such determination will be final and binding on all tendering
shareholders. See Sections 1 and 14. Offeror 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. Any such delays will be effected in
compliance with Rule 14e-1(c) under the Exchange Act (relating to Offeror's
obligation to pay for or return tendered Shares promptly after the termination
or withdrawal of the Offer).
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) certificates for
such Shares or timely confirmation (a "Book-Entry Confirmation") of the
book-entry transfer of such Shares into the Depositary's account at The
Depository Trust Company (the "Book-Entry Transfer Facility") pursuant to the
procedures set forth in Section 3, (ii) a Letter of Transmittal (or facsimile
thereof) properly completed and duly executed, with any required signature
guarantees, or an Agent's Message (as defined below) in connection with a
book-entry transfer and (iii) any other documents required by the Letter of
Transmittal.
The per Share consideration paid to any shareholder pursuant to the Offer
will be the highest per Share consideration paid to any other shareholder
pursuant to the Offer.
The term "Agent's Message" means a message, transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states the Book-Entry Transfer Facility has
received an express acknowledgment from the participant in the Book-Entry
Transfer Facility tendering the Shares that are the subject of such Book-Entry
Confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that Offeror may enforce such agreement
against such participant.
For purposes of the Offer, Offeror will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to Offeror and not
withdrawn as, if and when Offeror gives oral or written notice to the Depositary
of Offeror's acceptance for payment of such Shares pursuant to the Offer. Upon
the terms and subject to the conditions to the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering shareholders for the purpose of receiving payment from Offeror and
transmitting payment to tendering
4
<PAGE> 7
shareholders. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE
OF THE SHARES TO BE PAID BY OFFEROR, REGARDLESS OF ANY EXTENSION OF THE OFFER OR
ANY DELAY IN MAKING SUCH PAYMENT.
If any tendered Shares are not purchased pursuant to the Offer because of
an invalid tender or otherwise, certificates ("Share Certificates") for any such
Shares will be returned, without expense to the tendering shareholder (or, in
the case of Shares delivered by book-entry transfer of such Shares into the
Depositary's account at the Book-Entry Transfer Facility pursuant to the
procedures set forth in Section 3, such Shares will be credited to an account
maintained at the Book-Entry Transfer Facility), as promptly as practicable
after the expiration or termination of the Offer.
3. PROCEDURE FOR TENDERING SHARES.
Valid Tender. For Shares to be validly tendered pursuant to the Offer, a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof), together with any required signature guarantees, or an
Agent's Message 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 prior to the Expiration Date. In addition, either (i) Share
Certificates for tendered Shares must be received by the Depositary along with
the Letter of Transmittal at one of such addresses or such Shares must be
tendered pursuant to the procedure for book-entry transfer set forth below (and
a Book-Entry Confirmation received by the Depositary), in each case prior to the
Expiration Date, or (ii) the tendering shareholder must comply with the
guaranteed delivery procedures set forth below.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES WILL
BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY
IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at the Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any financial
institution that is a participant in any of the Book-Entry Transfer Facility's
systems may make book-entry delivery of Shares by causing the Book-Entry
Transfer Facility to transfer such Shares into the Depositary's account at the
Book-Entry Transfer Facility in accordance with the Book-Entry Transfer
Facility's procedures for such transfer. However, although delivery of Shares
may be effected through book-entry at the Book-Entry Transfer Facility, 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
in connection with a book-entry delivery of Shares, and any other documents
required by the Letter of Transmittal, must, in any case, be transmitted to, and
received by, the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase prior to the Expiration Date, or the tendering
shareholder must comply with the guaranteed delivery procedures described below.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE
BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal if (i) the Letter of Transmittal is signed by the registered holder
of Shares (which term, for purposes of this Section, includes any participant in
the Book-Entry Transfer Facility whose name appears on a security position
listing as the owner of the Shares) tendered therewith and such registered
holder has not completed either the box entitled "Special Delivery Instructions"
or the box entitled "Special Payment Instructions" on the Letter of Transmittal
or (ii) such Shares are tendered for the account of a bank, broker, dealer,
credit union, savings association or other entity that is a member in good
standing of a recognized Medallion Program approved by The Securities Transfer
Association, Inc. (an "Eligible Institution"). In all other cases, all
signatures on the Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instructions 1 and 5 to the Letter of Transmittal. If the
certificates for Shares are registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made or certificates
for Shares not tendered or not accepted for payment are to be issued to a person
other than the registered holder of the certificates surrendered, the
5
<PAGE> 8
tendered Share Certificates must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name or names of the registered
holders or owners appear on the Share Certificates, with the signatures on the
certificates or stock powers guaranteed as described above. See Instruction 5 to
the Letter of Transmittal.
Guaranteed Delivery. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's Share Certificates 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, such shareholder's tender may be
effected if all the following conditions are met:
(1) such tender is made by or through an Eligible Institution;
(2) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Offeror herewith, is
received by the Depositary as provided below, prior to the Expiration Date;
and
(3) the Share Certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to such Shares),
together with a properly completed and duly executed Letter of Transmittal
(or a manually signed facsimile thereof), with any required signature
guarantees and any other documents required by the Letter of Transmittal,
are received by the Depositary within three Nasdaq (as defined below)
trading days after the date of execution of such Notice of Guaranteed
Delivery.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
Depositary and must include a signature guarantee by an Eligible Institution in
the form set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (i) Share Certificates or a Book-Entry Confirmation
with respect to such Shares, (ii) 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 in connection with a book-entry
delivery of Shares, and (iii) any other documents required by the Letter of
Transmittal. Accordingly, tendering shareholders may be paid at different times
depending upon when certificates for Shares or Book-Entry Confirmations are
actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE
PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY OFFEROR, REGARDLESS OF
ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
The valid tender of Shares pursuant to one of the procedures described
above will constitute a binding agreement between the tendering shareholder and
Offeror upon the terms and subject to the conditions to the Offer.
Backup Withholding. Under the United States federal income tax backup
withholding rules, payments in connection with the Offer or the Merger may be
subject to "backup withholding" as discussed in Section 5.
Appointment. By executing the Letter of Transmittal, the tendering
shareholder will irrevocably appoint designees of Offeror as such shareholder's
attorneys-in-fact and proxies in the manner set forth in the Letter of
Transmittal, each with full power of substitution, to the full extent of such
shareholder's rights with respect to the Shares tendered by such shareholder and
accepted for payment by Offeror and with respect to any and all other Shares or
other securities or rights issued or issuable in respect of such Shares on or
after December 20, 1999. All such proxies shall be considered coupled with an
interest in the tendered Shares. Such appointment will be effective when, and
only to the extent that, Offeror accepts for payment Shares tendered by such
shareholder as provided herein. Upon such acceptance for payment, all prior
powers of attorney and proxies given by such shareholder with respect to such
Shares or other securities or rights will, without further action, be revoked
and no subsequent powers of attorney and proxies may be given (and, if given,
will not be deemed effective). The designees of Offeror will thereby be
empowered to exercise all voting and other rights with respect to such Shares or
other securities or rights in respect of any annual, special or adjourned
meeting of the Company's shareholders, or otherwise, as they in their sole
discretion deem proper. Offeror reserves the right
6
<PAGE> 9
to require that, in order for Shares to be deemed validly tendered, immediately
upon Offeror's acceptance for payment of such Shares, Offeror must be able to
exercise full voting and other rights with respect to such Shares and other
securities or rights, including voting at any meeting of shareholders then
scheduled.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by Offeror, in its sole discretion, which
determination will be final and binding. Offeror reserves the absolute right to
reject any or all tenders determined by it not to be in proper form or the
acceptance for payment of or payment for which may, in the opinion of Offeror's
counsel, be unlawful. Offeror also reserves the absolute right, in its sole
discretion, subject to the terms and conditions of the Merger Agreement, to
waive any of the conditions to the Offer or any defect or irregularity in any
tender with respect to any particular Shares, whether or not similar defects or
irregularities are waived in the case of other Shares. No tender of Shares will
be deemed to have been validly made until all defects or irregularities relating
thereto have been cured or waived. None of OBH, Parent, Offeror, the Depositary,
the Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. Offeror's interpretation of the terms
and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless accepted for payment and paid for by Offeror pursuant to the Offer, may
also be withdrawn at any time after February 24, 2000.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If Share Certificates have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such Share
Certificates, the serial numbers shown on such Share Certificates must be
submitted to the Depositary and, unless such Shares have been tendered by an
Eligible Institution, the signatures on the notice of withdrawal must be
guaranteed by an Eligible Institution. If Shares have been tendered pursuant to
the procedures for book-entry transfer set forth in Section 3, the notice of
withdrawal must specify the name and number of the account at the Book-Entry
Transfer Facility to be credited with the withdrawn Shares. Withdrawals of
tenders of Shares may not be rescinded, and any Shares properly withdrawn will
thereafter be deemed not validly tendered for any purposes of the Offer.
However, withdrawn Shares may be retendered by again following one of the
procedures described in Section 3 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Offeror in its sole discretion,
which determination will be final and binding. None of OBH, Offeror, Parent, the
Depositary, the Information Agent or any other person will be under any duty to
give notification of any defects or irregularities in any notice of withdrawal
or incur any liability for failure to give any such notification.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
THE FOLLOWING IS A SUMMARY OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF
THE OFFER AND THE MERGER TO HOLDERS WHOSE SHARES ARE PURCHASED PURSUANT TO THE
OFFER OR WHOSE SHARES ARE CONVERTED INTO THE RIGHT TO RECEIVE CASH IN THE
MERGER. THE SUMMARY IS BASED ON THE PROVISIONS OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), APPLICABLE CURRENT AND PROPOSED UNITED STATES
TREASURY REGULATIONS ISSUED THEREUNDER, JUDICIAL AUTHORITY AND ADMINISTRATIVE
RULINGS AND PRACTICE, ALL OF WHICH ARE SUBJECT TO CHANGE, POSSIBLY WITH
RETROACTIVE EFFECT, AT ANY TIME AND, THEREFORE, THE FOLLOWING STATEMENTS AND
CONCLUSIONS COULD BE ALTERED OR MODIFIED. THE DISCUSSION DOES NOT ADDRESS
HOLDERS OF SHARES IN WHOSE HANDS SHARES ARE NOT CAPITAL
7
<PAGE> 10
ASSETS, NOR DOES IT ADDRESS HOLDERS WHO RECEIVED SHARES AS PART OF A HEDGING,
"STRADDLE," CONVERSION OR OTHER INTEGRATED TRANSACTION, UPON CONVERSION OF
SECURITIES OR EXERCISE OF WARRANTS OR OTHER RIGHTS TO ACQUIRE SHARES OR PURSUANT
TO THE EXERCISE OF EMPLOYEE STOCK OPTIONS OR OTHERWISE AS COMPENSATION, OR TO
HOLDERS OF SHARES WHO ARE IN SPECIAL TAX SITUATIONS (SUCH AS INSURANCE
COMPANIES, TAX-EXEMPT ORGANIZATIONS, FINANCIAL INSTITUTIONS, UNITED STATES
EXPATRIATES OR NON-U.S. PERSONS). FURTHERMORE, THE DISCUSSION DOES NOT ADDRESS
THE TAX TREATMENT OF HOLDERS WHO EXERCISE DISSENTERS' RIGHTS IN THE MERGER, IF
APPLICABLE, NOR DOES IT ADDRESS ANY ASPECT OF FOREIGN, STATE OR LOCAL TAXATION
OR ESTATE AND GIFT TAXATION.
THE FEDERAL INCOME TAX CONSEQUENCES SET FORTH BELOW ARE INCLUDED FOR
GENERAL INFORMATIONAL PURPOSES ONLY. BECAUSE INDIVIDUAL CIRCUMSTANCES MAY
DIFFER, EACH HOLDER OF SHARES SHOULD CONSULT SUCH HOLDER'S OWN TAX ADVISOR TO
DETERMINE THE APPLICABILITY OF THE RULES DISCUSSED BELOW TO SUCH SHAREHOLDER AND
THE PARTICULAR TAX EFFECTS OF THE OFFER AND THE MERGER, INCLUDING THE
APPLICATION AND EFFECT OF STATE, LOCAL AND OTHER INCOME TAX LAWS.
The receipt of cash for Shares pursuant to the Offer or the Merger will be
a taxable transaction for federal income tax purposes under the Code (and also
may be a taxable transaction under applicable state, local, foreign and other
income tax laws). In general, for federal income tax purposes, a holder of
Shares will recognize gain or loss in an amount equal to the difference between
its adjusted tax basis in the Shares sold pursuant to the Offer or converted
into the right to receive cash in the Merger and the amount of cash received
therefor. 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 and will be long-term gain or loss if, on the date of sale
(or, if applicable, the date of the Merger), the Shares were held for more than
one year.
Under the United States federal income tax backup withholding rules,
payments in connection with the Offer or the Merger may be subject to "backup
withholding" at a rate of 31%. In order to avoid backup withholding, each
tendering shareholder, unless an exemption applies, must provide the Depositary
with such shareholder's correct taxpayer identification number and certify that
such shareholder is not subject to such backup withholding by completing the
Substitute Form W-9 included in the Letter of Transmittal. Backup withholding is
not an additional tax but merely an advance payment, which may be refunded to
the extent it results in an overpayment of tax. Certain persons generally are
entitled to exemption from backup withholding, including corporations, financial
institutions and certain foreign individuals. Each shareholder should consult
with such holder's own tax advisor as to such holder's qualification for
exemption from backup withholding and the procedure for obtaining such
exemption.
All shareholders surrendering Shares pursuant to the Offer should complete
and sign the main signature form and the Substitute Form W-9 included as part of
the Letter of Transmittal to provide the information and certification necessary
to avoid backup withholding (unless an applicable exemption exists and is proved
in a manner satisfactory to Offeror and the Depositary). Noncorporate foreign
shareholders should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal.
8
<PAGE> 11
6. PRICE RANGE OF SHARES.
The Shares are included for trading on the Nasdaq National Market (the
"Nasdaq") under the trading symbol "PTIS." The Company has never paid cash
dividends on the Shares. The following table sets forth, for the periods
indicated, the high and low bid quotations per Share on the Nasdaq for the
applicable periods.
<TABLE>
<CAPTION>
HIGH
----------------
<S> <C> <C>
1997
First Quarter............................................. $ 6 11/16 $ 4
Second Quarter............................................ 6 5/16 3 11/16
Third Quarter............................................. 11 7/16 5 1/2
Fourth Quarter............................................ 12 3/16 5 7/8
1998
First Quarter............................................. $ 9 1/4 $ 6 1/16
Second Quarter............................................ 9 5 7/8
Third Quarter............................................. 6 7/16 2 3/8
Fourth Quarter............................................ 5 2 5/8
1999
First Quarter............................................. $ 5 $ 2 1/4
Second Quarter............................................ 31 1/16 2 1/16
Third Quarter............................................. 5 5/8 2 1/2
Fourth Quarter (through December 23, 1999)................ 9 15/16 9 1/4
</TABLE>
On December 17, 1999, the last full trading day before the public
announcement of the execution of the Merger Agreement, the closing sales price
per Share as reported on the Nasdaq was $9 3/8. On December 23, 1999, the last
full trading day before the commencement of the Offer, the closing sales price
per Share as reported on the Nasdaq was $12 13/16 per Share. SHAREHOLDERS ARE
URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
7. EFFECT OF THE OFFER ON THE MARKET FOR SHARES; STOCK QUOTATION; EXCHANGE ACT
REGISTRATION AND MARGIN SECURITIES.
The purchase of Shares pursuant to the Offer will reduce the number of
holders of Shares and the number of Shares that might otherwise trade publicly
and could adversely affect the liquidity and market value of the remaining
Shares, if any, held by the public.
The Shares are currently listed and traded on the Nasdaq, which constitutes
the principal trading market for the Shares. Depending upon the number of shares
purchased pursuant to the Offer, the Shares may no longer meet the requirements
of the National Association of Securities Dealers, Inc. (the "NASD") for
continued inclusion on the Nasdaq, which requires that an issuer have at least
750,000 publicly held shares, held by at least 400 round lot shareholders, with
a market value of at least $5 million, at least two registered and active market
makers, a minimum bid price of at least $1 and net tangible assets of at least
$4 million. If the Nasdaq were to cease to publish quotations for the Shares, it
is possible that the Shares would continue to trade in the over-the-counter
market and that price or other quotations would be reported by other sources.
The extent of the public market for such Shares and the availability of such
quotations would depend, however, upon such factors as the number of
shareholders and/or the aggregate market value of such Shares remaining at such
time, the interest in maintaining a market in the Shares on the part of
securities firms, the possible termination of registration under the Exchange
Act as described below, and other factors. Parent 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
lesser than the Offer Price.
9
<PAGE> 12
The Shares are currently registered under the Exchange Act. Registration of
the Shares under the Exchange Act may be terminated upon application of the
Company to the Commission if the Shares are neither listed on a national
securities exchange nor held by 300 or more holders of record. Termination of
registration of the Shares under the Exchange Act would substantially reduce the
information required to be furnished by the Company to its shareholders and to
the Commission and would make certain provisions of the Exchange Act no longer
applicable to the Company, such as the short-swing profit recovery provisions of
Section 16(b) of the Exchange Act, the requirement of furnishing a proxy
statement pursuant to Section 14(a) of the Exchange Act in connection with
shareholders' meetings and the related requirement of furnishing an annual
report to shareholders, and the requirements of Rule 13e-3 under the Exchange
Act with respect to "going private" transactions. Furthermore, the ability of
"affiliates" of the Company and persons holding "restricted securities" of the
Company to dispose of such securities pursuant to Rule 144 or 144A promulgated
under the Securities Act of 1933, as amended, may be impaired or eliminated.
Parent intends to seek delisting of the Shares from the Nasdaq and to cause
the Company to apply for termination of registration of the Shares pursuant to
Section 12(g)(4) of the Exchange Act as soon after the completion of the Offer
as the requirements for such delisting and termination are met. If registration
of the Shares is not terminated prior to the Merger, then the Shares will cease
to be reported on the Nasdaq and the registration of the Shares under the
Exchange Act will be terminated pursuant to Section 12(g)(4) of the Exchange Act
following the consummation of the Merger.
The Shares are currently "margin securities" under the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve Board"),
which has the effect, among other things, of allowing brokers to extend credit
on the collateral of the Shares. Depending upon factors similar to those
described above regarding listing and market quotations, it is possible that
following the Offer the Shares would no longer constitute "margin securities"
for the purposes of the margin regulations of the Federal Reserve Board and
therefore could no longer be used as collateral for loans made by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as specifically set forth herein, the historical information
concerning the Company contained in this Offer to Purchase, including financial
information, has been taken from or based upon publicly available documents and
records on file with the Commission and other public sources. None of OBH,
Parent, Offeror, the Information Agent or the Depositary assumes any
responsibility for the accuracy or completeness of the information concerning
the Company contained in such documents and records or for any failure by the
Company to disclose events which may have occurred or may affect the
significance or accuracy of any such information to OBH, Parent or Offeror.
The Company is a Florida corporation with its principal place of business
located at 10050 16th Street North, St. Petersburg, Florida 33716. According to
the Company Annual Report on Form 10-K for the year ended November 30, 1998 (the
"Company Form 10-K"), the Company engages in the design and production of thin
film etching and deposition manufacturing equipment. The Company sells this
equipment directly to manufacturers in the optoelectronics/telecommunications,
data storage, photomask, and microelectromechanical industries. The Company's
products are marketed, together with service and technical support, by the
Company's direct sales force, its Japanese distributor and independent foreign
manufacturer's representatives.
Set forth below is certain selected historical consolidated financial
information with respect to the Company and its subsidiaries excerpted or
derived from the audited consolidated financial statements included in the
Company Form 10-K and from the unaudited consolidated financial statements
included in the Company's Quarterly Reports on Form 10-Q for the quarters ended
August 31, 1999 and August 31, 1998. More comprehensive financial information is
included in such reports and other documents filed by the Company with the
Commission, and the following summary is qualified in its entirety by reference
to such reports and such other documents and all the financial information
(including any related notes) contained therein. The reports and other documents
filed with the Commission should be available for inspection and copies thereof
should be obtainable in the manner set forth below under "Available
Information."
10
<PAGE> 13
PLASMA-THERM, INC.
CONSOLIDATED STATEMENTS OF INCOME
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED NOVEMBER 30,
---------------------------------------------------
1998 1997 1996 1995 1994
------- ------- ------- ------- -------
<S> <C> <C> <C> <C> <C>
Net sales................................ $49,088 $44,445 $37,862 $29,612 $23,318
Cost of sales............................ 30,491 25,690 23,481 27,816 21,367
------- ------- ------- ------- -------
Gross profit........................... 18,597 18,755 14,382 1,796 1,952
------- ------- ------- ------- -------
Operating expenses:
Research and development............... 6,091 3,725 2,880 2,570 2,266
Selling and administrative............. 8,683 7,379 6,575 6,175 4,638
Restructuring Charge................... 1,270 -- -- -- --
------- ------- ------- ------- -------
Operating income......................... 2,554 7,650 4,927
Interest (income) expense, net........... 226 112 72 (133) 66
------- ------- ------- ------- -------
Income before income taxes............... 2,328 7,538 4,854 1,795 1,951
Income taxes............................. (957) (2,877) 1,861 (706) (338)
------- ------- ------- ------- -------
Net income............................. $ 1,371 $ 4,661 $ 2,993 $ 1,089 $ 1,963
======= ======= ======= ======= =======
Earnings per share:
Basic.................................. $ 0.12 $ 0.43 $ 0.29 $ .10 $ .18
Diluted................................ $ 0.12 $ 0.42 $ 0.28 $ .10 $ .22(1)
Balance Sheet Data (at end of period):
Total assets........................... $34,271 $29,738 $21,986 $23,664 $15,057
Total long-term obligations............ 3,085 3,671 3,589 1,146 811
Total shareholders' equity............. 30,518 28,685 22,219 18,973 11,105
</TABLE>
- ---------------
(1) Includes $.04 increase (from $18 to $22) as a result of the cumulative
effect of adopting SFAS 109.
11
<PAGE> 14
PLASMA-THERM, INC.
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
AUGUST 31,
------------------
1999 1998
------- -------
<S> <C> <C>
Net sales................................................... $29,003 $38,015
Cost of sales............................................... 18,506 21,567
------- -------
Gross profit.............................................. 10,497 16,448
------- -------
Operating expenses:
Research and development.................................. 5,739 4,384
Selling and administrative................................ 5,947 6,419
Restructuring Charge...................................... 948 --
------- -------
Operating income.......................................... (2,137) 5,646
Interest (income) expense, net.............................. 252 153
------- -------
Income (loss) before income taxes (benefit)............... (2,390) 5,493
Income taxes (benefit)...................................... (711) 2,075
------- -------
Net income (loss)......................................... $(1,679) $ 3,418
======= =======
Earnings (loss) per share:
Basic..................................................... $ (0.15) $ 0.31
Diluted................................................... $ (0.15) $ 0.30
Balance Sheet Data (at end of period):
Total assets.............................................. 31,640
Total long-term obligations............................... 3,476
Total shareholders' equity................................ 28,894
</TABLE>
Fiscal Year 1999 Results
The Company has provided to OBH, Parent and Offeror preliminary estimated
results of its fiscal year ended November 30, 1999, which are subject to change
when audited. In fiscal year 1999, such results indicate that the Company had
total net sales of $40.6 million, total operating income (loss) of $(.491)
million, and total net income (loss) of $(.762) million, and earnings (loss) per
share of ($.07).
Certain Company Projections
To the knowledge of OBH, Parent and Offeror, the Company does not as a
matter of course make public forecasts as to its future financial performance.
However, in connection with the preliminary discussions concerning the
feasibility of the Offer and the Merger, the Company furnished Parent with
certain financial projections.
The projections set forth below (the "Projections") are derived or
excerpted from information provided by the Company and are based on numerous
assumptions concerning future events. The Projections have not been adjusted to
reflect the effects of the Offer or the Merger. The Projections should be read
together with the other information contained in this Section 8.
The Projections included operating projections for the Company for fiscal
year 2000 (the Company reports its financial results based on a November 30 year
end) developed by the Company's senior management predicated on their then
preliminary assumptions for macroeconomic conditions, gross profits
12
<PAGE> 15
and operating expenses. The Company's fiscal year 2000 Projections estimated
total net sales of $67.1 million, total operating income of $11.8 million, net
income of $7.1 million and earnings per share of $.58.
THE PROJECTIONS WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE OR
COMPLIANCE WITH PUBLISHED GUIDELINES OF THE COMMISSION OR THE GUIDELINES
ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING
PROJECTIONS OR FORECASTS AND ARE INCLUDED HEREIN ONLY BECAUSE SUCH INFORMATION
WAS PROVIDED TO PARENT. THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO CERTAIN
RISKS AND UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY
FROM THE PROJECTIONS. THE PROJECTIONS REFLECT NUMEROUS ASSUMPTIONS (NOT ALL OF
WHICH WERE STATED IN THE PROJECTIONS AND 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, 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 OBH, PARENT
OR OFFEROR. ACCORDINGLY, THERE CAN BE NO ASSURANCE 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. THE
INCLUSION OF THE PROJECTIONS HEREIN SHOULD NOT BE REGARDED AS AN INDICATION THAT
ANY OF OBH, PARENT OR OFFEROR OR ANY OF THEIR RESPECTIVE 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 OBH,
PARENT OR OFFEROR AND THEIR RESPECTIVE REPRESENTATIVES ASSUMES ANY
RESPONSIBILITY FOR THE VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF THE
PROJECTIONS. NONE OF OBH, PARENT OR OFFEROR OR ANY OF THEIR RESPECTIVE
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.
Available Information
The Company is subject to the reporting requirements of the Exchange Act
and, in accordance therewith, is required to file reports and other information
with the Commission relating to its business, financial condition and other
matters. Information as of particular dates concerning the Company's directors
and officers, their remuneration, options granted to them, the principal holders
of the Company's securities and any material interests of such persons in
transactions with the Company is required to be disclosed in proxy statements
distributed to the Company's shareholders and filed with the Commission. Such
reports, proxy statements and other information should be available for
inspection at the public reference facilities of the Commission located at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the regional offices of the
Commission located in the Citicorp Center, 500 West Madison Street (Suite 1400),
Chicago, Illinois 60661 and Seven World Trade Center, 13th Floor, New York, New
York 10048. Copies should be obtainable, by mail, upon payment of the
Commission's customary charges, by writing to the Commission's principal office
at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also maintains
a World Wide Web site on the Internet at http://www.sec.gov that contains
reports, proxy statements and other information regarding registrants that file
electronically with the Commission.
9. CERTAIN INFORMATION CONCERNING OBH, PARENT AND OFFEROR.
OBH is a Swiss stock company, which, in the course of 1999, underwent a
major transformation from what was formerly a diversified conglomerate to a
focused high-technology business. Following the sale of Oerlikon-Buhrle
Immoblilien AG (real estate), Bally (the well-known luxury shoe brand), and
Oerlikon-Contraves Defense, OBH began the construction of the new
high-technology group. The Offer and the Merger represent a further step in
reinforcing OBH's position in the information technology sector, particularly in
the semiconductor equipment industry. The offices of OBH are located at
Hofweisenstrasse 135, CH-8021 Zurich, Switzerland.
Parent is a Delaware corporation and was formed as a holding company by OBH
to hold all of OBH's U.S. subsidiaries, including Contraves Inc., Balzers
Process Systems Inc., Balzers Tool Coating Inc., Leybold Vacuum Products Inc.,
Leybold Inficon Inc., Leybold Materials Inc. and Balzers Thin Films Inc. The
offices of Parent are located at 420 Fifth Avenue, New York, New York 10018.
13
<PAGE> 16
Offeror is a Florida corporation, newly formed by Parent in connection with
the Offer and the transactions contemplated thereby. The offices of Offeror are
located at Hofweisenstrasse 135, CH-8021 Zurich, Switzerland. Parent directly
owns all the outstanding capital stock of Offeror. It is not anticipated that,
prior to the consummation of the Offer and the Merger, Offeror will have any
significant assets or liabilities or will engage in any activities other than
those incident to the Offer and the Merger.
For certain information concerning the directors and executive officers of
OBH, Parent and Offeror see Schedule I to this Offer to Purchase.
Except as set forth in this Offer to Purchase: (i) none of OBH, Parent or
Offeror or, to the best knowledge of any of the foregoing, any of the persons
listed in Schedule I to this Offer to Purchase or any associate or majority
owned subsidiary of any of the foregoing, beneficially owns or has a right to
acquire any Shares or any other equity securities of the Company; (ii) none of
OBH, Parent or Offeror or, to the best knowledge of any of the foregoing, any of
the persons or entities referred to in clause (i) above or any of their
executive officers, directors, or subsidiaries has effected any transaction in
the Shares or any other equity securities of the Company during the past 60
days; (iii) none of OBH, Parent or Offeror or, to the best knowledge of any of
the foregoing, 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, contracts, arrangements, understandings or relationships concerning the
transfer or voting thereof, joint ventures, loan or option arrangements, puts or
calls, guaranties of loans, guaranties against loss or the giving or withholding
of proxies, consents or authorizations; (iv) since December 1, 1996, there have
been no transactions or business relationships that would be required to be
disclosed under the rules and regulations of the Commission between any of OBH,
Parent, Offeror or any of their respective subsidiaries or, to the best
knowledge of any of OBH, Parent or Offeror, any of the persons listed in
Schedule I to this Offer to Purchase, on the one hand, and the Company or any of
its executive officers, directors or affiliates, on the other hand; and (v)
since December 1, 1996, there have been no contacts, negotiations or
transactions between any of OBH, Parent, Offeror or any of their respective
subsidiaries or, to the best knowledge of any of OBH, Parent, Offeror or any of
their directors or executive officers, on the one hand, and the Company or its
subsidiaries or 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
assets of the Company or any of its subsidiaries.
Richard T. Heglin, a director of the Company, was, until his retirement in
February 1999, President of Leybold Semiconductor Vacuum System, a division of
Leybold Vakuum GMBH and President of Balzers and Leybold Taiwan, which are
subsidiaries of OBH. Except for Mr. Heglin's directorship, none of OBH, Parent
or Offeror had any relationship with the Company prior to the commencement of
the discussions which led to the execution of the Merger Agreement. See Section
11. Each of OBH, Parent and Offeror disclaims that it is an "affiliate" of the
Company within the meaning of Rule 13e-3 under the Exchange Act.
10. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by Offeror to purchase all of the
Shares, to cancel all of the Company Options pursuant to the Merger Agreement
and to pay Parent's related fees and expenses is expected to be approximately
$165 million. Offeror intends to obtain all of such funds from Parent which in
turn will obtain such funds directly from OBH's existing working capital.
11. BACKGROUND OF THE OFFER.
In September 1999, at the Company's direction, CIBC World Markets Corp.,
the Company's financial advisor, contacted Dr. Martin E. Bader, head of the
semiconductor division of Balzers Limited, a wholly-owned subsidiary of OBH,
concerning OBH's interest in a possible transaction with the Company. Balzers
Limited subsequently executed a confidentiality agreement with the Company and,
on September 23, 1999, OBH received the Company's guidelines for submitting an
acquisition proposal, which set a deadline for submissions of September 27,
1999.
14
<PAGE> 17
On September 23, 1999, OBH requested and received an extension of the
September 27 deadline until October 4, 1999, when it submitted an initial
non-binding letter of interest to acquire 100% of the Company for between $65
million and $80 million in cash. The letter stated that the proposal was based
on OBH's review of the Company's public filings and management's projections for
the current fiscal year and that the final price would be determined after the
completion of OBH's due diligence review of the Company.
On October 5, 1999, the Company, through its financial advisor, informed
OBH that its offer was inadequate and therefore would not be invited to continue
to participate in the Company's process unless OBH increased its proposed price.
On November 5, 1999, Dr. Bader and representatives of Blackwood Capital
Group, financial advisor to OBH, met in St. Petersburg with Ronald H. Deferrari,
Chairman of the Company.
On November 8, 1999, the parties discussed a possible alternative
transaction involving the merger of certain parts of present United States
operations of Balzers and Leybold Holdings AG, the semi-conductor division of
OBH, with the Company's operations in a transaction in which the Company's
shareholders would receive a combination of cash and stock in the combined
company (a "Partial Stock Transaction"). When the Company requested that OBH
clarify certain elements of the alternative transaction, representatives of OBH
informed the Company that OBH was prepared to consider a Partial Stock
Transaction, but rejected certain conditions put forth by the Company. OBH also
reiterated its interest in pursuing an all cash transaction for all of the
Company. In either case, OBH said it was prepared to offer an aggregate of $120
million for the Company (or approximately $10.00 per Share), subject to the
outcome of its due diligence review.
On November 10, 1999, the Company authorized OBH and its financial and
legal advisors to conduct a due diligence investigation of the Company and, on
November 15, 1999, provided a draft Merger Agreement to Parent.
On November 16 and 17, 1999, representatives of the Company delivered a
presentation reviewing the Company's technology and intellectual property to Dr.
Willy Kissling, Chairman and President of OBH and Mr. Heinz Kundert, Chief
Operating Officer of Balzers and Leybold Holdings AG, a wholly-owned subsidiary
of OBH.
On November 19, 1999, OBH gave to the Company a verbal indication that it
would be willing to increase its cash offer and, on November 22, 1999, after
substantially completing its due diligence review of the Company, OBH submitted
a revised proposal to purchase all of the outstanding shares of the Company at a
price of $11.25 per Share in cash, subject to certain other terms and conditions
including completion of due diligence and approval of OBH's Board of Directors.
On November 22, 1999, the Company, through its financial advisor, rejected
OBH's offer of $11.25 per share and informed OBH that it had determined to
negotiate with another party and, on November 30, 1999, OBH stated that it was
prepared to increase its proposal to $12.50 per Share, subject to completing its
due diligence and approval of its Board of Directors. The Company's Board of
Directors discussed the increased proposal at its meeting on December 2, 1999.
Following its Board of Directors meeting on December 3, 1999, OBH confirmed that
the $12.50 price per Share was its final best offer.
Thereafter, the Company, OBH and their respective legal and financial
advisors negotiated the Merger Agreement and related documentation. The Merger
Agreement and related documents were executed on December 20, 1999, following
approval by the respective Boards of Directors of OBH, Parent and the Company.
On December 20, 1999, OBH and the Company issued a joint press release in the
United States announcing the execution of the Merger Agreement.
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY; THE TRANSACTION
DOCUMENTS.
Purpose of the Offer and the Merger
The purpose of the Offer is to enable OBH, through Parent, to acquire
control of, and the entire equity interest in, the Company. The purpose of the
Merger is to acquire all outstanding Shares not purchased pursuant to the Offer.
The purchase of Shares pursuant to the Offer will increase the likelihood that
the
15
<PAGE> 18
Merger will be effected. Following the completion of the Offer, Parent intends
to acquire any remaining Shares not then owned by it by consummating the Merger.
In the Merger, each outstanding Share (other than Shares held by the Excluded
Shareholders), will be converted into the right to receive the Merger
Consideration, without interest, and the Company will become a wholly-owned
subsidiary of Parent and OBH.
The acquisition of the entire interest in the Company is structured as a
cash tender offer followed by a merger in order to expedite the opportunity for
Parent to obtain a controlling interest in the Company. Under Florida Law and
the Company's articles of incorporation, the affirmative vote of the holders of
a majority of the outstanding Shares is required to approve the Merger. If the
Minimum Condition is satisfied, Parent would have sufficient voting power to
approve the Merger without the affirmative vote of any other shareholder of the
Company.
Plans for the Company
Following the Offer and the Merger, OBH and Parent intend to operate the
Company on a basis generally consistent with the Company's existing plans and
programs. If and to the extent that the Parent acquires control of the Company,
Parent intends to conduct a detailed review of the Company and its assets,
corporate structure, capitalization, operations, properties, policies,
management and personnel and consider and determine what, if any, changes would
be desirable in light of the circumstances that then exist. Such strategies
could include, among other things and subject to the terms of the Merger
Agreement, changes in the Company's business, corporate structure, articles of
incorporation, bylaws, capitalization, management or dividend policy.
Except as noted in this Offer to Purchase, OBH, Parent and Offeror have no
present plans or proposals that would result in an extraordinary corporate
transaction, such as a merger, reorganization, liquidation, or sale or transfer
of a material amount of assets, involving the Company or any subsidiary of the
Company or any other material changes in the Company's capitalization, dividend
policy, corporate structure, business or composition of its management or Board
of Directors.
The Transaction Documents
The Merger Agreement
The following is a summary of the material terms of the Merger Agreement.
This summary is not a complete description of the terms and conditions thereof
and is qualified in its entirety by reference to the full text thereof, which is
incorporated herein by reference and a copy of which has been filed with the
Commission as an exhibit to the Schedule 14D-1 and is available in the manner
set forth in Section 8. This summary of the Merger Agreement shall, for purposes
of Section 607.1104(2) of the Florida Law, constitute the summary of the plan of
merger mailed by Parent to each shareholder of the Company. The Merger Agreement
may be examined, and copies thereof may be obtained, as set forth in Section 8.
The Offer. The Merger Agreement provides for the commencement of the Offer
and prescribes certain conditions to the consummation of the Offer. In
connection with the Offer, Parent and Offeror have expressly reserved the right
to waive certain conditions to the Offer, but without the prior written consent
of the Company, Offeror has agreed not to (i) decrease the price per Share
offered in the Offer, (ii) change the form of consideration offered or payable
in the Offer, (iii) decrease the numbers of Shares sought in the Offer, (iv)
change the conditions to the Offer, (v) impose additional conditions to the
Offer, (vi) amend any term of the Offer; in each case, in any manner adverse to
the holders of Shares; or waive the Minimum Condition. Notwithstanding the
foregoing, Offeror may, without the consent of the Board of Directors of the
Company, extend and re-extend the Offer (provided that all such extensions shall
not extend the Offer beyond June 30, 2000) (a) on one or more periods of time
not to exceed ten business days for each particular extension (i) if on the
scheduled Expiration Date of the Offer any of the conditions to the Offer shall
not have been satisfied or waived, (ii) for such period as may be required by
any rule, regulation, interpretation or position of the Commission or its staff
applicable to the Offer, (iii) for any period required by applicable law and (b)
if on such expiration date there has been validly tendered and not withdrawn
more than 50% but less than 80% of the outstanding Shares, for an aggregate
period of twenty days beyond the latest expiration date that would otherwise be
permitted. The Merger Agreement provides that if certain conditions to the Offer
are not satisfied by the Expiration Date, at the request of the Company, the
Offeror shall extend and re-extend the
16
<PAGE> 19
Offer on one or more periods of time for periods not to exceed five business
days for each particular extension; provided that the Offeror shall not extend
the Offer beyond June 30, 2000. In addition, Offeror has agreed that, without
the prior written consent of the Company, it will not (i) decrease the price per
Share offered in the Offer, (ii) change the form of consideration offered or
payable in the Offer, (iii) decrease the numbers of Shares sought in the Offer,
(iv) change the conditions to the Offer, (v) impose additional conditions to the
Offer, (vi) amend any term of the Offer; in each case, in any manner adverse to
the holders of Shares; or waive the Minimum Condition.
Consideration to Be Paid in the Merger. The Merger Agreement provides that
subject to the terms and conditions set forth in the Merger Agreement and the
applicable provisions of Florida Law, Offeror shall be merged with and into the
Company and the separate existence of Offeror will cease, and the Company shall
be the Surviving Corporation and shall be a wholly owned subsidiary of Parent.
In the Merger, each share of common stock, par value $0.01 per share, of Offeror
issued and outstanding immediately prior to the time of filing of articles of
merger relating to the Merger with the Department of State of the State of
Florida, or such later time as is set forth therein (the "Effective Time"),
shall continue to remain outstanding and shall constitute one share of common
stock of the Surviving Corporation. At the Effective Time, each outstanding
Share (other than Shares owned by Parent or any direct or indirect subsidiary of
Parent or the Excluded Shareholders or shares owned by the Company or any direct
or indirect subsidiary of the Company), shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into the
right to receive the Merger Consideration, without interest. The Merger
Agreement provides that (subject to the provisions of the Merger Agreement and
the applicable provisions of Florida Law) the closing of the Merger shall occur
on the later to occur of (i) the business day on which the condition set forth
in Section 9.1 of the Merger Agreement is satisfied or waived in accordance with
the Merger Agreement and (ii) the first business day following the date on which
the last to be satisfied or waived of the other conditions set forth in the
Merger Agreement (other than those conditions that by their nature are to be
satisfied at the closing of the Merger, but subject to the satisfaction or
waiver of those conditions) are satisfied or waived in accordance with the
Merger Agreement.
Treatment of Stock Options. The Merger Agreement provides that each
Company Option, whether vested or unvested, shall be acquired by the Company at
the Effective Time for a cash payment by the Company, for each Share subject to
a Company Option, in an amount equal to the excess, if any, of Merger
Consideration over the per share exercise price of such Company Option, without
interest.
Board Representation. The Merger Agreement provides that, promptly upon
the acceptance for payment of, and payment by Offeror in accordance with the
Offer for, not less than that number of Shares equal to the Minimum Shares,
Offeror shall be entitled to designate such number of directors, rounded up to
the next whole number, as will give Offeror representation on the Board of
Directors of the Company equal to the product of (i) the total number of
directors on the Board of Directors of the Company (giving effect to the
directors elected pursuant to this sentence) and (ii) the percentage that such
number of Shares owned in the aggregate by Offeror or Parent, upon such
acceptance for payment, bears to the number of Shares outstanding. Upon the
written request of Offeror, the Company shall, on the date of such request, (x)
either increase the size of the Board of Directors or use its best efforts to
secure the resignations of such number of its incumbent directors as is
necessary to enable Parent's designees to be so elected to the Board of
Directors of the Company and (y) cause Parent's designees to be so elected;
provided, however, that prior to the Effective Time Parent's designees on the
Board of Directors of the Company shall not exceed 75% of the Board. The
Company's obligations to appoint designees to the Board of Directors are subject
to Section 14(f) of the Exchange Act.
The Merger Agreement also provides that, prior to the Effective Time, the
Board of Directors of the Company shall always have at least three members who
are neither officers of Parent nor designees, shareholders or affiliates of
Parent or Parent's Affiliates ("Parent Insiders"). In the event that Parent's
designees are elected or appointed to the Board of Directors at the Company
prior to the Effective Time the affirmative vote of at least a majority of the
directors of the Company who are not Parent Insiders shall be required to (i)
amend or terminate the Merger Agreement, (ii) extend the time for the
performance of the
17
<PAGE> 20
obligations of Parent or Offeror or waive the Company's rights under the Merger
Agreement or (iii) take any other action by the Company's Board of Directors
with respect to the Merger Agreement and the transactions contemplated hereby
which adversely affects the ability of the shareholders of the Company to
receive the Merger Consideration.
Shareholder Meeting. The Merger Agreement provides that, if approval or
action in respect of the Merger by the Shareholders of the Company is required
by applicable law, the Company, acting through the Board of Directors, shall (i)
call as promptly as practicable following consummation of the Offer, a meeting
of its shareholders (the "Shareholder Meeting") for the purpose of voting upon
the Merger, (ii) hold the Shareholder Meeting as soon as practicable following
the purchase of Shares pursuant to the Offer, and (iii) recommend to its
shareholders the approval of the Merger. At the Shareholders Meeting, Parent and
Offeror shall cause all Shares then owned by them to be voted in favor of
approval and adoption of the Merger. The Merger Agreement provides that,
notwithstanding the foregoing, if Parent, Offeror or any other subsidiary of
Parent shall acquire at least 80% of the outstanding Shares and preferred stock,
if any, the parties thereto shall take all necessary and appropriate action to
cause the Merger to become effective as soon as practicable after the expiration
of the Offer without a shareholders meeting in accordance with Section 607.1104
of the Florida Law.
Representations and Warranties. The Merger Agreement contains various
representations and warranties of the parties thereto. These include
representations and warranties by the Company with respect to (i) the due
organization, existence, qualification, active status, corporate power and
authority of the Company and its subsidiaries; (ii) the capital structure of the
Company; (iii) the due authorization, execution, delivery and performance of the
Merger Agreement and the consummation of transactions contemplated thereby, and
the validity and enforceability thereof; (iv) the recommendation of the Company
Board of Directors; (v) the receipt of the Financial Advisor's opinion; (vi)
required filings, consents and approvals and the absence of any violations,
breaches or defaults that would result from performance by the Company of the
Merger Agreement; (vii) the accuracy of reports filed by the Company with the
Commission (including financial statements) since November 30, 1998; (viii) the
absence of any undisclosed material liabilities; (ix) the absence of certain
changes or events; (x) the absence of any material litigation; (xi) certain
employee benefit matters; (xii) compliance with applicable laws, licenses and
permits; (xiii) the non-applicability of antitakeover statutes; (xiv) compliance
with environmental matters relating to the Company; (xv) certain tax matters;
(xvi) certain intellectual property matters; (xvii) year 2000 compliance;
(xviii) labor matters; (xix) the absence of brokers or finders other than the
Financial Advisor; (xx) title to assets; (xxi) the validity and enforceability
of material contracts; (xxii) the validity of and enforceability of insurance
policies; (xxiii) no material misstatements or omissions in the information
supplied by the Company for inclusion in the Offer documents; and (xxiv)
shareholder approvals.
Parent and Offeror have also made certain representations and warranties,
including with respect to (i) the due organization, existence, good standing and
corporate power and authority of Parent and its subsidiaries; (ii) the due
authorization, execution, delivery and performance of the Merger Agreement and
the Tender and Voting Agreement and the consummation of transactions
contemplated thereby, and the validity and enforceability thereof; (iii)
required filings, consents and approvals and the absence of any violations,
breaches or defaults which would prohibit, materially delay, or materially
adversely affect consummation of the Offer and the Merger by Parent; (iv)
compliance with laws; (v) the non-applicability of antitakover statutes; (vi)
the sufficiency of funding available to Parent and Offeror for the consummation
of the Merger; and (vii) no material misstatements or omissions in the
information provided by Parent for inclusion in the Offer documents.
Conduct of Interim Operations. The Company has agreed that, from the date
of the Merger Agreement to the Effective Time, the Company shall, and shall
cause each of its subsidiaries to: (i) conduct its operations and business in
the ordinary and usual course; (ii) use its best reasonable efforts to keep the
business organization intact and maintain its existing relations and goodwill
with customers, suppliers, distributors, creditors, lessors, employees and
business associates, maintain in effect all existing material qualifications,
licenses, permits, approvals and other authorizations, comply with all
applicable laws, keep available the services of their officers and employees and
maintain satisfactory relationships with those persons having
18
<PAGE> 21
business relationships with them; (iii) promptly upon the discovery thereof,
notify Parent of the existence of any breach of any representation or warranty
contained in the Merger Agreement (or, in the case of any representation or
warranty that makes no reference to a Company Material Adverse Effect (as
defined below), any breach of such representation or warranty in any material
respect) or the occurrence of any event that would cause any representation or
warranty contained in the Merger Agreement to no longer to be true and correct
(or, in the case of any representation or warranty that makes no reference to a
Company Material Adverse Effect, to no longer be true and correct in any
material respect).
The Company has agreed that from the date of the Merger Agreement to the
Effective Time, with certain exceptions, unless Parent has consented in writing,
the Company shall not, and shall not permit any of its subsidiaries to: (i)
except to the extent required by law or the rules and regulations of the Nasdaq,
amend its articles of incorporation or bylaws; (ii) split, combine or reclassify
its outstanding shares of capital stock; (iii) declare, set aside or pay any
dividend; (iv) repurchase, redeem or otherwise acquire any shares of its capital
stock or any securities convertible into or exchangeable or exercisable for any
shares of its capital stock; (v) issue, sell, pledge, dispose of or encumber any
shares of, or securities convertible into or exchangeable or exercisable for, or
options, warrants, calls, commitments or rights of any kind to acquire, any
shares of its capital stock of any class or any other property or assets; (vi)
lease, license, guarantee, mortgage, pledge, or encumber any other property or
assets or incur or modify any material indebtedness for borrowed money or
guarantee any such indebtedness; (vii) transfer, sell or dispose of any other
property or assets other than in the ordinary course of business; (viii) make
any significant acquisition of, or investment in, assets or stock of any person;
(ix) terminate, establish, adopt, enter into, make any new grants or awards
under, amend or otherwise modify, any benefit plans of the Company, or increase
the salary, wage, bonus or other compensation of any employees; (x) enter into
any transaction involving a merger, consolidation, reorganization, share
exchange, or similar transaction involving, or any purchase of any assets or any
securities of it; (xi) settle or compromise any pending or threatened
litigation; (xii) assume, guarantee or otherwise become liable or responsible
for the obligations of any other person; (xiii) make or forgive any loans,
advances or capital contributions to, or investments in, any other person; (xiv)
make any tax election or settle any tax liability; (xv) waive, amend or allow to
lapse any term or condition of any confidentiality or "standstill" agreement;
(xvi) grant or amend any stock related or performance awards except as specified
in the Merger Agreement; (xvii) make any material changes in the type or amount
of their insurance coverage or permit any insurance policy to be canceled or
terminated other than in the ordinary course of business; (xviii) make any
capital expenditures in the aggregate for the Company in excess of the amounts
specified in the Company's budget for capital expenditures, or otherwise acquire
assets not in the ordinary course of business; (xix) change any material
accounting principles or practices used by the Company except as may be required
by law or generally acceptable accounting principles; (xx) enter into any
contracts for derivatives; (xxi) waive, relinquish, release or terminate any
right or claim, including any such right or claim under any material contract or
permit any rights of material value to use any intellectual property to lapse or
be forfeited; (xxii) take any action to cause the Shares to be delisted from the
Nasdaq prior to the consummation of the Offer; and (xxiii) authorize or enter
into an agreement to do anything prohibited by the foregoing.
Access to Information. From the date of the Merger Agreement to the
Effective Time, the Company has agreed to afford to the officers, employees,
accountants, counsel, financial advisors and other representatives of Parent
full access during normal business hours to all of its properties, books,
contracts, records, personnel, offices and other facilities and its accountants
and accountants' work papers, and, during such period, the Company has agreed to
furnish promptly to Parent, all information concerning its business, properties
and personnel as Parent may reasonably request. The Company is not required to
disclose any information that would result in the disclosure of trade secrets of
third parties or violate confidentiality agreements with third parties if the
Company has made a reasonable effort to obtain consent to such disclosure from
the third parties. All requests must be directed to an executive officer of the
Company or their designee. All disclosures of information are governed by the
terms of the confidentiality agreement, dated as of September 1, 1999, between
the Company and Balzers Limited.
No Solicitation. Pursuant to the Merger Agreement, the Company has agreed
that neither it nor any of its officers and directors shall, and that it shall
direct and use its best reasonable efforts to cause its employees,
19
<PAGE> 22
agents and other representatives (including any investment banker, attorney or
accountant retained by it) (collectively, "Representatives") not to, directly or
indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries
or the making of any proposal or offer with respect to an Acquisition Proposal
(as defined below). The Company also agreed that neither it nor any of its
officers and directors shall, and that it shall direct and use its reasonable
best efforts to cause its and its subsidiaries' Representatives not to, directly
or indirectly, engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any person
relating to an Acquisition Proposal, or otherwise facilitate any effort or
attempt to make or implement an Acquisition Proposal; provided, however, that
nothing contained in the Merger Agreement shall prevent either the Company or
any of its Representatives or the Board of Directors of the Company from (A)
complying with Rule 14e-2 promulgated under the Exchange Act with regard to an
Acquisition Proposal or otherwise complying with the Exchange Act; (B) providing
information in response to a request therefor by a person who has made an
unsolicited written Acquisition Proposal; (C) engaging in any negotiations or
discussions with any person who has made an unsolicited Acquisition Proposal or
otherwise facilitating any effort or attempt to implement an Acquisition
Proposal if (i) the Acquisition Proposal is a Superior Proposal (as defined
below) and (ii) the Company's Board of Directors determines, upon advice from
outside legal counsel to the Company, that the failure to engage in the
negotiations or discussions or provide the information would result in a breach
of the fiduciary duties of the Board of Directors of the Company under
applicable law. The Company has agreed that any information furnished to any
person in connection with any Acquisition Proposal shall be provided pursuant to
a confidentiality and standstill agreement on customary terms. Subject to all of
the foregoing requirements, the Company will immediately notify Parent orally
and in writing if any discussions or negotiations are sought to be initiated,
any inquiry or proposal is made, or any information is requested by any Person
with respect to any Acquisition Proposal or which could lead to an Acquisition
Proposal and immediately notify Parent of all material terms of any Acquisition
Proposal on a timely, ongoing basis of the status and content of any discussions
or negotiations with any person.
In the event the Board of Directors of the Company has determined that an
Acquisition Proposal constitutes a Superior Proposal, (i) the Company shall
promptly notify Parent and (ii) for a period of three business days after
delivery of such notice, the Company and its representatives, if requested by
Parent, shall negotiate in good faith with Parent to make such adjustments to
the terms and conditions of the Merger Agreement as would enable the Company to
proceed with the transactions contemplated hereby on such adjusted terms. After
such three business day period, the Board of Directors of the Company may then
(and only then) withdraw or modify its approval or recommendation of the Merger
and the Merger Agreement and recommend the Superior Proposal.
The Company agrees not to release any person from, or waive any provision
of, any standstill agreement to which it is a party or any confidentiality
agreement between it and another person who has made, or who may reasonably be
considered likely to make, an Acquisition Proposal, or with whom the Company or
any of its Representatives have had discussions regarding a proposed, potential
or contemplated Company Acquisition Transaction (as defined below) unless the
Company's Board of Directors shall conclude, in good faith, that such action
will lead to a Superior Proposal and after considering applicable provisions of
state law, and upon advice from outside legal counsel to the Company, with
respect to whether such action is required for the Board of Directors to act in
a manner consistent with its fiduciary duties under applicable law.
For purposes of the Merger Agreement, "Acquisition Proposal means, with
respect to the Company, any inquiry, proposal or offer from any person relating
to any (A) direct or indirect acquisition or purchase of a business of the
Company or any of its subsidiaries, that constitutes 25% or more of the
consolidated net revenues, net income or assets of the Company and its
subsidiaries, (B) direct or indirect acquisition or purchase of 25% or more of
any class of equity securities of the Company or any of its subsidiaries whose
business constitutes 25% or more of the consolidated net revenues, net income or
assets of the Company and its subsidiaries, (C) tender offer or exchange offer
that if consummated would result in any person beneficially owning 25% or more
of the capital stock of the Company, or (D) merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving the Company or any of its subsidiaries whose business constitutes 25%
or more of the consolidated net revenues, net income or assets of the Company
20
<PAGE> 23
and its subsidiaries. Each of the transactions referred to in clauses (A)-(D) of
the definition of Acquisition Proposal, other than any such transaction to which
Parent or any of its subsidiaries is a party, is referred to as a "Company
Acquisition Transaction."
"Superior Proposal" means any bona fide written offer made by a person to
acquire, directly or indirectly, for consideration consisting of cash and/or
securities, all of the Shares then outstanding or all or substantially all the
assets of the Company (A) on terms that the Board of Directors of the Company
determines in its good faith judgment (after consultation with a financial
advisor of nationally recognized reputation and taking into account all the
terms and conditions of the offer deemed relevant by such Board of Directors,
including any break-up fees, expense reimbursement provisions, conditions to
consummation, and the ability of the party making such proposal to obtain
financing for such offer) are materially more favorable from a financial point
of view to its shareholders than $12.50 per Share; and (B) that constitutes a
transaction that, in such Board of Directors' judgment, is reasonably likely to
be consummated on the terms set forth, taking into account all legal, financial,
regulatory and other aspects of such proposal.
Except as expressly permitted in the Merger Agreement, neither the Board of
Directors of the Company nor any committee thereof may withdraw or modify, or
propose publicly to withdraw or modify, in a manner adverse to Parent, the
approval or recommendation by the Board of the Merger Agreement or the Merger,
or approve or recommend, or propose publicly to approve or recommend, any
Acquisition Proposal or Company Acquisition Transaction. The Company may take
and disclose to its shareholders a position contemplated by Rule 14e-2
promulgated under the Exchange Act. The Company has agreed to immediately cease
and cause to be terminated any existing discussions or negotiations with any
parties conducted prior to the signing of the Merger Agreement with respect to
any Acquisition Proposal.
Fees and Expenses. Parent has agreed to pay all expenses, including those
of the paying agent relating to the exchange of certificates in the Merger, and
payment to shareholders exercising dissenters' rights, if any. Except as
described below in the section entitled "Termination," whether or not the Merger
is consummated, all other costs and expenses incurred in connection with the
Merger Agreement, the Offer and the Merger and the other transactions
contemplated by the Merger Agreement shall be paid by the party incurring any
such expense.
Filing; Other Action. The Merger Agreement provides that the Company and
Parent shall promptly make their respective filings under the HSR Act and shall
cooperate with each other and use (and shall cause their respective subsidiaries
to use) their respective best reasonable efforts to take or cause to be taken
all actions, and do or cause to be done all things, necessary, proper or
advisable under the Merger Agreement, and applicable laws to consummate the
Offer and make effective the Merger and the other transactions contemplated by
the Merger Agreement as soon as practicable, including preparing and filing as
promptly as practicable all necessary applications, notices, petitions, filings
and other documents and to obtain as promptly as practicable all permits,
consents, approvals and authorizations necessary or advisable to be obtained
from any third party and/or any U.S. governmental or regulatory authority,
agency, commission, body or other governmental entity in order to consummate the
Offer and the Merger or any of the other transactions contemplated by the Merger
Agreement. Parent and the Company agree to use their reasonable best efforts to
contest any proceeding seeking a preliminary injunction or other legal
impediment to the Offer or the Merger; provided that Parent shall not be
required to agree to limitations on its ability to operate the business of the
Company, or to divest material assets.
The Merger Agreement also contains agreements on (i) notification of
certain matters, (ii) the shareholder meeting, (iii) the preparation of a proxy
statement and its compliance with federal securities laws, (iv) public
announcements with respect to any of the transactions contemplated by the Merger
Agreement, and (v) takeover statutes.
Conditions to the Merger. The Merger Agreement provides that the
respective obligation of each party to effect the Merger is subject to the
satisfaction or waiver at or prior to the closing of the Merger of each of the
following conditions: (i) if the approval of the Merger Agreement and the Merger
by the holders of Shares is required by applicable law, the Merger Agreement
shall have been duly adopted by holders of a majority of the Shares outstanding;
(ii) any waiting period applicable to the consummation of the Merger under the
HSR Act shall have expired or been terminated; (iii) no court or governmental
entity of competent jurisdiction shall
21
<PAGE> 24
have enacted, issued, enforced or entered any statute, rule, regulation,
judgment, decree, injunction or other order that is in effect and permanently
restrains, enjoins or otherwise prohibits consummation of the Merger; and (iv)
Offeror shall have purchased an amount of Shares equal to at least the Minimum
Condition pursuant to the Offer.
Termination.
Termination by Mutual Consent. The Merger Agreement may be terminated and
the Merger may be abandoned at any time prior to the Effective Time, by mutual
written consent of the Company, Merger Sub and Parent by action of their
respective Boards of Directors.
Termination by Either Parent or the Company. The Merger Agreement may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time by action of the Board of Directors of either Parent or the Company (i) if
any governmental order restraining, enjoining or otherwise prohibiting
consummation of the Offer and/or the Merger shall become final and
non-appealable after the parties have used their respective reasonable best
efforts to have such governmental order removed, repealed or overturned (whether
before or after the approval by the shareholders of the Company) (ii) if the
Offer shall have expired or terminated without any Shares being purchased
therein, although this right to terminate is not be available to any party whose
failure to fulfill any obligation under the Merger Agreement has been the cause
of, or resulted in, the failure of the Merger Sub to purchase Shares in the
Offer; or (iii) if the Effective Time shall not occur by June 30, 2000, unless
the Effective Time shall not have occurred because of a material breach of the
Merger Agreement by the party seeking to terminate the Merger Agreement.
Termination by the Company. The Merger Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, by action of
the Board of Directors of the Company:
(i) at any time prior to the time Parent, Merger Sub or any of their
affiliates shall purchase Shares pursuant to the Offer, upon three business
days' prior notice to Parent if, as a result of a Superior Proposal, (A)
the Board of Directors shall have concluded in good faith, after
considering applicable provisions of state law and after consultation with
outside counsel, that the failure to accept such Superior Proposal could
reasonably be expected to constitute a breach by its Board of Directors of
its fiduciary duties; (B) the Company shall have complied with all its
obligations under the Merger Agreement; and (C) during the three business
days prior to any such termination, the Company shall, and shall cause its
respective financial and legal advisors to, in good faith, seek to
negotiate with Parent to make such adjustment in the terms and conditions
of the Merger Agreement as would enable the Company to proceed with the
transactions contemplated herein; or
(ii) if, prior to the purchase of Shares pursuant to the Offer, there
has been a material breach or failure to perform by Parent or Merger Sub of
any of their respective material covenants or agreements contained in the
Merger Agreement, which breach or failure to perform is not curable, or if
curable, has not been cured within five days after written notice of such
breach or failure is given by the Company to the party committing such
breach or failure, except, in any case, such breaches or failures which are
not reasonably likely to materially and adversely affect Parents' or Merger
Sub's ability to consummate the Offer or the Merger.
Termination by Parent. The Merger Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time by Parent:
(i) if, due to an occurrence that, if occurring after the commencement
of the Offer, would result in a failure to satisfy any of the conditions to
the Offer, Parent, Merger Sub, or any of their affiliates shall have failed
to commence the Offer on or prior to five business days following the date
of the initial public announcement of the Offer; except that Parent may not
terminate under this provision if Parent is in material breach of the
Merger Agreement; or
(ii) if, prior to the purchase of Shares pursuant to the Offer, the
Board of Directors of the Company shall have withdrawn, or modified or
changed in a manner adverse to Parent or Merger Sub its approval
22
<PAGE> 25
or recommendation of the Offer, the Merger Agreement or the Merger or shall
have recommended a Superior Proposal or shall have resolved to do either of
the foregoing; or
(iii) if, prior to the purchase of Shares pursuant to the Offer, there
has been a material breach or failure to perform by the Company of any of
its material covenants or agreements contained in the Merger Agreement,
which breach or failure to perform is not curable, or if curable, has not
been cured within five days after written notice of such breach or failure
is given by Parent to the Company.
Effect of Termination and Abandonment. In the event of termination of the
Merger Agreement and the abandonment of the Merger, written notice must be given
to the other party or parties specifying the provision hereof pursuant to which
such termination is made; and the Merger Agreement shall become void and of no
effect with no liability on the part of any party hereto (or of any of its
directors, officers, employees, agents, legal and financial advisors or other
representatives) except as provided in Section 10.5(b) of the Merger Agreement;
provided, however, (i) no such termination shall relieve any party of any
liability or damages resulting from any fraud or willful breach of the Merger
Agreement and (ii) notwithstanding (i) above, in the event the Merger Agreement
is terminated by Parent because of a willful breach of a representation or
warranty of the Company then the maximum amount Parent may recover is a
reimbursement of its out-of-pocket expenses not to exceed $1,500,000.
Termination Fees. In the event that (I) (a) an Acquisition Proposal shall
have been made to the Company or any third party shall have publicly announced
an intention (whether or not conditional) to make an Acquisition Proposal with
respect to the Company and thereafter the Merger Agreement is terminated by the
Company or Parent under certain circumstances and (b) the Person making the
Acquisition Proposal which was outstanding at the time of the termination (the
"Acquiring Party") has entered into an agreement with the Company to consummate
such Acquisition Proposal within nine months of such termination, and such
Acquisition Proposal is consummated, or (II) any Person within nine months of
termination of the Merger Agreement has acquired, by purchase, merger,
consolidation, sale, assignment, lease, transfer or otherwise, in one
transaction or any related series of transactions a majority of the voting power
of the outstanding securities of the Company or all or substantially all of the
assets of the Company, then, in the event the circumstances described in (I) or
(II) has occurred then the Company shall promptly, pay Parent a termination fee
of $6,000,000 in same day funds to an account previously designated by Parent to
the Company in writing. The Company's payment of this termination fee is the
sole and exclusive remedy of Parent and Merger Sub against the Company and its
respective directors, officers, employees, agent, advisors or other
representatives in the event the Merger Agreement is terminated and the
termination fee is payable.
Indemnification; Directors' and Officers' Insurance. The Merger Agreement
provides that from the Effective Time, the Surviving Corporation will indemnify,
defend and hold harmless each individual and every person who is or when the
Merger Agreement was signed by the Company was a director or officer of the
Company (the "Indemnified Parties"), against any costs or expenses (including
attorneys' fees), judgments, fines, losses, claims, damages, liabilities and
amounts paid in settlement incurred in connection with any claim, action, suit,
proceeding, inquiry or investigation, whether civil, criminal, administrative or
investigative, arising out of matters existing or occurring at or prior to the
Effective Time (including transactions contemplated by the Merger Agreement),
and the Surviving Corporation shall also advance expenses as incurred to the
fullest extent permitted under applicable law, provided the person to whom
expenses are advanced provides an undertaking to repay such advances if it is
ultimately determined that such person is not entitled to indemnification.
In addition, the articles of incorporation and bylaws of the Surviving
Corporation shall contain the provisions with respect to indemnification and
exculpation from liability set forth in the Company's bylaws on the date of the
Merger Agreement and shall provide for indemnification to the fullest extent
permitted by and in accordance with Florida Law, and during the period ending on
the sixth anniversary of the Effective Time, such provisions shall not be
amended, repealed or otherwise modified in any manner that would adversely
affect the rights thereunder of any of the Indemnified Parties.
Any Indemnified Party wishing to make a claim of indemnification under the
Merger Agreement, upon learning of any such claim, action, suit, proceeding,
inquiry or investigation, is required to promptly notify
23
<PAGE> 26
Parent thereof. In the event of any such claim, action, suit, proceeding,
inquiry or investigation, (i) the Surviving Corporation shall have the right
within ten days to assume the defense thereof and the Surviving Corporation
shall not be liable to such Indemnified Parties for the legal expenses or any
other expenses subsequently incurred by such Indemnified Parties in connection
with the defense thereof, and (ii) the Surviving Corporation shall not be liable
for any settlement effected without its prior written consent and no Indemnified
Party shall be liable for any settlement effected without its prior written
consent unless such settlement includes a complete unconditional release of all
claims against such Indemnified Parties.
The Merger Agreement also provides that the Surviving Corporation shall
maintain the Company's existing officers' and directors' liability insurance
until July 31, 2002 and shall agree to indemnify the directors and officers of
Company to the fullest extent permitted by Florida law for acts or omissions by
them in their capacity as such existing or occurring at or prior to the
Effective Time, including the transactions contemplated by the Merger Agreement.
Certain Employee Matters. Pursuant to the Merger Agreement, Parent has
agreed that until the first anniversary of the Effective Time, the employees of
the Company will continue to be provided with benefits under employee benefit
plans that are no less favorable in the aggregate than the employee benefit
plans currently provided by the Company. Parent has also agreed to (i) cause
service by employees of the Company and its Subsidiaries to be taken into
account for all purposes under any benefit plans of Parent or its Subsidiaries,
(ii) cause to be waived any pre-existing condition limitations under benefit
plans of Parent or its Subsidiaries in which employees of the Company
participate and (iii) cause to be credited to any deductible or out-of-pocket
expense of Parent's plans any deductibles and out-of-pocket expenses incurred by
such employees and their beneficiaries and dependents during the portion of the
calendar year prior to participation in the benefit plans provided by Parent and
its Subsidiaries. Parent has also agreed to honor all employee benefit
obligations to current and former employees under the Company's compensation and
benefit plans and all employee severance plans and all employment or severance
agreements of the Company entered into prior to the date hereof.
Amendment. Subject to the provisions of applicable law, at any time prior
to the Effective Time, the parties to the Merger Agreement may modify or amend
the Merger Agreement, by written agreement executed and delivered by duly
authorized officers of the respective parties; provided, that in the case of the
Company any such waiver must be approved by a majority of the directors who are
not Parent Insiders.
Timing. The exact timing and details of the Merger will depend upon legal
requirements and a variety of other factors, including the number of Shares
acquired by Offeror pursuant to the Offer. Although Parent has agreed to cause
the Merger to be consummated on the terms contained in the Merger Agreement,
there can be no assurance as to the timing of the Merger.
The Tender and Voting Agreement.
Concurrently with the execution and delivery of the Merger Agreement, each
of the Directors and Officers who hold at least 1% of the Shares outstanding on
a fully diluted basis, which represent in the aggregate approximately 24% of the
Shares outstanding on a fully diluted basis as of the date hereof, have entered
into a Tender and Voting Agreement, dated as of December 20, 1999, with Offeror
and Parent (the "Tender and Voting Agreement"). Pursuant to the Tender and
Voting Agreement, such Directors and Officers (the "T&V Shareholders") have
agreed, among other things, to tender promptly the Shares held by them pursuant
to the Offer, and not to withdraw any such Shares, and to various other
provisions described below.
Transfer of the Shares. The Tender and Voting Agreement provides that
during its term, except as otherwise expressly provided therein, each T&V
Shareholder agrees that such T&V Shareholder will not (a) tender into any tender
or exchange offer or otherwise sell, transfer, pledge, assign, hypothecate or
otherwise dispose of, or encumber with any lien, any of the Shares, except for
transfers by operation of Law; provided that any such transferee shall be bound
by the terms of the Tender and Voting Agreement, (b) acquire any Shares
(otherwise than in connection with a transaction in connection with adjustments
or by exercising any of options held by such T&V Shareholder), (c) deposit the
Shares into a voting trust, enter into
24
<PAGE> 27
a voting agreement or arrangement with respect to the Shares or grant any proxy
or power of attorney with respect to the Shares, (d) enter into any contract,
option or other arrangement (including any profit sharing arrangement) or
undertaking with respect to the direct or indirect acquisition or sale,
transfer, pledge, assignment, hypothecation or other disposition of any interest
in or the voting of any Shares or any other securities of the Company, (e)
exercise any rights (including, without limitation, under Section 607.1302 of
Florida Law) to demand appraisal of any Shares which may arise with respect to
the Merger, or (f) take any other action that would in any way restrict, limit
or interfere with the performance of such T&V Shareholder's obligations
hereunder or the transactions contemplated hereby or which would otherwise
diminish the benefits of the Tender and Voting Agreement to Parent or Offeror.
Tender of Shares. The Tender and Voting Agreement provides that each T&V
Shareholder agrees that such T&V Shareholder will validly tender (or cause the
record owner of such shares to validly tender) and sell (and not withdraw)
pursuant to and in accordance with the terms of the Offer not later than the
fifth business day after commencement of the Offer (or the earlier of the
expiration date of the Offer and the fifth business day after such Shares are
acquired by such T&V Shareholder if the T&V Shareholder acquires Shares after
the date of the Merger Agreement), or, if the T&V Shareholder has not received
the Offer documents by such time, within two business days following receipt of
such documents, all of the then outstanding Shares beneficially owned by such
T&V Shareholder (including the Shares outstanding as of the date of the Merger
Agreement and shares issued following the exercise (if any) of the T&V
Shareholder's Options.
Voting Agreement. The Tender and Voting Agreement also provides that each
T&V Shareholder (a) agrees to appear (or not appear, if requested by Parent or
Offeror) at any annual, special, postponed or adjourned meeting of the
shareholders of the Company or otherwise cause the Shares such T&V Shareholder
beneficially owns to be counted as present (or absent, if requested by Parent or
Offeror) thereat for purposes of establishing a quorum and to vote or consent,
and (b) constitutes and appoints Parent and Offeror, or any nominee thereof,
with full power of substitution, during and for the term of the Tender and
Voting Agreement, as his true and lawful attorney and proxy for and in his name,
place and stead, to vote all the Shares such T&V Shareholder beneficially owns
at the time of such vote, at any annual, special, postponed or adjourned meeting
of the shareholders of the Company (and this appointment will include the right
to sign his or its name (as shareholder) to any consent, certificate or other
document relating to the Company that the laws of the States of Delaware and
Florida may require or permit), in the case of both (a) and (b) above, (x) in
favor of approval and adoption of the Merger Agreement and approval and adoption
of the Merger and the other transactions contemplated thereby and (y) against
(1) any Acquisition Proposal, (2) any action or agreement that would result in a
breach in any respect of any covenant, agreement, representation or warranty of
the Company under the Merger Agreement and (3) any other action that is
intended, or could be expected, to impede, interfere with, delay, postpone, or
adversely affect the Offer, the Merger and the other transactions contemplated
by the Tender and Voting Agreement and the Merger Agreement.
No Solicitation. The Tender and Voting Agreement provides that, subject to
the non-solicitation provisions of the Merger Agreement, each T&V Shareholder
agrees that neither such T&V Shareholder nor any of such T&V Shareholder's
officers, directors, employees, trustees, representatives, agents or affiliates
(including, without limitation, any investment banker, attorney or accountant
retained by any of them) will directly or indirectly initiate, solicit or
encourage (including by way of furnishing non-public information or assistance),
or take any other action to facilitate, any inquiries or the making or
submission of any Acquisition Proposal, or enter into or maintain or continue
discussions or negotiate with any person or entity in furtherance of such
inquiries or to obtain or induce any person to make or submit an Acquisition
Proposal or agree to or endorse any Acquisition Proposal or assist or
participate in, facilitate or encourage, any effort or attempt by any other
person or entity to do or seek any of the foregoing or authorize or permit any
of its officers, directors, employees, trustees or any of its affiliates or any
investment banker, financial advisor, attorney, accountant or other
representative or agent retained by any of them to take any such action. Each
T&V Shareholder shall promptly advise Parent in writing of the receipt of any
request for information or any inquiries or proposals relating to an Acquisition
Proposal.
Representations and Warranties. Under the Tender and Voting Agreement, the
T&V Shareholders made customary representations and warranties to Parent and
Offeror, including with respect to their authority
25
<PAGE> 28
to enter into and perform their obligations under the Tender and Voting
Agreement, the due execution and delivery by the T&V Shareholders of the Tender
and Voting Agreement and their good title to all of their Shares, free and clear
of all encumbrances.
Each of Parent and Offeror has also made customary representations and
warranties under the Tender and Voting Agreement, including with respect to
Parent's and Offeror's authority to enter into and perform its obligations under
the Tender and Voting Agreement and the due execution and delivery by Parent and
Offeror of the Tender and Voting Agreement.
Termination. The Tender and Voting Agreement will terminate upon the
earliest of: (i) as to any T&V Shareholder, upon the purchase of all the Shares
beneficially owned by such T&V Shareholder pursuant to the Offer in accordance
with the Tender and Voting Agreement, (ii) the Effective Time, or (iii)
termination of the Merger Agreement in accordance with its terms.
The foregoing is a summary of certain provisions of the Tender and Voting
Agreement, a copy of which has been filed as an exhibit to the Schedule 14D-1
and is available in the manner set forth in Section 8. Such summary is qualified
in its entirety by reference to the text of such agreement.
Arrangements with Executive Officers of the Company.
Amendments to Existing Employment Agreements. In connection with the
execution of the Merger Agreement, Edmond Richards, Vice President of
Engineering of the Company, and Stacy Wagner, Chief Finance Officer of the
Company, entered into amendments to their existing employment agreements
("Employment Amendments"). The effectiveness of the Employment Amendments is
conditioned on Offeror's acceptance of the Shares tendered in the Offer. The
Employment Amendments both provide for extensions of the term of the employment
agreement for three years beyond the current expiration date, and also extend
the term of the non-competition provisions for two years following termination
of the agreements. The foregoing is a summary of certain provisions of the
Employment Amendments. The form of Employment Amendments has been filed as an
exhibit to the Schedule 14D-1 and is available in the manner set forth in
Section 8. Such summary is qualified in its entirety by reference to the text of
such agreements.
Termination, Noncompetition, and Mutual Release Agreement. On December 20,
1999, the current president of the Company, Ronald S. Deferrari, entered into a
Termination, Noncompetition and Mutual Release Agreement with the Company (the
"Termination Agreement"). Pursuant to the Termination Agreement, Mr. Deferrari
agreed that he and the Company would mutually terminate their employment
relationship as of the date on which Offeror first accepts and pays for any
Shares pursuant to the Offer. All of Mr. Deferrari's options to purchase shares
of common stock of the Company shall remain outstanding and shall be treated the
same as all other outstanding stock options of the Company in accordance with
the Merger Agreement. Furthermore, Mr. Deferrari agreed that the portion of his
employment agreement that includes the non-solicitation covenant and the
covenant not to compete with the Company would be modified so that the covenants
would be in effect for a period of two years from the date on which Offeror
first accepts and pays for any Shares pursuant to the Offer. The
non-solicitation covenant consists of an agreement not to solicit or attempt to
solicit, sell to, lease to or offer to sell to or offer to lease to, except on
behalf of the Company or any affiliate, any present or future customer of the
Company or an affiliate, any goods or services competitive to the goods and
services now or hereafter offered for sale or lease by the Company or any
affiliate for the two year period described above. Mr. Deferrari agreed to
release the Company from any claims that Mr. Deferrari could bring against the
Company arising out of or in connection with his employment. The Company agreed
to release Mr. Deferrari from any claim that the Company could bring against him
arising out of or in connection with his employment except for any claims
arising from or in connection with a breach of either the amended
non-solicitation covenant or the amended covenant not to compete. In
consideration of Mr. Deferrari's restrictions, release, and tendering his
resignation from any and all positions as an officer or director of the Company,
the Company agreed to pay $1,000,000 to Mr. Deferrari on the day following the
date on which Offeror first accepts and pays for any Shares pursuant to the
Offer. The foregoing is a summary of certain provisions of the Termination
Agreement. A copy of the Termination Agreement has been filed as an exhibit
26
<PAGE> 29
to the Schedule 14D-1 and is available in the manner set forth in Section 8.
Such summary is qualified in its entirety by reference to the text of such
agreement.
Other Matters.
Dissenter's Rights. Shareholders of the Company do not have dissenters'
rights as a result of the Offer. Under Florida Law, shareholders of the Company
will not have dissenters' rights in connection with the Merger if, on the record
date fixed to determine the shareholders entitled to vote on or consent to the
Merger, the Shares are listed on a national securities exchange or designated as
a national market system security on an interdealer quotation system by the NASD
or are held of record by 2,000 or more shareholders. If, however, the Shares are
not so listed or designated and are not held of record by at least 2,000
shareholders, then holders of Shares who do not vote in favor of the Merger will
have certain rights pursuant to the provisions of Sections 607.1301, 607.1302
and 607.1320 of the Florida Law to dissent and demand determination and payment
of the fair value of their Shares. If the statutory procedures are complied
with, such rights could lead to a judicial determination of the fair value
required to be paid to such dissenting holders for their Shares. The fair value
of Shares determined for the purpose of dissenters' rights could be more or less
than the Merger Consideration. Section 607.1301(2) of the Florida Law defines
"fair value" to exclude any appreciation or depreciation in anticipation of the
transaction giving rise to dissenters' rights, unless such exclusion would be
inequitable.
The Shares of any shareholder who asserts dissenters' rights under Florida
Law, but fails to perfect, or effectively withdraws or loses, his or her
dissenters' rights, as provided in Florida Law, will be converted into the right
to receive the Merger Consideration in accordance with the Merger Agreement. A
shareholder may withdraw his or her notice of election to dissent by delivery to
the Company of a written withdrawal of his or her notice of election to dissent.
THE FOREGOING SUMMARY OF THE RIGHTS OF DISSENTING SHAREHOLDERS DOES NOT
PURPORT TO BE A COMPLETE STATEMENT OF PROCEDURES TO BE FOLLOWED BY SHAREHOLDERS
DESIRING TO EXERCISE THEIR DISSENTERS' RIGHTS. FAILURE TO FOLLOW THE STEPS
REQUIRED BY FLORIDA LAW FOR PERFECTING DISSENTERS' RIGHTS MAY RESULT IN THE LOSS
OF THOSE RIGHTS.
13. DIVIDENDS AND DISTRIBUTIONS.
Pursuant to the terms of the Merger Agreement, from and after the date of
the Merger Agreement until the Effective Time, unless Parent has consented in
writing thereto, the Company shall not, and shall not permit its subsidiaries
to, (a) issue, sell, pledge, dispose of or encumber any capital stock owned by
it in any of its subsidiaries; (b) split, combine or reclassify its outstanding
shares of capital stock; (c) declare, set aside or pay any dividend payable in
cash, stock or property in respect of any capital stock; (d) repurchase, redeem
or otherwise acquire, except in connection with the Company Stock Plans, or
permit any of its subsidiaries to purchase or otherwise acquire, any shares of
its capital stock or any securities convertible into or exchangeable or
exercisable for any shares of its capital stock; or (e) issue, sell, pledge,
dispose of or encumber any shares of, or securities convertible into or
exchangeable or exercisable for, or options, warrants, calls, commitments or
rights of any kind to acquire, any shares of its capital stock of any class or
any voting debt or any other property or assets (other than the issuance of
Shares pursuant to options outstanding on the date of the Merger Agreement under
the Company stock plans and the issuance of Shares under the benefit plans of
the Company).
14. CERTAIN CONDITIONS TO THE OFFER.
Notwithstanding any other provision of the Offer, but subject to the terms
of the Merger Agreement, Offeror shall not be required to accept for payment or,
subject to any applicable rules and regulation of the Commission, pay for any
Shares, and may terminate or amend (subject to the terms and conditions of
Section 1.1 of the Merger Agreement) the Offer (i) if prior to the expiration of
the Offer (or, if extended, by the expiration of the Offer, as so extended) a
number of Shares which together with any Shares owned by
27
<PAGE> 30
Parent, Offeror, OBH and their affiliates constitutes more than 50% of the
outstanding Shares (on a fully diluted basis) shall not have been validly
tendered pursuant to the Offer and not properly withdrawn, (ii) if all
applicable waiting periods under the HSR Act or the Exon-Florio Amendment shall
not have expired or been terminated, or (iii) at any time prior to acceptance
for payment for any such Shares, any of the following events shall occur;
provided that in each such case Offeror shall not be permitted to terminate the
Offer (except pursuant to paragraph (e)(ii), e(iii) or (g) below) if prior to
the then scheduled expiration of the Offer the Offer shall have been extended:
(a) there shall have occurred (i) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States (whether or not mandatory), (ii) a formal declaration of war or
national or international calamity directly or indirectly involving the
United States, (iii) any limitation (whether or not mandatory) by any
United States governmental authority on the extension of credit by banks or
other financial institutions that materially affects the extension of
credit by banks or other lending institutions, (iv) any general suspension
of, or limitation on prices for, trading in securities on the Nasdaq or the
over-the-counter market, or (v) in the case of any of the foregoing
existing at the time of the commencement of the Offer, a material
acceleration or worsening thereof;
(b) the Company shall have breached or failed to perform any of its
obligations, covenants or agreements under the Merger Agreement in a manner
permitting Parent to terminate the Merger Agreement, or any representation
or warranty of the Company set forth in the Merger Agreement shall not have
been true and correct in all respects when made, or shall thereafter have
ceased to be true and correct in all respects as if made on such later date
(other than representations and warranties made as of a specified date);
provided that any such representations and warranties that are not
qualified by a "material adverse effect" shall be deemed to be true and
correct in all respects unless the failure of such representations and
warranties to be so true and correct in all respects would have a material
adverse effect on the Company or would prevent the Company from
consummating the transactions contemplated by the Merger Agreement;
(c) there shall be instituted or pending any action, litigation,
proceeding, investigation or other application (an "Action") before any
court or other governmental entity: (i) challenging the acquisition by
Parent or Offeror of Shares, seeking to restrain or prohibit the
consummation of the transactions contemplated by the Merger Agreement; (ii)
seeking to prohibit, or impose any limitations on, Parent's or Offeror's
acquisition, ownership or operation of all or any portion of their or the
Company's business or assets (including the business or assets of their
respective affiliates and subsidiaries); (iii) seeking to make the
acceptance for payment, purchase of, or payment for, some or all of the
Shares illegal; (iv) seeking to impose limitations on the ability of Parent
or Offeror effectively to acquire or hold or to exercise full rights of
ownership of the Shares including, without limitation, the right to vote
the Shares purchased by them on an equal basis with all other shares on all
matters properly presented to the shareholders; or (v) that, in any event,
would have a material adverse effect on the Company;
(d) any statute, rule, regulation, order or injunction shall be
enacted, promulgated, entered, enforced or become applicable to the Offer
or the Merger, or any other Action shall have been taken by any
governmental entity other than the application to the Offer or the Merger
of the waiting period under the HSR Act, that would result in any of the
effects of, or have any of the consequences sought to be obtained or
achieved in, any Action referred to in clauses (i) through (v) of paragraph
(c) above;
(e) any person (as such term is defined in Section 13(d)(3) of the
Exchange Act (other than Parent or any of its affiliates)) (i) commences a
tender or exchange offer for a majority or more of the outstanding Shares
at a price per Share greater than $12.50; (ii) shall have become the
beneficial owner of more than 25% of the outstanding Shares; or (iii) shall
have entered into a definitive agreement to acquire all or substantially
all of the Shares or to effect a merger, consolidation or other business
combination with or involving the Company;
(f) there shall have occurred an event which has caused a material
adverse effect on the financial condition, properties, business, assets,
operations or results of operations of the Company taken as a
28
<PAGE> 31
whole, including any such effect resulting from any change in economic or
business conditions generally or in the industries of the Company
specifically;
(g) the Board of Directors of the Company shall have amended, modified
or withdrawn its recommendation of the Offer or the Merger in a manner
adverse to Parent, or shall have endorsed, approved or recommended any
other Acquisition Proposal, or shall have resolved to do any of the
foregoing or shall have failed to confirm within five business days of
Parent's request therefore its recommendation of the Offer or the Merger;
or
(h) the Merger Agreement shall have been terminated by the Company or
Parent in accordance with its terms;
which, in the reasonable judgment of Parent, in any such case, and regardless of
the circumstances giving rise to any such conditions, makes it reasonably
inadvisable to proceed with the Offer and/or with such acceptance for payment of
or payment for Shares.
The foregoing conditions other than the Minimum Condition are for the sole
benefit of Parent and may be asserted by Parent or Offeror regardless of the
circumstances giving rise to such condition or may be waived by Parent other
than the Minimum Condition, by express and specific action to that effect, in
whole or in part at any time and from time to time in its sole discretion. The
failure by Parent or Offeror at any time to exercise any of the foregoing rights
will not be deemed a waiver of any right, the waiver of such right with respect
to any particular facts or circumstances shall not be deemed a waiver with
respect to any other facts or circumstances, and each right will be deemed an
ongoing right which may be asserted at any time and from time to time.
Should the Offer be terminated pursuant to the foregoing provisions, all
tendered Shares not theretofore accepted for payment shall forthwith be returned
by the Depositary to the tendering shareholders.
15. CERTAIN REGULATORY AND LEGAL MATTERS.
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company, as well as certain representations
made to Parent and Offeror in the Merger Agreement by the Company, neither
Parent nor Offeror is aware of any license or regulatory permit that appears to
be material to the business of the Company and its subsidiaries, taken as a
whole, that might be adversely affected by Offeror's acquisition of Shares as
contemplated herein or of any approval or other action by any Governmental
Entity that would be required for the acquisition or ownership of Shares by
Offeror as contemplated herein. Should any such approval or other action be
required, Parent and Offeror currently contemplate that such approval or other
action will be sought, except as described below under "State Takeover Laws."
While, except as otherwise expressly described in this Section 15, Offeror does
not presently intend to delay the acceptance for payment of, or payment for,
Shares tendered pursuant to the Offer, pending the outcome of any such matter,
there can be no assurance that any such approval or other action, if needed,
would be obtained or would be obtained without substantial conditions or that
failure to obtain any such approval or other action might not result in
consequences adverse to the Company's business, or that certain parts of the
Company's business might not have to be disposed of if such approvals were not
obtained or such other actions were not taken or in order to obtain any such
approval or other action. If certain types of adverse action are taken with
respect to the matters discussed below (or if any governmental approval is not
obtained), Offeror could decline to accept for payment or pay for any Shares
tendered. See Section 14 for certain conditions to the Offer.
State Takeover Laws. The Company is incorporated under the laws of the
State of Florida. The Florida Law contains provisions that are intended to defer
hostile takeovers of Florida-based corporations and are informally known as the
"Affiliated Transactions Statute" and the "Control-Share Acquisition Statute."
In general, the Affiliated Transactions Statute requires that any "affiliated
transaction" between a corporation with more than 300 shareholders and any
person who is the beneficial owner of more than 10% of the corporation's
outstanding voting shares (an "interested shareholder"), or any affiliate or
associate of an interested shareholder, must be approved by the holders of
two-thirds of the voting shares of the corporation
29
<PAGE> 32
other than the shares beneficially owned by the interested shareholder. Absent
approval by disinterested shareholders or an exception, the statute requires
that a "fair price" be paid to shareholders in the transaction. An "affiliated
transaction" includes a merger, a sale, exchange or other transfer of assets or
shares of the corporation, and the benefit of loans, advances, pledges,
guarantees, or other financial assistance or tax credits or advances provided by
or through the corporation. The Affiliated Transactions Statute does not apply
to an affiliated transaction if the transaction is approved in advance by a
majority of the corporation's directors who are not affiliated or associated
with the interested shareholder.
Under the Control-Share Acquisition Statute, "control shares" of certain
corporations that are acquired in a "control-share acquisition" will retain
their voting rights only to the extent granted by a resolution that is approved
by a majority of each class of voting securities of the corporation. A
"control-share acquisition" is a direct or indirect acquisition by a person of
the ownership or power to direct the exercise of the voting rights of "control
shares," which is defined as shares that entitle a person to exercise more than
specified proportions of the voting power of a corporation that is subject to
the Control-Share Acquisition Statute (commencing with the acquisition of 20% or
more of the voting shares of such corporation). An acquisition of shares does
not constitute a "control-share acquisition" if the acquisition has been
approved beforehand by the board of directors of the issuing corporation or if
the acquisition occurs pursuant to a merger effected in compliance with Florida
Law and the issuing corporation is a party to the agreement of merger or certain
other statutory conditions have been met.
At a meeting duly called and held on December 20, 1999, the Company's Board
of Directors, none of whom are currently affiliated or associated with Offeror,
Parent or OBH, unanimously approved the Offer, the Merger and Merger Agreement
and has determined that the Merger is advisable and the Offer and Merger are
fair to and in the best interests of the shareholders of the Company and
recommended that the shareholders of the Company accept the Offer and tender all
their Shares pursuant thereto. Accordingly, the Affiliated Transactions Statute
and Control-Share Acquisition Statute will not apply to Offeror, Parent and OBH
in connection with the Merger Agreement and the transactions contemplated
thereby, including the Offer and the Merger.
A number of states throughout the United States have enacted takeover
statutes that purport, in varying degrees, to be applicable to attempts to
acquire securities of corporations that are incorporated or have assets,
shareholders, executive offices or places of business in such states. In Edgar
v. MITE Corp., the Supreme Court of the United States held that the Illinois
Business Takeover Act, which involved state securities laws that made the
takeover of certain corporations more difficult, imposed a substantial burden on
interstate commerce and therefore was unconstitutional. In CTS Corp. v. Dynamics
Corp. of America, however, the Supreme Court of the United States held that a
state may, as a matter of corporate law and, in particular, those laws
concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining shareholders, provided that such laws were applicable
only under certain conditions.
Except as disclosed herein, Offeror does not know whether the Offer is
subject to any state takeover statute or regulation and neither Parent nor
Offeror has currently complied, or attempted to comply, with any state takeover
statute or regulation. Offeror reserves the right to challenge the applicability
or validity of any state law purportedly applicable to the Offer or the Merger
and nothing in this Offer to Purchase or any action taken in connection with the
Offer or the Merger is intended as a waiver of such right. If it is asserted
that any state takeover statute is applicable to the Offer or the Merger and an
appropriate court does not determine that it is inapplicable or invalid as
applied to the Offer or the Merger, Offeror might be required to file certain
information with, or to receive approvals from, the relevant state authorities,
and Offeror might be unable to accept for payment or pay for Shares tendered
pursuant to the Offer or is delayed in consummating the Offer or the Merger. In
such case, Offeror may not be obliged to accept for payment or pay for any
Shares tendered pursuant to the Offer.
Rule 13e-3: The Commission has adopted Rule 13e-3 under the Exchange Act
("Rule 13e-3"), which is applicable to certain "going private" transactions.
Rule 13e-3 requires, among other things, that certain financial information
concerning the company and certain information relating to the fairness of the
proposed
30
<PAGE> 33
transaction and the consideration offered to minority shareholders in such
transaction be filed with the Commission and disclosed to shareholders prior to
consummation of the transaction.
Parent believes that Rule 13e-3 will not be applicable to the Merger
because of the exemption afforded by Rule 13e-3(g)(1), among other reasons.
However, under certain circumstances, Rule 13e-3 could be applicable to the
Merger or other business combination in which Parent seeks to acquire the
remaining Shares it does not beneficially own following the purchase of Shares
pursuant to the Offer. For example, if the Merger as consummated is not
substantially similar to the Merger as described in this Offer to Purchase and
the Merger Agreement, Rule 13e-3 could apply. However, the terms and conditions
of the Merger are governed by the Merger Agreement, and any amendment to the
Merger Agreement must be approved by each party thereto. If Parent has exercised
its right to appoint directors to the Board of Directors following its purchase
of Shares pursuant to the Offer, any such amendment must be approved on behalf
of the Company by the directors of the Company, in the manner set forth above.
There can be no assurance that the Merger will take place, even though each
party has agreed in the Merger Agreement to use its reasonable efforts to cause
the Merger to occur, because the Merger is subject to certain conditions, some
of which are beyond the control of either Parent or the Company. Since Parent's
ultimate objective is to acquire ownership of all the Shares, if the Merger does
not take place Parent would consider the acquisition, whether directly or
through an affiliate, of Shares through private or open market purchases, or
subsequent tender offers or a different type of merger or other combination of
the Company with Offeror or an affiliate or subsidiary thereof, or by any other
permissible means deemed advisable by it. Except as described in the section
captioned "The Merger Agreement," any of these possible transactions might be on
terms the same as, or more or less favorable than, those of the Offer or the
Merger.
Antitrust. Under the HSR Act and the rules that have been promulgated
thereunder by the Federal Trade Commission ("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 acquisition of Shares pursuant to the Offer is subject to these
requirements.
Parent expects to file a Notification and Report Form with respect to the
Offer under the HSR Act as soon as practicable following commencement of the
Offer. The waiting period under the HSR Act with respect to the Offer will
expire at 11:59 p.m., Washington, D.C. time, on the fifteenth day after the date
such form is filed, unless early termination of the waiting period is granted.
In addition, the Antitrust Division or the FTC may extend such waiting period by
requesting additional information or documentary material from Parent. If such a
request is made with respect to the Offer, the waiting period related to the
Offer will expire at 11:59 p.m., Washington, D.C. time, on the tenth day after
substantial compliance by Parent with such request. With respect to each
acquisition, the Antitrust Division or the FTC may issue only one request for
additional information. In practice, complying with a request for additional
information or material can take a significant amount of time. Expiration or
termination of applicable waiting periods under the HSR Act is a condition to
Offeror's obligation to accept for payment and pay for Shares tendered pursuant
to the Offer.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as Offeror's proposed acquisition of the
Company. At any time before or after Offeror's purchase of Shares pursuant to
the Offer, the Antitrust Division or the FTC could take such action under the
antitrust laws as it deems necessary or desirable in the public interest,
including seeking to enjoin the purchase of Shares pursuant to the Offer or the
consummation of the Merger or seeking the divestiture of Shares acquired by
Offeror or the divestiture of substantial assets of Parent or its subsidiaries,
or the Company or its subsidiaries. Private parties may also bring legal action
under the antitrust laws under certain circumstances. There can be no assurance
that a challenge to the Offer on antitrust grounds will not be made or, if such
a challenge is made, of the results thereof.
Exon-Florio Amendment. Under the Exon-Florio Amendment, the President of
the United States is authorized to prohibit or suspend acquisitions, mergers or
takeovers by foreign persons of persons engaged in interstate commerce in the
United States if the President determines, after investigation, that such
foreign persons in exercising control of such acquired persons might take action
that threatens to impair the national
31
<PAGE> 34
security of the United States and that other provisions of existing law do not
provide adequate authority to protect national security. Pursuant to the
Exon-Florio Amendment, notice of an acquisition by a foreign person may be made
to the Committee on Foreign Investment in the United States ("CFIUS") either
voluntarily by the parties to such proposed acquisitions, merger or takeover or
by any member of CFIUS. CFIUS is comprised to representatives of the Departments
of the Treasury, State, Commerce, Defense and Justice, the Office of Management
and Budget, the Office of Science and Technology Policy, the United States Trade
Representative's Officer of Management and Budget, the Officer of Science and
Technology Policy, the United States Trade Representative's Office and the
Council of Economic Advisors, as well as the Assistant to the President for
National Security Affairs and the Assistant to the President for Economic
Policy.
A determination that an investigation is called for must be made within 30
days after notification of a proposed acquisition, merger or takeover is first
filed with CFIUS. Any such investigation must be completed within 45 days of
such determination. Any decision by the President to take action must be
announced within 15 days of the completion of the investigation. The Exon-Florio
Amendment does not require the filing of a notification, nor does it prohibit
the consummation of an acquisition, merger or takeover if a notification is not
made. If no notification is made, however, such an acquisition, merger or
takeover thereafter remains indefinitely subject to divestment should the
President subsequently determine that the national security of the United States
has been threatened or impaired. Offeror and the Company expect to file with
CFIUS, on or about the date hereof, a joint voluntary notice of the transactions
contemplated by the Merger Agreement. Although Offeror believes that the
transactions contemplated by the Merger Agreement should not raise any national
security concerns, there can be no assurance that CFIUS will not determine to
conduct an investigation of the proposed transaction and, if an investigation is
commenced, there can be no assurance regarding the outcome of such
investigation.
16. FEES AND EXPENSES.
Blackwood Capital Group L.L.C. ("Blackwood") is acting as financial advisor
to OBH, Parent and Offeror in connection with the Offer. OBH has agreed to pay
Blackwood customary fees for its services as financial advisor, and has agreed
to reimburse Blackwood for certain expenses incurred in connection with the
Offer.
Parent has retained D.F. King & Co., Inc. to act as the Information Agent
and The Bank of New York to serve as the Depositary in connection with the
Offer. The Information Agent and the Depositary each will receive reasonable and
customary compensation for their services, be reimbursed for certain reasonable
out-of-pocket expenses and be indemnified against certain liabilities and
expenses in connection therewith, including certain liabilities under the
federal securities laws.
Except as described herein, neither Parent nor Offeror will pay any fees or
commissions to any broker or dealer or other person in connection with the
solicitation of tenders of Shares pursuant to the Offer. Brokers, dealers, banks
and trust companies will be reimbursed by Offeror upon request for customary
mailing and handling expenses incurred by them in forwarding material to their
customers.
17. MISCELLANEOUS.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. None of OBH, Parent or Offeror is aware of any jurisdiction in
which the making of the Offer or the tender of Shares in connection therewith
would not be in compliance with the laws of such jurisdiction. If OBH, Parent or
Offeror becomes aware of any state law prohibiting the making of the Offer or
the acceptance of Shares pursuant thereto in such state, Offeror will make a
good faith effort to comply with any such state statute or seek to have such
state statute declared inapplicable to the Offer. If, after such good faith
effort, Offeror 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 jurisdiction. In any jurisdiction the securities, blue sky or
other laws of which require the Offer to be made by a licensed broker or dealer,
the Offer will be
32
<PAGE> 35
made on behalf of Offeror by one or more registered brokers or dealers licensed
under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF OBH, PARENT OR OFFEROR NOT CONTAINED HEREIN OR IN
THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. NEITHER THE
DELIVERY OF THIS OFFER TO PURCHASE NOR ANY PURCHASE PURSUANT TO THE OFFER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF OBH, PARENT OR THE COMPANY SINCE THE DATE AS OF WHICH INFORMATION
IS FURNISHED OR THE DATE OF THIS OFFER TO PURCHASE.
OBH, Parent and Offeror have filed with the Commission a Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional
information with respect to the Offer. In addition, the Company has filed with
the Commission a Schedule 14D-9 pursuant to Rule 14d-9 under the Exchange Act,
setting forth its recommendation with respect to the Offer and the reasons for
such recommendation and furnishing certain additional related information. Such
schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the manner set forth in
Sections 8 and 9 (except that they will not be available at the regional offices
of the Commission).
VOLCANO ACQUISITION CORP.
December 27, 1999
33
<PAGE> 36
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF OBH, PARENT, AND OFFEROR
The names and ages of the directors and executive officers of Parent,
Offeror and OBH, and their present principal occupations or employment and
five-year employment history, are set forth below. Unless otherwise indicated,
each individual is a citizen of Switzerland, his or her business address is
Hofweisenstrasse 135, CH-8021 Zurich, Switzerland and he or she has been
employed by OBH for the last five years.
OBH
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE OBH; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ -------------------------------------------------------
<S> <C>
Dr. Willy Kissling (55)................ Chairman of the Board of Directors and President since
1998. Prior to 1998, Chief Executive Officer of Landis &
Gyr AG.
Jack Schmuckli (59).................... Vice-Chairman of the Board of Directors and Vice
President. Former Chief Executive Officer, Sony Europe
GmbH.
Peter Kupfer (55)...................... Member of the Board of Directors. Private Consultant.
Chief Executive Officer of Privatbank-Gruppe CS (banking)
from 1993 until 1996. President of Valora TMP AG
(food/trading) since 1998. Mr. Kupfer's business address
is Rotfluhshasse 83, CH-8702 Zollikon, Switzerland.
Dr. Pius Baschera (49)................. Member of the Board of Directors, Chief Executive Officer,
Hilti AG (construction equipment). Mr. Baschera's business
address is Feldkircherstrasse FL-9494 Schaan,
Liechtenstein.
Dr. Lothar Spath (62).................. Member of the Board of Directors, Chief Executive Officer,
Jenoptik AG (optical instruments). Chairman of the Board
of Syba Bau AG (construction) since 1993. Chairman of the
Board of ID Media AG (media services) since 1998. Chairman
of the Board of Herrenknecht AG (construction) since 1997.
Mr. Spath is a citizen of Germany and his business address
is Carl-Zeiss-Strasse 1, D-07743 Jena, Germany.
Bruno Widmer (58)...................... Member of the Board of Directors. Chairman of the Board
and Chief Executive Officer, Young & Rubicam Europe &
Middle East (advertising consultants). Member of the Board
of Directors of Advico Young & Rubicam until 1998. Mr.
Widmer's business address is Meisenrain 39, CH-8044
Zurich, Switzerland.
Markus Rauh (60)....................... Member of the Board of Directors. Chairman of the Board,
Swisscom AG (telecommunications). Formerly Chief Executive
Officer, Leica International (optical instruments). Mr.
Rauh's business address is Schochengasse 6, CH-9001 St.
Gallen, Switzerland.
Dr. Beat Baumgartner (49).............. Chief Financial Officer. Chairman of the Board of
Directors, President and Treasurer of Parent.
Thomas Emch (49)....................... General Counsel. General Counsel of Siemens Building
Technologies Group from 1996 until 1999. General Counsel
of the Sika Group from 1985 until 1996.
Linda Forster Hany (33)................ Head of Corporate Communications from 1998 to date. Head
of Corporate Communications of SIG Swiss Industrial
Company Ltd. from 1995 until 1998.
Heinz Kundert (47)..................... Chief Operating Officer. Chief Operating Officer of
Balzers and Leybold Holding AG Division (high technology)
since 1998. Head of Balzers Processing Systems Division of
Balzers and Leybold Holding Division, from 1991 until
1998. Chairman of Board of Directors and President of
Offeror.
</TABLE>
I-1
<PAGE> 37
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE OBH; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ -------------------------------------------------------
<S> <C>
Dr. Umberto Somaini (56)............... Head of Contraves Space Division. Head of Space Division
of Oerlikon Contraves AG from 1995 until 1998. Mr.
Somaini's business address is Schaffhauserstrasse 580,
CH-8052 Zurich, Switzerland.
Oscar J. Schwenk (55).................. Head of Pilatus Aircraft Division. Former Chairman of the
Board of Pilatus Business Aircraft and Transairco, Ltd.
Mr. Schwenk's business address is CH-6371 Stans,
Switzerland.
</TABLE>
PARENT
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE PARENT; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ ----------------------------------------------------------
<S> <C>
Dr. Beat Baumgartner (49).............. Chairman of the Board of Directors, President and
Treasurer. Chief Financial Officer of OBH.
Joachim Menke (49)..................... Member of the Board of Directors. Head of Instrumentation
Sub-division of Balzers and Leybold Holding AG Division of
OBH. Mr. Menke is a citizen of Germany and his business
address is Wilhelm-Rohn-Strasse 25, D-63450 Hanau,
Germany.
Aaron Locker (72)...................... Member of the Board of Directors and Secretary. President
of Locker, Greenberg & Brainin P.C. Mr. Locker is a
citizen of the United States and his business address is
c/o Locker, Greenberg & Branin P.C., 420 Fifth Avenue, New
York, New York 10018.
</TABLE>
OFFEROR
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE OFFEROR; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ -----------------------------------------------------------
<S> <C>
Heinz A. Kundert (47).................. Chief Operating Officer of OBH Chief Operating Officer of
Balzers and Leybold Holding AG Division of OBH since 1998.
Head of Balzers Processing System Division of Balzers and
Leybold Holding AG Division, from 1991 until 1998. Chairman
of Board of Directors and President.
Martin E. Bader (41)................... Member of the Board of Directors and Vice-President. Head
of the Semi-conductor Division of Balzers Limited, a
wholly-owned subsidiary of OBH, since August 1987. Dr.
Bader is a citizen of Germany.
Peter Ruof (64)........................ Member of the Board of Directors and Secretary. Chairman of
Blackwood Capital Group L.L.C. Mr. Ruof is a citizen of
Germany and his business address is Blackwood Capital Group
L.L.C., 200 East 33 Street, New York, New York 10016.
</TABLE>
I-2
<PAGE> 38
MANUALLY SIGNED FACSIMILE COPIES OF THE LETTER OF TRANSMITTAL WILL BE ACCEPTED.
THE LETTER OF TRANSMITTAL AND CERTIFICATES FOR SHARES AND ANY OTHER REQUIRED
DOCUMENTS SHOULD BE SENT OR DELIVERED BY EACH SHAREHOLDER OF THE COMPANY OR HIS
BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE TO THE
DEPOSITARY AT ONE OF THE ADDRESSES SET FORTH BELOW:
The Depositary is:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or Overnight Courier:
Tender and Exchange Department (212) 815-6213 Tender and Exchange Department
P.O. Box 11248 (For Eligible Institutions 101 Barclay Street
Only)
Church Street Station
Receive and Deliver Window
New York, New York 10286-1248 For Confirmation Telephone: New York, New York 10286
(212) 815-6173
</TABLE>
Any questions or requests for assistance or additional copies of the Offer to
Purchase and the Letter of Transmittal and Notice of Guaranteed Delivery may be
directed to the Information Agent at its telephone number and location listed
below. Shareholders may also contact their broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 WATER STREET
NEW YORK, NEW YORK 10005
Banks and Brokerage Firms Call Collect: (212) 269-5550
All Others Call Toll Free: (800) 858-3409
<PAGE> 1
EXHIBIT (a)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
PLASMA-THERM, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED DECEMBER 27, 1999
BY
VOLCANO ACQUISITION CORP.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON-BUHRLE USA, INC.
AND A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON-BUHRLE HOLDING AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, TUESDAY, JANUARY 25, 2000, UNLESS THE OFFER IS EXTENDED.
The Depositary is:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or Overnight Courier:
Tender and Exchange Department (212) 815-6213 Tender and Exchange Department
P.O. Box 11248 (For Eligible Institutions Only) 101 Barclay Street
Church Street Station For Confirmation Telephone: Receive and Deliver Window
New York, New York 10286-1248 New York, New York 10286
(212) 815-6173
</TABLE>
------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSIONS OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE VALID DELIVERY. YOU
MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE THEREFOR PROVIDED
BELOW AND COMPLETE THE SUBSTITUTE FORM W-9 SET FORTH BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by shareholders of
Plasma-Therm, Inc. if certificates are to be forwarded herewith or, unless an
Agent's Message (as defined in the Offer to Purchase) is utilized, if delivery
of Shares (as defined below) is to be made by book-entry transfer to the
Depositary's account at The Depository Trust Company (the "Book-Entry Transfer
Facility") pursuant to the procedures set forth in Section 3 of the Offer to
Purchase. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
<PAGE> 2
Stockholders whose Share Certificates (as defined in the Offer to Purchase)
are not immediately available or who cannot deliver their Share Certificates and
all other documents required hereby to the Depositary on or prior to the
Expiration Date (as defined in the Offer to Purchase), or who cannot complete
the procedure for the book-entry transfer on a timely basis, may nevertheless
tender their Shares pursuant to the guaranteed delivery procedures set forth in
Section 3 of the Offer to Purchase. See Instruction 2.
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO
THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution
-----------------------------------------------------------------------------
Account Number
-----------------------------------------------------------------------------
Transaction Code Number
-----------------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Tendering Stockholder(s)
-----------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
---------------------------------------------------------------------
Window Ticket Number (if any)
-----------------------------------------------------------------------------
Name of Institution which Guaranteed Delivery
--------------------------------------------------------------------------
If delivery is by book-entry transfer:
Name of Tendering Institution
-----------------------------------------------------------------------------
Account Number
-----------------------------------------------------------------------------
Transaction Code Number
-----------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- ------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARES TENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST, IF NECESSARY)
- ------------------------------------------------------------------------------------------------------------------------
SHARE NUMBER OF SHARES NUMBER
CERTIFICATE REPRESENTED BY OF SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
Total Shares
- ------------------------------------------------------------------------------------------------------------------------
* Need not be completed by shareholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares represented by any certificates delivered to the
Depositary are being tendered. See Instruction 4.
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to Volcano Acquisition Corp. ("Offeror"), a
Florida corporation and a direct wholly-owned subsidiary of Oerlikon-Buhrle USA,
Inc., a Delaware corporation ("Parent") and a direct wholly-owned subsidiary of
Oerlikon-Buhrle Holding AG, a company organized under the laws of Switzerland
("OBH"), the above-described shares of Common Stock, par value $.01 per share
(the "Shares") of Plasma-Therm, Inc., a Florida corporation (the "Company"),
pursuant to Offeror's offer to purchase all of the outstanding Shares at a
purchase price of $12.50 per Share, net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated December 27, 1999 (the "Offer to Purchase"), receipt of which is
hereby acknowledged, and in this Letter of Transmittal (which, as amended from
time to time, together with the Offer to Purchase constitute the "Offer"). The
Offer is being made pursuant to an Agreement and Plan of Merger, dated as of
December 20, 1999 (the "Merger Agreement"), among Parent, Offeror and the
Company.
Subject to, and effective upon, acceptance for payment of and payment for
the Shares tendered herewith, the undersigned hereby sells, assigns and
transfers to, or upon the order of, Offeror all right, title and interest in and
to all the Shares that are being tendered hereby (and any and all other shares
or other securities issued or issuable in respect of such Shares on or after the
date of the Offer to Purchase) and appoints The Bank of New York (the
"Depositary") the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares (and such other shares or securities), with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to (a) deliver certificates for such Shares
(and such other shares or securities), or transfer ownership of such Shares (and
such other Shares or securities) on the account books maintained by the
Book-Entry Transfer Facility, together, in any such case, with all accompanying
evidences of transfer and authenticity, to or upon the order of the Offeror, (b)
present such Shares (and such other shares or securities) for transfer on the
books of the Company and (c) receive all benefits and otherwise exercise all
rights of beneficial ownership of such Shares (and such other shares or
securities), all in accordance with the terms of the Offer.
The undersigned hereby irrevocably appoints designees of Offeror and each
of them as the attorneys-in-fact and proxies of the undersigned, each with full
power of substitution, to the full extent of the rights of the undersigned with
respect to the Shares tendered hereby and accepted for payment by Offeror prior
to the time of any vote or other action (and any and all other shares or other
securities issued or issuable in respect of such Shares on or after the date of
the Offer to Purchase). All such powers of attorney and proxies shall be
considered irrevocable and coupled with an interest. Such appointment will be
effective when, and only to the extent that, Offeror accepts such Shares for
payment. Upon such acceptance for payment, all prior powers of attorney and
proxies given by the shareholder with respect to such Shares (and such other
shares and securities) will, without further action, be revoked and no
subsequent powers of attorney and proxies may be given nor any subsequent
written consents executed (and, if given or executed, will not be deemed
effective). The designees of Offeror will, with respect to the Shares (and such
other shares and securities) for which such appointment is effective, be
empowered to exercise all voting and other rights of such shareholder as they in
their sole discretion may deem proper at any annual or special meeting of the
Company's shareholders, or any adjournment or postponement thereof by written
consent in lieu of any such meeting or otherwise. Offeror reserves the right to
require that, in order for Shares to be deemed validly tendered, immediately
upon Offeror's payment for such Shares, Offeror must be able to exercise full
voting and other rights with respect to such Shares (and such other shares and
securities), including voting at any meeting of shareholders.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby (and any and all other shares or other securities issued or
issuable in respect of such Shares on or after the date of the Offer to
Purchase) and that when the same are accepted for payment by Offeror, Offeror
will acquire good and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claims.
The undersigned, upon request, will execute and deliver any additional documents
deemed by the Depositary or Offeror to be necessary or desirable to complete the
sale, assignment and transfer of the Shares tendered hereby (and such other
shares or securities).
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned. Except as stated in the Offer, this tender is
irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute an agreement between the undersigned and
Offeror upon the terms and subject to the conditions of the Offer.
<PAGE> 4
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of any Shares purchased in the name(s)
of, and return any Shares not tendered or not purchased to, the undersigned.
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail the check for the purchase price of any Shares purchased and return
any Share Certificates not tendered or not purchased (and accompanying
documents, as appropriate) to the undersigned at the address shown below the
undersigned's signature(s). In the event that both "Special Payment
Instructions" and "Special Delivery Instructions" are completed, please issue
the check for the purchase price of any Shares purchased and return any Shares
not tendered or not purchased in the name(s) of, and mail such check and any
certificates to, the person(s) so indicated. Unless otherwise indicated under
"Special Payment Instructions," please credit any Shares tendered hereby and
delivered by book-entry transfer, but which are not purchased by crediting the
account at the Book-Entry Transfer Facility designated above. The undersigned
recognizes that Offeror has no obligation, pursuant to the "Special Payment
Instructions," to transfer any Shares from the name of the registered holder(s)
thereof if Offeror does not accept for payment any of the Shares so tendered.
<PAGE> 5
------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or Share Certificates not tendered or not purchased are to be
issued in the name of someone other than the undersigned.
Issue: [ ] Check [ ] Certificate(s) to:
Name
----------------------------------------------------
(PLEASE PRINT)
------------------------------------------------------------
Address
--------------------------------------------------
------------------------------------------------------------
(ZIP CODE)
------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR
SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9)
[ ] Credit Shares delivered by book-entry transfer and not purchased to
the account set forth below.
------------------------------------------------------------
------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or Share Certificates not tendered or not purchased are to be
mailed to someone other than the undersigned or to the undersigned at an
address other than that shown below the undersigned's signature(s).
Mail check and/or certificate(s) to:
Name
----------------------------------------------------
(PLEASE PRINT)
------------------------------------------------------------
Address
--------------------------------------------------
------------------------------------------------------------
(ZIP CODE)
------------------------------------------------------------
(EMPLOYER IDENTIFICATION OR
SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9)
------------------------------------------------------------
<PAGE> 6
SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 ON REVERSE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(SIGNATURE(S) OF OWNER(S)
Name(s) ------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (Full Title)
----------------------------------------------------------------
Address-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(ZIP CODE)
Area Code and Telephone Number
-----------------------------------------------------
Taxpayer Identification Number or Social Security Number
--------------------------------------
(SEE SUBSTITUTE FORM W-9)
Dated:
- --------------------------------------------------------------------------------
(Must be signed by registered holder(s) exactly as name(s) appear(s) on Share
Certificate(s) or on a security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents transmitted herewith.
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, agent, officer of a corporation or other person acting in a
fiduciary or representative capacity, please set forth full title and see
Instruction 5).
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY,
PLACE MEDALLION GUARANTEE IN SPACE BELOW.
Authorized Signature
----------------------------------------------------------------
Name --------------------------------------------------------------------------
(PLEASE PRINT)
Name of Firm
---------------------------------------------------------------------
Address-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(ZIP CODE)
Area Code and Telephone Number
-----------------------------------------------------
Dated:--------------------------------------------------------------------------
<PAGE> 7
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. Except as otherwise provided below, signatures
on Letters of Transmittal must be guaranteed by a member in good standing of the
Securities Transfer Agents Medallion Program, or by any other firm which is a
bank, broker, dealer, credit union or savings association (each of the foregoing
being referred to as an "Eligible Institution" and, collectively, as "Eligible
Institutions"), except in cases where Shares are tendered (i) by a registered
holder of Shares who has not completed either the box labeled "Special Delivery
Instructions" or the box labeled "Special Payment Instructions" on the Letter of
Transmittal or (ii) for the account of any Eligible Institution. See Instruction
5. If the Share Certificates are registered in the name of a person other than
the signer of this Letter of Transmittal, or if payment is to be made, or Share
Certificates not accepted for payment or not tendered are to be returned, to a
person other than the registered holder, then the Share Certificates must be
endorsed or accompanied by duly executed stock powers, in either case, signed
exactly as the name of the registered holder appears on such certificates, with
the signatures on such certificates or stock powers guaranteed by an Eligible
Institution as provided herein. See Instruction 5.
2. Delivery of Letter of Transmittal and Shares. This Letter of
Transmittal is to be used either if Share Certificates are to be forwarded
herewith or, unless an Agent's Message is utilized, if the delivery of Shares is
to be made by book-entry transfer pursuant to the procedures set forth in
Section 3 of the Offer to Purchase. Certificates for all physically delivered
Shares, or a confirmation of a book-entry transfer into the Depositary's account
at the Book-Entry Transfer Facility of all Shares delivered electronically, as
well as a properly completed and duly executed Letter of Transmittal (or a
facsimile thereof) and any other documents required by this Letter of
Transmittal or an Agent's Message in the case of a book-entry delivery, must be
received by the Depositary at one of its addresses set forth on the front page
of this Letter of Transmittal by the Expiration Date. Stockholders who cannot
deliver their Shares and all other required documents to the Depositary by the
Expiration Date must tender their Shares pursuant to the guaranteed delivery
procedures set forth in Section 3 of the Offer to Purchase. Pursuant to such
procedures: (a) such tender must be made by or through an Eligible Institution;
(b) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by Offeror, must be received by the
Depositary prior to the Expiration Date; and (c) the certificates for all
tendered Shares, in proper form for transfer (or a Book-Entry Confirmation),
together with a properly completed and duly executed Letter of Transmittal (or a
facsimile thereof), and any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message, and any other documents required by
this Letter of Transmittal must be received by the Depositary within three
trading days after the date of such Notice of Guaranteed Delivery, all as
provided in Section 3 of the Offer to Purchase. The term "trading day" is any
day on which the Nasdaq National Market is open for business.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH A BOOK-ENTRY TRANSFER FACILITY,
IS AT THE OPTION AND RISK OF THE TENDERING SHAREHOLDER. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. By executing this Letter of Transmittal (or
a facsimile thereof), the tendering shareholder waives any right to receive any
notice of the acceptance for payment of the Shares.
3. Inadequate Space. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. Partial Tenders (not applicable to shareholders who tender by book-entry
transfer). If fewer than all the Shares represented by any Share Certificate
delivered to the Depositary are to be tendered, fill in the number of Shares
which are to be tendered in the box entitled "Number of Shares Tendered." In
such case, a new Share Certificate for the remainder of the Shares represented
by the old Share Certificate will be sent to the person(s) signing this Letter
of Transmittal unless otherwise provided in the appropriate box on this Letter
of Transmittal, as promptly as practicable following the expiration or
termination of the Offer. All Shares represented by Share Certificates delivered
to the Depositary will be deemed to have been tendered unless otherwise
indicated.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the Share Certificates without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in different names on
different Share Certificates, it will be necessary to complete, sign and submit
as many separate Letters of Transmittal as there are different registrations of
Share Certificates.
<PAGE> 8
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of Share Certificates or separate stock
powers are required unless payment of the purchase price is to be made, or
Shares not tendered or not purchased are to be returned, in the name of any
person other than the registered holder(s), in which case, the certificate(s)
for such Shares tendered hereby must be endorsed, or accompanied by appropriate
stock powers, in either case, signed exactly as the name(s) of the registered
holder(s) appears(s) on the certificate(s) for such Shares. Signatures on any
such certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Share Certificate must
be endorsed or accompanied by appropriate stock powers, in either case, signed
exactly as the name(s) of the registered holder(s) appear(s) on the certificates
for such Shares. Signature(s) on any such certificates or stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any Share Certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Offeror of the authority of such person so to act must be
submitted.
6. Stock Transfer Taxes. Offeror will pay any stock transfer taxes with
respect to the sale and transfer of any Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or
Shares not tendered or not purchased are to be returned in the name of, any
person other than the registered holder(s), then the amount of any stock
transfer taxes (whether imposed on the registered holder(s), such other person
or otherwise) payable on account of the transfer to such person will be deducted
from the purchase price unless satisfactory evidence of the payment of such
taxes, or exemption therefrom, is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE CERTIFICATES LISTED IN THIS
LETTER OF TRANSMITTAL.
7. Special Payment and Delivery Instructions. If the check for the
purchase price of any Shares purchased is to be issued in the name of, or any
Shares not tendered or not purchased are to be returned to, a person other than
the person(s) signing this Letter of Transmittal or if the check or any Share
Certificates not tendered or not purchased are to be mailed to someone other
than the person(s) signing this Letter of Transmittal or to the person(s)
signing this Letter of Transmittal at an address other than that shown above,
the appropriate boxes on this Letter of Transmittal should be completed. Shares
not purchased will be returned by crediting the account at the Book-Entry
Transfer Facility.
8. Substitute Form W-9. The tendering shareholder is required to provide
the Depositary with such shareholder's correct Taxpayer Identification Number
("TIN") on Substitute Form W-9, which is provided below, unless an exemption
applies. Failure to provide the information on the Substitute Form W-9 may
subject the tendering shareholder to a $50 penalty and to 31% federal income tax
backup withholding on the payment of the purchase price for the Shares.
9. Foreign Holders. Foreign holders must submit a completed IRS Form W-8
to avoid 31% backup withholding. IRS Form W-8 may be obtained by contacting the
Depositary at one of the addresses on the face of this Letter of Transmittal.
10. Requests for Assistance or Additional Copies. Requests for assistance
or additional copies of the Offer to Purchase and this Letter of Transmittal may
be obtained from the Information Agent or the Dealer Manager at their respective
addresses or telephone number set forth below.
11. Waiver of Conditions. The conditions of the Offer may be waived by
Offeror (subject to certain limitations in the Merger Agreement), in whole or in
part, at any time or from time to time, in Offeror's sole discretion.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE COPY HEREOF (TOGETHER
WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY
ON OR PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE OFFER TO PURCHASE).
IMPORTANT TAX INFORMATION
Under federal income tax law, a shareholder whose tendered Shares are
accepted for payment is required to provide the Depositary with such
shareholder's correct TIN on the Substitute Form W-9. If such shareholder is an
individual, the TIN is such shareholder's social security number. If the
Depositary is not provided with the correct TIN, the shareholder may be subject
to a $50 penalty imposed by the Internal Revenue Service. In addition, payments
that are made to such shareholder with respect to Shares purchased pursuant to
the Offer may be subject to backup withholding.
<PAGE> 9
Certain shareholders (including, among others, certain 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, that shareholder must submit a statement, signed under
penalties of perjury, attesting to that individual's exempt status. Such
statements may be obtained from the Depositary. All exempt recipients (including
foreign persons wishing to qualify as exempt recipients) should see the enclosed
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 for additional instructions.
If backup withholding applies, the Depositary is required to withhold 31%
of any payments made to the shareholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If backup withholding results in an
overpayment of taxes, a refund may be obtained.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup federal income tax withholding on payments that are made
to a shareholder with respect to Shares purchased pursuant to the Offer, the
shareholder is required to notify the Depositary of such shareholder's correct
TIN by completing the form certifying that the TIN provided on the Substitute
Form W-9 is correct.
WHAT NUMBER TO GIVE THE DEPOSITARY
The shareholder is required to give the Depositary the social security
number or employer identification number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual owner,
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional guidelines on which number to
report.
<PAGE> 10
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
PAYER'S NAME:
- --------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART I--PLEASE PROVIDE YOUR TIN IN THE BOX AT THE RIGHT
FORMW-9 AND CERTIFY BY SIGNING AND DATING BELOW. TIN: -----------------------
Social Security Number
or Taxpayer
Identification Number
---------------------------------------------------------------------------------------------
Department of the
Treasury, Internal PART II--For Payees exempt from backup withholding, see the enclosed Guidelines for
Revenue Service Certification of Taxpayer Identification Number on Substitute Form W-9 and complete as
PAYER'S REQUEST FOR instructed therein.
TAXPAYER IDENTIFICATION -------------------------------------------------------------------------------------------
NUMBER ("TIN") AND Certification--Under penalties of perjury, I certify that:
CERTIFICATION
(1) The number shown on this form is my correct TIN (or I am waiting for a number
to be issued to me); and
(2) I am not subject to backup withholding because (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service
("IRS") that I am subject to backup withholding as a result of a failure to report
all interest or dividends, or (c) the IRS has notified me that I am no longer subject
to backup withholding.
-------------------------------------------------------------------------------------------
SIGNATURE: ________________________________________ DATE: ________________
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been
notified by the IRS that you are subject to backup withholding because of
underreporting interest or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup withholding, you received
another notification from the IRS that you were no longer subject to backup
withholding, do not cross out item (2). (Also see the instructions in the
enclosed Guidelines).
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING YOUR TIN.
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a TIN has not been issued to me, and either (1) I have
mailed or delivered an application to receive a TIN to the appropriate IRS Center or Social
Security Administration Officer or (2) I intend to mail or deliver an application in the near
future. I understand that if I do not provide a TIN by the time of payment, 31% of all payments
pursuant to the Offer made to me thereafter will be withheld, but such amounts will be refunded
to me if I then provide a Taxpayer Identification Number within (60) days.
Signature: ______________________________________________________ Date: ________________________
- --------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 11
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokerage Firms Call Collect: (212) 269-5550
All Others Call Toll Free: (800) 858-3409
<PAGE> 1
EXHIBIT (a)(3)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
PLASMA-THERM, INC.
AT
$12.50 NET PER SHARE
BY
VOLCANO ACQUISITION CORP.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON-BUHRLE USA, INC.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON-BUHRLE HOLDING AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, JANUARY 25, 2000, UNLESS THE OFFER IS EXTENDED.
To Brokers, Dealers, Commercial Banks, December 27, 1999
Trust Companies and Other Nominees:
We have been appointed by Volcano Acquisition Corp., a Florida corporation
("Offeror") and a direct wholly-owned subsidiary of Oerlikon-Buhrle USA, Inc., a
Delaware corporation ("Parent") and a direct wholly-owned subsidiary of
Oerlikon-Buhrle Holding AG, a company organized under the laws of Switzerland
("OBH"), to act as Information Agent in connection with Offeror's offer to
purchase all outstanding shares of Common Stock, par value $.01 per share (the
"Shares"), of Plasma-Therm, Inc., a Florida corporation (the "Company"), at a
purchase price of $12.50 per Share, net to the seller in cash, without interest,
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated December 27, 1999 (the "Offer to Purchase") and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer") enclosed herewith. Offeror has been formed
by Parent in connection with the Offer and transactions contemplated thereby.
The Offer is being made in connection with the Agreement and Plan of Merger
dated as of December 20, 1999, among Parent, Offeror and the Company (the
"Merger Agreement"). Holders of Shares whose certificates for such Shares (the
"Certificates") are not immediately available or who cannot deliver their
Certificates and all other required documents to the Depositary (as defined
below) or complete the procedures for book-entry transfer prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase) must tender
their Shares according to the guaranteed delivery procedures set forth in
Section 3 of the Offer to Purchase.
Please furnish copies of the enclosed materials to those of your clients
for whose accounts you hold Shares in your name or in the name of your nominee.
<PAGE> 2
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated December 27, 1999.
2. The Letter of Transmittal to tender Shares for your use and for the
information of your clients. Facsimile copies of the Letter of Transmittal
may be used to tender Shares.
3. A letter to shareholders of the Company from Ronald H. Deferrari,
Chairman of the Board, together with a Solicitation/Recommendation
Statement on Schedule 14D-9 filed with the Securities and Exchange
Commission by the Company and mailed to the shareholders of the Company.
4. The Notice of Guaranteed Delivery for Tender of Shares to be used
to accept the Offer if following the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase.
5. A printed form letter which may be sent to your clients for whose
accounts you hold Shares registered in your name, with space provided for
obtaining such clients' instructions with regard to the Offer.
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
7. A return envelope addressed to The Bank of New York (the
"Depositary").
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, JANUARY 25, 2000,
UNLESS THE OFFER IS EXTENDED.
Please note the following:
1. The tender price is $12.50 per Share, net to the seller in cash,
without interest thereon.
2. The Offer is conditioned upon, among other things, there being
validly tendered and not withdrawn prior to the Expiration Date (as defined
in the Offer to Purchase) of the Offer that number of Shares which would
represent at least a majority of the outstanding Shares on a fully diluted
basis.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering shareholders will not be obligated to pay brokerage fees
or commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of Shares pursuant to the
Offer. However, federal income tax backup withholding at a rate of 31% may
be required, unless an exemption is available or unless the required
taxpayer identification information is provided. See Important Tax
Information of the Letter of Transmittal.
5. The Board of Directors of the Company has unanimously approved the
Merger Agreement, the Offer and the Merger (as defined in the Offer to
Purchase) and determined that the Merger is advisable and the terms of the
Offer and the Merger are fair to, and in the best interests of, the
shareholders of the Company, and recommends that the shareholders of the
Company accept the Offer and tender all of their Shares pursuant thereto.
6. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) Certificates pursuant to
the procedures set forth in Section 3 of the Offer to Purchase or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect
to such Shares, (b) 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 (as defined in the Offer to
Purchase) in connection with a book-entry delivery of Shares, and (c) any
other documents required by the Letter of Transmittal. Accordingly,
tendering shareholders may be paid at different times depending upon when
2
<PAGE> 3
Certificates for Shares or Book-Entry Confirmations (as defined in the
Offer to Purchase) are actually received by the Depositary.
In order to take advantage of the Offer, (i) 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 in connection with a
book-entry delivery of Shares, and any other documents required by the Letter of
Transmittal should be sent to the Depositary and (ii) Certificates representing
the tendered Shares or a timely Book-Entry Confirmation should be delivered to
the Depositary in accordance with the instructions set forth in the Letter of
Transmittal and the Offer to Purchase.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Certificates or other required documents or complete the
procedures for book-entry transfer prior to the Expiration Date, a tender may be
effected by following the guaranteed delivery procedures specified in Section 3
of the Offer to Purchase.
None of Offeror, Parent, OBH or any officer, director, shareholder, agent
or other representative of Offeror, Parent or OBH will pay any fees or
commissions to any broker, dealer or other person (other than the Depositary and
the Information Agent as described in the Offer to Purchase) for soliciting
tenders of Shares pursuant to the Offer. Offeror will, however, upon request,
reimburse you for customary mailing and handling expenses incurred by you in
forwarding any of the enclosed materials to your clients. Offeror will pay or
cause to be paid any transfer taxes payable on the transfer of Shares to it,
except as otherwise provided in Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to
D.F. King & Co., Inc., the Information Agent for the Offer, at its address and
telephone number set forth on the back cover of the Offer to Purchase.
Requests for copies of the enclosed materials may be directed to the
Information Agent or to brokers, dealers, commercial banks or trust companies.
Very truly yours,
D.F. KING & CO., INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF OBH, PARENT, OFFEROR, THE DEPOSITARY, THE
INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY OTHER
PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF THEM IN
CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS
CONTAINED THEREIN.
3
<PAGE> 1
EXHIBIT (a)(4)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
PLASMA-THERM, INC.
AT
$12.50 NET PER SHARE
BY
VOLCANO ACQUISITION CORP.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON-BUHRLE USA, INC.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON-BUHRLE HOLDING AG
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON TUESDAY, JANUARY 25, 2000, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated December
27, 1999 (the "Offer to Purchase"), and the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer") relating to an offer by Volcano Acquisition Corp., a
Florida corporation ("Offeror") and a direct wholly-owned subsidiary of
Oerlikon-Buhrle USA, Inc., a Delaware corporation ("Parent") and a direct
wholly-owned subsidiary of Oerlikon-Buhrle Holding AG, a company organized under
the laws of Switzerland ("OBH"), to purchase all outstanding shares of Common
Stock, par value $0.01 per share (the "Shares"), of Plasma-Therm, Inc., a
Florida corporation (the "Company"), at a purchase price of $12.50 per Share,
net to the seller in cash, without interest, upon the terms and subject to the
conditions set forth in the Offer. The Offer is being made in connection with
the Agreement and Plan of Merger dated as of December 20, 1999, among Parent,
Offeror and the Company (the "Merger Agreement"). Offeror is a corporation newly
formed by Parent in connection with the Offer and the transactions contemplated
thereby. This material is being forwarded to you as the beneficial owner of
Shares carried by us in your account but not registered in your name.
WE ARE (OR OUR NOMINEE IS) THE HOLDER OF RECORD OF SHARES HELD BY US FOR
YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF
RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED
TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD
BY US FOR YOUR ACCOUNT.
Accordingly, we request instructions as to whether you wish to have us
tender any or all of the Shares held by us for your account pursuant to the
terms and conditions set forth in the Offer.
<PAGE> 2
Please note the following:
1. The tender price is $12.50 per Share, net to the seller in cash,
without interest.
2. The Offer is conditioned upon, among other things, there being
validly tendered and not withdrawn prior to the Expiration Date (as defined
in the Offer to Purchase) of the Offer that number of Shares which would
represent at least a majority of the outstanding Shares on a fully diluted
basis.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering shareholders will not be obligated to pay brokerage fees
or commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of Shares pursuant to the
Offer. However, federal income tax backup withholding at a rate of 31% may
be required, unless an exemption is available or unless the required
taxpayer identification information is provided. See "Important Tax
Information" in the Letter of Transmittal.
5. The Board of Directors of the Company has unanimously approved the
Merger Agreement, the Offer and the Merger (as defined in the Offer to
Purchase) and determined that the Merger is advisable and the terms of the
Offer and the Merger are fair to, and in the best interests of, the
shareholders of the Company, and recommends that the shareholders of the
Company accept the Offer and tender all of their Shares pursuant thereto.
6. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) Share certificates
pursuant to the procedures set forth in Section 3 of the Offer to Purchase
or a timely Book-Entry Confirmation (as defined in the Offer to Purchase)
with respect to such Shares, (b) 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 (as defined in the
Offer to Purchase) in connection with a book-entry delivery of Shares, and
(c) any other documents required by the Letter of Transmittal. Accordingly,
tendering shareholders may be paid at different times depending upon when
certificates for Shares or Book-Entry Confirmations are actually received
by the Depositary.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON TUESDAY, JANUARY 25, 2000, UNLESS THE OFFER IS EXTENDED.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form set forth below. If you authorize the tender of your
Shares, all such Shares will be tendered unless otherwise indicated in such
instruction form. An envelope to return your instruction to us is enclosed.
PLEASE FORWARD YOUR INSTRUCTIONS TO US AS SOON AS POSSIBLE TO ALLOW US AMPLE
TIME TO TENDER YOUR SHARES ON YOUR BEHALF PRIOR TO THE EXPIRATION OF THE OFFER.
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of Shares residing in any jurisdiction in which the making of
the Offer or acceptance thereof would not be in compliance with the securities
laws of such jurisdiction. However, Offeror may, in its discretion, take such
action as it may deem necessary to make the Offer in any jurisdiction and extend
the Offer to holders of Shares in such jurisdiction.
In any jurisdiction where the securities, blue sky or other laws require
the Offer to be made by a licensed broker or dealer, the Offer will be deemed to
be made on behalf of Offeror by one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO
THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
PLASMA-THERM, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase, dated December 27, 1999, and the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer") in connection with the offer by Volcano
Acquisition Corp., a Florida corporation ("Offeror") and a direct wholly-owned
subsidiary of Oerlikon-Buhrle USA, Inc., a Delaware corporation ("Parent") and a
direct wholly-owned subsidiary of Oerlikon-Buhrle Holding AG, a company
organized under the laws of Switzerland, to purchase all outstanding shares of
Common Stock, par value $.01 per share (the "Shares"), of Plasma-Therm, Inc., a
Florida corporation (the "Company"), at a purchase price of $12.50 per Share,
net to the seller in cash, without interest, upon the terms and subject to the
conditions set forth in the Offer. Offeror has been formed by Parent in
connection with the Offer and the transactions contemplated thereby. The Offer
is being made in connection with the Agreement and Plan of Merger dated as of
December 20, 1999, among Parent, Offeror and the Company.
This will instruct you to tender to Offeror the number of Shares indicated
below (or if no number is indicated below, all Shares) which are held by you for
the account of the undersigned, upon the terms and subject to the conditions set
forth in the Offer.
Number of Shares to be Tendered:*
---------------------
<TABLE>
<S> <C>
SIGN HERE
Account Number: ---------------------------------- -----------------------------------------------------
Date: ----------------------------------------------- -----------------------------------------------------
SIGNATURE(S)
-----------------------------------------------------
-----------------------------------------------------
(PRINT NAME(S))
-----------------------------------------------------
-----------------------------------------------------
(PRINT ADDRESS(ES))
-----------------------------------------------------
(AREA CODE AND TELEPHONE NUMBER(S))
-----------------------------------------------------
(TAXPAYER IDENTIFICATION OR
SOCIAL SECURITY NUMBER(S))
</TABLE>
- ---------------
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
3
<PAGE> 1
EXHIBIT (a)(5)
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF SHARES OF COMMON STOCK
OF
PLASMA-THERM, INC.
This form, or one substantially equivalent hereto, must be used to accept
the Offer (as defined below) if certificates for shares of Common Stock, par
value $.01 per share (the "Shares"), of Plasma-Therm, Inc., a Florida
corporation (the "Company"), 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 (as defined in the Offer to Purchase). This Notice of Guaranteed Delivery
may be delivered by hand or facsimile transmission or mailed to the Depositary.
See Section 3 of the Offer to Purchase, dated December 27, 1999 (the "Offer to
Purchase").
The Depositary is:
THE BANK OF NEW YORK
By Mail:
Tender and Exchange Department
P.O. Box 11248
Church Street Station
New York, New York 10286-1248
By Facsimile Transmission:
(212) 815-6213
(For Eligible Institutions Only)
For Confirmation Telephone:
(212) 815-6173
By Hand or Overnight Courier:
Tender and Exchange Department
101 Barclay Street
Receive and Deliver Window
New York, New York 10286
------------------------
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR
TRANSMISSION OF INSTRUMENTS VIA FACSIMILE TRANSMISSION, OTHER THAN AS SET FORTH
ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal or an
Agent's Message (as defined in the Offer to Purchase) and certificates for
Shares to the Depositary within the time period shown herein. Failure to do so
could result in a financial loss to such Eligible Institution.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
Ladies and Gentlemen:
The undersigned hereby tenders to Volcano Acquisition Corp., a Florida
corporation (the "Offeror") and a direct wholly-owned subsidiary of
Oerlikon-Buhrle USA, Inc., a Delaware corporation (the "Parent") and a direct
wholly-owned subsidiary of Oerlikon-Buhrle Holding AG, a company organized under
the laws of Switzerland ("OBH"), upon the terms and subject to the conditions
set forth in the Offer to Purchase and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer"), receipt of each of which is hereby acknowledged, the
number of Shares indicated below, pursuant to the guaranteed delivery procedure
set forth in Section 3 of the Offer to Purchase. Offeror is a corporation newly
formed by Parent in connection with the Offer and the transactions contemplated
thereby.
<PAGE> 2
Number of Shares:
------------------------------------
Certificate No(s) (if available):
-----------------------------------------------------
-----------------------------------------------------
If Shares will be tendered by book-entry transfer:
Name of Tendering Institutions:
-----------------------------------------------------
Account No.:
-----------------------------------------
SIGN HERE
Name(s) of Record Holder(s):
- -----------------------------------------------------
- -----------------------------------------------------
(Please Print)
Address(es):
-----------------------------------------
(Zip Code)
Area Code and Telephone No:
- -----------------------------------------------------
Signature(s):
----------------------------------------
Dated:
-----------------------------------------------
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, as an Eligible Institution (as such term is defined in
Section 3 of the Offer to Purchase), hereby guarantees to deliver to the
Depositary the certificates representing the Shares tendered hereby, in proper
form for transfer, or a Book-Entry Confirmation (as defined in Section 3 of
the Offer to Purchase) with respect to transfer of such Shares into the
Depositary's account at The Depository Trust Company, in each case together
with 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 (as defined in the Offer to Purchase) in the case of a
book-entry delivery of Shares, and any other documents required by the Letter
of Transmittal, all within three Nasdaq National Market trading days after the
date hereof.
Name of Firm:
----------------------------------------
Address:
---------------------------------------------
-----------------------------------------------------
-----------------------------------------------------
(Zip Code)
Area Code and Tel. No.:
------------------------------
- ------------------------------------------------------
(Authorized Signature)
Name:
-------------------------------------------------
Title:
------------------------------------------------
Date:
-------------------------------------------------
DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED DELIVERY.
CERTIFICATES SHOULD BE SENT TOGETHER WITH A LETTER OF TRANSMITTAL.
2
<PAGE> 1
EXHIBIT (a)(6)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER -- Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e., 00-0000000. The table below will help determine the
number to give the payer.
<TABLE>
<C> <S> <C>
- ------------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF --
- ------------------------------------------------------------
1. An individual's account The individual
2. TWO or more individuals (Joint The actual owner of
account) the account or, if
combined funds, any
one of the
individuals(1)
3. Husband and wife (joint account) The actual owner of
the account or, if
joint funds, either
person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. a. The usual revocable savings The grantor-
trust account (grantor is also trustee(1)
trustee)
b. So-called trust account that is The actual owner(1)
not a legal or valid trust
under state law
6. Sole proprietorship account The Owner(4)
- ------------------------------------------------------------
- ------------------------------------------------------------
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF--
- ------------------------------------------------------------
7. A valid trust, estate, or pension Legal entity (Do
trust not furnish the
identifying number
of the personal
representative or
trustee unless the
legal entity itself
is not designated
in the account
title.)(5)
8. Corporate The corporation
9. Partnership The partnership
10. Association, club, religious, The organization
charitable, or educational, or
other tax-exempt organization
11. A broker or registered nominee The broker or
nominee
12. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a state or
local government, school district,
or prison) that receives
agricultural program payments
- ------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Show the name of the owner.
(4) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, Form
W-7, Application for IRS Individual Taxpayer Identification Number or Form SS-4,
Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEE EXEMPT FROM BACKUP WITHHOLDING
Payees that may be exempt from backup withholding include the following:
- A corporation.
- A financial institution.
PAYEES THAT ARE EXEMPT FROM BACKUP WITHHOLDING INCLUDE THE FOLLOWING:
- An organization exempt from tax under Section 501(a) or an individual
retirement plan.
- The United States or any agency or instrumentality thereof.
- A state, the District of Columbia, a possession of the United States or any
subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government or any
agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S., the
District of Columbia, or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under Section 584(a).
- A trust exempt from tax under Section 664 or described in Section 4947.
- An entity registered at all times under the Investment Company Act of 1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident alien partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. NOTE: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt interest dividends under
section 852).
- Payments described in section 6049(b)(5) to non-resident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
JOINT FOREIGN PAYEES
Backup withholding applies unless:
1. Every joint payee provides the statement regarding foreign status; or
2. Anyone of the joint payees who has not established foreign status
supplies a TIN.
If anyone of the joint payees who has not established foreign status supplies
a TIN, that number is the TIN that must be used for purposes of backup
withholding and information reporting.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, ENTER YOUR CORRECT TAXPAYER
IDENTIFICATION NUMBER IN PART I, WRITE "EXEMPT" IN PART II AND SIGN AND DATE THE
FORM.
Certain payments other than interest, dividends and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041(a), 6045
and 6050A.
PRIVACY ACT NOTICE.--Section 6109 of the Internal Revenue Code requires most
recipients of dividend, interest or other payments to give taxpayer
identification numbers to payers who must report the payments to the IRS. The
IRS uses the numbers for identification purposes. Payers must be given the
numbers whether or not recipients are required to file tax returns. Payers must
generally withhold 31% of taxable interest, dividend and certain other payments
to a payee who does not furnish a taxpayer identification number to a payer.
Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
<PAGE> 1
EXHIBIT (a)(7)
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell shares. The Offer is made solely by the Offer
to Purchase, dated December 27, 1999, and the related
Letter of Transmittal, and is not being made to, and tenders will not
accepted from, or on behalf of, holders of Shares in any
jurisdiction in which the making of the Offer or the
acceptance thereof would not be in compliance with the laws of
such jurisdiction. In any jurisdiction where securities, blue sky
or other laws require the Offer to be made by a licensed
broker or dealer, the Offer shall be deemed to be made on behalf of Volcano
Acquisition Corp. by one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE
ALL OUTSTANDING SHARES OF
COMMON STOCK
OF
PLASMA-THERM, INC.
AT
$12.50 NET PER SHARE IN CASH
BY
VOLCANO ACQUISITION CORP.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON BUHRLE USA, INC.
A DIRECT WHOLLY-OWNED SUBSIDIARY OF
OERLIKON BUHRLE HOLDING AG
Volcano Acquistion Corp., a Florida corporation ("Offeror"), and a direct
wholly-owned subsidiary of Oerlikon Buhrle USA, Inc., a Delaware corporation
("Parent") and a wholly-owned subsidiary of Oerlikon Buhrle Holding AG, a
company organized under the laws of Switzerland, is offering to purchase all
outstanding shares of Common Stock, par value $0.01 per share ("Shares"), of
Plasm-Therm, Inc., a Florida corporation (the "Company"), at a purchase price of
$12.50 per share, net to the seller in cash, without interest (the "Offer
Price"), upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated December 27, 1999, and in the related Letter of Transmittal
(which, together with any amendments or supplements hereto or thereto,
collectively constitute the "Offer"). See the Offer to Purchase for capitalized
terms used but not defined herein.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON TUESDAY, JANUARY 25, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Offer is conditioned upon, among other things, (i) there being
validly tendered and not withdrawn prior to the Expiration Date (as defined
below) at least that number of Shares equivalent to a majority of the total
issued and outstanding Shares on a fully diluted basis (the "Minimum
Condition"), (ii) the expiration or termination of the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and (iii) the
expiration or termination of the waiting period under the Exon-Florio Amendment
to the Omnibus Trade and Competitiveness Act of 1988.
The Offer is not conditioned on obtaining financing.
<PAGE> 2
The Offer is being made pursuant to the Agreement and Plan of Merger,
dated as of December 20, 1999 (the "Merger Agreement"), by and among Parent,
Offeror and the Company. The Merger Agreement provides, among other things, for
the commencement of the Offer by Offeror and further provides that, after the
purchase of the Shares pursuant to the Offer and subject to the satisfaction or
waiver of certain conditions set forth therein, Offeror will be merged with and
into the Company (the "Merger"), with the Company surviving the Merger as a
direct wholly-owned subsidiary of Parent. Pursuant to the Merger, each
outstanding Share (other than (i) Shares owned by the Company or any direct or
indirect subsidiary of the Company or owned by Parent or Offeror or any other
direct or indirect subsidiary of Parent, and (ii) Shares held by holders who
have properly exercised their dissenters' rights under the Florida Business
Corporation Act) immediately prior to the Effective Time, will be converted into
the right to receive the Offer Price, in cash, without interest thereon, less
any required withholding of taxes, upon the surrender of certificates formerly
representing such Shares.
The Board of Directors of the Company has unanimously approved the Offer,
the Merger and the Merger Agreement and has determined that the Merger is
advisable and the terms of the Offer and the Merger are fair to and in the best
interests of the Shareholders of the Company, and recommends that the
Shareholders of the Company accept the offer and tender all of their Shares
pursuant thereto.
For purposes of the Offer, Offeror will be deemed to have accepted for
payment (and thereby purchased) Shares validly tendered to Offeror and not
withdrawn on or prior to the Expiration Date if, as and when Offeror gives oral
or written notice to The Bank of New York (the "Depositary") of Offeror's
acceptance for payment of such Shares. Upon the terms and subject to the
conditions of the Offer, payment for Shares accepted for payment pursuant to the
Offer will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for tendering shareholders for the purpose
of receiving payment from Offeror and transmitting payments to tendering
shareholders. Upon the deposit of funds with the Depositary for the purpose of
making payments to tendering shareholders, Offeror's obligation to make such
payments will be satisfied, and tendering shareholders must thereafter look
solely to the Depositary for payments of amounts owed to them by reason of the
acceptance for payment of Shares pursuant to the Offer.
The term "Expiration Date" means 12:00 midnight, New York City time, on
Tuesday, January 25, 2000 unless and until Offeror, in accordance with the terms
of the Offer and the Merger Agreement, extends the period of time during which
the Offer is open, in which event the term "Expiration Date" means the latest
time and date at which the Offer, as so extended, expires. In the Merger
Agreement, Offeror has agreed that if certain conditions to the Offer are not
satisfied at the scheduled expiration of the Offer, at the Company's request,
Offeror shall extend and re-extend the Offer, for periods of not more than five
business days. In addition, Offeror has agreed that, without the prior written
consent of the Company, it will not extend the period during which the Offer is
open if all of the conditions to the Offer have been satisfied, except that
Offeror may extend and re-extend the Offer (A) for periods of not more than ten
business days (i) if on the scheduled Expiration Date of the Offer any of the
conditions to the Offer shall not have been satisfied or waived, (ii) for such
period as may be required by any rule, regulation, interpretation or position of
the Securities and Exchange Commission (the "Commission") or its staff
applicable to the Offer, (iii) for any period required by applicable law, or (B)
if all conditions to the Offer are satisfied or waived but the number of Shares
tendered is more than 50%, but less than 80%, of the then outstanding Shares,
for an aggregate period of not more than twenty days (for all such extensions
under this clause (B)) beyond the latest expiration date that would otherwise be
permitted under this sentence. There can be no assurance that Offeror will
exercise its right to extend the Offer. Offeror reserves the right (but shall
not be obligated), in accordance with applicable rules and regulations of the
Commission, to waive or reduce the Minimum Condition or to waive any other
condition to the Offer; provided, however, that pursuant to the Merger
Agreement, Offeror has agreed that it will not,
<PAGE> 3
without the consent of the Company, amend or waive the Minimum Condition. If the
Minimum Condition, or any of the other conditions set forth in Section 14 of the
Offer to Purchase, has not been satisfied by 12:00 midnight, New York City time,
on Tuesday, January 25, 2000 (or any other time then set as the Expiration
Date), Offeror may elect to, subject to the terms and conditions contained in
the Merger Agreement and to the applicable rules and regulations of the
Commission (i) terminate the Offer and not accept for payment any Shares and
return all tendered Shares to tendering shareholders, (ii) waive all the
unsatisfied conditions and, subject to complying with the terms of the Merger
Agreement and the applicable rules and regulations of the Commission, accept for
payment and pay for all Shares validly tendered prior to the Expiration Date and
not theretofore withdrawn, (iii) extend the Offer and, subject to the right of
stockholders to withdraw Shares until the Expiration Date, retain the Shares
that have been tendered during the period or periods for which the Offer is
extended or (iv) amend the Offer. Except as set forth above, or in the Merger
Agreement, and subject to the applicable rules and regulations of the
Commission, Offeror expressly reserves the right, in its sole discretion, to
amend the Offer in any respect. Any extension of the period during which the
Offer is open, or delay in acceptance for payment, or 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
not later than 9:00 a.m. New York City time, on the next business day after the
previously scheduled Expiration Date in accordance with the public announcement
requirements of Rule 14d-4(c) under the Securities Exchange Act of 1934, as
amended ("Exchange Act"). The reservation by Offeror of the right to delay
acceptance for payment of, or payment for, Shares is subject to the provisions
of Rule 14e-l(c) under the Exchange Act, which requires that Offeror pay the
consideration offered or return the Shares deposited by or on behalf of
stockholders promptly after the termination or withdrawal of the Offer. Offeror
shall not have any obligation to pay interest on the purchase price for tendered
Shares whether or not Offeror exercises its right to extend the Offer.
Tenders of Shares made pursuant to the Offer are irrevocable, except as
otherwise provided in Section 4 of the Offer to Purchase. Shares tendered
pursuant to the Offer may be withdrawn pursuant to the procedures set forth in
Section 4 of the Offer to Purchase at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by Offeror pursuant to the
Offer, may also be withdrawn at any time after February 24, 2000. For a
withdrawal to be effective, a written, telegraphic or facsimile transmission
notice of withdrawal must be timely received by the Depositary at one of its
addresses set forth on the back cover of the Offer to Purchase. Any such notice
of withdrawal must specify the name of the person who tendered the Shares to be
withdrawn, the number of Shares to be withdrawn and the name of the registered
holder, if different from that of the person who tendered such Shares. If
certificates evidencing Shares to be withdrawn have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the tendering stockholder must also submit to the Depositary the
serial numbers shown on the particular certificates evidencing the Shares to be
withdrawn, and the signature on the notice of withdrawal must be guaranteed by
an Eligible Institution (as defined below), except in the case of Shares
tendered for the account of an Eligible Institution. If Shares have been
tendered pursuant to the procedure for book-entry transfer set forth in Section
3 of the Offer to Purchase, the notice of withdrawal must also specify the name
and number of the account at the applicable Book-Entry Transfer Facility to be
credited with the withdrawn Shares and otherwise comply with such Book-Entry
Transfer Facility's procedures. An "Eligible Institution" is a bank, broker,
dealer, credit union, savings association or other entity that is a member in
good standing of a recognized Medallion Program approved by The Securities
Transfer Association, Inc.
The information required to be disclosed by Rule 14d-6(e)(1)(VII) of the
General Rules and Regulations under the Exchange Act is contained in the Offer
to Purchase and is incorporated herein by reference.
<PAGE> 4
The Company has provided Offeror with its stockholder list and security
position listings for the purpose of disseminating the Offer to stockholders.
The Offer to Purchase, the related Letter of Transmittal and other relevant
materials will be mailed to record holders of Shares and will be furnished to
brokers, dealers, commercial banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the Company's stockholder list,
or, if applicable, who are listed as participants in a clearing agency's
security position listing for subsequent transmittal to beneficial owners of
Shares.
Stockholders are urged to read the Offer to Purchase and the related
Letter of Transmittal carefully before deciding whether to tender their Shares
pursuant to the Offer.
Questions and requests for assistance or for copies of the Offer to
Purchase, the related Letter of Transmittal, the Notice of Guaranteed Delivery
or other related materials may be directed to the Information Agent at the
address and telephone number set forth below, and copies will be furnished
promptly at Offeror's expense. Holders of Shares may also contact brokers,
dealers, commercial bankers and trust companies for additional copies of the
Offer to Purchase, the related Letter of Transmittal, the Notice of Guaranteed
Delivery or other related materials.
The Information Agent for the Offer is:
D.F. King & Co., Inc.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect: (212) 269-5550
All Others Call Toll Free: (800) 848-3409
December 27, 1999
<PAGE> 1
EXHIBIT (a)(8)
ZURICH, Switzerland and ST. PETERSBURG, Fla., Dec. 20 --
Oerlikon-Buhrle Holding AG (OBH), a high-technology corporation traded on the
Swiss stock exchange, and Plasma-Therm, Inc. (Nasdaq: PTIS), a leading producer
of plasma process equipment primarily used by manufacturers requiring highly
sophisticated film etching and deposition techniques, today announced that they
have entered into a definitive agreement for OBH to acquire Plasma-Therm through
a cash tender offer.
The tender offer will begin within five business days at a price of
$12.50 per share in cash for all of the shares of Common Stock of Plasma-Therm,
for a total value of approximately $150 million. It is expected to be completed
by early February 2000. The tender offer, which has been approved by the boards
of directors of both companies, is subject to the tender of a majority of the
outstanding Plasma-Therm shares, the expiration of any relevant waiting periods,
and other customary conditions.
OBH is a major Swiss corporation, which, in the course of 1999,
underwent a major transformation from what was formerly a diversified
conglomerate to a focused high-technology business. Following the sale of
Oerlikon-Buhrle Immoblilien AG (real estate), Bally (the well-known luxury shoe
brand), and Oerlikon-Contraves Defense, OBH began the construction of the new
high technology group. The offer to purchase Plasma-Therm represents a further
step in reinforcing OBH's position in the information technology sector,
particularly in the semiconductor equipment industry.
Founded in 1975, Plasma-Therm is a leading producer of plasma
process equipment primarily used by manufacturers requiring highly sophisticated
thin film etching and deposition techniques. Plasma-Therm is globally
positioned, with sales offices in Europe, South America, Asia and India,
offering a complete range of customer services on all major continents.
Plasma-Therm serves four discrete market segments: photomask etching, data
storage, microelectromechanical (MEMS) and optoelectronics/telecommunications.
"The offer for Plasma-Therm is in line with OBH's strategy to
strengthen its position in the semiconductor equipment industry. The acquisition
of Plasma-Therm will establish OBH as a one-stop shop and reinforce its position
as a leading systems supplier for the semiconductor industry," said Willy
Kissling, chairman and CEO of OBH. "The acquisition is an important step in
attaining the size and strength needed to successfully operate in this rapidly
growing field in the long-term."
"The board of directors of Plasma-Therm believes that this
transaction is in the best interests of Plasma-Therm's shareholders and
employees, and unanimously recommends that all shareholders tender their shares
to OBH," said Ronald H. Deferrari, chairman of Plasma-Therm.
<PAGE> 2
Forward-looking and cautionary statements: From time to time, the
Company may issue forward-looking statements, which involve risks and
uncertainties. This press release contains forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended and Section 21E
of the Securities Exchange Act of 1934, as amended. This news release may
include comments that do not refer strictly to historical results or actions,
which although believed to be reasonable, are inherently uncertain and difficult
to predict. Such statements are subject to certain risks and uncertainties
inherent in the Company's business that could cause actual results to differ are
not limited to the following:
Competitive pricing pressures;
The Company's ability to identify, acquire, and integrate other
technologies or acquired companies
Changes in business conditions affecting the Company's financial
position or results of operations which significantly increase the
Company's working capital needs;
Performance of the economies in markets in which the Company
operates;
Continued acceptance of the Company's products and services;
Competitive factors;
New products and technological changes;
Risks related to international transactions;
Realization of the benefits of the Company's overhead reduction and
restructuring;
General economic risks and uncertainties and other such risks as we
may identify in this release or in other published documents.
Any forward-looking statements should be considered accordingly.
<PAGE> 1
EXHIBIT (a)(9)
OERLIKON-BUHRLE
Media release
OERLIKON-BUHRLE HOLDING AG OFFERS TO ACQUIRE PLASMA-THERM
Zurich, December 20, 1999. -- OERLIKON-BUHRLE HOLDING AG (OBH), A HIGH-TECH
CORPORATION TRADED ON THE SWISS STOCK EXCHANGE, HAS MADE A PUBLIC OFFER TO
ACQUIRE PLASMA-THERM, INC. (NASDAQ: PTIS), HEADQUARTERED IN ST. PETERSBURG,
FLORIDA (U.S.A.). THIS TRANSACTION UNDERLINES OBH'S COMMITMENT TO REINFORCING
ITS POSITION IN THE SEMICONDUCTOR EQUIPMENT INDUSTRY AND TO FOCUSING THE GROUP
ON ADVANCED TECHNOLOGIES OFFERING HIGH GROWTH AND PROFIT.
The public offer will begin within five business days at a price of $12.50 per
share in cash for all of the shares of Common Stock of Plasma-Therm, for a
total value of approximately $150 million. It is expected to be completed by
early February 2000. The public offer, which has been approved by the boards of
directors of both companies, is subject to the tender of a majority of the
outstanding Plasma-Therm shares, the expiration of any relevant waiting
periods, and other customary conditions.
"The offer for Plasma-Therm is in line with OBH's strategy to strengthen its
position in the semiconductor equipment, opto/tele and data storage markets. The
acquisition of Plasma-Therm will reinforce OBH's position as a leading systems
supplier for the served markets", said Willy Kissling, Chairman and CEO of
Oerlikon-Buhrle Holding AG. "The planned acquisition will be an important step
in attaining the size and strength needed to successfully operate in this
rapidly growing field in the long-term," he continued.
Founded in 1975, Plasma-Therm designs, produces, supports and sells thin film
etching and PECVD systems to manufacturers who make integrated circuits and
other electronic devices. The company serves the telecommunications, data
storage, photomasking and microsystems markets. Headquartered in St. Petersburg,
Florida (USA), Plasma-Therm employs around 170 people. Sales in 1999 will amount
to approximately 41 million U.S. dollars.
OBH is a leading provider of thin film deposition and etching systems for
telecommunications, packaging, and front-end applications. Based in Balzers,
Liechtenstein, OBH's Semiconductor Division has a global R&D, manufacturing,
sales, service and technical support network.
OBH and Plasma-Therm ideally complement each other with regard to technologies,
locations, and customers. Whereas OBH is at the forefront of deposition
technology (PVD), Plasma-Therm is a leading supplier of etching and PECVD
technology.
<PAGE> 2
OBH is a major Swiss corporation, which, in the course of 1999, underwent a
major transformation from what was formerly a diversified conglomerate to a
focused high-tech corporation. Following the sale of Oerlikon-Buhrle Immobilien
AG (real estate), Bally (the well-known luxury shoe brand), and
Oerlikon-Contraves Defence, OBH began the construction of the new high-tech
Group. In November, it acquired a 27% stake in ESEC (a well-known Swiss company
active in the back-end of chip production) with an option to acquire a majority
share in the company. The offer to purchase Plasma-Therm represents a further
step in reinforcing OBH's position in
<PAGE> 3
the information technology sector, particularly in the semiconductor, data
storage and display equipment industry.
For further questions, please contact:
Oerlikon-Buhrle Holding AG, Linda Forster Hany, Head of Corporate
Communications
Tel. +41 (0)1 360 96 02; Fax +41 (0)1 360 96 53
<PAGE> 1
EXHIBIT (C)(1)
AGREEMENT AND PLAN OF MERGER
By and Among
PLASMA-THERM, INC.
OERLIKON-BUHRLE USA, INC.
and
VOLCANO ACQUISITION CORP.
Dated as of December 20, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
1. The Tender Offer.........................................................................................1
1.1. Tender Offer....................................................................................1
1.2. Tender Offer Statement on Schedule 14D-1........................................................2
1.3. Solicitation/Recommendation Statement on Schedule 14D-9.........................................3
1.4. List of Shareholders............................................................................4
1.5. Changes in Applicable Laws......................................................................4
2. The Merger; Closing; Effective Time......................................................................4
2.1. The Merger......................................................................................4
2.2. Closing.........................................................................................5
2.3. Effective Time..................................................................................5
3. Articles of Incorporation and ByLaws of the Surviving Corporation........................................5
3.1. The Articles of Incorporation...................................................................5
3.2. The Bylaws......................................................................................5
4. Officers and Directors of the Company and the Surviving Corporation......................................5
4.1. Directors.......................................................................................5
4.2. Officers........................................................................................7
5. Effect of the Merger on Capital Stock; Exchange of Certificates..........................................7
5.1. Effect on Capital Stock.........................................................................7
5.2. Surrender of Certificates.......................................................................7
5.3. Dissenters' Rights..............................................................................9
5.4. Adjustments to Prevent Dilution................................................................10
5.5. Merger Without Meeting of Stockholders.........................................................10
6. Representations and Warranties of the Company...........................................................10
6.1. Organization, Good Standing and Qualification..................................................10
6.2. Capital Structure..............................................................................11
6.3. Corporate Authority; Approval and Fairness.....................................................12
6.4. Governmental Filings; No Violations............................................................12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
6.5. Company Reports; Financial Statements..........................................................13
6.6. Absence of Certain Changes.....................................................................14
6.7. Litigation and Liabilities.....................................................................15
6.8. Employee Benefits..............................................................................15
6.9. Compliance with Laws...........................................................................17
6.10. Takeover Statutes..............................................................................18
6.11. Environmental Matters..........................................................................18
6.12. Taxes..........................................................................................19
6.13. Labor Matters..................................................................................20
6.14. Intellectual Property..........................................................................21
6.15. Brokers and Finders............................................................................22
6.16. Year 2000......................................................................................22
6.17. Title to Assets................................................................................23
6.18. Insurance Policies.............................................................................23
6.19. Material Contracts.............................................................................24
6.20. Vote Required..................................................................................25
6.21. Offer Documents................................................................................25
6.22. No other Representations or Warranties.........................................................26
7. Representations and Warranties of Parent and Merger Sub.................................................26
7.1. Ownership of Company Shares....................................................................26
7.2. Capitalization of Merger Sub...................................................................26
7.3. Organization, Good Standing and Qualification..................................................27
7.4. Corporate Authority; Approval and Fairness.....................................................27
7.5. Governmental Filings; No Violations............................................................27
7.6. Compliance with Laws...........................................................................28
7.7. Takeover Statutes..............................................................................28
7.8. Funds..........................................................................................28
7.9. Other Documents................................................................................28
7.10. No other Representations or Warranties.........................................................29
8. Covenants...............................................................................................29
8.1. Interim Operations of the Company..............................................................29
8.2. Acquisition Proposals..........................................................................32
8.3. Filings; Other Actions; Notification...........................................................34
8.4. Access.........................................................................................36
8.5. Stock Exchange De-listing......................................................................36
8.6. Meetings of the Company's Shareholders.........................................................36
8.7. Publicity......................................................................................38
8.8. Benefits.......................................................................................38
8.9. Indemnification; Directors' and Officers' Insurance............................................39
8.10. Takeover Statute...............................................................................41
</TABLE>
ii
<PAGE> 4
<TABLE>
<S> <C>
8.11. Expenses.......................................................................................41
9. Conditions to Each Party's Obligation to Effect the Merger..............................................41
9.1. Shareholder Approval...........................................................................41
9.2. HSR............................................................................................41
9.3. Litigation.....................................................................................41
9.4. Tender Offer...................................................................................42
10. Termination.............................................................................................42
10.1. Termination by Mutual Consent..................................................................42
10.2. Termination by Either Parent or the Company....................................................42
10.3. Termination by the Company.....................................................................42
10.4. Termination by Parent..........................................................................43
10.5. Effect of Termination and Abandonment..........................................................43
11. Miscellaneous and General...............................................................................44
11.1. Survival.......................................................................................44
11.2. Modification or Amendment......................................................................45
11.3. Waiver of Conditions...........................................................................45
11.4. Counterparts...................................................................................45
11.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL..................................................45
11.6. Notices........................................................................................46
11.7. Entire Agreement; NO OTHER REPRESENTATIONS.....................................................47
11.8. No Third Party Beneficiaries...................................................................47
11.9. Obligations of Parent and of the Company.......................................................47
11.10. Severability...................................................................................47
11.11. Interpretation.................................................................................48
11.12. Assignment.....................................................................................48
11.13. Enforcement of Agreement.......................................................................48
11.14. Glossary of Terms..............................................................................48
</TABLE>
iii
<PAGE> 5
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"),
dated as of December 20, 1999, by and among Plasma-Therm, Inc., a Florida
corporation (the "Company"), Oerlikon-Buhrle USA, Inc., a Delaware corporation
("Parent"), and Volcano Acquisition Corp., a Florida corporation and a
wholly-owned subsidiary of Parent ("Merger Sub").
RECITALS
WHEREAS, the respective boards of directors of each of Parent, Merger
Sub and the Company have approved this Agreement and adopted the plan of merger
(the "Plan") set forth herein whereby Merger Sub will merge with and into the
Company upon the terms and subject to the conditions set forth in this Agreement
(the "Merger");
WHEREAS, the Company, Parent and Merger Sub desire to make certain
representations, warranties, covenants and agreements in connection with this
Agreement;
WHEREAS, concurrently with the execution and delivery of this
Agreement, Parent and Merger Sub are entering into agreements with Ronald H.
Deferrari, Ronald S. Deferrari, Edmond A. Richards and Stacy L. Wagner pursuant
to which such stockholders of the Company shall agree to take certain actions to
support the transactions contemplated by this Agreement;
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. THE TENDER OFFER
1.1. Tender Offer.
Provided that this Agreement shall not have been terminated in
accordance with Section 10 hereof and none of the events set forth in paragraphs
(a) through (g) of Annex A hereto shall have occurred or be existing and the
other conditions to the Offer specified in Annex A shall have been satisfied
(together with such events, the "Offer Conditions"), as soon as reasonably
practicable, and in any event within five Business Days after public
announcement of this Agreement, Merger Sub will commence, within the meaning of
Rule 14d-2 under the Exchange Act (as defined below), a tender offer (the
"Offer") for all of the outstanding Shares (as defined below) at a price of
$12.50 per Share in cash, net to the seller, and, subject only to and in
accordance with the terms and conditions of the Offer, accept for payment Shares
that are validly tendered pursuant to the Offer and not withdrawn immediately
following (unless the Offer shall have been extended in accordance with the
terms hereof) the later of (i) the date on which the waiting period under the
HSR Act has expired or has been terminated, (ii) the date on which the waiting
period under the Exon-Florio Amendment to the Omnibus Trade and Competitiveness
Act of 1988 has expired or has been terminated, and (iii)
<PAGE> 6
the twentieth Business Day after the commencement of the Offer, unless this
Agreement is terminated in accordance with Section 10, in which case the Offer
(whether or not previously extended in accordance with the terms hereof) shall
expire on such date of termination; provided, however, and notwithstanding
anything to the contrary in the foregoing, Parent and Merger Sub agree that
unless the Company is in material breach of this Agreement, if any of the Offer
Conditions specified in paragraphs (a) or (c) of Annex A exists at the time of
the scheduled expiration date of the Offer, Merger Sub shall from time to time
extend the Offer at such times as the Company may request for five Business Days
for each extension, but shall in no event extend the Offer beyond June 30, 2000,
and, provided, further, it is understood and agreed that unless Parent or Merger
Sub is in material breach of this Agreement (A) if any of the Offer Conditions
specified in paragraphs (a) through (h) of Annex A exists at the time of the
scheduled expiration date of the Offer, Merger Sub may extend and re-extend the
Offer on one or more occasions for periods of time (not to exceed ten Business
Days for any particular extension) so that the expiration date of the Offer (as
so extended) is as soon as reasonably practicable or advisable after the date on
which the particular Offer Condition no longer exists, and (B) Merger Sub may
extend and re-extend the Offer on one or more occasions for periods of time (not
to exceed ten Business Days for any particular extension): (i) for any period
required by any rule, regulation, interpretation or position of the SEC (as
defined below) or its staff applicable to the Offer, (ii) for any period
required by applicable law and (C) if on such expiration date there shall have
been validly tendered and not withdrawn more than 50%, but less than 80%, of the
outstanding number of Shares, for an aggregate period of twenty days beyond the
latest expiration date that would be permitted under this sentence; provided,
further, that all extensions of the Offer made by Merger Sub (other than at the
request of the Company) shall not extend the Offer beyond June 30, 2000. Merger
Sub shall not, without the prior written consent of the Company, decrease the
price per Share offered in the Offer, change the form of consideration offered
or payable in the Offer, decrease the numbers of Shares sought in the Offer,
change the conditions to the Offer, impose additional conditions to the Offer,
amend any term of the Offer, in each case, in any manner adverse to the holders
of Shares or waive the Minimum Conditions (as defined in Annex A).
Notwithstanding the above, in the event that Merger Sub has not, on or before
June 30, 2000, accepted pursuant to the Offer for payment more than 50% of the
outstanding Shares of the Company (on a fully diluted basis), then the Agreement
may be terminated by the Board of Directors of either Parent or the Company;
unless such purchase shall not have occurred because of a material breach of
this Agreement by the party seeking to terminate this Agreement.
1.2. Tender Offer Statement on Schedule 14D-1.
As soon as reasonably practicable on the date the Offer is
commenced, Merger Sub shall file a Tender Offer Statement on Schedule 14D-1 (the
"Schedule 14D-1") with the SEC with respect to the Offer. The Schedule 14D-l
shall contain an Offer to Purchase and forms of the related letter of
transmittal and other documents relating to the Offer (which Schedule 14D-1,
Offer to Purchase, letter of transmittal and other documents, together with any
supplements or amendments thereto, are referred to herein collectively as the
"Offer Documents"). Parent and Merger Sub agree that the Company and its
counsel shall be given
-2-
<PAGE> 7
an opportunity to review and comment on the Schedule 14D-l before it is filed
with the SEC. Parent, Merger Sub and the Company each agrees promptly to correct
any information provided by it for use in the Offer Documents that shall have
become false or misleading in any material respect, and Parent, Merger Sub and
the Company further agree to take all steps necessary to cause the Schedule
14D-1 as so corrected to be filed with the SEC and the other Offer Documents as
so corrected to be disseminated to holders of Shares, in each case as and to the
extent required by applicable federal securities laws. Parent and Merger Sub
also agree that the Offer Documents shall comply as to form in all material
respects with the requirements of the Securities Exchange Act of 1934 (the
"Exchange Act") and the rules and regulations thereunder, and on the date filed
with the SEC and on the date first published, sent or given to the Company's
stockholders, the Offer Documents shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by Parent or Merger Sub with respect to information
supplied by the Company for inclusion in the Offer Documents. Parent and Merger
Sub agree to provide the Company and its counsel in writing with any comments
Parent, Merger Sub or their counsel may receive from the SEC or its staff with
respect to the Offer Documents promptly after receipt of such comments and with
copies of any written responses and telephonic notification of any verbal
responses by Parent, Merger Sub or their counsel.
1.3. Solicitation/Recommendation Statement on Schedule
14D-9.
1.3.(a) Subject to its fiduciary duties, the Company
hereby approves of and consents to the Offer and hereby consents to the
inclusion in the Offer Documents of the recommendation of the Board of Directors
described clause (A) of Section 6.3(b). The Company has been advised by each of
its directors and executive officers holding in excess of 1% of the fully
diluted Shares outstanding that each such person intends to tender all shares of
Common Stock owned by such person pursuant to the Offer, except to the extent of
any restrictions created by Section 16(b) of the Exchange Act.
1.3.(b) The Company shall file a
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9")
with the Securities and Exchange Commission (the "SEC") on the date of the
filing of the Schedule 14D-1 containing the recommendations described in Section
6.3(b) and shall mail the Schedule 14D-9 to the stockholders of the Company;
provided, however, that if the Company's Board of Directors determines
consistent with its fiduciary duties in accordance with Section 8.2 hereof to
amend or withdraw such recommendation, such amendment or withdrawal shall not
constitute a breach of this Agreement. Parent and its counsel shall be given an
opportunity to review and comment on the Schedule 14D-9 before it is filed with
the SEC. Parent, Merger Sub and the Company each agrees promptly to correct any
information provided by it for use in the Schedule 14D-9 that shall have become
false or misleading in any material respect, and the Company further agrees to
take all steps necessary to cause the Schedule 14D-9, as so corrected to be
disseminated to holders of Shares, in each case as and to the extent required by
the applicable federal securities
-3-
<PAGE> 8
laws. The Company also agrees that the Schedule 14D-9 shall comply as to form in
all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder, and on the date filed with the SEC and on the date
first published, sent or given to the Company's stockholders, the Schedule 14D-9
shall not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that no representation is made by the Company with
respect to information supplied by Parent or Merger Sub for inclusion in the
Schedule 14D-9. The Company agrees to provide Parent and Merger Sub and their
counsel in writing with any comments the Company or its counsel may receive from
the SEC or its staff with respect to the Schedule 14D-9 promptly after the
receipt of such comments and with copies of any written response and telephonic
notification of any verbal responses by the Company or its counsel.
1.4. List of Shareholders.
In connection with the Offer, the Company will promptly cause
its Transfer Agent to furnish to Merger Sub mailing labels containing as of a
recent date, the names and addresses of the record holders of Shares and of
those persons becoming record holders subsequent to such date, together with
copies of all lists of stockholders, security position listings and computer
files in the Company's possession or control regarding the beneficial owners of
Shares, and shall furnish to Merger Sub such information and assistance
(including updated lists of stockholders, security position listings and
computer files) as Merger Sub may reasonably request in communicating the Offer
to the Company's stockholders. For purposes of this Agreement, the term
"Business Day" means any day other than Saturday, Sunday or a federal holiday.
1.5. Changes in Applicable Laws
Subject to the terms and conditions of this Agreement, if
there shall occur a change in law or in a binding judicial interpretation of
existing law which would, in the absence of action by the Company or the Board,
prevent the Merger Sub, were it to acquire a specified percentage of the Shares
then outstanding, from approving and adopting this Agreement by its affirmative
vote as the holder of a majority of issued and outstanding Shares and without
the affirmative vote of any other stockholder, the Company will use its
reasonable best efforts to promptly take or cause such action to be taken.
2. THE MERGER; CLOSING; EFFECTIVE TIME
2.1. The Merger.
Upon the terms and subject to the conditions set forth in this
Agreement, at the Effective Time (as hereinafter defined), Merger Sub shall be
merged with and into the Company in accordance with this Agreement and the
separate corporate existence of Merger Sub shall thereupon cease. The Company
shall be the surviving corporation in the Merger (sometimes hereinafter referred
to as the "Surviving Corporation"), and the separate corporate
-4-
<PAGE> 9
existence of the Company with all its rights, privileges, immunities, powers and
franchises shall continue unaffected by the Merger, except as set forth in
Section 3. The Merger shall have the effects specified in the Florida Business
Corporation Act (the "FBCA").
2.2. Closing.
The closing of the Merger (the "Closing") shall take place (i)
at the offices of Foley & Lardner, 100 North Tampa Street, Suite 2700, Tampa
Florida 33602 at 10:00 A.M. on the third business day after the last to be
satisfied or waived of the conditions set forth in Section 8 hereof shall be
satisfied or waived in accordance with this Agreement or (ii) at such other
place and time and/or on such other date as the Company and Parent may agree in
writing (the "Closing Date").
2.3. Effective Time.
Simultaneously with the Closing, the Company and Parent will
cause Articles of Merger reflecting the provisions set forth in this Agreement
(the "Articles of Merger") to be executed (by the Company and Merger Sub) and
delivered for filing to the Department of State of the State of Florida (the
"Department") as provided in Section 607.1105 of the FBCA. The Merger shall
become effective at the time when the Articles of Merger have been duly filed
with the Department or at such later time agreed by the parties in writing and
provided in the Articles of Merger (the "Effective Time").
3. ARTICLES OF INCORPORATION AND BYLAWS OF THE SURVIVING
CORPORATION
3.1. The Articles of Incorporation.
The articles of incorporation of the Company as in effect
immediately prior to the Effective Time shall be the articles of incorporation
of the Surviving Corporation (the "Articles"), until duly amended as provided
therein or by applicable law, except that Article V of the articles of
incorporation of the Company shall be amended in its entirety to read as
follows: "The total number of shares of all classes of capital stock that the
Corporation shall have authority to issue shall be 1,000 shares of Common Stock,
par value $.01 per share".
3.2. The Bylaws.
The bylaws of the Company in effect at the Effective Time
shall be the bylaws of the Surviving Corporation (the "Bylaws"), until duly
amended as provided therein or by applicable law.
4. OFFICERS AND DIRECTORS OF THE COMPANY AND THE SURVIVING
CORPORATION
4.1. Directors.
-5-
<PAGE> 10
4.1.(a) If requested by Parent, the Company shall to
the extent permitted by law, promptly following the purchase by Merger Sub of
Shares pursuant to the Offer in accordance with the terms hereunder, take, at
its expense, all actions necessary (including calling a special meeting of the
Board of Directors of the Company or, only if necessary, the shareholders of the
Company for this purpose) to cause natural Persons designated by Parent to
become directors of the Company so that the total number of such natural Persons
equals that number of directors, rounded up to the next whole number, which
represents the product of (x) the total number of directors on the board of
directors of the Company multiplied by (y) the percentage that the number of
Shares so accepted for payment plus any shares beneficially owned by Parent or
its affiliates on the date hereof bears to the number of Shares outstanding at
the time of such acceptance for payment; provided, however, that prior to the
Effective Time the total number of directors designated by Parent will not
exceed 75% of the Board of Directors of the Company. At such time, the Company
shall also cause persons designated by Parent to constitute the same percentage
(rounded up to the next whole number) as is on the Company's Board of Directors
of (i) each committee of the Company's Board of Directors; (ii) each board of
directors (or similar body) of each Subsidiary of the Company, and (iii) each
committee (or similar body) of each such board. In furtherance thereof, the
Company will increase the size of the board of directors of the Company, or use
its best efforts to secure the resignation of directors, or both, as is
necessary to permit Parent's designees to be elected to the board of directors
of the Company; provided, however, that prior to the Effective Time, the board
of directors of the Company shall always have at least three members who are
neither officers of Parent nor designees, shareholders or affiliates of Parent
("Parent Insiders"). The Company's obligations to appoint designees to the board
of directors of the Company now shall be subject to Section 14(f) of the
Exchange Act and Rule 14(f)-l thereunder. The Company shall promptly take all
actions required pursuant to such Section and Rule in order to fulfill its
obligations under this Section 4.1 and shall include in the Schedule 14D-9 such
information as is required under such Rule, Section and Schedule. Parent agrees
to furnish to the Company all information concerning Parent's designees which
may be necessary to comply with the foregoing and agrees that such information
will comply with the Exchange Act and the rules and regulations thereunder and
other applicable laws. Notwithstanding anything in this Agreement to the
contrary, in the event that Parent's designees are elected or appointed to the
Board of Directors of the Company after the acceptance for payment of Shares
pursuant to the Offer and prior to the Effective Time, the affirmative vote of
at least a majority of the directors of the Company who are not Parent Insiders
shall be required to (a) amend or terminate this Agreement by the Company, (b)
waive any of the Company's material rights, benefits or remedies hereunder, (c)
extend the time for performance of Parent's and Merger Sub's respective
obligations hereunder, or (d) take any other action by the Company's Board of
Directors under or in connection with this Agreement which would adversely
affect the ability of the shareholders of the Company to receive the Merger
Consideration.
4.1.(b) The directors of Merger Sub immediately prior
to the Effective Time shall be the directors of the Surviving Corporation as of
the Effective Time and until their successors are duly appointed or elected in
accordance with applicable law.
-6-
<PAGE> 11
4.2. Officers.
The persons listed on Schedule 4.2 shall, from and after the
Effective Time, be the officers of the Surviving Corporation until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Articles and the
Bylaws.
5. EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF
CERTIFICATES
5.1. Effect on Capital Stock.
At the Effective Time, as a result of the Merger and without
any action on the part of the holder of any capital stock of the Company:
5.1.(a) Merger Consideration. Each share of the
voting Common Stock, par value $0.01 per share, of the Company (a "Share" and,
collectively, the "Shares") issued and outstanding immediately prior to the
Effective Time (other than Shares owned by Parent, Merger Sub or any other
direct or indirect Subsidiary of Parent (collectively, the "Parent Companies")
or Shares that are owned by the Company and in each case not held on behalf of
third parties or Shares that are owned by Dissenting Shareholders (collectively,
"Excluded Shares")) shall, by virtue of the Merger and without any action on the
part of the holder thereof, be cancelled, extinguished and converted into the
right to receive, without any interest, an amount in cash equal to $12.50 per
Share (the "Merger Consideration") or such greater amount which may be paid
pursuant to the Offer. As a result of the Merger and without any action on the
part of the holder thereof, at the Effective Time, all Shares shall no longer be
outstanding and shall be cancelled and retired and shall cease to exist, and
each certificate (a "Certificate") formerly representing any of such Shares
(other than Excluded Shares) shall thereafter represent only the right to the
Merger Consideration for each Share upon the surrender of such Certificate in
accordance with Section 5.2 or, with respect to Shares held by Dissenting
Shareholders, the right, if any, to receive payment from the Surviving
Corporation of the "fair value" of such Shares as determined in accordance with
Section 607.1302 of the FBCA.
5.1.(b) Cancellation of Shares. Each Excluded Share
shall cease to be outstanding, shall, by virtue of the Merger, be cancelled and
retired without payment of any consideration therefor and shall cease to exist.
5.1.(c) Merger Sub. Each share of Common Stock, par
value $0.01 per share, of Merger Sub issued and outstanding immediately prior to
the Effective Time shall be converted into one validly issued, fully paid and
nonassessable share of common stock of the Surviving Corporation.
5.2. Surrender of Certificates.
-7-
<PAGE> 12
5.2.(a) Paying Agent. At the Effective Time, Parent
shall deposit, or shall cause to be deposited, with The Bank of New York or such
other party reasonably satisfactory to the Company, to act as paying agent (the
"Paying Agent"), selected by Parent (within 15 days after the date hereof) with
the Company's prior approval for the benefit of the holders of Shares, an amount
in cash sufficient in the aggregate to provide all funds necessary for the
Paying Agent to make payments of the Merger Consideration to all holders of
Shares (such cash being hereinafter referred to as the "Exchange Fund") . To the
extent not required within five Business Days for payment with respect to
surrendered Shares, proceeds in the Exchange Fund may be invested by the Paying
Agent, if and as directed by Parent (as long as such investments do not impair
the rights of holders of Shares) in direct obligations of the United States of
America, obligations for which the faith and credit of the United States of
America is pledged to provide for the payment of principal and interest, or
certificates of deposit issued by a commercial bank having at least $10 billion
in assets, and any net earnings with respect thereto shall be paid to Parent as
and when requested by the Parent; provided that at no time may the amount of the
Exchange Fund be reduced below an amount necessary to make payments of the
Merger Consideration for all Shares not theretofore submitted.
5.2.(b) Exchange Procedures. As soon as practicable
after the Effective Time, the Surviving Corporation shall cause the Paying Agent
to mail to each holder of record of Shares immediately prior to the Effective
Time (other than holders of Excluded Shares) (i) a letter of transmittal
specifying that delivery of the Certificates shall be effected, and risk of loss
and title to the Certificates shall pass, only upon delivery of the Certificates
(or affidavits of loss in lieu thereof) to the Paying Agent, such letter of
transmittal to be in such form and have such other provisions as Parent may
reasonably specify, and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for the amounts of cash payable hereunder to a
Person other than the Person in whose name the surrendered Certificate is
registered on the transfer books of the Company. Subject to Section 5.2(e), upon
surrender of a Certificate for cancellation to the Paying Agent together with
such letter of transmittal, duly executed, the holder of such Certificate shall
be entitled to receive in exchange therefor a check in an amount equal to (after
giving effect to any required tax withholdings) the Merger Consideration
multiplied by the number of Shares formerly represented by such Certificate and
the Certificate so surrendered shall forthwith be cancelled. No interest will be
paid or accrued on any amount payable upon due surrender of the Certificates. In
the event of a transfer of ownership of Shares that is not registered in the
transfer records of the Company, a check in the amount payable hereunder, upon
due surrender of the Certificate, may be paid to such a transferee if the
Certificate formerly representing such Shares is presented to the Paying Agent,
accompanied by all documents reasonably required to evidence and effect such
transfer and to evidence that any applicable stock transfer taxes have been
paid.
For the purposes of this Agreement, the term "Person" shall
mean any individual, corporation (including not-for-profit), general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, Governmental Entity (as hereinafter defined) or other
entity of any kind or nature.
-8-
<PAGE> 13
5.2.(c) Transfers. At or after the Effective Time,
there shall be no transfers on the stock transfer books of the Company of the
Shares that were outstanding immediately prior to the Effective Time. From and
after the Effective Time, the holders of Certificates evidencing ownership of
Shares outstanding immediately prior to the Effective Time shall cease to have
any rights with respect to such Shares except as otherwise provided for herein
or by applicable law. If, after the Effective Time, Certificates are presented
to the Surviving Corporation, they shall be canceled and exchanged as provided
in this Section 5.
5.2.(d) Termination of Exchange Fund. Any portion of
the Exchange Fund (including the proceeds of any interest and other income
received by the Paying Agent in respect of all such funds) that remains
unclaimed by the shareholders of the Company for six months after the Effective
Time shall be returned to the Surviving Corporation. Any shareholders of the
Company who have not theretofore complied with this Section 5 shall thereafter
look to the Surviving Corporation for payment of the Merger Consideration
payable upon due surrender of their Certificates (or affidavits of loss in lieu
thereof) in accordance with this Agreement, in each case, without any interest
thereon.
5.2.(e) Lost, Stolen or Destroyed Certificates. In
the event any Certificate shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the Person claiming such Certificate to
be lost, stolen or destroyed and, if required by the Parent or Surviving
Corporation, the posting by such Person of a bond in a reasonable amount as the
Parent or Surviving Corporation may direct as indemnity against any claim that
may be made against it with respect to such Certificate, the Paying Agent will
issue in exchange for such lost, stolen or destroyed Certificate the amount of
cash such Persons are entitled to hereunder upon due surrender of the Shares
represented by such Certificate pursuant to this Agreement.
5.3. Dissenters' Rights.
Notwithstanding anything in this Agreement to the contrary, if
required under the FBCA, but only to the extent required thereby, Shares that
are issued and outstanding immediately prior to the Effective Time and which are
held by shareholders ("Dissenting Shareholders") who (A) have not voted in favor
of or consented to the Merger and (B) in the manner provided in Section 607.1320
of the FBCA shall have delivered a written notice of intent to demand payment
for such Shares if the Merger is effectuated in the time and manner provided in
FBCA and (C) shall not have failed to perfect or shall not have effectively
withdrawn or lost their rights to appraisal and payment under the FBCA shall not
be converted into the right to receive the Merger Consideration, but shall, in
lieu thereof, be entitled to receive the consideration as shall be determined
pursuant to Sections 607.1301 through 607.1320 of the FBCA; provided, however,
that any such holder who shall have failed to perfect or shall have effectively
withdrawn or lost his, her or its right to appraisal and payment under the FBCA,
shall thereupon be deemed to have had such Person's Shares converted, at the
Effective Time, into the right to receive the Merger Consideration set forth
herein, without any interest or dividends thereon. Notwithstanding anything to
the contrary contained in this
-9-
<PAGE> 14
Section 5.3, if (i) the Merger is rescinded or abandoned or (ii) the
stockholders of the Company revoke the authority to effect the Merger, then the
right of any Dissenting Shareholder to be paid the fair value of such Dissenting
Shareholder's Shares pursuant to Section 607.1302 of the FBCA shall cease as
provided in the FBCA. The Company will give Parent prompt notice of any demands
received by the Company for appraisals of Shares held by Dissenting
Shareholders. The Company shall not, except with the prior written consent of
Parent, make any payment with respect to any demands for appraisal or offer to
settle or settle any such demands.
5.4. Adjustments to Prevent Dilution.
The Company shall not, without the prior written consent of
the Parent (which consent shall not be unreasonably withheld), change the number
of Shares, or securities convertible or exchangeable into or exercisable for
Shares, issued and outstanding prior to the Effective Time as a result of a
reclassification, stock split (including a reverse split), stock dividend or
distribution, recapitalization, merger, subdivision, issuer tender or exchange
offer, or other similar transaction. In the event of any such change, the Merger
Consideration shall be equitably adjusted.
5.5. Merger Without Meeting of Stockholders.
Notwithstanding the foregoing, if Merger Sub, or any other
direct or indirect subsidiary of Parent, shall acquire at least 80 percent of
the outstanding Shares, the parties hereto shall take all necessary and
appropriate action to cause the Merger to become effective as soon as
practicable after the expiration of the Offer without a meeting of stockholders
of the Company, in accordance with Section 607.1104 of the FBCA.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the disclosure letter delivered to Parent by the
Company on or prior to entering into this Agreement (the "Company Disclosure
Letter"), the Company hereby represents and warrants to Parent and Merger Sub
that (for purposes of the representations and warranties in this Section 6 that
relate to events occurring or conditions existing in the past, references to the
Company shall be deemed to include its previously existing Subsidiary (as such
term is hereinafter defined):
6.1. Organization, Good Standing and Qualification.
The Company has no Subsidiaries (as hereinafter defined). The
Company is a corporation duly organized, validly existing and of active status
under the laws of the State of Florida and has all requisite corporate or
similar power and authority to own, operate and lease its properties and assets
and to carry on its business as presently conducted and is qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
where the ownership or operation of its properties or conduct of its business
requires such qualification, except where the failure to be so qualified or in
good standing, individually or in the
-10-
<PAGE> 15
aggregate, would not have a Company Material Adverse Effect (as hereinafter
defined). The Company has delivered to Parent complete and correct copies of the
Company's articles of incorporation and bylaws (or comparable governing
instruments), as amended to the date hereof. The Company's articles of
incorporation and bylaws (or comparable governing instruments) so delivered are
in full force and effect.
As used in this Agreement, the term "Subsidiary" means, with
respect to the Company, Parent or Merger Sub, as the case may be, any entity,
whether incorporated or unincorporated, of which at least a majority of the
securities or ownership interests having by their terms ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions is directly or indirectly owned or controlled by such party or by one
or more of its respective Subsidiaries or by such party and any one or more of
its respective Subsidiaries.
As used in this Agreement, the term "Company Material Adverse
Effect" means a material adverse effect on the financial condition, properties,
business, assets, operations or results of operations of the Company taken as a
whole; including any such effect resulting from any change in economic or
business conditions generally or in the industries of the Company specifically.
6.2. Capital Structure.
The authorized capital stock of the Company consists of
25,000,000 Shares, of which 11,252,311 Shares were outstanding as of the close
of business on December 20, 1999. No shares of capital stock of the Company are
held by the Company in its treasury or by the Company's Subsidiaries. All of the
issued and outstanding Shares have been duly authorized and are validly issued,
fully paid and nonassessable. The Company has no Shares reserved for or subject
to issuance, except that, as of December 20, 1999, there were 1,732,750 Company
Options (as defined below) to purchase Shares outstanding, 1,732,750 Shares
reserved in the aggregate for issuance upon exercise of such Company Options
pursuant to the 1995 Stock Incentive Plan as Adopted by the Board of Directors
and the Stock Option Committee on March 17, 1995 and as Amended and Restated
Effective as of May 6, 1997 and as Amended and Restated effective as of January
8, 1999 (the "Company Stock Plan"), and 759,117 Shares were reserved for future
grants under the Company Stock Plan. No shares of capital stock of the Company
are held by the Company in its treasury. Except as set forth above, there are no
other shares of capital stock or voting securities of the Company and there are
preemptive or other outstanding rights, options, warrants, conversion rights,
stock appreciation rights, redemption rights, repurchase rights, agreements,
arrangements or commitments to issue or to sell any shares of capital stock or
other securities of the Company or any securities or obligations convertible or
exchangeable into or exercisable for, or giving any Person a right to subscribe
for or acquire, any securities of the Company, and no securities or obligations
evidencing such rights are authorized, issued or outstanding. The Company does
not have outstanding any bonds, debentures, notes or other obligations the
holders of which have the right to vote (or convertible into or exercisable for
securities having the right to vote) with the
-11-
<PAGE> 16
shareholders of the Company on any matter ("Voting Debt") After the Effective
Time, and after giving effect to Section 8.8(a) hereof, the Surviving
Corporation will have no obligation to issue, transfer or sell any shares of
capital stock of the Company or the Surviving Corporation pursuant to any
Compensation or Benefit Plan (as defined below). There are no voting trusts or
other agreements or understandings to which the Company or any of the Company's
directors or officers is a party with respect to the voting of capital stock of
the Company.
6.3. Corporate Authority; Approval and Fairness.
6.3.(a) The Company has all requisite corporate power
and authority and has taken all corporate action necessary in order to execute,
deliver and perform its obligations under this Agreement and all agreements and
documents contemplated hereby or executed in connection herewith (the "Ancillary
Documents") and to consummate, subject only to approval of the Merger by the
holders of a majority of the outstanding Shares if required by applicable law
(the "Company Requisite Vote"), the transactions contemplated by this Agreement
and the Ancillary Documents. This Agreement has been and at the time of
execution each Ancillary Document will have been duly executed and delivered by
the Company, and assuming due authorization, execution and delivery of this
Agreement and the Ancillary Documents by Parent and Merger Sub, each is a valid
and binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles (the
"Bankruptcy and Equity Exception").
6.3.(b) The Board of Directors of the Company (A) at
a meeting duly called and held has duly adopted resolutions (i) approving this
Agreement, the Offer and the Merger (as hereinafter defined), determining that
the Merger is advisable and that the terms of the Offer and Merger are fair to,
and in the best interests of, the Company's stockholders and recommending that
the Company's stockholders accept the Offer and approve the Merger and this
Agreement, and (ii) taking all action necessary to render Sections 607.0901 and
607.0902 of the Florida Business Corporation Act, as amended (the "FBCA")
inapplicable to, and have no adverse effect on, Parent and Merger Sub, the
Offer, the Merger, this Agreement, any of the Ancillary Documents or Offer
Documents, and any of the transactions contemplated hereby and thereby, and (B)
has received the opinion of its financial advisor, CIBC World Markets Corp. (the
"Financial Advisor"), to the effect that, as of the date of this Agreement, the
$12.50 per Share cash consideration to be received in the Offer and the Merger,
taken together, by the holders of Shares (other than Parent and its affiliates)
is fair from a financial point of view to such holders. The Company has been
authorized by the Financial Advisor to permit the inclusion of its opinion in
its entirety and references thereto, subject to prior review and consent by the
Financial Advisor (such consent not to be unreasonably withheld) in the Offer to
Purchase, the Schedule 14D-9 and the Proxy Statement (as hereinafter defined).
6.4. Governmental Filings; No Violations.
-12-
<PAGE> 17
6.4.(a) Other than the filings and/or notices (A)
pursuant to Section 2.3, (B) under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended (the "HSR Act"), (C) under the Securities Exchange Act
of 1934 (the "Exchange Act"), and (D) under the Exon-Florio Amendment to the
Omnibus Trade and Competitiveness Act of 1988 (the "Exon-Florio Amendment"), no
notices, reports or other filings are required to be made by the Company with,
nor are any consents, registrations, approvals, permits or authorizations
required to be obtained by the Company from, any governmental or regulatory
authority, agency, commission, body or other governmental entity (each a
"Governmental Entity"), in connection with the execution and delivery of this
Agreement and any of the Ancillary Documents by the Company and the consummation
by the Company of the transactions contemplated hereby or thereby, except for
those that the failure to make or obtain, individually or in the aggregate,
would not have a Company Material Adverse Effect or prevent, materially delay or
materially impair the ability of the Company to consummate the transactions
contemplated by this Agreement.
6.4.(b) The execution, delivery and performance of
this Agreement and any of the Ancillary Documents by the Company do not, and the
consummation by the Company of the transactions contemplated hereby will not,
constitute or result in (A) a breach or violation of, a conflict with or a
default under, either the articles of incorporation of the Company or bylaws of
the Company or the comparable governing instruments of any of its Subsidiaries,
in each case as amended to date, (B) a breach or violation of, a conflict with,
or a default under, the acceleration of any obligations, the termination or in a
right of termination of, the triggering of any payment or other obligation
pursuant to, there being declared void, voidable, or without further binding
effect, or the creation of a lien, pledge, security interest or other
encumbrance on the assets of the Company (in each case with or without notice,
lapse of time or both) pursuant to, any agreement, lease, contract, note,
mortgage, indenture, arrangement or other commitment or obligation ("Contracts")
not otherwise terminable by the Company thereto on ninety (90) days' or less
notice without payment of any termination fees or other amounts binding upon the
Company or any Law or governmental or non-governmental permit or license to
which the Company is subject or (C) any change in the rights or obligations of
any party under any of the Contracts, except, in the case of clause (B) or (C)
above, for any breach, violation, default, acceleration, creation or change,
that, individually or in the aggregate, would not have a Company Material
Adverse Effect or prevent, materially delay or materially impair the ability of
the Company to consummate the transactions contemplated by this Agreement.
6.5. Company Reports; Financial Statements.
The Company has made available to Parent each registration
statement, report, proxy statement or information statement filed by it since
November 30, 1998 (the "Audit Date") and prior to the date hereof, including (i)
the Company's Annual Report on Form 10-K for the fiscal year ended November 30,
1998, and (ii) the Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended February 28, 1999, and May 31, 1999, and August 31, 1999, each in
the form (including exhibits, annexes and any amendments thereto) filed with
-13-
<PAGE> 18
the Securities and Exchange Commission (the "SEC") (collectively, including
amendments of any such reports as amended, the "Company Reports"). As of their
respective dates, (i) the Company Reports complied as to form in all material
respects with the applicable requirements of the Securities Act, the Exchange
Act and the rules and regulations thereunder, and (ii) none of the Company SEC
Reports contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The consolidated financial statements (including any notes and
related schedules) of the Company included in the Company Reports comply as to
form in all material respects with applicable accounting requirements and with
the published rules and regulations of the SEC with respect thereto, have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as may be indicated
in the notes thereto or, in the case of the unaudited interim financial
statements, as permitted by Form 10-Q of the SEC). Each of the consolidated
balance sheets included in or incorporated by reference into the Company Reports
(including the related notes and schedules) fairly presents the consolidated
financial position of the Company as of its date and each of the consolidated
statements of income and of consolidated statements of cash flow included in or
incorporated by reference into the Company Reports (including any related notes
and schedules) fairly presents the results of operations and cash flows, as the
case may be, of the Company for the periods set forth therein (subject, in the
case of unaudited statements, to the absence of notes and normal year-end audit
adjustments), in each case in accordance with GAAP consistently applied during
the periods involved, except as may be noted therein. The Company has no
liabilities or obligations (whether absolute, accrued, fixed, contingent,
liquidated, unliquidated or otherwise) of any nature, except liabilities,
obligations or contingencies (a) which are reflected on the audited balance
sheet of the Company as at November 30, 1998 (the "Audit Date") (including the
notes thereto), or (b) which (i) individually or in the aggregate, would not
have a Company Material Adverse Effect, or (ii) are disclosed or reflected in
the Company SEC Reports filed after the Audit Date and prior to the date of this
Agreement. The reserves established by the Company in the Company's consolidated
balance sheet as of November 30, 1998 (the "1998 Balance Sheet") are, in the
Company's good faith judgement, adequate to fund the liabilities covered
thereby. Since January 1, 1996, the Company has timely filed with the SEC all
forms, reports and other documents required to be filed prior to the date hereof
pursuant to the Securities Act, the Exchange Act or the rules and regulations
thereunder. This paragraph is qualified in its entirety by those exceptions that
would not have a Company Material Adverse Effect or prevent, materially delay or
materially impair the ability of the Company to consummate the transactions
contemplated by this Agreement.
6.6. Absence of Certain Changes.
Except as disclosed in the Company Reports or as permitted
hereunder, since the Audit Date, the Company has conducted its business only in,
and has not engaged in any material transaction other than according to, the
ordinary and usual course of such business consistent with past practice and
there has not been (i) any Company Material Adverse Effect; (ii) any material
damage, destruction or other casualty loss with respect to any material asset or
-14-
<PAGE> 19
material property owned, leased or otherwise used by the Company, not covered by
insurance; (iii) any declaration, setting aside or payment of any dividend or
other distribution in respect of the capital stock of the Company; or (iv) any
change by the Company in accounting principles, practices or methods which is
not required or permitted by GAAP. Since the Audit Date and through the date
hereof, except as provided for herein or as disclosed in the Company Reports,
there has not been any material increase in the compensation payable or that
could become payable by the Company to officers or key employees or any material
amendment of any of the Compensation and Benefit Plans (as hereinafter defined)
other than increases or amendments in the ordinary course.
6.7. Litigation and Liabilities.
Except as disclosed in the Company Reports, there are no
civil, criminal or administrative actions, suits, claims, hearings,
investigations or proceedings pending or, to the knowledge of the executive
officers of the Company listed on Schedule 6.7, after due inquiry("Knowledge of
the Company"), relating to or threatened against the Company.
6.8. Employee Benefits.
6.8.(a) A true and correct copy of each bonus,
deferred compensation, pension, retirement, profit-sharing, thrift, savings,
employee stock ownership, stock bonus, stock purchase, restricted stock, stock
option, employment, termination, severance, compensation, medical, health or
other plan, agreement, policy or arrangement that covers employees or former
employees of the Company ("Employees"), or directors or former directors of the
Company (the "Compensation and Benefit Plans") including amendments thereto and
(i) any trust agreement or insurance contract forming a part of such
Compensation and Benefit Plans, (ii) the two (2) most recent annual actuarial
valuations, if any, prepared for each Company Benefit Plan; (iii) the two (2)
most recent annual reports (Series 5500 and all schedules thereto), if any,
required under ERISA in connection with each Company Benefit Plan or related
trust; (iv) the most recent determination letter received from the IRS, if any,
for each Company Benefit Plan and related trust which is intended to satisfy the
requirements of Section 401(a) of the Code; (v) if the Company Benefit Plan is
funded, the most recent annual and periodic accounting of Company Benefit Plan
assets; and (vi) the most recent summary plan description together with the most
recent summary of material modifications, if any, required under ERISA with
respect to each Company Benefit Plan have been made available to Parent prior to
the date hereof. The Compensation and Benefit Plans are listed in Section 6.8 of
the Company Disclosure Letter and any Compensation and Benefit Plans containing
"change of control" or similar provisions therein are specifically identified in
Section 6.8 of the Company Disclosure Letter.
6.8.(b) All Compensation and Benefit Plans covering
Employees (the "Plans") are in substantial compliance with all applicable laws,
including the Code and the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to the extent applicable. Each Compensation and Benefit Plan
has been administered in substantial compliance with its terms and the
requirements of ERISA and the Code, to the extent
-15-
<PAGE> 20
applicable. Each Plan that is an "employee pension benefit plan" within the
meaning of Section 3(2) of ERISA (a "Pension Plan") and that is intended to be
qualified under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service (the "IRS") with respect
to "TRA" (as defined in Section 1 of Rev. Proc. 93-39), and to the Knowledge of
the Company there are no circumstances reasonably likely to result in revocation
of any such favorable determination letter. As of the date hereof, there is no
material pending or, to the Knowledge of the Company, threatened litigation,
regulatory inquiry or audit relating to the Compensation and Benefit Plans.
Neither the Company nor any employee, officer or director thereof, nor, to the
Knowledge of the Company, no other third-party with respect to the Plans, has
engaged in a transaction with respect to any Plan that could subject the Company
to any liability under Section 4975 of the Code or Section 502 of ERISA or could
require indemnification by the Company.
6.8.(c) As of the date hereof, no liability under
Subtitle C or D of Title IV of ERISA has been incurred or is reasonably expected
to be incurred by the Company, any Subsidiary or any entity which is considered
one employer with the Company under Section 4001 of ERISA or Section 414 of the
Code (an "ERISA Affiliate") with respect to any ongoing, frozen or terminated
"single-employer plan", within the meaning of Section 4001(a)(15) of ERISA,
currently or formerly maintained by any of them. The Company, its Subsidiaries
and its ERISA Affiliates have not incurred and do not reasonably expect to incur
any termination or withdrawal liability with respect to a multiemployer plan
under Subtitle C or E to Title IV of ERISA. No notice of a "reportable event"
within the meaning of Section 4043 of ERISA for which the 30-day reporting
requirement has not been waived, has been required to be filed for any Pension
Plan or by the Company, any Subsidiary or any ERISA Affiliate within the
12-month period ending on the date hereof or will be required to be filed in
connection with the transactions contemplated by this Agreement.
6.8.(d) All contributions required to be made under
the terms of any Compensation and Benefit Plan as of the date hereof have been
timely made or have been reflected on the most recent consolidated balance sheet
filed or incorporated by reference in the Company Reports. Neither any Pension
Plan nor any single-employer plan of an ERISA Affiliate has an "accumulated
funding deficiency," within the meaning of Section 412 of the Code or Section
302 of ERISA and neither the Company nor any ERISA Affiliate has an outstanding
funding waiver (whether or not waived) as of the last day of the most recent
plan year ended prior to the date hereof. Neither the Company nor any ERISA
Affiliates has provided, or is required to provide, security to any Pension Plan
or to any single-employer plan of an ERISA Affiliate pursuant to Section
401(a)(29) of the Code.
6.8.(e) Under each Pension Plan which is a single
employer plan, as of the last day of the most recent plan year ended prior to
the date hereof, the actuarially determined present value of all "benefit
liabilities", within the meaning of Section 4001 (a) (16) of ERISA (as
determined on the basis of the actuarial assumptions contained in the Pension
Plan's most recent actuarial valuation), did not exceed the then current value
of the
-16-
<PAGE> 21
assets of such Pension Plan, and there has been no material change in the
financial condition of such Pension Plan since the last day of the most recent
plan year.
6.8.(f) The Company does not have any obligations for
retiree health and life benefits under any Compensation and Benefit Plan. The
Company and its ERISA Affiliates have at all times complied with the
continuation coverage requirements of Code Section 4980B, or similar state law.
6.8.(g) The consummation of the Merger and the other
transactions contemplated by this Agreement will not (x) entitle any Employees
to severance pay, (y) accelerate the time of payment or vesting or trigger any
payment or funding (through a grantor trust or otherwise) of compensation or
benefits under, increase the amount payable or trigger any other material
obligation pursuant to, any of the Compensation and Benefit Plans or (z) result
in any breach or violation of, or a default under, any of the Compensation and
Benefit Plans. No payment or benefit which will or may be made by the Company,
Parent, any Subsidiary or any of their respective affiliates with respect to any
Employee will be characterized as an "excess parachute payment," within the
meaning of Section 280G(b)(1) of the Code.
6.8.(h) Each Compensation and Benefit Plan can be
amended, terminated or otherwise discontinued without liability to the Company,
Parent, any Subsidiary or any ERISA Affiliate.
6.8.(i) Notwithstanding anything to the contrary
contained in this Section 6.8, the representations and warranties contained in
this Section 6.8 shall be deemed to be true and correct unless such failures to
be true and correct are reasonably likely to have a Company Material Adverse
Effect.
6.9. Compliance with Laws.
The business of the Company is not in violation of any
federal, state, local or foreign law, statute, ordinance, rule, regulation,
judgment, order, injunction, decree, arbitration award, agency requirement,
license or permit of any Governmental Entity (collectively, "Laws"), except for
violations that would not have a Company Material Adverse Effect or prevent or
materially burden or materially impair the ability of the Company to consummate
the transactions contemplated by this Agreement. No investigation, audit or
review by any Governmental Entity with respect to the Company is pending or, to
the Knowledge of the Company, threatened, nor has any Governmental Entity
indicated an intention to conduct the same, except for those the outcome of
which, individually or in the aggregate, would not have a Company Material
Adverse Effect or prevent or materially burden or materially impair the ability
of the Company to consummate the transactions contemplated by this Agreement.
The Company has all permits, licenses, franchises, variances, exemptions, orders
and other governmental authorizations, consents and approvals from Governmental
Entities necessary to conduct its business as presently conducted, except for
those the absence of which would not have a Company Material Adverse Effect or
prevent or materially burden
-17-
<PAGE> 22
or materially impair the ability of the Company to consummate the transactions
contemplated by this Agreement. Except (i) as disclosed in Schedule 6.9 of the
Disclosure Letter and (ii) for those the absence of which individually or in the
aggregate would not have a Company Material Adverse Effect or prevent or
materially burden or materially impair the ability of the Company to consummate
the transactions contemplated by this Agreement, there is no judgement, decree,
order, injunction, writ or ruling of any Governmental Entity or any arbitration
outstanding against the Company.
6.10. Takeover Statutes.
As of the date hereof, no "fair price," "moratorium," "control
share acquisition," "interested shareholder" or other similar anti-takeover
statute or regulation (including, without limitation, Sections 607.0901 and
607.0902 of the FBCA) (each a "Takeover Statute") or restrictive provision of
any applicable anti-takeover provision in the articles of incorporation of the
Company or bylaws of the Company is applicable to the Company, the Shares, the
Offer, the Merger, this Agreement, the Ancillary Documents, or any of the other
transactions contemplated by this Agreement, and the Company has received an
opinion to that effect from Foley & Lardner ("Outside Counsel").
6.11. Environmental Matters.
Except as disclosed in the Company Reports and except for such
matters that would not, individually or in the aggregate, have a Company
Material Adverse Effect, the Company: (i) is in compliance with all applicable
Environmental Laws (as hereinafter defined); (ii) has obtained and is in
compliance with all permits, licenses, authorizations, registrations and other
governmental consents required by applicable Environmental Laws (as hereinafter
defined) (collectively, "Environmental Permits"); and the Company has made all
appropriate filings for the issuance or renewal of such Environmental Permits
(other than in connection with the transactions contemplated hereby); (iii) all
of the owned real property, leased real property or any other real property
operated or controlled by the Company (collectively, "Real Property") is free of
any contamination arising out of, relating to, or resulting from the release or
other dissemination by the Company of any Hazardous Substances (as hereinafter
defined), and there has been no release or other dissemination at any time of
any Hazardous Substances at, on, about, under or within any Real Property or any
real property formerly owned, leased, operated or controlled by the Company or
any predecessor thereof (other than pursuant to and in accordance with
Environmental Permits); (iv) there are no notices (including, without
limitation, notices that the Company is or may be a potentially responsible
person or otherwise liable in connection with any waste disposal or other site
containing Hazardous Substances), civil, criminal or administrative actions,
suits, hearings, investigations, inquiries or proceedings pending or threatened
that are based on or related to any Environmental Matters (including, without
limitation, the failure to comply with any Environmental Law or the failure to
have, or to comply with, any Environmental Permits); (v) there are no present or
past conditions, events, circumstances, facts, activities, practices, incidents,
actions, omissions or plans: (1) that are reasonably likely to interfere with or
prevent continued compliance by the
-18-
<PAGE> 23
Company with Environmental Laws or the requirements of Environmental Permits, or
(2) that are reasonably likely to give rise to any liability under any
Environmental Laws; (vi) the Company has not disposed of, transported, or
arranged for the transportation of, any Hazardous Substances to any site which
has been placed on the National Priorities List, the Comprehensive Environmental
Response, Compensation and Liability Information System ("CERCLIS") list, or any
comparable state list of properties to be investigated and/or remediated; and
(vii) the Company has delivered or made available to Parent true and complete
copies and results of any material reports, studies, analyses, tests, or
monitoring in the possession of the Company, in each case relating to any
Environmental Matters with respect to the Company (including without limitation
any Hazardous Substances at, on, about, under or within any Real Property or any
real property formerly owned, leased, operated or controlled by the Company or
any predecessor thereof).
As used herein, the term "Environmental Law" means any
federal, state, local or foreign statute, law, regulation, code, order, decree,
permit, authorization, common law or agency requirement as in effect, as
interpreted as of the date hereof relating to: Environmental Matters, including,
without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act ("CERCLA"); the Resource Conservation and Recovery Act of
1976, as amended; the Federal Water Pollution Control Act, as amended; the
Federal Clean Air Act, as amended; the Toxic Substances Control Act, as amended;
the Safe Drinking Water Act, as amended; the Pollution Control Act of 1990, as
amended.
As used herein, the term "Environmental Matter" means any
matter arising out of, relating to, or resulting from pollution, contamination,
protection of the environment, human health or safety, health or safety of
employees, sanitation, and any matters relating to emissions, discharges,
disseminations, releases or threatened releases of Hazardous Substances into the
air (indoor and outdoor), surface water, groundwater, soil, land surface or
subsurface, buildings, facilities, real or personal property or fixtures or
otherwise arising out of, relating to, or resulting from the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
handling, release or threatened release of Hazardous Substances.
As used herein, the term "Hazardous Substance" means any
substance that is listed, classified or regulated pursuant to any Environmental
Law including any petroleum product or any by-product or fraction thereof,
asbestos or asbestos-containing material, lead-containing paint or plumbing,
polychlorinated biphenyls, radioactive material or radon , urea formaldehyde
foam insulation, natural gas; and any chemicals, materials or substances, which
are defined as "hazardous substances," "hazardous wastes," "hazardous
materials," "extremely hazardous substances," "toxic substances," "pollutants,"
"contaminants," or words of similar import under any Environmental Law.
6.12. Taxes.
(i) The Company has duly and timely filed (taking into account
any extension of time within which to file) all Tax Returns (as defined below)
required to be filed and all such
-19-
<PAGE> 24
filed Tax Returns are true, correct and complete in all material respects; (ii)
the Company has paid all Taxes (as defined below) that are shown as due on such
filed Tax Returns or that the Company is obligated to withhold from amounts
owing to any employee, creditor or third party, except with respect to matters
contested in good faith and that would not have a Company Material Adverse
Effect; (iii) the most recent financial statements contained in the reports
filed with the SEC by the Company reflect full reserves for all Taxes payable by
the Company for all Tax periods and portions thereof through the date of such
financial statements, (iv) no deficiency or adjustment for any Taxes has been
proposed, asserted or assessed against the Company that has not been paid or
fully reserved for on the financial statements of the Company, and, to the
Knowledge of the Company, no such deficiency or adjustment has been threatened;
(v) there are no Liens for Taxes upon the assets or property of the Company,
except Liens for current Taxes not yet due; (vi) the Company has withheld and
paid over to the relevant Tax authority all Taxes required to have been withheld
and paid in connection with payments to employees, independent contractors,
creditors, shareholders or other third parties; (vii) the Company is not a party
to any Tax sharing, Tax allocation, Tax indemnity or similar agreement; (viii)
no "consent" within the meaning of Section 341(f) of the Code has been filed
with respect to the Company; and (ix) has not waived any statute of limitations
with respect to Taxes or agreed to any extension of time with respect to a Tax
assessment or deficiency, except, in each case, for those failures to file or
pay or those waivers that would not have a Company Material Adverse Effect. As
of the date hereof, there are not pending or, to the Knowledge of the Company,
threatened in writing, any audits, examinations, investigations or other
proceedings in respect of Taxes or Tax matters and there are no outstanding
waivers or pending requests for waivers to extend the statutory period of
limitations to assess any Taxes on the Company.
As used in this Agreement, (i) the term "Tax" (including, with
correlative meaning, the terms "Taxes", and "Taxable") includes all federal,
state, local and foreign income, profits, franchise, gross receipts,
environmental, customs duty, capital stock, severances, stamp, payroll, sales,
employment, unemployment, disability, use, property, withholding, excise,
transfer, license, premium, alternative or added minimum, production, value
added, occupancy and other taxes, duties or assessments of any nature
whatsoever, together with all interest, penalties and additions imposed with
respect to such amounts and any interest in respect of such penalties and
additions and including any liability in respect of any Tax as a transferee or
successor, by Law, Contract or otherwise, (ii) the term "Tax Return" includes
all returns and reports (including elections, declarations, disclosures,
schedules, estimates, forms, claims for refund, declaration of estimated Tax and
information returns) required to be supplied to a Tax authority relating to
Taxes and (iii) "Audit" shall mean any audit, assessment of Taxes, other
examination by any Tax authority, proceeding or appeal of such proceeding
relating to Taxes.
6.13. Labor Matters.
The Company is not the subject of any labor dispute (other
than routine individual grievances) or labor arbitration proceeding or any
material proceeding asserting that
-20-
<PAGE> 25
the Company has committed an unfair labor practice nor is there pending or, to
the Knowledge of the Company, threatened, nor since January 1, 1996 has there
been any (i) labor strike, dispute, walk-out, work stoppage, slow-down or
lockout, labor dispute (other than routine individual grievances) or labor
arbitration proceeding or any involving the Company, or (ii) any activity or
proceeding by a labor union or representative thereof to organize any employees
of the Company.
6.14. Intellectual Property.
6.14.(a) Company possess all right, title and
interest in and to the Company Intellectual Property, free and clear of any
encumbrances licenses or other restriction, or are properly licensed to use the
Company Intellectual Property , and has the right to require the applicant of
any Company Intellectual Property which is an application, including but not
limited to patent applications, trademark applications, service mark
applications, copyright applications, or mask work applications, to transfer
ownership to the Company of the application and of the registration once it
issues, and to the Knowledge of the Company all registered patents, trademarks,
service marks and copyrights are valid and subsisting and in full force and
effect in each case, except for any failures of the foregoing that, individually
or in the aggregate, would not have a Material Adverse Effect.
6.14.(b) Except as disclosed in the Company
Disclosure Letter:
(i) the Company is not, nor will it be as a
result of the execution and delivery of this Agreement or the
performance of its obligations hereunder, in violation of any
licenses, sublicenses and other agreements as to which the
Company is a party as of the date hereof and pursuant to which
the Company is authorized to use any third-party patents,
trademarks, service marks, copyrights, trade secrets or
computer software;
(ii) The Company Intellectual Property is all
the Intellectual Property that is necessary for the ownership,
maintenance and operation of the Company's properties and
assets and the Company have the right to use all of the
Company Intellectual Property in all jurisdictions in which
the Company has conducted its business and the consummation of
the transactions contemplated hereby will not alter or impair
any such rights;
(iii) to the Knowledge of the Company no third
party has interfered with, infringed upon, misappropriated or
otherwise come into conflict with any Company Intellectual
Property;
(iv) to the Knowledge of the Company no
action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand has been made, is pending, or, to
the Knowledge of the Company, is threatened which challenges
the legality, validity, enforceability, use or ownership of
any Company Intellectual Property;
-21-
<PAGE> 26
(v) to the Knowledge of the Company, Company
has not, and the continued operation of the business as
presently conducted will not, interfere with, infringe upon,
misappropriate or otherwise come into conflict with any
intellectual property rights of third parties, and the Company
has not received any charge, complaint, claim, demand or
notice so alleging (including any claim that the Company must
license or refrain from using any intellectual property rights
of any third party);
(vi) the Company has never agreed to indemnify
any person for or against any interference, infringement,
misappropriation or other conflict with respect to any Company
Intellectual Property;
"Company Intellectual Property" means (a) all inventions (whether
patentable or unpatentable and whether or not reduced to practice), all
improvements thereon, and all patents, patent applications and patent
disclosures, together with all reissuances, continuations,
continuations-in-part, revisions, extensions and reexaminations thereof, (b) all
trademarks, service marks, trade dress, logos, trade names, domain names, and
corporate names, together with all translations, adaptations, derivations and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations and renewals in connection therewith, (c) all
copyrights and all applications, registrations and renewals in connection
therewith, (d) all mask works and all applications, registrations and renewals
in connection therewith, (e) all trade secrets and confidential business
information (including ideas, research and development, know-how formulas,
compositions, manufacturing and production processes and techniques, methods,
schematics, technology, technical data, designs, drawings, flowcharts, block
diagrams, specifications, customer and supplier lists, print and cost
information and business and marketing plans and proposals), (f) all computer
software (including data and related documentation), (g) all other proprietary
rights, (h) all copies and tangible embodiments of the foregoing categories of
intellectual property listed in subsections (a) through (g) herein (in whatever
form or medium), and (i) all licenses, sublicenses, agreements, or permissions
related to the foregoing categories of intellectual property listed in
subsections (a) through (g) herein (categories (a) through (i) herein are
collectively referred to as "Intellectual Property") which is owned by or
licensed to Company and is used, or has been used in connection with the
business.
6.15. Brokers and Finders.
Except for CIBC World Markets Corp., the arrangements with
which have been disclosed to Parent prior to the date hereof, neither the
Company nor any of its officers, directors or employees has employed any broker
or finder or has entered into any contract, arrangement or understanding which
may result in the obligation of Parent or the Company to pay any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated by
this Agreement.
6.16. Year 2000.
-22-
<PAGE> 27
6.16.(a) The Company has developed a plan which it
reasonably believes is designed to confirm that all computer software and
systems (including hardware, firmware, operating system software, utilities,
embedded processors and application's software) used in and material to the
business of the Company are designed to operate during and after the calendar
year 2000 to accurately process data (including but not limited to calculating,
comparing and sequencing) from, into and between the twentieth and twenty-first
centuries, including leap year calculations and the Company is not aware of any
flaws in any of the computer software and systems owned by it and used in and
material to the business of the Company that would have a Company Material
Adverse Effect.
6.16.(b) Except for such matter that would not
individually or in the aggregate, have a Company Material Adverse Effect, none
of the computer software, computer firmware, computer hardware (whether general
or special purpose) or other similar or related items of automated, computerized
or software systems that are used or relied on by any Entity in the conduct of
its business, and none of the products and services sold, licensed, rendered, or
otherwise provided by any Entity in the conduct of its business, (collectively,
"Software, Hardware, and Services") will malfunction, cease to function,
generate incorrect data or produce incorrect results when processing, providing
or receiving (i) date-related data from, into and between the twentieth and
twenty-first centuries or (ii) date-related data in connection with any valid
date in the twentieth and twenty-first centuries, provided that the Software,
Hardware, and Services are used in accordance with their product documentation
and provided that all external third party hardware, software, firmware and
services used in combination therewith properly exchange date data with the
Software, Hardware, and Services.
6.17. Title to Assets.
Except as set forth in the 1998 Balance Sheet, the Company has
good and marketable title to all of its real and personal properties and assets
reflected on the 1998 Balance Sheet (other than assets disposed of since
November 30, 1998 in the ordinary course of business consistent with past
practice or acquired since November 30, 1998), in each case free and clear of
all claims, liens, pledges, encumbrances, security interests, options, or other
similar restrictions ("Encumbrances") except for (i) Encumbrances which secure
indebtedness which is properly reflected in the 1998 Balance Sheet or in the
Company Reports, (ii) liens for Taxes accrued but not yet payable; (iii) liens
arising as a matter of law in the ordinary course of business with respect to
obligations incurred after the date of the 1998 Balance Sheet, provided that the
obligations secured by such liens are not delinquent; and (iv) such
imperfections of title and Encumbrances, if any, as would not, individually or
in the aggregate, have a Material Adverse Effect. Except for intellectual
property which is specifically dealt with in Section 6.14 above and except as
set forth in the Company Disclosure Letter, the Company either owns, or has
valid leasehold interests in, all properties and assets used by it in the
conduct of its business except where the absence of such ownership or leasehold
interest would not, individually or in the aggregate, have a Company Material
Adverse Effect.
6.18. Insurance Policies.
-23-
<PAGE> 28
The Company maintains in force insurance policies and bonds in
such amounts and against such liabilities and hazards as are consistent with
industry practice. A complete list of all material insurance policies is set
forth in the Company Disclosure Letter. Except as set forth in the Company
Disclosure Letter, the Company is not now liable, nor will it become liable, for
any retroactive premium adjustment not reflected in the 1998 Balance Sheet. All
such policies are valid and enforceable and in full force and effect, all
premiums owed in respect thereof have been timely paid, and the Company has not
received any notice of premium increase or cancellation with respect to any of
its insurance policies or bonds. Except as set forth in the Company Disclosure
Letter and except for any matters which, individually or in the aggregate, would
not have a Company Material Adverse Effect or prevent or materially burden or
materially impair the ability of the Company to consummate the transaction
contemplated by this Agreement, there are no claims pending as to which the
insurer has denied liability or is reserving its rights, and all claims have
been timely and properly filed. Within the last three years, the Company has not
been refused any insurance coverage sought or applied for, and the Company has
no reason to believe that their existing insurance coverage cannot be renewed as
and when the same shall expire, upon terms and conditions standard in the market
at the time renewal is sought.
6.19. Material Contracts.
6.19.(a) The Company has delivered or made available
to the Parent true and complete copies (or in the case of oral contracts,
summaries), of each of the Company's Material Contracts. For the purposes
hereof, "Material Contracts" means all (i) Contracts for borrowed money or
guarantees thereof, (ii) Contracts to acquire or dispose of any businesses or
any material assets other than sales of the Company's products in the ordinary
course of business and purchases of supplies and equipment in the ordinary
course of business, (iii) Contracts involving any swap or option transaction
relating to commodities, interest rates, foreign exchange, or currency or other
similar transactions customarily known as a derivative ("Derivatives"); (iv)
Contracts containing an agreement by the Company restricting its ability to
engage in any line of business or other activity; (v) Contracts entered into by
the Company, any of its Subsidiaries or their respective predecessors since
January 1, 1996 involving the sale or other disposition by such parties of one
or more business units, divisions or entities (including former Subsidiaries)
with respect to which the Company's surviving liability (including indemnities),
or other obligations (including deferred payment and earn-out obligations),
could reasonably be expected to exceed $100,000, or which require funds to be
held in trust or escrow for the benefit of a third party; (vi) Contracts
involving the investment, including by way of capital contribution, loan or
advance, by the Company or any of its Subsidiaries of more than $10,000 in any
other person, firm or entity; (vii) Contracts to purchase materials, supplies or
other assets, other than purchase orders entered into in the ordinary course of
business, involving obligations of more than $25,000 individually, and $100,000
in the aggregate; (viii) Contracts with any of the Company's top ten customers,
as determined by net sales to such customers for the one-year period ended
November 30, 1998 and (ix) other Contracts which involve the payment or receipt
of $100,000 or more per year.
-24-
<PAGE> 29
6.19.(b) Each Material Contract is in full force and
effect and enforceable in accordance with its terms, subject to the Bankruptcy
and Equity Exception.
6.19.(c) The Company has not received any written
notice of default under any Material Contract, no default (beyond any applicable
grace or cure period) has occurred under any Material Contract on the part of
the Company, or, to the Company's knowledge, on the part of any party thereto,
nor has any event occurred which, with the giving of notice or the lapse of time
or both, would constitute any default on the part of the Company under any
Material Contract nor, to the Company's knowledge, has any event occurred which
with the giving of notice or lapse of time, or both, would constitute any
default on the part of any other party to any Material Contract.
6.19.(d) Except as described in Section 6.18 of the
Disclosure Letter, no consent or approval of any party to any of the Material
Contracts is required for the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby to which
the Company is a party.
6.19.(e) To the knowledge of the Company, except for
Contracts to which the Company is a party, no officer, director or employee of
the Company is bound by any Contract that purports to limit the ability of such
officer, director or employee to (i) engage in or continue any conduct, activity
or practice relating to the business of the Company, or (ii) assign to any
Person any rights to any invention, improvement or discovery.
6.20. Vote Required.
Unless the Merger may be consummated in accordance with
Section 607.1104 of the FBCA, in which case no vote of the holders of the Shares
is required to approve the Merger, this Agreement and the transactions
contemplated hereby, the Company Requisite Vote is the only vote or approval of
the holders of any series or class of the Company's capital stock necessary to
adopt this Agreement and approve the transactions contemplated hereby.
6.21. Offer Documents.
None of the information contained in the Schedule 14D-9, the
information statement, if any, filed by the Company in connection with the Offer
pursuant to Rule 14f-1 under the Exchange Act (the "Information Statement"), any
related schedule required to be filed by the Company with the SEC or any
amendment or supplement thereto, at the respective times such documents are
filed with the SEC or first published, sent or given to the Company's
stockholders, contain or will contain any untrue statement of a material fact or
omit or will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading except that no
representation is made by the Company with respect to information supplied by
Parent or Merger Sub specifically for inclusion in the Schedule 14D-9 or
Information Statement or any schedule, amendment or supplement. None of the
information supplied or to be supplied by the Company for inclusion or
incorporation by reference in the Offer
-25-
<PAGE> 30
Documents will, at the date of filing with the SEC, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any time prior
to acceptance of the offer and payment for the Shares by Merger Sub, the Company
shall obtain knowledge of any facts with respect to itself, any of its officers
and directors that would require the supplement or amendment to any of the
foregoing documents in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or to comply with
applicable Laws, such amendment or supplement shall be promptly filed with the
SEC and, as required by Law, disseminated to the stockholders of the Company,
and in the event Parent shall advise the Company as to its obtaining knowledge
of any facts that would make it necessary to supplement or amend any of the
foregoing documents, the Company shall promptly amend or supplement such
document as required and distribute the same to its stockholders.
6.22. No other Representations or Warranties.
Except for the representations and warranties contained in
this Agreement or in the Ancillary Documents, neither the Company nor any other
Person makes any other express or implied representation or warranty on behalf
of the Company or any of its Affiliates.
7. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.
Except as set forth in the disclosure letter delivered to the Company
by Parent on or prior to entering into this Agreement (the "Parent Disclosure
Letter"), Parent and Merger Sub each hereby represent and warrant to the Company
that:
7.1. Ownership of Company Shares.
Neither Parent nor any of its Subsidiaries (i) owns any of the
Shares, and (ii) will acquire any of the Shares except pursuant to the Offer.
7.2. Capitalization of Merger Sub.
The authorized capital stock of Merger Sub consists of 100
shares of Common Stock, par value $.01 per share, of Merger Sub all of which are
validly issued and outstanding. All of the issued and outstanding capital stock
of Merger Sub is, and at the Effective Time will be, owned by Parent, and there
are (i) no other shares of capital stock or voting securities of Merger Sub
authorized, (ii) no securities of Merger Sub convertible into or exchangeable
for shares of capital stock or voting securities of Merger Sub and (iii) no
options or other rights to acquire from Merger Sub, and no obligations of Merger
Sub to issue, any capital stock, voting securities or securities convertible
into or exchangeable for capital stock or voting securities of Merger Sub.
Merger Sub has not conducted any business prior to the date hereof and has no,
and prior to the Effective Time will have no, assets, liabilities or obligations
of any nature
-26-
<PAGE> 31
other than those incident to its formation and pursuant to or in connection with
this Agreement, the Offer and the Merger and the other transactions contemplated
by this Agreement.
7.3. Organization, Good Standing and Qualification.
Each of Parent and Merger Sub is a corporation duly organized,
validly existing and in good standing (or active status) under the laws of its
jurisdiction of organization and has all requisite corporate or similar power
and authority to own, operate and lease its properties and assets and to carry
on its business as presently conducted and is qualified to do business and is in
good standing as a foreign corporation in each jurisdiction where the ownership
or operation of its properties or conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing,
individually or in the aggregate, would not have a Parent Material Adverse
Effect (as hereinafter defined). Parent has delivered to the Company a complete
and correct copy of Merger Sub's articles of incorporation and bylaws (or
comparable governing instruments), as amended to the date hereof. Merger Sub's
articles of incorporation and bylaws (or comparable governing instruments) so
delivered are in full force and effect.
As used in this Agreement, the term "Parent Material Adverse
Effect" means a material adverse effect that materially adversely effects the
ability of Parent to consummate the transactions contemplated by this Agreement
or that would prevent or materially delay the consummation of the Merger.
7.4. Corporate Authority; Approval and Fairness.
No vote of holders of capital stock of Parent is necessary to
approve this Agreement, the Offer and the Merger and the other transactions
contemplated hereby. Each of Parent and Merger Sub has all requisite corporate
power and authority and has taken all corporate action necessary in order to
execute, deliver and perform its obligations under this Agreement, and the
Ancillary Documents, and to consummate the transactions contemplated hereby and
thereby. The consummation of the transactions contemplated hereby and thereby
has been duly authorized by the respective Boards of Directors of Parent and
Merger Sub and no other corporate proceeding on the part of Parent or Merger Sub
is necessary to authorize the execution and delivery of this Agreement and the
Ancillary Documents, by Parent and Merger Sub and the consummation of the
transactions contemplated hereby and thereby. This Agreement has been and at the
time of execution each Ancillary Document will have been duly executed and
delivered by Parent and Merger Sub and, assuming due authorization, execution
and delivery of this Agreement and the Ancillary Documents, by the Company, each
is a valid and binding agreement of Parent and Merger Sub, enforceable against
each of Parent and Merger Sub in accordance with its terms, subject to the
Bankruptcy and Equity Exception.
7.5. Governmental Filings; No Violations.
7.5.(a) Other than the filings and/or notices (A)
pursuant to Section 2.3, (B) under the HSR Act, (C) the Exchange Act and (D)
under the Exon-Florio Amendment, no
-27-
<PAGE> 32
notices, reports or other filings are required to be made by Parent or Merger
Sub with, nor are any consents, registrations, approvals, permits or
authorizations required to be obtained by Parent or Merger Sub from, any
Governmental Entity, in connection with the execution and delivery of this
Agreement and the Ancillary Documents by Parent and Merger Sub and the
consummation by Parent and Merger Sub of the Merger, the Offer and the other
transactions contemplated hereby and thereby, except for those that the failure
to make or obtain, individually or in the aggregate, would not have a Parent
Material Adverse Effect.
7.5.(b) The execution, delivery and performance of
this Agreement and the Ancillary Documents by Parent and Merger Sub do not, and
the consummation by Parent and Merger Sub of the Offer, the Merger or the other
transactions contemplated hereby and thereby will not, constitute or result in a
breach or violation of, or conflict with, or a default under, either the
articles of incorporation or bylaws of Parent and Merger Sub or the comparable
governing instruments of any of Parent's Subsidiaries, in each case as amended
to date.
7.6. Compliance with Laws.
The business of Parent and its Subsidiaries taken as a whole
is not being conducted in violation of any Laws, except for violations that
would not have a Parent Material Adverse Effect.
7.7. Takeover Statutes.
No Takeover Statute or restrictive provision of any applicable
anti-takeover provision in the certificate of incorporation of Parent or bylaws
of Parent is, applicable to Parent, Merger Sub, the Offer, the Merger or any of
the other transactions contemplated by this Agreement.
7.8. Funds.
Parent and Merger Sub will have the funds necessary to
consummate the Offer and the Merger.
7.9. Other Documents.
None of the information contained in the Schedule 14D-1, any
related schedule required to be filed by the Parent or Merger Sub with the SEC
or any amendment or supplement thereto, at the respective times such documents
are filed with the SEC or first published, sent or given to the Company's
stockholders, contain or will contain any untrue statement of a material fact or
omit or will omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading except that no
representation is made by Parent or Merger Sub with respect to information
supplied by Company specifically for inclusion in the Schedule 14D-1 or any
schedule, amendment or supplement. None of the information supplied
-28-
<PAGE> 33
or to be supplied by Parent or Merger Sub for inclusion or incorporation by
reference in the Schedule 14D-9 or the Information Schedule or related schedule,
amendment or supplement will, at the date of filing with the SEC, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. If at any
time prior to acceptance of the offer and payment for the Shares by Merger Sub,
either Parent or Merger Sub shall obtain knowledge of any facts with respect to
itself, any of its officers and directors or any of its Subsidiaries that would
require the supplement or amendment to any of the foregoing documents in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or to comply with applicable Laws, such
amendment or supplement shall be promptly filed with the SEC and, as required by
Law, disseminated to the stockholders of the Company, and in the event Company
shall advise Parent or Merger Sub as to its obtaining knowledge of any facts
that would make it necessary to supplement or amend any of the foregoing
documents, Parent or Merger Sub shall promptly amend or supplement such document
as required and distribute the same to its stockholders.
7.10. No other Representations or Warranties.
Except for the representations and warranties contained in
this Agreement or in the Ancillary Documents neither Parent nor any other Person
makes any other express or implied representation or warranty on behalf of
Parent or any of its Affiliates.
8. COVENANTS
8.1. Interim Operations of the Company.
From the date hereof through the Effective Time, the Company
covenants and agrees that (i) its operations and business shall be conducted in
the ordinary and usual course and, to the extent consistent therewith, (ii) it
shall use its best reasonable efforts to preserve its business organization
intact and maintain its existing relations and goodwill with customers,
suppliers, distributors, creditors, lessors, employees and business associates,
maintain in effect all existing material qualifications, licenses, permits,
approvals and other authorizations, comply with all applicable Laws, keep
available the services of their officers and employees and maintain satisfactory
relationships with those persons having business relationships with them; (iii)
promptly upon the discovery thereof notify Parent of the existence of any breach
of any representation or warranty contained herein (or, in the case of any
representation or warranty that makes no reference to Material Adverse Effect,
any breach of such representation or warranty in any material respect) or the
occurrence of any event that would cause any representation or warranty
contained herein no longer to be true and correct (or, in the case of any
representation or warranty that makes no reference to Material Adverse Effect,
to no longer be true and correct in any material respect). Without limiting the
generality of the foregoing, except as otherwise set forth in Section 8.1(a) of
the Company Disclosure Letter, the Company covenants and agrees that, from the
date hereof and prior to the Effective Time (unless Parent shall otherwise
approve in writing, which approval shall not be unreasonably
-29-
<PAGE> 34
withheld or delayed, and except as otherwise expressly contemplated by this
Agreement or by Law):
(i) it shall not (x) except to the extent
required by law or the rules and regulations of NASDAQ, amend
its articles of incorporation or bylaws; (y) split, combine or
reclassify its outstanding shares of capital stock; (aa)
declare, set aside or pay any dividend payable in cash, stock
or property in respect of any capital stock or (bb)
repurchase, redeem or otherwise acquire any shares of its
capital stock or any securities convertible into or
exchangeable or exercisable for any shares of its capital
stock (other than Options granted prior to the date hereof, in
accordance with their respective terms as in effect on the
date hereof or as contemplated by this Agreement);
(ii) it shall not (x) issue, sell, pledge,
dispose of or encumber any shares of, or securities
convertible into or exchangeable or exercisable for, or
options, warrants, calls, commitments or rights of any kind to
acquire, any shares of its capital stock of any class or any
Voting Debt or any other property or assets (other than Shares
issuable pursuant to options (whether or not vested)
outstanding on the date hereof under the Company Stock Plan);
(y) lease, license, guarantee, mortgage, pledge, or encumber
any other property or assets which have an aggregate fair
market value in excess of $10,000 or incur or modify any
material indebtedness for borrowed money or guarantee any such
indebtedness in an amount in excess of, in the aggregate,
$10,000; (z) other than in the ordinary and usual course of
business, transfer, sell or dispose of any other property or
assets, which have an aggregate fair market value in excess of
$10,000 or (aa) by any means, make any significant acquisition
of, or investment in, assets or stock (whether by way of
merger, consolidation, tender offer, share exchange or other
activity) of any person in an amount in excess of, in the
aggregate, $10,000;
(iii) it shall not terminate, establish,
adopt, enter into, make any new grants or awards under, amend
or otherwise modify, any Compensation and Benefit Plans, or
increase the salary, wage, bonus or other compensation of any
employees except for grants or awards or increases under
existing Compensation and Benefit Plans occurring in the
ordinary and usual course of business (which shall include
normal periodic performance reviews and related compensation
and benefit increases), annual reestablishment of Compensation
and Benefit Plans and the provision of individual compensation
or benefit plans and agreements for newly hired non-key
employees of the Company hired in the ordinary course of
business consistent with past practices to replace employees
leaving the Company or except for actions necessary to satisfy
existing contractual obligations under Compensation and
Benefit Plans or agreements existing as of the date hereof;
and
-30-
<PAGE> 35
(iv) it shall not enter into any
transaction involving a merger, consolidation, reorganization,
share exchange, or similar transaction involving, or any
purchase of any assets or any securities of it;
(v) it shall not settle or compromise any
pending or threatened Litigation, other than settlements which
involve solely the payment of money (without admission of
liability) not to exceed $100,000 in any one case;
(vi) it shall not assume, guarantee or
otherwise become liable or responsible (whether directly,
contingently or otherwise) for the obligations of any other
person;
(vii) it shall not make or forgive any
loans, advances or capital contributions to, or investments
in, any other person in excess of $20,000 in any one case;
(viii) it shall not make any Tax election or
settle any Tax liability;
(ix) it shall not waive, amend or allow to
lapse any term or condition of any confidentiality or
"standstill" agreement to which the Company is a party, unless
such lapse occurs in accordance with such agreements terms;
(x) it shall not grant or amend any stock
related or performance awards except as listed on Schedule
8.1(a)(x);
(xi) it shall not make any material
changes in the type or amount of their insurance coverage or
permit any insurance policy naming the Company or any
Subsidiary as a beneficiary or a loss payee to be canceled or
terminated other than in the ordinary course of business or
except as otherwise provided in this Agreement;
(xii) it shall not make any capital
expenditures in the aggregate for the Company in excess of the
amounts specified in the Company's budget for capital
expenditures, a true and complete copy of which has previously
been delivered to Parent, or otherwise acquire assets not in
the ordinary course of business;
(xiii) it shall not, except as may be
required by law or generally acceptable accounting principles
and with prior written notice to Parent, change any material
accounting principles or practices used by the Company;
(xiv) it shall not enter into any Contracts
for Derivatives;
(xv) it shall not waive, relinquish,
release or terminate any right or claim, including any such
right or claim under any material Contract or
-31-
<PAGE> 36
permit any rights of material value to use any Intellectual
Property to lapse or be forfeited, in each case, except in the
ordinary course of business consistent with the past practice
of the Company;
(xvi) it shall not take any action to cause
the Shares to be delisted from NASDAQ prior to the completion
of the Offer or (if no Offer is made) the Merger; and
(xvii) it will not authorize or enter into
an agreement to do anything prohibited by the foregoing.
8.2. Acquisition Proposals.
8.2.(a) The Company agrees that neither it nor any of
its Subsidiaries nor any of its or its Subsidiaries' officers and directors
shall, and that it shall direct and use its best reasonable efforts to cause its
and its Subsidiaries' employees, agents and other representatives (including any
investment banker, attorney or accountant retained by it or any of its
Subsidiaries) (collectively, "Representatives") not to, directly or indirectly,
initiate, solicit, encourage or otherwise facilitate any inquiries or the making
of any proposal or offer with respect to an Acquisition Proposal. The Company
further agrees that neither it nor any of its Subsidiaries nor any of its or its
Subsidiaries' officers and directors shall, and that it shall direct and use its
reasonable best efforts to cause its and its Subsidiaries' Representatives not
to, directly or indirectly, engage in any negotiations concerning, or provide
any confidential information or data to, or have any discussions with, any
Person relating to an Acquisition Proposal, or otherwise facilitate any effort
or attempt to make or implement an Acquisition Proposal; provided, however, that
nothing contained in this Agreement shall prevent either the Company or any of
its representatives or the Board of Directors of the Company from (A) complying
with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition
Proposal or otherwise complying with the Exchange Act; (B) providing information
in response to a request therefor by a Person who has made an unsolicited
written Acquisition Proposal; (C) engaging in any negotiations or discussions
with any Person who has made an unsolicited Acquisition Proposal or otherwise
facilitating any effort or attempt to implement an Acquisition Proposal if (i)
the Acquisition Proposal is a Superior Proposal and (ii) the Company's Board of
Directors determines, upon advice from outside legal counsel to the Company,
that the failure to engage in the negotiations or discussions or provide the
information would result in a breach of the fiduciary duties of the Board of
Directors of the Company under applicable law. Any information furnished to any
Person in connection with any Acquisition Proposal shall be provided pursuant to
a confidentiality and standstill agreement on customary terms (including without
limitation prohibitions on unsolicited tender offers, acquisitions of equity
interests in the Company, proposals to acquire stock or assets, formation of
Section 13(d) groups, public request for release from the standstill, actions
that would require the Company to make a public announcement, engaging in proxy
contests, etc.). Subject to all of the foregoing requirements, the Company will
immediately notify Parent orally and in writing if any discussions or
negotiations are sought to be initiated, any inquiry
-32-
<PAGE> 37
or proposal is made, or any information is requested by any Person with respect
to any Acquisition Proposal or which could lead to a Acquisition Proposal and
immediately notify Parent of all material terms of any Acquisition Proposal,
including the identity of the Person making the Acquisition Proposal or the
request for information, if known, and thereafter shall inform Parent on a
timely, ongoing basis of the status and content of any discussions or
negotiations with any Person, including immediately reporting any changes to the
terms and conditions of the Acquisition Proposal.
8.2.(b) In the event the Board of Directors of the
Company has determined that a Acquisition Proposal constitutes a Superior
Proposal, (i) the Company shall promptly notify the Parent thereof and (ii) for
a period of three business days after delivery of such notice, the Company and
its representatives, if requested by Parent, shall negotiate in good faith with
Parent to make such adjustments to the terms and conditions of this Agreement as
would enable the Company to proceed with the transactions contemplated hereby on
such adjusted terms. After such three business day period, the Board of
Directors of the Company may then (and only then) withdraw or modify its
approval or recommendation of the Merger and this Agreement and recommend such
Superior Proposal.
8.2.(c) The Company agrees not to release any Person
from, or waive any provision of, any standstill agreement to which it is a party
or any confidentiality agreement between it and another Person who has made, or
who may reasonably be considered likely to make, a Acquisition Proposal, or who
the Company or any of its Representatives have had discussions with regarding a
proposed, potential or contemplated Company Acquisition Transaction unless the
Company's Board of Directors shall conclude, in good faith, that such action
will lead to a Superior Proposal and after considering applicable provisions of
state law, and upon advice from outside legal counsel to the Company, with
respect to whether such action is required for the Board of Directors to act in
a manner consistent with its fiduciary duties under applicable law.
8.2.(d) For purposes of this Agreement:
(i) "Acquisition Proposal" shall mean, with
respect to the Company, any inquiry, proposal or offer from
any Person relating to any (A) direct or indirect acquisition
or purchase of a business of the Company or any of its
Subsidiaries, that constitutes 25% or more of the consolidated
net revenues, net income or assets of the Company and its
Subsidiaries, (B) direct or indirect acquisition or purchase
of 25% or more of any class of equity securities of the
Company or any of its Subsidiaries whose business constitutes
25% or more of the consolidated net revenues, net income or
assets of the Company and its Subsidiaries, (C) tender offer
or exchange offer that if consummated would result in any
person beneficially owning 25% or more of the capital stock of
the Company, or (D) merger, consolidation, business
combination, recapitalization, liquidation, dissolution or
similar transaction involving the Company or any of its
Subsidiaries whose business constitutes
-33-
<PAGE> 38
25% or more of the consolidated net revenues, net income or
assets of the Company and its Subsidiaries.
(ii) Each of the transactions referred to
in clauses (A)-(D) of the definition of Acquisition Proposal,
other than any such transaction to which Parent or any of its
Subsidiaries is a party, is referred to herein as a "Company
Acquisition Transaction"
(iii) "Superior Proposal" means any bona
fide written offer made by a Person to acquire, directly or
indirectly, for consideration consisting of cash and/or
securities, all of the Shares then outstanding or all or
substantially all the assets of the Company (A) on terms that
the Board of Directors of the Company determines in its good
faith judgment (after consultation with a financial advisor of
nationally recognized reputation and taking into account all
the terms and conditions of the offer deemed relevant by such
Board of Directors, including any break-up fees, expense
reimbursement provisions, conditions to consummation, and the
ability of the party making such proposal to obtain financing
for such offer) are materially more favorable from a financial
point of view to its stockholders than the Merger
Consideration; and (B) that constitutes a transaction that, in
such Board of Directors' judgment, is reasonably likely to be
consummated on the terms set forth, taking into account all
legal, financial, regulatory and other aspects of such
proposal.
8.2.(e) Except as expressly permitted by Section
8.2(c), neither the Board of Directors of the Company nor any committee thereof
shall (i) withdraw or modify, or propose publicly to withdraw or modify, in a
manner adverse to Parent, the approval or recommendation by such Board of
Directors of this Agreement or the Merger, or (ii) approve or recommend, or
propose publicly to approve or recommend, any Acquisition Proposal or Company
Acquisition Transaction. Nothing contained in this Section 8.2 shall prohibit
the Company from taking and disclosing to its shareholders a position
contemplated by Rule 14e-2 promulgated under the Exchange Act. The Company
agrees that it will immediately cease and cause to be terminated any existing
discussions or negotiations with any parties conducted heretofore with respect
to any Acquisition Proposal.
8.3. Filings; Other Actions; Notification.
8.3.(a) The Company and Parent shall promptly make
their respective filings and thereafter make any other required submissions
under the HSR Act and the Exon-Florio Amendment with respect to the Merger and,
if applicable, the Offer, and cooperate with each other and use (and shall cause
their respective Subsidiaries to use) their respective best reasonable efforts
to take or cause to be taken all actions, and do or cause to be done all things,
necessary, proper or advisable on its part under this Agreement and applicable
Laws to consummate the Offer and make effective the Merger and the other
transactions contemplated by this Agreement as soon as practicable, including
preparing and filing as soon as practicable all documentation to effect all
necessary notices, reports and other filings and to obtain as soon
-34-
<PAGE> 39
as practicable all consents, registrations, approvals, permits and
authorizations necessary or advisable to be obtained from any third party and/or
any Governmental Entity in order to consummate the Offer, the Merger or any of
the other transactions contemplated by this Agreement; provided, however, that
Parent shall not be required by any provision of this Agreement to take any
action, including entering into any consent decree, that requires the
divestiture of a material amount of assets of Parent or any of its Subsidiaries.
Each of Parent and the Company shall use its reasonable best efforts to contest
any proceeding seeking a preliminary injunction or other legal impediment to,
and to resolve any objections as may be asserted by any Governmental Entity with
respect to, the Offer and/or the Merger under the HSR Act, provided that the
foregoing shall not require Parent to take any action that could directly or
indirectly (x) impose limitations on the ability of Parent or Merger Sub (or any
of their affiliates or Subsidiaries) effectively to acquire, operate or hold, or
require Parent, Merger Sub or the Company or any of their respective affiliates
or Subsidiaries to dispose of or hold separate, any material portion of their
respective assets or business, (y) restrict any material future business
activity by Parent, Merger Sub, the Company or any of their affiliates or
Subsidiaries or (z) otherwise materially adversely affect Parent, Merger Sub,
the Company or any of their respective affiliates or Subsidiaries. Subject to
applicable Laws relating to the exchange of information, Parent and the Company
shall have the right to review in advance, and to the extent practicable each
will consult the other on, all the information relating to Parent or the
Company, as the case may be, and any of their respective Subsidiaries, that
appear in any filing made with, or written materials submitted to, any third
party and/or any Governmental Entity in connection with the Merger and the other
transactions contemplated by this Agreement. In exercising the foregoing right,
each of the Company and Parent shall act reasonably and as promptly as
practicable.
8.3.(b) The Company and Parent each shall, upon
request by the other, furnish the other with all information concerning itself,
its Subsidiaries, directors, officers and shareholders and such other matters as
may be reasonably necessary or advisable in connection with any statement,
filing, notice or application made by or on behalf of Parent, the Company or any
of their respective Subsidiaries to any third party and/or any Governmental
Entity in connection with the Offer, the Merger and the transactions
contemplated by this Agreement.
8.3.(c) Subject to any confidentiality obligations
and the preservation of any attorney-client privilege, the Company and Parent
each shall keep the other apprised of the status of matters relating to
completion of the transactions contemplated hereby, including promptly
furnishing the other with copies of notices or other communications received by
Parent or the Company, as the case may be, or any of its Subsidiaries, from any
third party and/or any Governmental Entity with respect to the Offer, the Merger
and the other transactions contemplated by this Agreement.
8.3.(d) Without limiting the generality of the
undertakings pursuant to this Section 8.3, each of the Company and Parent agrees
to provide promptly to any and all federal, state, local or foreign courts or
Government Entity with jurisdiction over enforcement of any applicable antitrust
laws ("Government Antitrust Entity") information and documents
-35-
<PAGE> 40
requested by any Government Antitrust Entity or necessary, proper or advisable
to permit consummation of the Offer, the Merger and the transactions
contemplated by this Agreement.
8.4. Access.
Except as may otherwise be required by applicable Law, the
Company shall (and shall cause its Subsidiaries to) afford Parent's officers,
employees, counsel, accountants and other authorized representatives full
access, during normal business hours throughout the period prior to the
Effective Time, to the properties, books, contracts, records, personnel, offices
and other facilities of the Company and its Subsidiaries and their accountants
and accountant's work papers, and permit Parent to make such copies and
inspections thereof as Parent may reasonably request, and, during such period,
the Company shall (and shall cause its Subsidiaries to) furnish promptly to
Parent all information concerning its business, properties and personnel as may
reasonably be requested; provided, that no investigation pursuant to this
Section shall affect or be deemed to modify any representation or warranty made
by the Company and; provided, further, that the foregoing shall not require the
Company to permit any inspection, or to disclose any information, that in the
reasonable judgment of the Company would result in the disclosure of any trade
secrets of third parties or violate any of its obligations with respect to
confidentiality if the Company shall have used reasonable efforts to obtain the
consent of such third party to such inspection or disclosure. All requests for
information made pursuant to this Section shall be directed to an executive
officer of the Company or such Person as may be designated by either of its
executive officers, as the case may be. All such information shall be governed
by the terms of the Confidentiality Agreement.
8.5. Stock Exchange De-listing.
Unless required by the rules of the National Association of
Securities Dealers, subsequent to Merger Sub's payment for Shares and prior to
the Effective Time, the Company shall not take any action to cause the Shares to
be removed from quotation on the NASDAQ National Market System and de-registered
under the Exchange Act.
8.6. Meetings of the Company's Shareholders.
If approval or action in respect of the Merger by the
shareholders of the Company is required by applicable law following expiration
of the Offer and the purchase of Shares thereunder, the Company will promptly
take, consistent with the FBCA and its articles of incorporation and bylaws, all
action necessary to convene a meeting of holders of Shares as promptly as
practicable to consider and vote upon the approval of the Merger and this
Agreement. The record date for the Stockholders Meeting shall be a date
subsequent to the date Parent or Merger Sub becomes a record holder of Shares
purchased pursuant to the Offer. Without limiting the generality of the
foregoing, if required by applicable law, the Company shall immediately
following the purchase of Shares pursuant to the Offer prepare an information or
proxy statement (the "Proxy Statement"), file it with the SEC under the Exchange
Act as promptly as practicable after Merger Sub purchases Shares pursuant to the
-36-
<PAGE> 41
Offer, and use best efforts to have it cleared by the SEC. The Company will
notify Parent of the receipt of any comments from the SEC or its staff and of
any request by the SEC or its staff for amendments or supplements to the Proxy
Statement or for additional information and will supply Parent with copies of
all correspondence between the Company or any of its representatives, on the one
hand, and the SEC or its staff, on the other hand, with respect to the Proxy
Statement or the Merger. The Company shall give Parent and its counsel the
opportunity to review the Proxy Statement prior to its being filed with the SEC
and shall give Parent and its counsel the opportunity to review all amendments
and supplements to the Proxy Statement and all responses to requests for
additional information and replies to comments prior to their being filed with,
or sent to, the SEC. Each of the Company and Parent agrees to use its best
efforts, after consultation with the other parties hereto, to respond promptly
to all such comments of and requests by the SEC. As promptly as practicable
after the Proxy Statement has been cleared by the SEC, the Company shall mail
the Proxy Statement to the shareholders of the Company as of the record date for
the shareholders' meeting referred to above. If required under applicable law,
the Company and Parent shall prepare the Schedule 13e-3, file it with the SEC
under the Exchange Act as promptly as practicable after Merger Sub purchases
shares pursuant to the Offer and supplement and amend it as shall be required.
The Company will use its best reasonable 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 of the SEC relating
to the preliminary proxy or information statement and to cause the definitive
Proxy Statement to be mailed to its shareholders, all at the earliest practical
time. Whenever any event occurs which should be set forth in an amendment or
supplement to the Proxy Statement or any other filing required to be made with
the SEC, each party will promptly inform the other and cooperate in filing with
the SEC and/or mailing to shareholders such amendment or supplement. The Proxy
Statement and all amendments and supplements thereto shall comply with
applicable law in all material respects and be in form and substance
satisfactory to Parent. Subject to fiduciary requirements of applicable Law of
the Board of Directors as advised by Outside Counsel, the Board of Directors of
the Company shall recommend approval of the Merger, referral to which shall be
included in the Proxy Statement and the Company shall take all lawful action to
solicit such approval. The Company's obligations pursuant to the first sentence
of this Section 8.6 shall not be affected by the withdrawal or modification by
the Board of Directors of its recommendation of the Merger in accordance with
the preceding sentence. At any such meeting of the Company all of the Shares
then owned by the Parent Companies will be, subject to applicable laws, voted in
favor of this Agreement. The Proxy Statement with respect to such meeting of
shareholders, at the respective times filed with the SEC and mailed to
shareholders, shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the foregoing shall not apply to the
extent that any such untrue statement of a material fact or omission to state a
material fact was made by the Company in reliance upon and in conformity with
written information concerning the Parent Companies furnished to the Company by
Parent for use in the Proxy Statement. Notwithstanding the foregoing, in the
event that Parent or Merger Sub shall acquire at least 80% of the outstanding
shares of each class of capital stock of the Company pursuant to the
-37-
<PAGE> 42
Offer, the parties hereto agree, at the request of Parent, to take all
appropriate and necessary action to cause the Merger to become effective, as
soon as practicable after the expiration or termination of the Offer and the
transactions contemplated hereby, without a meeting of shareholders of the
Company, in accordance with the FBCA.
8.7. Publicity.
The initial press release shall be a joint press release and
thereafter the Company and Parent each shall consult with the other prior to
issuing any press releases or otherwise making public announcements with respect
to the Offer, the Merger and the other transactions contemplated by this
Agreement and shall not issue any such press release or make any such public
statement without the prior consent of the other party, which consent shall not
be unreasonably withheld or delayed and prior to making any filings with any
third party and/or any Governmental Entity (including any national securities
exchange or national market systems) with respect thereto, except as may be
required by law or by obligations pursuant to any listing agreement with or
rules of any national securities exchange or national market system.
8.8. Benefits.
8.8.(a) Stock Options.
(i) The Company shall take all necessary
actions to cause (including plan amendments) prior to the
Effective Time each outstanding option to purchase Shares
which had not vested immediately prior to such time to become
vested and fully exercisable.
(ii) Prior to the Effective Time, the
Company shall take all necessary actions to cause each then
outstanding option granted under the Stock Plans to purchase
Shares (a "Company Option"), whether vested or unvested, to be
cancelled, with the holder thereof becoming entitled to
receive an amount of cash equal to the product of (x) the
amount, if any, by which the Merger Consideration exceeds the
exercise price per Share subject to such Company Option
(whether vested or unvested) and (y) the number of Shares
issuable pursuant to the unexercised portion of such Option,
less any required withholding of taxes (such amount being
hereinafter referred to as the "Option Consideration") . The
Option Consideration shall be paid as soon as practicable
following the Effective Time, but in any event within five (5)
days following the Effective Time. The cancellation of a
Company Option in exchange for the Option Consideration shall
be deemed a release of any and all rights the holder had or
may have had in respect of such Company Option, and any
required consents received from Company Option holders shall
so provide.
8.8.(b) Employee Benefits. Except for the Company's
Stock Option Plan, Parent agrees that, during the period commencing at the
Effective Time and ending on
-38-
<PAGE> 43
the first anniversary thereof, the employees of the Company and its Subsidiaries
will continue to be provided with benefits under employee benefit plans that are
no less favorable in the aggregate than the Plans currently provided by the
Company and its Subsidiaries to such employees. Following the Effective Time,
Parent shall cause service by employees of the Company and its Subsidiaries (and
any predecessor entities) to be taken into account for all purposes (including,
without limitation, eligibility to participate, eligibility to commence
benefits, vesting, benefit accrual and severance) under any benefit plans of
Parent or its Subsidiaries (including the Surviving Corporation) . From and
after the Effective Time, Parent shall (i) cause to be waived any pre-existing
condition limitations under benefit plans of Parent or its Subsidiaries in which
employees of the Company or its Subsidiaries participate and (ii) cause to be
credited to any deductible or out of pocket expense of Parent's plans any
deductibles and out-of-pocket expenses incurred by such employees and their
beneficiaries and dependents during the portion of the calendar year prior to
participation in the benefit plans provided by Parent and its Subsidiaries.
Parent shall, and shall cause the Surviving Corporation to, honor all employee
benefit obligations to current and former employees under the Compensation and
Benefit Plans and all employee severance plans and all employment or severance
agreements entered into by the Company or adopted by the Board of Directors of
the Company prior to the date hereof.
8.9. Indemnification; Directors' and Officers' Insurance.
8.9.(a) The Articles of Incorporation and Bylaws
shall contain the provisions with respect to indemnification set forth in
Article IV of the bylaws of the Company on the date of this Agreement and shall
provide for indemnification to the fullest extent permitted by and in accordance
with the FBCA, which provisions shall not be amended, repealed or otherwise
modified for a period of six years after the Effective Time (or, in the case of
matters known prior to the Effective Time which have not been resolved prior to
the sixth anniversary of the Effective Time, until such matters are finally
resolved) in any manner that would adversely affect the rights thereunder of
individuals who at any time prior to the Effective Time were directors or
officers of the Company in respect of actions or omissions occurring at or prior
to the Effective Time (including, without limitation, the transactions
contemplated by this Agreement) .
8.9.(b) Following the Effective Time, Surviving
Corporation shall indemnify and hold harmless, to the fullest extent permitted
under applicable law (and Surviving Corporation shall also advance expenses as
incurred to the fullest extent permitted under applicable law, provided that the
person to whom the expenses are advanced provides an undertaking to repay such
advance if it is ultimately determined that such person is not entitled to
indemnification), each present and former director, officer of the Company
(collectively, the "Indemnified Parties") against any costs or expenses
(including attorneys' fees), judgments, fines, losses, claims, damages or
liabilities (collectively, "Costs") incurred in connection with any claim,
action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to acts or
omissions by them in their capacity as such
-39-
<PAGE> 44
existing or occurring at or prior to the Effective Time, including the
transactions contemplated by this Agreement.
8.9.(c) Any Indemnified Party wishing to claim
indemnification under paragraph (b) of this Section 8.9, upon receiving written
notification of any such claim, action, suit, proceeding or investigation, shall
promptly notify Parent thereof, but the failure to so notify shall not relieve
Parent of any liability it may have to such Indemnified Party if such failure
does not materially and irreversibly prejudice Parent. In the event of any such
claim, action, suit, proceeding or investigation (whether arising before or
after the Effective Time), (i) Surviving Corporation shall have the right within
ten days following the notification of Parent by the Indemnified Person of such
claim, action, suit, proceeding or investigation to assume the defense thereof
and Surviving Corporation shall not be liable to such Indemnified Parties for
any legal expenses of other counsel subsequently incurred by such Indemnified
Parties in connection with the defense thereof, except that if Surviving
Corporation elects not to assume such defense, counsel for the Indemnified
Parties advises that there are issues which raise conflicts of interest between
Surviving Corporation and the Indemnified Parties or the Indemnified Parties
have defenses available to them that are not available to Surviving Corporation,
the Indemnified Parties may retain counsel satisfactory to them and reasonably
acceptable to the Surviving Corporation, and Surviving Corporation shall pay all
reasonable fees and expenses of such counsel for the Indemnified Parties,
provided, however, that the Surviving Corporation shall not be obligated to pay
the reasonable fees and expenses of more than one counsel for all Indemnified
Parties in any single Action except to the extent that, in the opinion of
counsel for the Indemnified Parties, two or more of such Indemnified Parties
have conflicting interests in the outcome of such Action. The Surviving
Corporation shall not be liable for any settlement effected without its written
consent, which consent shall not unreasonably be withheld. If such indemnity is
not available with respect to any Indemnified Party, then Surviving Corporation
and the Indemnified Party shall contribute to the amount payable in such
proportion as is appropriate to reflect the relative faults and benefits of the
Company or Surviving Corporation (in the case of Surviving Corporation) and the
Indemnified Parties. No settlements shall be made on behalf of an Indemnified
Party without such Indemnified Party's consent (which consent shall not be
unreasonably withheld) unless such settlement provides for a full release of
such Indemnified Party.
8.9.(d) The Surviving Corporation shall maintain the
Company's existing officers' and directors' liability insurance ("D&O
Insurance") until July 31, 2002 and shall agree to indemnify the directors and
officers of Company to the fullest extent permitted by Florida law for acts or
omissions by them in their capacity as such existing or occurring at or prior to
the Effective Time, including the transactions contemplated by this Agreement.
8.9.(e) If the Surviving Corporation or any of its
successors or assigns (i) shall consolidate with or merge into any other
corporation or entity and shall not be the continuing or surviving corporation
or entity of such consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to any individual, corporation or
other entity, then, and in each such case, proper provisions shall be made so
that the
-40-
<PAGE> 45
successors and assigns of the Surviving Corporation shall assume all of the
obligations set forth in this Section 8.9.
8.9.(f) The provisions of this Section are intended
to be for the benefit of, and shall be enforceable by, each of the Indemnified
Parties, their heirs and their representatives and shall be in addition to any
other rights to indemnification (e.g. any assumed indemnification obligations)
listed in the Company Disclosure Letter.
8.10. Takeover Statute.
If any Takeover Statute is or may become applicable to the
Shares, the Offer, the Merger or the other transactions contemplated by this
Agreement, each of Parent and the Company and their respective Board of
Directors shall grant such approvals and take such actions as are reasonably
necessary so that such transactions may be consummated as promptly as
practicable on the terms contemplated by this Agreement or by the Merger and
otherwise act to eliminate or minimize the effects of such statute or regulation
on such transactions.
8.11. Expenses.
Parent shall pay all charges and expenses, including those of
the Paying Agent, in connection with the transactions contemplated in Section 5.
Except as otherwise provided in this Agreement, whether or not the Merger is
consummated, all costs and expenses incurred in connection with this Agreement,
the Offer and the Merger and the other transactions contemplated by this
Agreement shall be paid by the party incurring such expense.
9. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligation of each party to effect the Merger
is subject to the satisfaction or waiver at or prior to the Effective Time of
each of the following conditions:
9.1. Shareholder Approval.
If required by the FBCA, the Merger, this Agreement and the
plan of merger shall have been duly approved by holders of a majority of the
outstanding Shares in accordance with applicable law and the articles of
incorporation and bylaws of the Company.
9.2. HSR.
The waiting period applicable to the consummation of the
Merger under the HSR Act shall have expired or been earlier terminated.
9.3. Litigation.
No court or Governmental Entity of competent jurisdiction
shall have enacted, issued, promulgated, enforced or entered any statute, law,
ordinance, rule, regulation,
-41-
<PAGE> 46
judgment, decree, injunction or other order that is in effect and permanently
enjoins or otherwise prohibits consummation of the Merger (collectively, an
"Order")
9.4. Tender Offer.
Merger Sub (or one of the Parent Companies) shall have
purchased Shares in an amount equal to at least the Minimum Conditions pursuant
to the Offer.
10. TERMINATION
10.1. Termination by Mutual Consent.
This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, whether before or after the
approval by shareholders of the Company referred to in Section 9.1, by mutual
written consent of the Company, Merger Sub and Parent by action of their
respective Boards of Directors.
10.2. Termination by Either Parent or the Company.
This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time by action of the Board of
Directors of either Parent or the Company (i) if any Order restraining,
enjoining or otherwise prohibiting consummation of the Offer and/or the Merger
shall become final and non-appealable after the parties have used their
respective reasonable best efforts to have such Order removed, repealed or
overturned (whether before or after the approval by the shareholders of the
Company) (ii) if the Offer shall have expired or terminated without any Shares
being purchased therein, provided, however, that the right to terminate this
Agreement under this Section 10.2(ii) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Merger Sub to purchase Shares in the Offer; or
(iii) if the Effective Time shall not occur by June 30, 2000, unless the
Effective Time shall not have occurred because of a material breach of this
Agreement by the party seeking to terminate this Agreement.
10.3. Termination by the Company.
This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, by action of the Board of
Directors of the Company:
(i) at any time prior to the time Parent, Merger Sub or
any of their affiliates shall purchase Shares pursuant to the Offer, upon three
business days' prior notice to Parent if, as a result of a Superior Proposal,
(A) the Board of Directors shall have concluded in good faith, after considering
applicable provisions of state law and after consultation with outside counsel,
that the failure to accept such Superior Proposal could reasonably be expected
to constitute a breach by its Board of Directors of its fiduciary duties; (B)
the Company shall have complied with all its obligations under Section 8.2; and
(C) during the three business days
-42-
<PAGE> 47
prior to any such termination, the Company shall, and shall cause its respective
financial and legal advisors to, in good faith, seek to negotiate with Parent to
make such adjustment in the terms and conditions of this Agreement as would
enable the Company to proceed with the transactions contemplated herein; or
(ii) if, prior to the purchase of Shares pursuant to the
Offer, there has been a material breach or failure to perform by Parent or
Merger Sub of any of their respective material covenants or agreements contained
in this Agreement, which breach or failure to perform is not curable, or if
curable, has not been cured within five days after written notice of such breach
or failure is given by the Company to the party committing such breach or
failure, except, in any case, such breaches or failures which are not reasonably
likely to materially and adversely affect Parents' or Merger Sub's ability to
consummate the Offer or the Merger.
10.4. Termination by Parent.
10.4.(a) This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time by Parent:
(i) if, due to an occurrence that, if
occurring after the commencement of the Offer, would result in
a failure to satisfy any of the conditions set forth in Annex
A hereto, Parent, Merger Sub, or any of their affiliates shall
have failed to commence the Offer on or prior to five business
days following the date of the initial public announcement of
the Offer; provided, that Parent may not terminate this
Agreement pursuant to this Section 10.4(a)(i) if Parent is in
material breach of this Agreement; or
(ii) if, prior to the purchase of Shares
pursuant to the Offer, the Board of Directors of the Company
shall have withdrawn, or modified or changed in a manner
adverse to Parent or Merger Sub its approval or recommendation
of the Offer, this Agreement or the Merger or shall have
recommended a Superior Proposal or shall have resolved to do
either of the foregoing; or
(iii) if, prior to the purchase of Shares
pursuant to the Offer, there has been a material breach or
failure to perform by the Company of any of its material
covenants or agreements contained in this Agreement, which
breach or failure to perform is not curable, or if curable,
has not been cured within five days after written notice of
such breach or failure is given by Parent to the Company.
10.5. Effect of Termination and Abandonment.
10.5.(a) In the event of termination of this
Agreement and the abandonment of the Merger pursuant to this Section 10, written
notice thereof shall forthwith be given to the other party or parties specifying
the provision hereof pursuant to which such
-43-
<PAGE> 48
termination is made; and this Agreement shall become void and of no effect with
no liability on the part of any party hereto (or of any of its directors,
officers, employees, agents, legal and financial advisors or other
representatives) except as provided in 10.5(b); provided, however, (i) no such
termination shall relieve any party hereto of any liability or damages resulting
from any fraud or willful breach of this Agreement and (ii) notwithstanding (i)
above, in the event this Agreement is terminated by Parent because of a willful
breach of a representation or warranty of the Company then Parent may recover
under this Section 10.5(a) (such recovery not to limit any other rights Parent
may have under 10.5(b)) a reimbursement of its out-of-pocket expenses not to
exceed $1,500,000.
10.5.(b) In the event that (I) (a) an Acquisition
Proposal (other than pursuant to this Agreement) shall have been made to the
Company or any Person (other than Parent or any of its Affiliates) shall have
publicly announced an intention (whether or not conditional) to make an
Acquisition Proposal with respect to the Company and thereafter this Agreement
is terminated by the Company under Section 10.3(i) or Parent pursuant to Section
10.4(a)(ii) and (b) the Person making the Acquisition Proposal which was
outstanding at the time of the termination (the "Acquiring Party") has entered
into an agreement with the Company to consummate such Acquisition Proposal
within nine months of such termination, and such Acquisition Proposal is
consummated, or (II) any Person within nine months of termination of this
Agreement has acquired, by purchase, merger, consolidation, sale, assignment,
lease, transfer or otherwise, in one transaction or any related series of
transactions a majority of the voting power of the outstanding securities of the
Company or all or substantially all of the assets of the Company, then, in the
event the circumstances described in (I) or (II) has occurred then the Company
shall promptly, pay Parent a termination fee of $6,000,000 in same day funds to
an account previously designated by Parent to the Company in writing; provided,
however, that in the event the Company has already reimbursed the out-of-pocket
expenses of Parent pursuant to the last sentence of 10.5(a), then, in such
event, the termination fee payable pursuant to this sentence shall be $6,000,000
less the amount of such reimbursement. The Company's payment of this termination
fee shall be the sole and exclusive remedy of Parent and Merger Sub against the
Company and its respective directors, officers, employees, agent, advisors or
other representatives in the event this Agreement is terminated and the
termination fee is payable.
11. MISCELLANEOUS AND GENERAL
11.1. Survival.
This Section 11 and the agreements of the Company, Parent and
Merger Sub contained in Sections 8.6 (De-listing), 8.8 (Benefits), 8.9
(Indemnification; Directors' and Officers' Insurance), and 8.11 (Expenses) shall
survive the consummation of the Merger. This Section 11, the agreements of the
Company, Parent and Merger Sub contained in Section 8.11 (Expenses), Section
10.5 (Effect of Termination and Abandonment) and the Confidentiality Agreement
shall survive the termination of this Agreement. All other representations,
-44-
<PAGE> 49
warranties, covenants and agreements in this Agreement shall not survive the
consummation of the Merger or the termination of this Agreement.
11.2. Modification or Amendment.
Subject to the provisions of the applicable law, at any time
prior to the Effective Time, the parties hereto may modify or amend this
Agreement, by written agreement executed and delivered by duly authorized
officers of the respective parties; provided, that, in the case of the Company
any such modification or amendment must be approved by a majority of the
directors who are not Parent Insiders.
11.3. Waiver of Conditions.
The conditions to each of the parties' obligations to
consummate the Merger are for the sole benefit of such party and may be waived
by such party in whole or in part to the extent permitted by applicable law,
except that the following approval by the shareholders of the Company there
shall be no amendment or supplement which by Law requires further approval by
such shareholders without further approval by the shareholders of the Company;
provided, that, in the case of the Company any such waiver must be approved by a
majority of the directors who are not Parent Insiders.
11.4. Counterparts.
This Agreement may be executed in any number of counterparts,
each such counterpart being deemed to be an original instrument, and all such
counterparts shall together constitute the same agreement.
11.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL.
THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH
THE LAW OF THE STATE OF FLORIDA WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. The parties hereby irrevocably submit to the jurisdiction of the
Federal courts of the United States of America located in the State of Florida
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents referred to in this Agreement, and in
respect of the transactions contemplated hereby, and hereby waive, and agree not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a State of Florida or Federal
court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection
-45-
<PAGE> 50
with any such action or proceeding in the manner provided in Section 11.6 or in
such other manner as may be permitted by law shall be valid and sufficient
service thereof.
11.6. Notices.
Any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and shall be deemed
delivered if delivered personally or sent by registered or certified mail
(return receipt requested) or nationally recognized overnight courier service
(with proof of service), postage prepaid, or by confirmed facsimile, and such
notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed:
if to Parent or Merger Sub
c/o Oerlikon-Buhrle Holding AG
Hofwiesenstrasse 135
CH-8021 Zurich
Switzerland
Attention: Heinz A. Kundert
Fax: 011-41-1-363-4092
with a copy to
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Allen I. Isaacson, P.C.
Fax: (212) 859-4000
if to the Company
Plasma-Therm, Inc.
10050 16th Street North
St. Petersburg, Florida 33716
Attention:Stacy Wagner
Fax: (727) 577-7035
with a copy to
Foley & Lardner
100 North Tampa Street, Suite 2700
Tampa, Florida 33602
Attention: Martin A. Traber
Fax: (813) 225-4210
-46-
<PAGE> 51
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above.
11.7. Entire Agreement; NO OTHER REPRESENTATIONS.
This Agreement (including any exhibits hereto), the Company
Disclosure Letter, the Parent Disclosure Letter and the Confidentiality
Agreement (the "Confidentiality Agreement") constitute the entire agreement, and
supersede all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject
matter hereof. EACH PARTY HERETO AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES CONTAINED IN THIS AGREEMENT, NEITHER PARENT AND MERGER SUB NOR THE
COMPANY MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, AND EACH HEREBY DISCLAIMS
ANY OTHER REPRESENTATIONS OR WARRANTIES MADE BY ITSELF OR ANY OF ITS OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER
REPRESENTATIVES, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE
TO THE OTHER OR THE OTHER'S REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER
INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING.
11.8. No Third Party Beneficiaries.
Except as provided in Section 8.8 (Benefits), and in Section
8.9 (Indemnification; Directors' and Officers' Insurance), this Agreement is not
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
11.9. Obligations of Parent and of the Company.
Whenever this Agreement requires a Subsidiary of Parent to
take any action, such requirement shall be deemed to include an undertaking on
the part of Parent to cause such Subsidiary to take such action. Whenever this
Agreement requires a Subsidiary of the Company to take any action, such
requirement shall be deemed to include an undertaking on the part of the Company
to cause such Subsidiary to take such action and, after the Effective Time, on
the part of the Surviving Corporation to cause such Subsidiary to take such
action.
11.10. Severability.
The provisions of this Agreement shall be deemed severable and
the invalidity or unenforceability of any provision shall not affect the
validity or enforceability or the other provisions hereof. If any provision of
this Agreement, or the application thereof to any Person or any circumstance, is
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement
-47-
<PAGE> 52
and the application of such provision to other Persons or circumstances shall
not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
11.11. Interpretation.
The table of contents and headings herein are for convenience
of reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof. Where a
reference in this Agreement is made to a Section or Exhibit, such reference
shall be to a Section of or Exhibit to this Agreement unless otherwise
indicated. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation."
11.12. Assignment.
This Agreement shall not be assignable by operation of law or
otherwise.
11.13. Enforcement of Agreement.
The parties hereto agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court, this being in addition to any other remedy to
which they are entitled at law or in equity.
11.14. Glossary of Terms.
The following sets forth the location of definitions of
capitalized terms defined in the body of this Agreement:
<TABLE>
<S> <C> <C>
"1998 Balance Sheet" - Section 6.5.
"Acquiring Party" - Section 10.5.(b)
"Acquisition Proposal" - Section 8.2.(d)(i)
"Ancillary Documents" - Section 6.3.(a)
"Articles" - Section 3.1.
"Articles of Merger" - Section 2.3.
"Audit" - Section 6.12.
"Audit Date" - Section 6.5.
"Bankruptcy and Equity Exception" - Section 6.3.(a)
"Business Day" - Section 1.4.
"Bylaws" - Section 3.2.
"CERCLA" - Section 6.11.
"CERCLIS" - Section 6.11.
</TABLE>
-48-
<PAGE> 53
<TABLE>
<S> <C> <C>
"Certificate" - Section 5.1.(a)
"Closing" - Section 2.2.
"Closing Date" - Section 2.2.
"Company Acquisition Transaction" - Section 8.2.(d)(ii)
"Company Disclosure Letter" - Section 6.
"Company Intellectual Property" - Section 6.14.(b)
"Company Material Adverse Effect" - Section 6.1.
"Company Option" - Section 8.8.(a)(ii)
"Company Reports" - Section 6.5.
"Company Requisite Vote" - Section 6.3.(a)
"Company Stock Plan" - Section 6.2.
"Compensation and Benefit Plans" - Section 6.8.(a)
"Confidentiality Agreement" - Section 11.7.
"Contracts" - Section 6.4.(b)
"Costs" - Section 8.9.(b)
"D&O Insurance" - Section 8.9.(d)
"Department" - Section 2.3.
"Dissenting Shareholders" - Section 5.3.
"Effective Time" - Section 2.3.
"Employees" - Section 6.8.(a)
"Environmental Laws" - Section 6.11.
"Environmental Permits" - Section 6.11.
"ERISA" - Section 6.8.(b)
"ERISA Affiliate" - Section 6.8.(c)
"Exchange Act" - Section 1.2. and Section 6.4.(a)
"Exchange Fund" - Section 5.2.(a)
"Excluded Shares" - Section 5.1.(a)
"Exon-Florio Amendment" - Section 6.4.(a)
"FBCA" - Section 2.1. and Section 6.3.(b)
"Financial Advisor" - Section 6.3.(b)
"Government Antitrust Entity" - Section 8.3.(d)
"Governmental Entity" - Section 6.4.(a)
"HSR Act" - Section 6.4.(a)
"Indemnified Parties" - Section 8.9.(b)
"Information Statement" - Section 6.21.
"Intellectual Property" - Section 6.14.(b)
"IRS" - Section 6.8.(b)
"Knowledge of the Company" - Section 6.7.
"Laws" - Section 6.9.
"Material Contracts" - Section 6.19.
"Merger Consideration" - Section 5.1.(a)
"Offer" - Section 1.1.
"Offer Conditions" - Section 1.1.
"Offer Documents" - Section 1.2.
</TABLE>
-49-
<PAGE> 54
<TABLE>
<S> <C> <C>
"Option Consideration" - Section 8.8.(a)(ii)
"Order" - Section 9.3.
"Outside Counsel" - Section 6.10.
"Parent Disclosure Letter" - Section 7.
"Parent Companies" - Section 5.1.(a)
"Parent Insiders" - Section 4.1.(a)
"Parent Material Adverse Effect" - Section 7.3.
"Paying Agent" - Section 5.2.(a)
"Pension Plan" - Section 6.8.(b)
"Person" - Section 5.2.(b)
"Plans" - Section 6.8.(b)
"Proxy Statement" - Section 8.6.
"Real Property" - Section 6.11.
"Representatives" - Section 8.2.(a)
"Schedule 14D-1" - Section 1.2.
"Schedule 14D-9" - Section 1.3.(b)
"SEC" - Section 1.3.(b) and Section 6.5.
"Share" - Section 5.1.(a)
"Shares" - Section 5.1.(a)
"Subsidiary" - Section 6.1.
"Superior Proposal" - Section 8.2.(d)(iii)
"Surviving Corporation" - Section 2.1.
"Takeover Statute" - Section 6.10.
"Tax" - Section 6.12.
"Tax Return" - Section 6.12.
"Taxable" - Section 6.12.
"Taxes" - Section 6.12.
"Voting Debt" - Section 6.2.
</TABLE>
-50-
<PAGE> 55
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first
written above.
COMPANY
By: /s/ Ronald S. Deferrari
-------------------------------------------
Name: Ronald S. Deferrari
-------------------------------------
Title: President
------------------------------------
OERLIKON-BUHRLE USA, INC.
By: /s/ Beat Baumgartner
-------------------------------------------
Name: Beat Baumgartner
-------------------------------------
Title: Chairman and President
------------------------------------
VOLCANO ACQUISITION CORP.
By: /s/ Heinz Kundert
-------------------------------------------
Name: Heinz Kundert
-------------------------------------
Title: Chairman and President
------------------------------------
[Signature Page to Merger Agreement]
<PAGE> 56
ANNEX A
Certain Conditions of the Offer. Notwithstanding any other provision of
the Offer, but subject to the terms of the Merger Agreement, Merger Sub shall
not be required to accept for payment or, subject to any applicable rules and
regulation of the SEC, pay for any Shares, and may terminate or amend (subject
to the last sentence of Section 1.1 of this Agreement) the Offer (i) if prior to
the expiration of the Offer (or, if extended, by the expiration of the Offer, as
so extended) a number of Shares which together with any Shares owned by Parent,
Merger Sub and the Parent Companies, constitutes more than 50% of the
outstanding Shares (on a fully-diluted basis) (the "Minimum Conditions") shall
not have been validly tendered pursuant to the Offer and not properly withdrawn,
(ii) if all applicable waiting periods under the HSR Act or the Exon-Florio
Amendment shall not have expired or been terminated, or (iii) at any time prior
to acceptance for payment for any such Shares, any of the following events shall
occur; provided that in each such case Merger Sub shall not be permitted to
terminate the Offer (except pursuant to paragraph (e)(ii), e(iii) or (g) below)
if prior to the then scheduled expiration of the Offer the Offer shall have been
extended:
(a) there shall have occurred (i) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States (whether or not mandatory), (ii) a formal declaration of war or
national or international calamity directly or indirectly involving the United
States, (iii) any limitation (whether or not mandatory) by any United States
governmental authority on the extension of credit by banks or other financial
institutions that materially affects the extension of credit by banks or other
lending institutions, (iv) any general suspension of, or limitation on prices
for, trading in securities on the NASDAQ National Market or the over the counter
market, or (v) in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof;
(b) the Company shall have breached or failed to
perform any of its obligations, covenants or agreements under the Merger
Agreement in a manner permitting Parent to terminate the Merger Agreement, or
any representation or warranty of the Company set forth in the Merger Agreement
shall not have been true and correct in all respects when made, or shall
thereafter have ceased to be true and correct in all respects as if made on such
later date (other than representations and warranties made as of a specified
date); provided that any such representations and warranties that are not
qualified by Material Adverse Effect shall be deemed to be true and correct in
all respects unless the failure of such representations and warranties to be so
true and correct in all respects would have a Company Material Adverse Effect or
would prevent the Company from consummating the transactions contemplated by the
Merger Agreement;
(c) there shall be instituted or pending any action,
litigation, proceeding, investigation or other application (hereinafter, an
"Action") before any court or other Governmental Entity: (i) challenging the
acquisition by Parent or Merger Sub of Shares, seeking to restrain or prohibit
the consummation of the transactions contemplated by the
-1-
<PAGE> 57
Merger Agreement; (ii) seeking to prohibit, or impose any limitations on,
Parent's or Merger Sub's acquisition, ownership or operation of all or any
portion of their or the Company's business or assets (including the business or
assets of their respective affiliates and subsidiaries); (iii) seeking to make
the acceptance for payment, purchase of, or payment for, some or all of the
Shares illegal; (iv) seeking to impose limitations on the ability of Parent or
Merger Sub effectively to acquire or hold or to exercise full rights of
ownership of the Shares including, without limitation, the right to vote the
Shares purchased by them on an equal basis with all other shares on all matters
properly presented to the shareholders; or (v) that, in any event, would have a
Company Material Adverse Effect;
(d) any statute, rule, regulation, order or injunction
shall be enacted, promulgated, entered, enforced or become applicable to the
Offer or the Merger, or any other action shall have been taken by any court or
other Governmental Entity other than the application to the Offer or the Merger
of the waiting period under the HSR Act, that would result in any of the effects
of, or have any of the consequences sought to be obtained or achieved in, any
Action referred to in clauses (i) through (v) of paragraph (c) above;
(e) any person (as such term is defined in Section
13(d) (3) of the Exchange Act (other than Parent or any of its affiliates)) (i)
commences a tender or exchange offer for a majority or more of the outstanding
Shares at a price per Share greater than the Merger Consideration; (ii) shall
have become the beneficial owner of more than 25% of the outstanding Shares
(other than for bona fide arbitrage purposes); or (iii) shall have entered into
a definitive agreement to acquire all or substantially all of the Shares or to
effect a merger, consolidation or other business combination with or involving
the Company;
(f) there shall have occurred an event which has
caused a Company Material Adverse Effect;
(g) the Board of Directors of the Company shall have
amended, modified or withdrawn its recommendation of the Offer or the Merger in
a manner adverse to Parent, or shall have endorsed, approved or recommended any
other Acquisition Proposal, or shall have resolved to do any of the foregoing or
shall have failed to confirm within five business days of the Parent's request
therefore its recommendation of the Offer or the Merger; or
(h) the Merger Agreement shall have been terminated by
the Company or Parent in accordance with its terms;
which, in the reasonable judgment of Parent, in any such case, and regardless of
the circumstances giving rise to any such conditions, makes it reasonably
inadvisable to proceed with the Offer and/or with such acceptance for payment of
or payment for Shares.
The foregoing conditions other than the Minimum Conditions are for the
sole benefit of Parent and may be asserted by Parent or Merger Sub regardless of
the circumstances giving rise to such condition or may be waived by Parent other
than the Minimum Conditions, by
-2-
<PAGE> 58
express and specific action to that effect, in whole or in part at any time and
from time to time in its sole discretion. The failure by the Parent or Merger
Sub at any time to exercise any of the foregoing rights will not be deemed a
waiver of any right, the waiver of such right with respect to any particular
facts or circumstances shall not be deemed a waiver with respect to any other
facts or circumstances, and each right will be deemed an ongoing right which may
be asserted at any time and from time to time.
-3-
<PAGE> 1
EXHIBIT (c)(2)
FORM OF AMENDMENT NO. [ ] TO EMPLOYMENT AGREEMENT
This is an Amendment No. __, dated December ___, 1999 (the "Amendment
No. __"), to an Employment Agreement dated January 22, 1999 (the "Original
Employment Agreement"), between Plasma-Therm, Inc., a Florida corporation (the
"Company"), and ______________ (the "Employee").
BACKGROUND
WHEREAS, the Employee is currently employed by the Company pursuant to
the terms of the Employment Agreement and subsequent amendments dated ______
____, 199_ (collectively the Original Employment Agreement and Amendment No. __
are the "Employment Agreement").
WHEREAS, the Company is currently contemplating entering into an
Agreement and Plan of Merger with an affiliate of Oerlikon-Buhrle Holding AG
and Balzers & Leybold (the "Bidder") pursuant to which the Bidder will make a
tender offer (the "Tender Offer") for certain of the issued and outstanding
shares of the Company (the "Shares"); and
WHEREAS, in connection with the making of the Tender Offer the Bidder
has requested that the Employment Agreement by and between the Company and the
Employee be amended as set forth herein; and
WHEREAS, the Company and the Employee have agreed to amend the
Employment Agreement as set forth herein; provided, however, that this
Amendment shall only become effective if, and as of, the date on which the
Bidder first accepts and pays for any Shares pursuant to the Tender Offer (the
"Tender Offer Closing Date").
NOW, THEREFORE, the parties hereto intending to be legally bound
hereby, and in consideration of the mutual covenants herein contained, agree as
follows:
TERMS
1. The foregoing recitals are true and correct and incorporated herein
by reference. Any capitalized terms used but not defined herein shall have the
same meaning ascribed to them in the Employment Agreement.
2. Section 2 of the Employment Agreement is hereby amended in its
entirety to read as follows:
The term of this Agreement shall be for a period of three (3) years
commencing on the Tender Offer Closing Date, and terminating at 12:00 midnight
on the day immediately preceding the third anniversary of the Tender Offer
Closing Date. Upon expiration of the initial Term and any subsequent terms,
this Agreement shall automatically renew for additional subsequent three (3)
year Terms unless at least ninety (90) days prior to the end of the then
current Term, either Company or Employee has given written notice to the other
of its or his election to terminate the employment at or prior to the end of
such Term.
<PAGE> 2
3. Section 9.1 of the Employment Agreement is hereby amended in its
entirety to read as follows:
Employee hereby acknowledges that Company is one of only a small
number of companies worldwide that designs, manufactures and sells plasma
process thin film etching and deposition equipment. Employee also acknowledges
that pursuant to his prior relationship with Company, and under the terms of
this Agreement, he will gain access to valuable trade secrets of Company and
other valuable confidential business and proprietary information, and will
become aware of and a part of Company's substantial relationships with
customers, potential customers, suppliers, and sources. Accordingly, Employee
hereby covenants that Employee shall not, either directly or indirectly, as a
principal, partner, stockholder, officer, director, agent or employee, or in
any other capacity, enter in to any employment agreement, or accept employment
with or render services for, any company, partnership, person or entity that
competes or attempts to compete, whether directly or indirectly, with Company,
for the term of this Agreement and for a period of two (2) years following the
termination of this Agreement, regardless of the reason for said termination.
4. Except as specifically set forth above, the Employment Agreement
shall remain in full force and effect.
5. This Amendment No. __ may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute one document.
6. This Amendment No. __ contains the final, complete, and exclusive
expression of the parties' understanding and agreement concerning the matters
contemplated herein and supersedes any prior or contemporaneous agreement of
representation, oral or written, among them.
7. This instrument shall be binding upon, and shall inure to the
benefit of, each of the parties' respective personal representatives, heirs,
successors, and assigns.
8. This instrument shall be governed by, and construed and enforced in
accordance with the laws of the State of Florida.
-2-
<PAGE> 3
IN WITNESS WHEREOF, the parties have executed this Amendment No. __ on
the day and year first written above.
PLASMA-THERM, INC.
--------------------------------
Ronald H. Deferrari
Chairman of the Board and
Chief Executive Officer
Employee
--------------------------------
-3-
<PAGE> 1
EXHIBIT (c)(3)
PLASMA-THERM, INC.
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (the "Agreement"), made and entered into
as of this 1st day of September, 1999, by and between Plasma-Therm, Inc., a
corporation organized under the laws of the State of Florida ("PTI" or the
"Company") and Balzers Limited through its Balzers Process System Division, a
corporation organized under the laws of the Principality of Liechtenstein
("BPS").
The parties hereto desire to explore and discuss a possible transaction
or to further a business relationship between them.
In connection therewith, the parties will be given access to
Confidential Information (as defined below) relating to each other's businesses
and affairs;
In consideration of the promises and the mutual covenants and
obligations hereinafter set forth, the parties agree as follows.
SECTION 1. CONFIDENTIAL INFORMATION. Except as set forth below,
"Confidential Information" shall mean and include any financial, operational,
technical and other information relating to the present and future businesses
and affairs of the party disclosing the information (the "Disclosing Party"),
which information is provided to the other party (the "Receiving Party") in
connection with the business relationship provided in written, oral, graphic,
pictorial or recorded form or stored on computer discs, hard drives, magnetic
tape or digital or any other electronic medium (it being understood that oral
communications will be confirmed in writing within three (3) working days). It
is further understood that the term "Confidential Information" does not mean and
include information which:
(a) is or subsequently becomes publicly available without the
Receiving Party's breach of any obligation owed to the
Disclosing Party;
(b) prior to disclosure hereunder is within the possession of the
Receiving Party, and was obtained by the Receiving Party from a
source not under obligation not to disclose such information or
any of its Representatives as defined below.
(c) is lawfully received by the Receiving Party from a third party
(other than the Disclosing Party) having rights to disseminate
without restriction such information and such information is
received by the Receiving Party from such third party without
notice to the Receiving Party of any restriction against its
further disclosure;
(d) is disclosed with the prior written approval of the Disclosing
Party; or
<PAGE> 2
(e) is required to be produced by the receiving party under order of
a court of competent jurisdiction or a valid administrative or
congressional subpoena; PROVIDED, HOWEVER, that upon issuance of
any such order or subpoena, the Receiving Party shall promptly
notify the Disclosing Party and shall provide the Disclosing
Party with an opportunity (if then available) to contest the
propriety of such order or subpoena (or to arrange for
appropriate safeguards against any further disclosure by the
court or administrative or congressional body seeking to compel
disclosure of such Confidential Information).
SECTION 2. OWNERSHIP. The Receiving Party hereby acknowledges and
agrees that all of the Confidential Information of the Disclosing Party is the
exclusive proprietary property of the Disclosing Party, is being disclosed
solely for the purpose of enabling the parties to conduct the discussions
relating to the Transaction is to be used by the Receiving Party only in such
limited manner as is permitted by the provisions of this Agreement.
SECTION 3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. The Confidential
Information shall (a) be kept confidential by the Receiving Party and not
disclosed to any third party (except as provided in this Section 3) and (b) not
be used by the Receiving Party for any commercial or competitive purpose
whatsoever and may only be used in connection with the discussions relating to
the Transaction. The Receiving Party may, however, disclose the Confidential
Information to its directors, officers, Affiliates (as defined below) or legal
or financial advisors (collectively, "Representatives"), but only if such
Representatives reasonably need to know the Confidential Information for the
purpose of evaluating the Transaction. The Receiving Party will (i) inform each
of its Representatives receiving Confidential Information of the confidential
nature of the Confidential Information and of the existence and the terms of
this Agreement, (ii) direct its Representatives to treat the Confidential
Information confidentially and not to use it other than in connection with an
evaluation of the Transaction, (iii) require that any Representative other than
a director or officer of Disclosing Party or Receiving Party execute a
counterpart of this Agreement prior to any disclosure by the Receiving Party of
Confidential Information to such Representative, which counterpart shall have
annexed thereto a schedule (the "Disclosure Schedule") setting forth in
appropriate detail the Confidential Information that is to be disclosed to such
Representative. For purposes of this Agreement, the term "Affiliate" shall mean
any Person that, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, the Person
specified. As used in the foregoing definition, the term "Person" shall mean an
individual, firm, trust, association, corporation, partnership, government
(whether federal, state, local or other political subdivision, or any agency or
bureau of any of them) or other entity.
SECTION 4. CARE AND RETURN OF CONFIDENTIAL INFORMATION. The Receiving
Party and its Representatives hereby agree to use their best efforts to prevent
inadvertent disclosure of Confidential Information to others. The Receiving
Party agrees to treat the Confidential Information with at least the degree of
care that it treats similar materials of its own, or a higher standard of care
if reasonable under the circumstances.
Upon the request of the Disclosing Party, the Receiving Party
will return to the Disclosing Party all documents which contain Confidential
Information of the Disclosing Party, and agree that the Receiving Party and its
Representatives will not retain any copies thereof.
-2-
<PAGE> 3
SECTION 5. NO LICENSES. Neither the execution of this Agreement nor the
furnishing of any Confidential Information pursuant to this Agreement shall be
construed as granting the Receiving Party or its Representatives, either
expressly or by implication, any license or right to use any Confidential
Information for its own benefit or the benefit of any other Person, firm or
entity, and each party hereto expressly agrees not to so use any such
information except as otherwise provided herein.
SECTION 6. NON-DISCLOSURE OF THE TRANSACTION. Neither party hereto
shall publicly announce or otherwise disclose, without the prior written
consent of the other, any proposed terms of or that discussions relating to the
Transaction are taking place except for such disclosure as the party seeking to
make disclosure has been advised by its legal counsel is required by law, in
which case the party seeking to make disclosure shall provide the other party
with as much prior notice of such announcement or disclosure (including the
proposed text of such announcement or disclosure) as is reasonably possible
under the circumstances (and attempt in good faith to obtain such other party's
concurrence with the manner and extent of such disclosure).
SECTION 7. NO LIABILITY. Neither party hereto shall be under any
obligation of any kind with respect to the Transaction, except for the matters
specifically agreed to herein, unless and until a definitive agreement
regarding the Transaction has been executed and delivered by each of the
parties hereto.
SECTION 8. NON-SOLICITATION. The Company and Plasma-Therm agree that,
without the prior written consent of the other, it will not, for a period of
six months after the date of this agreement, solicit, attempt to divert or
entice away or knowingly hire any person who is an employee of the other or any
of its Affiliates on the date of this agreement.
SECTION 9. STANDSTILL AGREEMENT. For a period of six months following
the date of this Agreement, each of the parties and its affiliates (as defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act), will not (and will not assist or encourage others to) directly
or indirectly, without the written consent of the other party:
(a) acquire or agree, offer, seek or propose to acquire, or cause to
be acquired, ownership (including but not limited to, beneficial
ownership as defined in Rule 13d-3 under the Exchange Act) of
any of the other party's assets or businesses or any securities
issued by the other party, or any bank debt, claims or other
obligations of the other party, or any rights or options to
acquire such ownership, directly or from a third party;
(b) seek or propose to influence or control the management or
policies of the other party or to obtain representation on the
other's board of directors, or solicit, participate in the
solicitation of, any proxies or consents with respect to any
securities of the other, or make any public announcement with
respect to any of the foregoing or request permission to do any
of the foregoing;
(c) enter into any discussions, negotiations, arrangements or
understandings with any third party with respect to the
foregoing; or
-3-
<PAGE> 4
(d) seek or request permission or participate in any effort to do
any of the foregoing or make or seek permission to make any
public announcement with respect to any of the foregoing.
If at any time during such six months period either party or its
Representatives are approached by any third party with respect to any
of the foregoing, such party shall promptly inform the other of the
nature of such contact and the proposed transaction and shall identify
the parties thereto.
SECTION 10. GOVERNING LAW. This Agreement shall be construed and
enforced in accordance with the laws of the State of Florida.
SECTION 11. TERM. Except as specified elsewhere herein, the term of
this agreement shall be six months commencing on the date hereof, unless
otherwise agreed in writing by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Confidentiality
Agreement to be executed and delivered by their respective appropriate
officers, thereunto duly authorized, as of the date first written above.
PLASMA-THERM, INC.
By: /s/ Stacy L. Wagner
--------------------------------------
Name: Stacy L. Wagner
Title: Chief Financial Officer & Secretary
BALZERS LIMITED
Balzers Process Systems Division
By: /s/ Martin Bader /s/ Erich Haefeli
-------------------- ---------------
Name: Dr. Martin Bader Erich Haefeli
Title: Division Manager General Counsel
Semiconductors
-4-
<PAGE> 1
EXHIBIT (c)(4)
TERMINATION, NONCOMPETITION AND MUTUAL RELEASE AGREEMENT
THIS AGREEMENT dated December 20, 1999, by and between PLASMA-THERM,
INC., a Florida corporation (the "Employer"), and Rondald S. Deferrari (the
"Employee").
WITNESSETH
WHEREAS, the Employee is employed by the Employer under that certain
Employment Agreement by and between Employer and Employee dated January 22,
1998 and subsequent amendments dated October 1, 1998 and July 19, 1999 (as
amended, the "Employment Agreement") , until the date hereof; and
WHEREAS, the Company is currently contemplating entering into an
Agreement and Plan of Merger (the "Merger Agreement") with an affiliate of
Oerlikon-Buhrle Holding AG and Balzers & Leybold (the "Bidder") pursuant to
which the Bidder will make a tender offer (the "Tender Offer") for certain of
the issued and outstanding shares of the Company (the "Shares"); and
WHEREAS, in connection with the making of the Tender Offer the Bidder
has requested that the Employment Agreement by and between the Employer and the
Employee be terminated as set forth herein; and
WHEREAS, the Employee was heretofore granted the right and option to
purchase 560,000 shares of common stock of the Employer in accordance with
certain Stock Option Agreements by and between Employer and Employee (the
"Stock Options"); and
WHEREAS, the Employee and the Employer have determined that it is in
their mutual best interests to terminate their relationship as employee and
employer as set forth herein; provided, however, that this Agreement shall only
become effective if, and as of, the date on which the Bidder first accepts and
pays for any Shares pursuant to the Tender Offer (the "Tender Offer Closing
Date"); and
WHEREAS, the Employer desires to assure itself of the Employee's
continued noncompetition obligations pursuant to the terms hereof; and
WHEREAS, the Employer and Employee desire to mutually release each
other from any and all of their other obligations to each other (except for the
noncompetition provisions contained in the Terminated Agreement which shall
remain in full force and effect) in full and final settlement pursuant to the
terms hereof.
<PAGE> 2
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
covenant and agree as follows:
1. TERMINATION OF EMPLOYMENT RELATIONSHIP. The Employer and the
Employee hereby agree to terminate their employment relationship;
provided, however, that this Agreement shall only become effective
if, and as of, the Tender Offer Closing Date.
2. EXTENSION OF THE NONCOMPETE DURATION. The Employee hereby agrees
that the noncompete provisions of Section 9 of the Employment
Agreement shall remain in full force and is hereby modified such
that the noncompete period shall be for a period of two years from
the Tender Offer Closing Date.
3. TREATMENT OF THE STOCK OPTIONS. Regardless of the terms contained
in any prior stock option grant agreement, all of the Stock
Options shall remain outstanding and shall be treated the same as
all other outstanding stock options of the Company in accordance
with the Merger Agreement.
4. CONSIDERATION. In consideration for the Employee's covenants, the
mutual release contained in this Agreement, the agreement as to
the treatment of the Stock Options and the tendering of his
resignation from any and all positions as an officer or director
of the Employer, the Employer shall pay the Employee a sum of One
million dollars ($1,000,000) payable in one lump sum payment, one
day after the Tender Offer Closing Date.
The Employee acknowledges that any violation by the Employee of
the noncompete obligation as contained in this Agreement, will
constitute a breach as mentioned in paragraph 13 hereinafter, and
such breach will cause immediate and irreparable harm to the
Employer. Therefore, the Employee consents that in connection with
any threatened or actual violation of the Employee's noncompete
obligations contained in this Agreement, the Employer shall be
entitled to immediately stop its payments to the Employees
hereunder and to offset any outstanding payment obligation with
its own claim for damages suffered.
5. GENERAL MUTUAL RELEASE.
a. Employee, on his own behalf and on behalf of his heirs and
representatives, hereby releases and forever discharges
Employer, along with its respective officers, directors,
employees, assigns, successors, and representatives from all
manner of civil actions, contract actions, tort actions,
statutory actions, administrative actions, injuries, damages,
loss of services, constitutional claims, charges of
discrimination and claims for costs, expenses or attorney's
fees which he had, has, or hereafter can, or may have against
the Employer arising out of any event, act or occurrence
2
<PAGE> 3
in any way based on the employment of the Employee by the
Employer, including but not limited to any and all claims,
damages or losses, known or unknown, directly or indirectly
sustained by the Employee in connection with any matter arising
out of their employment relationship, including those arising
in connection with the Stock Options or other employee benefit
programs.
b. Employer, on its own behalf and on behalf of its successors and
assigns, hereby releases and forever discharges Employee, along
with his heir, successors, and representatives from all manner
of civil actions, contract actions, tort actions, statutory
actions, administrative actions, injuries, damages, loss of
services, constitutional claims, charges of discrimination and
claims for costs, expenses or attorney's fees which it had,
has, or hereafter can, or may have against the Employee arising
out of any event, act or occurrence in any way based on the
employment of the Employee by the Employer, including but not
limited to any and all claims, damages or losses, known or
unknown, directly or indirectly sustained by the Employer in
connection with any matter arising out of their employment
relationship; provided, however, that Section 9 of the
Employment Agreement shall remain in full force and effect and
is hereby modified such that the noncompete period shall be for
a period of two years from the Tender Offer Closing Date.
6. RETURN OF EMPLOYER'S PROPERTY. Simultaneously upon the
effectiveness of this Agreement on the Tender Offer Closing Date,
the Employee covenants that he will return any and all material
records, designs, patents, business plans, financial statements,
manuals, memoranda, lists, software and other property delivered
to or compiled by the Employee by or on behalf of the Employer or
its representatives, vendors or customers which pertain to the
business of the Employer and acknowledges that such property is
and shall remain the property of the Employer.
7. NOTICE. For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall
be deemed to have been duly given when hand-delivered, sent by
telecopier, facsimile transmission or other electronic means of
transmitting written documents (as long as receipt is
acknowledged) or mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed as
follows:
If to Employee:
Ronald S. Deferrari
108 Ozona Drive
Palm Harbor, FL 34683
3
<PAGE> 4
If to Employer:
Plasma-Therm, Inc.
10050 16th Street North
St. Petersburg, Florida 33716
Attn: President
Facsimile: (727) 579-0801
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that a notice of change of address shall
be effective only upon receipt.
8. COMPLETE AGREEMENT. Employee has no oral representations,
understandings or agreements with the Employer or any of its
officers, directors or representatives covering the same subject
matter as this Agreement. This written Agreement is the final,
complete and exclusive statement and expression of the agreement
between the Employer and Employee and of all the terms of this
Agreement, and it cannot be varied, contradicted or supplemented
by evidence of any prior or contemporaneous oral or written
agreements. This written Agreement may not be later modified
except by a further writing signed by a duly authorized officer of
the Employer and Employee, and no term of this Agreement may be
waived except by writing signed by the party waiving the benefit
of such term.
9. EXPENSES INCURRED IN CONNECTION WITH THE ENFORCEMENT OF THIS
AGREEMENT. The Employer and the Employee shall be entitled to
reimbursement for any costs, including legal fees, incurred in
connection with the enforcement of the this Agreement.
10. CHANGE IN CONTROL. Employee understands and acknowledges that the
Employer may be merged, sold, or consolidated with or into another
entity and that such entity shall automatically succeed to the
rights and obligations of the Employer.
11. MISCELLANEOUS. This Agreement shall be binding upon, and inure to
the benefit of, the Employer, its respective successors and
assigns, and the Employee and his heirs, executors, administrators
and legal representatives. The parties agree that if any provision
of this Agreement shall under any circumstances be deemed invalid
or inoperative, the Agreements shall be construed with the invalid
or inoperative provision deleted and the rights and obligations of
the parties shall be construed and enforced accordingly. The
validity, interpretation, construction and performance of this
Agreement shall be governed by the internal laws of the State of
Florida. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but
all of which together will constitute but one and the same
instrument.
4
<PAGE> 5
12. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument. This Agreement may be effective upon the
execution and delivery by any party hereto of facsimile copies of
signature pages hereto duly executed by such party.
13. DEFAULT AND CURE PERIOD. In the event of a breach by either party
of the terms of this Agreement, the nonbreaching party will give
prompt written notice of such breach to the other and afford the
breaching party 10 days from receipt of such notice to cure such
breach.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PLASMA-THERM, INC.,
a Florida corporation
("Employer")
By: Stacy L. Wagner
Its: Chief Financial Officer, Treasurer
and Corporate Secretary
/s/ Ronald S. Deferrari
- -----------------------
Ronald S. Deferrari
("Employee")
5
<PAGE> 1
EXHIBIT (C)(5)
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT, dated as of December 20, 1999
(this "Agreement"), between Oerlikon-Buhrle USA, Inc., a Delaware corporation
("Parent"), Volcano Acquisition Corp., a Florida corporation and a wholly owned
subsidiary of Parent ("Merger Sub") and each of the persons listed on Schedule
A hereto (each a "Shareholder" and, collectively, the "Shareholders").
RECITALS
WHEREAS, Parent, Merger Sub and Plasma-Therm, Inc., a Florida
corporation (the "Company") propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement") providing for, among other things, the making of the
Offer by Merger Sub for all of the issued and outstanding shares of common
stock, par value $0.01 per share, of the Company (referred to herein as either
the "Shares" or "Common Stock") and the merger of Merger Sub with and into the
Company on the terms and conditions set forth in the Merger Agreement (the
"Merger");
WHEREAS, each Shareholder is the beneficial owner of the
Shares and Company Options set forth opposite such Shareholder's name on
Schedule A hereto (collectively referred to herein as the "Shares" of such
Shareholder); such Shares, as such Shares may be adjusted by stock dividend,
stock split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with Shares issuable upon the exercise of Company Options;
and
WHEREAS, as a condition to their willingness to enter into
the Merger Agreement, Parent and Merger Sub have requested that the
Shareholders enter into this Agreement;
NOW, THEREFORE, to induce Parent and Merger Sub to enter
into, and in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and
agreements contained herein, the parties agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the Merger
Agreement.
Section 2. Representations and Warranties of the Shareholders. Each
Shareholder, severally and not jointly, represents and warrants to Parent and
Merger Sub, as of the date hereof, as follows:
<PAGE> 2
(a) The Shareholder is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of, and has good title to, all of the Shares
(including the Company Options), free and clear of any mortgage, pledge,
hypothecation, rights of others, claim, security interest, charge, encumbrance,
title defect, title retention agreement, voting trust agreement, interest,
option, lien, charge or similar restriction or limitation, including any
restriction on the right to vote, sell or otherwise dispose of the Shares
(each, a "Lien"), except as set forth in this Agreement.
(b) The Shares (including the Company Options) constitute all
of the securities (as defined in Section 3(a)(10) of the Exchange Act), of the
Company beneficially owned, directly or indirectly, by the Shareholder.
(c) Except for the Shares (including the Company Options),
the Shareholder does not, directly or indirectly, beneficially own or have any
option, warrant or other right to acquire any securities of the Company that
are or may by their terms become entitled to vote or any securities that are
convertible or exchangeable into or exercisable for any securities of the
Company that are or may by their terms become entitled to vote, nor is the
Shareholder subject to any contract, commitment, arrangement, understanding,
restriction or relationship (whether or not legally enforceable), other than
this Agreement, that provides for such Shareholder to vote or acquire any
securities of the Company. The Shareholder holds exclusive power to vote the
Shares and has not granted a proxy to any other Person to vote the Shares,
subject to the limitations set forth in this Agreement.
(d) This Agreement has been duly executed and delivered by
the Shareholder and, assuming due authorization, execution and delivery of this
Agreement by Parent and Merger Sub, is a valid and binding obligation of the
Shareholder enforceable against the Shareholder in accordance with its terms,
except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally; and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(e) Neither the execution and delivery of this Agreement nor
the performance by the Shareholder of the Shareholder's obligations hereunder
will conflict with, result in a violation or breach of, or constitute a default
(or an event that, with notice or lapse of time or both, would result in a
default) or give rise to any right of termination, amendment, cancellation, or
acceleration or result in the
2
<PAGE> 3
creation of any Lien on any Shares under, (i) any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which the
Shareholder is a party or by which the Shareholder is bound or (ii) any
injunction, judgment, writ, decree, order or ruling applicable to the
Shareholder; except for conflicts, violations, breaches, defaults,
terminations, amendments, cancellations, accelerations or Liens that would not
individually or in the aggregate be expected to prevent or materially impair or
delay the consummation by such Shareholder of the transactions contemplated
hereby.
(f) Neither the execution and delivery of this Agreement nor
the performance by the Shareholder of the Shareholder's obligations hereunder
will violate any Law applicable to the Shareholder or require any order,
consent, authorization or approval of, filing or registration with, or
declaration or notice to, any court, administrative agency or other
governmental body or authority, other than any required notices or filings
pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act"),
foreign antitrust or competition laws, the Exon-Florio Amendment or the federal
securities laws.
(g) No investment banker, broker, finder or other
intermediary is, or will be, entitled to a fee or commission from Merger Sub,
Parent or the Company in respect of this Agreement based on any arrangement or
agreement made by or on behalf of such Shareholder in his or her capacity as a
shareholder of the Company.
(h) The Shareholder understands and acknowledges that Parent
is entering into, and causing Merger Sub to enter into, the Merger Agreement in
reliance upon the Shareholder's execution and delivery of this Agreement.
Section 3. Representations and Warranties of Parent and Merger Sub.
Parent and Merger Sub hereby make each of the representations and warranties
contained in Sections 7.3(a), 7.4 and 7.5 of the Merger Agreement, as of the
date hereof, as if such representations were set forth herein.
Section 4. Transfer of the Shares. During the term of this
Agreement, except as otherwise expressly provided herein, each Shareholder
agrees that such Shareholder will not (a) tender into any tender or exchange
offer or otherwise sell, transfer, pledge, assign, hypothecate or otherwise
dispose of, or encumber with any Lien, any of the Shares, (b) acquire any
shares of Common Stock or other securities of the Company (otherwise than in
connection with a transaction of the type described in Section 5 or by
exercising any of the Company Options), (c)
3
<PAGE> 4
deposit the Shares into a voting trust, enter into a voting agreement or
arrangement with respect to the Shares or grant any proxy or power of attorney
with respect to the Shares, (d) enter into any contract, option or other
arrangement (including any profit sharing arrangement) or undertaking with
respect to the direct or indirect acquisition or sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any Shares or any other securities of the Company, (e) exercise any rights
(including, without limitation, under Section 607.1301 through 607.1320 of the
Florida Business Corporation Act) to demand appraisal of any Shares which may
arise with respect to the Merger, or (f) take any other action that would in
any way restrict, limit or interfere with the performance of such Shareholder's
obligations hereunder or the transactions contemplated hereby or which would
otherwise diminish the benefits of this Agreement to Parent or Merger Sub.
Section 5. Adjustments. (a) In the event (i) of any stock dividend,
stock split, recapitalization, reclassification, combination or exchange of
shares of capital stock or other securities of the Company on, of or affecting
the Shares or the like or any other action that would have the effect of
changing a Shareholder's ownership of the Company's capital stock or other
securities or (ii) a Shareholder becomes the beneficial owner of any additional
Shares of or other securities of the Company, then the terms of this Agreement
will apply to the shares of capital stock held by such Shareholder immediately
following the effectiveness of the events described in clause (i) or such
Shareholder becoming the beneficial owner thereof, as described in clause (ii),
as though they were Shares hereunder.
(b) Each Shareholder hereby agrees, while this Agreement is
in effect, to promptly notify Parent and Merger Sub of the number of any new
Shares acquired by such Shareholder, if any, after the date hereof.
Section 6. Tender of Shares. Each Shareholder hereby agrees that
such Shareholder will validly tender (or cause the record owner of such shares
to validly tender) and sell (and not withdraw) pursuant to and in accordance
with the terms of the Offer not later than the fifth business day after
commencement of the Offer (or the earlier of the expiration date of the Offer
and the fifth business day after such Shares are acquired by such Shareholder
if the Shareholder acquires Shares after the date hereof), or, if the
Shareholder has not received the Offer Documents by such time, within two
business days following receipt of such documents, all of the then outstanding
shares of Common Stock beneficially owned by such Shareholder (including the
shares of Common Stock outstanding as of the date hereof and set forth on
Schedule A hereto opposite such Shareholder's name). Upon the purchase by
Parent of all of such then outstanding shares of Common Stock beneficially
4
<PAGE> 5
owned by such Shareholder pursuant to the Offer in accordance with this Section
6, this Agreement will terminate as it relates to such Shareholder. In the
event, notwithstanding the provisions of the first sentence of this Section 6,
any Shares beneficially owned by a Shareholder are for any reason withdrawn
from the Offer or are not purchased pursuant to the Offer, such Shares will
remain subject to the terms of this Agreement. Each Shareholder acknowledges
that Parent's obligation to accept for payment and pay for the shares of Common
Stock tendered in the Offer is subject to all the terms and conditions of the
Offer.
Section 7. Voting Agreement. Each Shareholder, by this Agreement,
does hereby (a) agree to appear (or not appear, if requested by Parent or
Merger Sub) at any annual, special, postponed or adjourned meeting of the
stockholders of the Company or otherwise cause the Shares such Shareholder
beneficially owns to be counted as present (or absent, if requested by Parent
or Merger Sub) thereat for purposes of establishing a quorum and to vote or
consent, and (b) constitute and appoint Parent and Merger Sub, or any nominee
thereof, with full power of substitution, during and for the term of this
Agreement, as his true and lawful attorney and proxy for and in his name, place
and stead, to vote all the Shares such Shareholder beneficially owns at the
time of such vote, at any annual, special, postponed or adjourned meeting of
the stockholders of the Company (and this appointment will include the right to
sign his or its name (as stockholder) to any consent, certificate or other
document relating to the Company that laws of the States of Delaware and
Florida may require or permit), in the case of both (a) and (b) above, (x) in
favor of approval and adoption of the Merger Agreement and approval and
adoption of the Merger and the other transactions contemplated thereby and (y)
against (1) any Acquisition Proposal, (2) any action or agreement that would
result in a breach in any respect of any covenant, agreement, representation or
warranty of the Company under the Merger Agreement and (3) the following
actions (other than the Merger and the other transactions contemplated by the
Merger Agreement): (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or
any of its subsidiaries; (ii) a sale, lease or transfer of a material amount of
assets of the Company or any of its subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of its
Subsidiaries; (iii) (A) any change in a majority of the persons who constitute
the board of directors of the Company or any of its Subsidiaries as of the date
hereof; (B) any change in the present capitalization of the Company or any
amendment of the Company's or any of its Subsidiaries' certificate of
incorporation or bylaws, as amended to date; (C) any other material change in
the Company's or any of its Subsidiaries' corporate structure or business; or
(D) any other action that
5
<PAGE> 6
is intended, or could be expected, to impede, interfere with, delay, postpone,
or adversely affect the Offer, the Merger and the other transactions
contemplated by this Agreement and the Merger Agreement. This proxy and power
of attorney is a proxy and power coupled with an interest, and each Shareholder
declares that it is irrevocable until this Agreement shall terminate in
accordance with its terms. Each Shareholder hereby revokes all and any other
proxies with respect to the Shares that such Shareholder may have heretofore
made or granted. For Shares as to which a Shareholder is the beneficial but not
the record owner, such Shareholder shall use his or its best efforts to cause
any record owner of such Shares to grant to Parent a proxy to the same effect
as that contained herein. Each Shareholder hereby agrees to permit Parent and
Merger Sub to publish and disclose in the Offer Documents and the Proxy
Statement and related filings under the securities laws such Shareholder's
identity and ownership of Shares and the nature of his or its commitments,
arrangements and understandings under this Agreement.
Section 8. No Solicitation. Subject to Section 8.2 of the Merger
Agreement, each Shareholder agrees that neither such Shareholder nor any of
such Shareholder's officers, directors, employees, trustees, representatives,
agents or affiliates (including, without limitation, any investment banker,
attorney or accountant retained by any of them) will directly or indirectly
initiate, solicit or encourage (including by way of furnishing non-public
information or assistance), or take any other action to facilitate, any
inquiries or the making or submission of any Acquisition Proposal, or enter
into or maintain or continue discussions or negotiate with any person or entity
in furtherance of such inquiries or to obtain or induce any person to make or
submit an Acquisition Proposal or agree to or endorse any Acquisition Proposal
or assist or participate in, facilitate or encourage, any effort or attempt by
any other person or entity to do or seek any of the foregoing or authorize or
permit any of its officers, directors, employees, trustees or any of its
affiliates or any investment banker, financial advisor, attorney, accountant or
other representative or agent retained by any of them to take any such action.
Each Shareholder shall immediately advise Parent in writing of the receipt of
request for information or any inquiries or proposals relating to an
Acquisition Proposal.
Section 9. Termination. This Agreement will terminate (a) as to any
Shareholder upon the purchase of all the Shares beneficially owned by such
Shareholder pursuant to the Offer in accordance with Section 6, or (b) on the
earlier to occur of (i) the Effective Time or (ii) the date the Merger
Agreement is terminated in accordance with its terms.
Section 10. Fees and Expenses. Except as otherwise expressly provided
6
<PAGE> 7
herein or in the Merger Agreement, whether of not the Merger is consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs and expenses.
Section 11. Further Assurances. Each party hereto will execute and
deliver all such further documents and instruments and take all such further
action as may be reasonably necessary in order to consummate the transactions
contemplated hereby.
Section 12. Publicity. A Shareholder shall not issue any press
release or otherwise make any public statements with respect to this Agreement
or the Merger Agreement or the other transactions contemplated hereby or
thereby without the consent of Parent and Merger Sub, except as may be required
by Law or applicable stock exchange rules.
Section 13. Shareholder Capacity. No person executing this Agreement
makes any agreement or understanding herein in such Shareholder's capacity as a
director or officer of the Company or any subsidiary of the Company. Each
Shareholder signs solely in such Shareholder's capacity as the beneficial owner
of such Shareholder's Shares and nothing herein shall limit or affect any
actions taken by a Shareholder in such Shareholder's capacity as an officer or
director of the Company or any subsidiary of the Company to the extent
specifically permitted by the Merger Agreement.
Section 14. Enforcement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any Florida Court, this being
in addition to any other remedy to which they are entitled at law or in equity.
Section 15. Miscellaneous.
(a) All representations and warranties contained herein will
survive for twelve months after the termination hereof. The covenants and
agreements made herein will survive in accordance with their respective terms.
(b) Any provision of this Agreement may be waived at any time
by the party that is entitled to the benefits thereof. No such waiver,
amendment or
7
<PAGE> 8
supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision
of this Agreement. The failure of a party to insist upon strict adherence to
any term of this Agreement or one or more sections hereof will not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(c) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements among the parties with respect to such matters. This Agreement
may not be amended, changed, supplemented, waived or otherwise modified, except
upon the delivery of a written agreement executed by the parties hereto.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to its rules of
conflict of laws. Each of the Company, Parent and Merger Sub hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Florida Courts for any litigation arising out of or relating to this Agreement
and the transactions contemplated hereby (and agrees not to commence any
litigation relating thereto except in such courts), waives any objection to the
laying of venue of any such litigation in the Florida Courts and agrees not to
plead or claim in any Florida Court that such litigation brought therein has
been brought in an inconvenient forum.
(e) The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations and partnerships
and vice versa. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be understood to be followed by the words
"without limitation."
(f) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
8
<PAGE> 9
If to Parent or Merger Sub to:
c/o Oerlikon-Buhrle Holding AG
Hofwiesenstrasse 135
CH-8021 Zurich
Switzerland
Attention:
---------------------
Fax: (____) ___-______
with copies to:
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Allen I. Isaacson, P.C.
Telecopy: (212) 859-4000
If to a Shareholder, at the address set forth on Schedule A hereto or
to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(g) This Agreement may be executed by the parties hereto in
separate counterparts, each of which, when so executed and delivered, shall be
an original. All such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(h) This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned by any of the
parties hereto without the prior written consent of the other parties, except
that Parent and Merger Sub will have the right to assign to any direct or
indirect wholly owned subsidiary of Parent or Merger Sub any and all rights and
obligations of Parent or Parent under this Agreement, provided that any such
assignment will not relieve either Parent or Merger Sub from any of its
obligations hereunder.
(i) Any term or provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting
9
<PAGE> 10
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
(j) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by either party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
10
<PAGE> 11
IN WITNESS WHEREOF, each of the Parent and Merger Sub has
caused this Agreement to be signed by its officer or director thereunto duly
authorized and each Shareholder has signed this Agreement, all as of the date
first written above.
OERLIKON-BUHRLE USA, INC.
By: /s/ Beat Baumgartner
------------------------------------------------
Name: Beat Baumgartner
Title: Chairman and President
VOLCANO ACQUISITION CORP.
By: /s/ Heinz Kundert
------------------------------------------------
Name: Heinz Kundert
Title: Chief Operating Officer Balzers & Leybold
Chairman and President Volcano Acquisition Corp.
STOCKHOLDERS:
RONALD H. DEFERRARI
/s/ Ronald H. Deferrari
----------------------------------------------------
RONALD H. DEFERRARI REVOCABLE TRUST
By: /s/ Ronald H. Deferrari
------------------------------------------------
Name: Ronald H. Deferrari
Title: Trustee
R & C DEFERRARI FAMILY LIMITED PARTNERSHIP
By: R&C Management Inc., its general partner
By: /s/ Ronald H. Deferrari
------------------------------------------
Name: Ronald H. Deferrari
Title: President
<PAGE> 12
R & S DEFERRARI FAMILY LIMITED PARTNERSHIP
By: R&S Management Inc., its general partner
By: /s/ Ronald H. Deferrari
--------------------------------------------
Name: Ronald H. Deferrari
Title: President
R & D DEFERRARI FAMILY LIMITED PARTNERSHIP
By: R&D Management Inc., its general partner
By: /s/ Ronald H. Deferrari
--------------------------------------------
Name: Ronald H. Deferrari
Title: President
RONALD S. DEFERRARI
/s/ Ronald S. Deferrari
----------------------------------------------------
EDMOND A RICHARDS
/s/ Edmond A. Richards
----------------------------------------------------
STACY L. WAGNER
/s/ Stacy L. Wagner
----------------------------------------------------
<PAGE> 13
SCHEDULE A
<TABLE>
<CAPTION>
Number Number
Shareholder Address of Shares of Options
- ----------- ------- --------- ----------
<S> <C> <C> <C>
Ronald H. Deferrari c/o Plasma-Therm, Inc. 438,300 0
10050 16th Street North
St. Petersburg, Florida 33716
Fax: (727) 577-7035
Ronald H. Deferrari c/o Plasma-Therm, Inc. 500,000 0
Revocable Trust 10050 16th Street North
St. Petersburg, Florida 33716
Fax: (727) 577-7035
R & C Deferrari Family c/o Plasma-Therm, Inc. 390,000 0
Limited Partnership 10050 16th Street North
St. Petersburg, Florida 33716
Fax: (727) 577-7035
R & S Deferrari Family c/o Plasma-Therm, Inc. 390,000 0
Limited Partnership 10050 16th Street North
St. Petersburg, Florida 33716
Fax: (727) 577-7035
R & D Deferrari Family c/o Plasma-Therm, Inc. 320,000 0
Limited Partnership 10050 16th Street North
St. Petersburg, Florida 33716
Fax: (727) 577-7035
Ronald S. Deferrari c/o Plasma-Therm, Inc. 21,892 560,000
10050 16th Street North
St. Petersburg, Florida 33716
Fax: (727) 577-7035
Edmond A Richards c/o Plasma-Therm, Inc. 16,000 265,000
10050 16th Street North
St. Petersburg, Florida 33716
Fax: (727) 577-7035
Stacy L. Wagner c/o Plasma-Therm, Inc. 38,000 180,000
10050 16th Street North
St. Petersburg, Florida 33716
Fax: (727) 577-7035
</TABLE>
