<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES AND EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
------------------------
AMERIDATA TECHNOLOGIES, INC.
(NAME OF SUBJECT COMPANY)
------------------------
GAC ACQUISITION I CORP.
GENERAL ELECTRIC CAPITAL CORPORATION
(BIDDERS)
------------------------
COMMON STOCK, $.01 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
------------------------
03069V 10 3
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------------
NANCY E. BARTON, ESQ.
GENERAL ELECTRIC CAPITAL CORPORATION
260 LONG RIDGE ROAD
STAMFORD, CONNECTICUT 06927
(203) 357-4000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
Copies to:
WILLIAM M. GUTOWITZ, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
------------------------
MAY 20, 1996
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
CALCULATION OF FILING FEE
================================================================================
TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$496,664,240 $99,333
================================================================================
* Estimated for purposes of calculating the amount of the filing fee only. The
amount assumes the purchase of 31,041,515 shares of common stock, $.01 par
value (the 'Shares'), at a price per Share of $16 in cash. Such number of
Shares represents all the Shares outstanding as of May 20, 1996 and assumes
the exercise of all existing options, warrants and other rights to acquire
Shares from the Company.
/ / Check box if any part of this fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form
or schedule and the date of its filing.
Amount Previously Paid: None Filing Party: Not Applicable
Form or Registration No.: Not Applicable Date Filed: Not Applicable
Page 1 of Pages
(Exhibit Index is located on Page )
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<PAGE>
SCHEDULE 14D-1
CUSIP No. 03069V 10 3 Page __ of __ Pages
1 NAME OF REPORTING PERSONS
GAC Acquisition I Corp.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Applied For
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(e) OR 2(f) / /
N/A
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Delaware
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,819,771*
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES / /
N/A
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
8%*
10 TYPE OF REPORTING PERSON
CO
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* On May 20, 1996, General Electric Capital Corporation, a New York corporation
('Parent'), and GAC Acquisition I Corp., a Delaware corporation and an
indirect wholly-owned subsidiary of Parent ('Purchaser'), entered into a
Stockholders Agreement (the 'Stockholders Agreement') with certain
stockholders of AmeriData Technologies, Inc. (collectively, the 'Selling
Stockholders'), pursuant to which the Selling Stockholders have agreed to
validly tender (and not to withdraw) pursuant to and in accordance with the
terms of the Offer all of the Shares beneficially owned by them. The Selling
Stockholders beneficially own approximately 1,819,771 Shares, representing
approximately 8%, in the aggregate of the Company's outstanding common stock
(assuming the exercise of all of such Selling Stockholders' options subject to
the Stockholders Agreement). The Stockholders Agreement is described more
fully in Section 12 of the Offer to Purchase, dated May 24, 1996.
2
<PAGE>
SCHEDULE 14D-1
CUSIP No. 03069V 10 3 Page __ of __ Pages
1 NAME OF REPORTING PERSONS
General Electric Capital Corporation
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
13-1500700
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(e) OR 2(f) / /
N/A
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of New York
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,819,771*
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES / /
N/A
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
8%*
10 TYPE OF REPORTING PERSON
CO
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* The footnote on page 2 is incorporated by reference herein.
3
<PAGE>
TENDER OFFER
This Tender Offer Statement on Schedule 14D-1 is filed by GAC Acquisition I
Corp., a Delaware corporation ('Purchaser'), and General Electric Capital
Corporation ('Parent'), a New York corporation and the indirect owner of all of
the outstanding capital stock of Purchaser, relating to the offer by Purchaser
to purchase all outstanding shares of common stock, $.01 par value (the
'Shares'), of AmeriData Technologies, Inc. (the 'Company'), at $16 per Share,
net to the seller in cash, on the terms and subject to the conditions set forth
in the Offer to Purchase, dated May 24, 1996 (the 'Offer to Purchase'), and in
the related Letter of Transmittal and any amendments or supplements thereto,
copies of which are attached hereto as Exhibits (a)(1) and (a)(2), respectively
(which collectively constitute the 'Offer').
This Tender Offer Statement on Schedule 14D-1 also constitutes a Statement
on Schedule 13D with respect to the acquisition by Parent and Purchaser of
beneficial ownership of the Selling Stockholders' Shares. The item numbers and
responses thereto below are in accordance with the requirements of Schedule
14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY
(a) The name of the subject company is AmeriData Technologies, Inc., a
Delaware corporation (the 'Company'). The address of the Company's principal
executive offices is 700 Canal Street, Stamford, Connecticut 06902.
(b) The information set forth on the cover page and under 'Introduction' in
the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in Section 6 of the Offer to Purchase is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND
This Statement is filed by Purchaser and Parent. The information set forth
on the cover page, under 'Introduction,' in Section 9 and in Schedule I of the
Offer to Purchase is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS, OR NEGOTIATIONS WITH THE SUBJECT COMPANY
(a) The information set forth in Section 11 of the Offer to Purchase is
incorporated herein by reference.
(b) The information set forth under 'Introduction' and in Sections 9, 11
and 12 of the Offer to Purchase is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
(a)-(b) The information set forth in Section 10 of the Offer to Purchase is
incorporated herein by reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER
(a)-(e) The information set forth in Section 12 of the Offer to Purchase is
incorporated herein by reference.
(f)-(g) The information set forth in Section 7 of the Offer to Purchase is
incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY
(a)-(b) The information set forth under 'Introduction' and in Sections 9,
11 and 12 of the Offer to Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES
The information set forth under 'Introduction' and in Sections 9, 11, 12
and 13 of the Offer to Purchase is incorporated herein by reference.
4
<PAGE>
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED
The information set forth under 'Introduction' and in Section 16 of the
Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS TO CERTAIN BIDDERS
The information set forth in Section 9 of the Offer to Purchase is
incorporated herein by reference.
ITEM 10. ADDITIONAL INFORMATION
(a) The information set forth under 'Introduction' and in Sections 11 and
12 of the Offer to Purchase is incorporated herein by reference.
(b)-(c),(e) The information set forth in Section 15 of the Offer to
Purchase is incorporated herein by reference.
(d) The information set forth in Section 7 of the Offer to Purchase is
incorporated herein by reference.
(f) The information set forth in the Offer to Purchase and the Letter of
Transmittal, copies of which are attached hereto as Exhibits (a)(1) and (a)(2),
respectively, is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS
(a)(1) Offer to Purchase, dated May 24, 1996.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Form of Summary Advertisement, dated May 24, 1996.
(a)(8) Text of Joint Press Release, dated May 20, 1996, by Parent and the
Company.
(b) Not applicable.
(c)(1) Agreement and Plan of Merger, dated May 20, 1996, among Parent,
Purchaser and the Company.
(c)(2) Stockholders Agreement, dated May 20, 1996, among Parent, Purchaser
and the Selling Stockholders.
(d) None
(e) Not applicable
(f) None
(g)(1) Complaint filed in Steiner v. AmeriData Technologies, Inc. et al.
filed in the Court of Chancery of the State of Delaware in and for
New Castle County on May 21, 1996.
5
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SIGNATURES
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.
Dated: May 24, 1996
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ MICHAEL S. FORD
Name: Michael S. Ford
Title: Vice President
GAC ACQUISITION I CORP.
By: /s/ MICHAEL S. FORD
Name: Michael S. Ford
Title: President
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION PAGE
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<S> <C> <C>
(a)(1) Offer to Purchase, dated May 24, 1996............................
(a)(2) Letter of Transmittal............................................
(a)(3) Notice of Guaranteed Delivery....................................
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees...................................................
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees...............................
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9..............................................
(a)(7) Form of Summary Advertisement, dated May 24, 1996................
(a)(8) Text of Joint Press Release, dated May 20, 1996, by Parent and
the Company......................................................
(c)(1) Agreement and Plan of Merger, dated as of May 20, 1996, among
Parent, Purchaser and the Company................................
(c)(2) Stockholders Agreement, dated as of May 20, 1996, among Parent,
Purchaser and the Selling Stockholders...........................
(d) None.............................................................
(e) Not Applicable...................................................
(f) None.............................................................
(g)(1) Complaint filed in Steiner v. AmeriData Technologies, Inc. et al.
filed in the Court of Chancery of the State of Delaware in and
for New Castle County on May 21, 1996............................
</TABLE>
<PAGE>
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
AMERIDATA TECHNOLOGIES, INC.
at
$16 NET PER SHARE
by
GAC ACQUISITION I CORP.
an indirect wholly-owned subsidiary
of
GENERAL ELECTRIC CAPITAL CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY DETERMINED THAT THE
OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE COMPANY AND
ITS STOCKHOLDERS, HAS APPROVED THE MERGER AGREEMENT, THE STOCKHOLDERS AGREEMENT
AND THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND THE STOCKHOLDERS
AGREEMENT, INCLUDING THE OFFER AND THE MERGER, AND RECOMMENDS THAT THE COMPANY'S
STOCKHOLDERS ACCEPT THE OFFER AND TENDER ALL OF THEIR SHARES PURSUANT THERETO.
PARENT AND PURCHASER HAVE ENTERED INTO A STOCKHOLDERS AGREEMENT WITH CERTAIN
STOCKHOLDERS PURSUANT TO WHICH, AMONG OTHER THINGS, SUCH STOCKHOLDERS HAVE
AGREED TO TENDER IN THE OFFER, UPON THE TERMS AND SUBJECT TO THE CONDITIONS OF
THE STOCKHOLDERS AGREEMENT, APPROXIMATELY 8% OF THE COMPANY'S OUTSTANDING SHARES
(ASSUMING THE EXERCISE OF SUCH STOCKHOLDERS' OPTIONS SUBJECT TO THE STOCKHOLDERS
AGREEMENT).
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) A NUMBER OF THE
COMPANY'S SHARES REPRESENTING A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY
DILUTED BASIS BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION
OF THE OFFER, (2) PREFERRED SECURITIES OUTSTANDING ON MAY 20, 1996 HAVING AN
AGGREGRATE LIQUIDATION PREFERENCE OF MORE THAN 50% OF THE AGGREGATE LIQUIDATION
PREFERENCE OF ALL PREFERRED SECURITIES OUTSTANDING ON MAY 20, 1996 HAVING BEEN
CONVERTED BY THE HOLDERS THEREOF INTO SHARES PRIOR TO THE EXPIRATION OF THE
OFFER AND (3) THE RECEIPT OF CERTAIN REGULATORY CONSENTS AND APPROVALS. SEE
INTRODUCTION AND SECTIONS 1, 14 AND 15 OF THIS OFFER TO PURCHASE.
------------------------
IMPORTANT
Any stockholder desiring to tender all or a portion of that stockholder's
shares of common stock, par value $.01 per share, of the Company (the 'Shares')
should either (1) complete and sign the Letter of Transmittal (or a manually
signed facsimile thereof) in accordance with the instructions in the Letter of
Transmittal, mail or deliver it and any other required documents to the
Depositary and either deliver the certificates for those Shares to the
Depositary along with the Letter of Transmittal or tender those Shares pursuant
to the procedures for book-entry transfer set forth in Section 3 hereof, or (2)
request such stockholder's broker, dealer, commercial bank, trust company or
other nominee to effect the transaction for the stockholder. Any stockholder
whose Shares are registered in the name of a broker, dealer, commercial bank,
trust company or other nominee must contact that broker, dealer, commercial
bank, trust company or other nominee, if the stockholder wishes to tender such
Shares.
Any stockholder who wishes to tender Shares and whose certificates
representing those Shares are not immediately available or who cannot comply
with the procedure for book-entry transfer on a timely basis should tender those
Shares by following the procedures for guaranteed delivery set forth in Section
3.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth on the back cover of this Offer to Purchase. Requests for additional
copies of this Offer to Purchase, the Letter of Transmittal, the Notice of
Guaranteed Delivery and other related materials may be directed to the
Information Agent or to brokers, dealers, commercial banks and trust companies.
------------------------
The Dealer Manager for the Offer is:
LAZARD FRERES & CO. LLC
May 24, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
INTRODUCTION.......................................................... 1
1. Terms of the Offer.......................................... 2
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 of the Offer and the
Merger...................................................... 8
6. Price Range of the Shares; Dividends on the Shares.......... 9
7. Effect of the Offer on the Market for the Shares, Stock
Exchange Listing and Exchange Act Registration and Margin
Securities.................................................. 9
8. Certain Information Concerning the Company.................. 10
9. Certain Information Concerning Purchaser, Parent, GE Capital
Services and GE............................................. 12
10. Source and Amount of Funds.................................. 13
11. Background.................................................. 14
12. Purpose of the Offer and the Merger; Plans for the Company;
the Merger Agreement; the Stockholders Agreement; Other
Agreements.................................................. 15
13. Dividends and Distributions................................. 26
14. Certain Conditions of the Offer............................. 27
15. Certain Legal Matters....................................... 29
16. Fees and Expenses........................................... 35
17. Miscellaneous............................................... 35
</TABLE>
i
<PAGE>
TO THE HOLDERS OF COMMON STOCK OF
AMERIDATA TECHNOLOGIES, INC.:
INTRODUCTION
GAC Acquisition I Corp., a Delaware corporation ('Purchaser'), hereby
offers to purchase all the outstanding shares of common stock, $.01 par value
(the 'Shares'), of AmeriData Technologies, Inc., a Delaware corporation (the
'Company'), at a purchase price of $16 per Share (the 'Offer Price'), net to the
seller in cash, upon the terms and subject to the conditions set forth in this
Offer to Purchase and in the related Letter of Transmittal (which, together with
any amendments or supplements hereto or thereto, collectively constitute the
'Offer'). Purchaser is an indirect, wholly-owned subsidiary of General Electric
Capital Corporation, a New York corporation ('Parent'). Parent is an indirect
wholly-owned subsidiary of General Electric Company, a New York corporation
('GE').
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
May 20, 1996 (the 'Merger Agreement'), among Parent, Purchaser and the Company.
The Merger Agreement provides, among other things, for the commencement of the
Offer by Purchaser and further provides that, after the purchase of Shares
pursuant to the Offer and subject to the satisfaction or waiver of certain
conditions set forth therein, Purchaser will be merged with and into the Company
(the 'Merger'), with the Company surviving the Merger as an indirect
wholly-owned subsidiary of Parent (the 'Surviving Corporation'), which shall
continue under the name 'AmeriData Technologies, Inc.' In the Merger, each Share
issued and outstanding (excluding Shares owned, directly or indirectly, by the
Company or any wholly-owned subsidiary of the Company or by Parent, Purchaser or
any other wholly-owned subsidiary of Parent and excluding Shares owned by
stockholders of the Company who shall have properly perfected their appraisal
rights under Delaware law) immediately prior to the effective time of the Merger
(the 'Effective Time') will be converted at the Effective Time into the right to
receive the Offer Price in cash, without any interest thereon (the 'Merger
Consideration'). It is currently contemplated that following the consummation of
the Merger, Parent will cause to be effected the merger (the 'Second-Step
Merger') of the Surviving Corporation with and into a direct wholly-owned
subsidiary of Parent, with such subsidiary being the surviving corporation in
the Second-Step Merger. See Section 12 for a discussion of the Second-Step
Merger.
THE BOARD OF DIRECTORS OF THE COMPANY (THE 'BOARD') HAS UNANIMOUSLY
DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS
OF, THE COMPANY AND THE COMPANY'S STOCKHOLDERS (THE 'STOCKHOLDERS'); HAS
APPROVED THE MERGER AGREEMENT, THE STOCKHOLDERS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT AND THE STOCKHOLDERS AGREEMENT, INCLUDING
THE OFFER AND THE MERGER; AND RECOMMENDS THAT THE STOCKHOLDERS ACCEPT THE OFFER
AND TENDER ALL OF THEIR SHARES PURSUANT THERETO.
ALEX. BROWN & SONS, INC., THE COMPANY'S FINANCIAL ADVISOR ('ALEX BROWN'),
HAS DELIVERED TO THE COMPANY ITS WRITTEN OPINION THAT THE CONSIDERATION TO BE
RECEIVED BY HOLDERS OF THE SHARES IN THE OFFER AND THE MERGER AS CONTEMPLATED BY
THE MERGER AGREEMENT IS FAIR, FROM A FINANCIAL POINT OF VIEW, TO SUCH
STOCKHOLDERS. A COPY OF THE WRITTEN OPINION OF ALEX BROWN IS CONTAINED IN THE
COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 ('SCHEDULE
14D-9') FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE 'COMMISSION') IN
CONNECTION WITH THE OFFER, A COPY OF WHICH IS BEING FURNISHED TO STOCKHOLDERS
CONCURRENTLY WITH THIS OFFER TO PURCHASE.
The Offer is conditioned upon, among other things, (i) a number of the
Shares representing a majority of all outstanding Shares on a fully diluted
basis being validly tendered and not withdrawn prior to the Expiration Date (as
defined in Section 1 hereof) (the 'Minimum Tender Condition'); (ii) Preferred
Securities (as defined below) outstanding on May 20, 1996 having an aggregate
liquidation preference of more than 50% of the aggregate liquidation preference
of all Preferred Securities outstanding on May 20, 1996 having been converted by
the holders thereof into Shares prior to the expiration of the Offer (the
'Preferred Securities Condition'); and (3) the receipt of certain regulatory
consents and approvals. See Sections 1 and 14, which set forth the conditions of
the Offer, and Section 15, which discusses certain legal matters and regulatory
consents and approvals.
1
<PAGE>
The Company has represented and warranted to Purchaser that, as of May 20,
1996, 22,281,302 Shares (excluding (i) 64,550 Shares to be issued pursuant to
the Company's restricted stock award plan (the 'Restricted Stock Award Plan')
and (ii) 113,732 Shares to be issued pursuant to an acquisition agreement
previously entered into by the Company) were issued and outstanding, 2,310,512
Shares were reserved for issuance pursuant to outstanding stock options granted
by the Company ('Company Options'), 1,458,041 Shares were reserved for issuance
pursuant to the Company's stock purchase plan, 3,521,576 Shares were reserved
for issuance upon conversion of the Company's 8% convertible subordinated
debentures held by Delaware LLC (as defined below) (the 'Subordinated
Debentures') and 2,418,737 Shares were reserved for issuance pursuant to certain
warrants to purchase Shares issued by the Company (the 'Company Warrants').
According to the Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1996 (the 'Company 10-Q'), AmeriData Delaware, L.L.C., a special
purpose limited liability company of which the Company, directly or indirectly,
owns all of the outstanding equity interests other than the Preferred Securities
('Delaware LLC'), has outstanding, as of March 31, 1996, 8% Convertibile Fixed
Life Aggregated Securities ('Preferred Securities') having a liquidation
preference of $25 per security and an aggregate liquidation preference of
$30,880,000. The Company 10-Q also indicates that the Preferred Securities are
guaranteed in certain respects by the Company and are convertible into Shares at
2.851 shares for each Preferred Security.
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 Stockholders. Under the Delaware General
Corporation Law (the 'DGCL'), the stockholder vote necessary to approve the
Merger will be the affirmative vote of at least a majority of the outstanding
Shares, including Shares held by Purchaser and its affiliates. If the Minimum
Tender Condition is satisfied and Purchaser purchases at least a majority of the
outstanding Shares in the Offer, Purchaser will be able to effect the Merger
without the affirmative vote of any other Stockholders. If Purchaser acquires at
least 90% of the outstanding Shares pursuant to the Offer or otherwise,
Purchaser will be able to effect the Merger pursuant to the 'short-form' merger
provisions of Section 253 of the DGCL, without prior notice to, or any action
by, any other Stockholder. In that event, Purchaser intends to effect the Merger
as promptly as practicable following the purchase of Shares in the Offer. See
Section 12.
The Merger Agreement is more fully described in Section 12. Certain federal
income tax consequences of the sale of Shares pursuant to the Offer and the
exchange of Shares for the Merger Consideration pursuant to the Merger are
described in Section 5.
Tendering Stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 to the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer or
the Merger. Purchaser will pay all charges and expenses of Lazard Freres & Co.
LLC ('Lazard Freres'), as the dealer manager (the 'Dealer Manager'), The Chase
Manhattan Bank (National Association), as the depositary (the 'Depositary'), and
Georgeson & Company Inc., as the information agent (the 'Information Agent'), in
connection with the Offer. See Section 16.
THE 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.
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Purchaser will accept for payment (and thereby purchase) all
Shares that are validly tendered and not withdrawn in accordance with Section 4
below prior to the Expiration Date. As used in the Offer, the term 'Expiration
Date' means 12:00 midnight, New York City time, on Friday, June 21, 1996, unless
and until Purchaser, in accordance with the terms of the Offer and the Merger
Agreement, shall have extended 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. As used in this Offer to Purchase,
'business day' has the meaning set forth in Rule 14d-1(c)(6) under the
Securities Exchange Act of 1934, as amended (the 'Exchange Act').
In the event that the Offer is not consummated, Purchaser may seek to
acquire additional Shares through open market purchases, privately negotiated
transactions or otherwise, upon such terms and conditions and at
2
<PAGE>
such prices as it shall determine, which may be more or less than the Offer
Price and could be for cash or other consideration.
The Offer is conditioned upon, among other things, satisfaction of the
Minimum Tender Condition, the Preferred Securities Condition, the expiration or
termination of all waiting periods imposed by the Hart-Scott-Rodino Antitrust
Improvement Act of 1976, as amended (the 'HSR Act') and the receipt of all
required regulatory consents and approvals, including the consent of the Federal
Communications Commission (the 'FCC') and certain foreign regulatory consents
and approvals. See Section 15 for a full discussion of required regulatory
consents and approvals. The Offer is also subject to certain other conditions
that are set forth in Section 14 below. Pursuant to the terms of the Merger
Agreement, Purchaser expressly reserves the right (but will not be obligated) to
waive any or all of the conditions of the Offer. Subject to the terms of the
Merger Agreement, if any condition to the Offer is not satisfied, Purchaser may
extend the Offer (x) for up to twenty (20) business days after the initial
expiration date or (y) for longer periods (not to exceed 120 calendar days from
the date of the Offer to Purchase). Purchaser may also extend the Offer as
required by law or the applicable rules and regulations of the Commission.
Subject to the terms of the Merger Agreement, Purchaser expressly reserves
the right, subject to applicable law, to extend the period of time during which
the Offer is open by giving oral or written notice of such extension to the
Depositary and by making a public announcement of such extension. There can be
no assurance that Purchaser will exercise its right to extend the Offer.
Purchaser also expressly reserves the right, subject to applicable law
(including applicable rules and regulations of the Commission promulgated under
the Exchange Act) and the terms of the Merger Agreement, at any time or from
time to time, to (i) delay acceptance for payment of, or payment for, any
Shares, regardless of whether the Shares were theretofore accepted for payment,
or to terminate the Offer and not accept for payment or pay for any Shares not
theretofore accepted for payment or paid for, upon the occurrence of any of the
conditions specified in Section 14 below, by giving oral or written notice of
such delay in payment or termination to the Depositary, and (ii) waive any
conditions or otherwise amend the Offer in any respect, by giving oral or
written notice to the Depositary. Any extension, delay in payment, termination
or amendment will be followed as promptly as practicable by public announcement,
the announcement in the case of an extension to be issued no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. Without limiting the manner in which Purchaser may
choose to make any public announcement, Purchaser will have no obligation to
publish, advertise or otherwise communicate any such announcement, other than by
issuing a release to the Dow Jones News Service or as otherwise required by law.
The reservation by Purchaser of the right to delay acceptance for payment of or
payment for Shares is subject to the provisions of Rule 14e-1(c) under the
Exchange Act, which requires that Purchaser pay the consideration offered or
return the Shares deposited by or on behalf of Stockholders promptly after the
termination or withdrawal of the Offer.
Subject to the terms of the Merger Agreement, Purchaser expressly reserves
the right to increase the price per Share payable in the Offer or to make any
other changes in the terms and conditions of the Offer, except that without the
prior written consent of the Company, Purchaser shall not (i) decrease or change
the form of the Offer Price or decrease the number of Shares sought pursuant to
the Offer, (ii) impose additional conditions to the Offer, or (iii) amend any
term of the Offer in any manner adverse to Stockholders. Assuming the prior
satisfaction or waiver of the conditions to the Offer, Purchaser shall accept
for payment, and pay for, in accordance with the terms of the Offer, all Shares
validly tendered and not withdrawn pursuant to the Offer as soon as practicable
after the Expiration Date.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of the Offer or information concerning
the Offer, other than a change in price or a change in percentage of securities
sought, will depend upon the facts and circumstances then existing, including
the relative materiality of the changed terms or information. If Purchaser
decides to increase or, subject to the consent of the Company, to decrease the
consideration in the Offer, or to change or waive the Minimum Tender Condition
and if, at the time that notice of any such change or waiver is first published,
sent or given to Stockholders, the Offer is scheduled to expire at any
3
<PAGE>
time earlier than the tenth business day after (and including) the date of that
notice, the Offer will be extended at least until the expiration of that period
of ten business days.
The Company has provided Purchaser with its stockholder list and security
position listings for the purpose of disseminating the Offer to Stockholders.
This 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.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES
Upon the terms and subject to the conditions of the Merger Agreement and
the Offer (including, if the Offer is extended or amended, the terms and
conditions of any such extension or amendment), Purchaser will accept for
payment, and will pay for, all Shares that are validly tendered on or prior to
the Expiration Date, and not properly withdrawn in accordance with Section 4
below, as soon as practicable after the Expiration Date. All questions as to the
satisfaction of such terms and conditions will be determined by Purchaser in its
sole discretion, which determination will be final and binding. Subject to the
applicable rules of the Commission, Purchaser expressly reserves the right to
delay acceptance for payment of or payment for Shares in order to comply, in
whole or in part, with any applicable law or government regulation. Any such
delays will be effected in compliance with Rule 14e-1(c) under the Exchange Act
(relating to a bidder's obligation to pay for or return tendered securities
promptly after the termination or withdrawal of such bidder's offer). See
Section 15 below.
In all cases, payment for Shares purchased pursuant to the Offer will be
made only after timely receipt by the Depositary of (i) certificates evidencing
(or a timely Book-Entry Confirmation (as defined in Section 3 below) with
respect to) such Shares, (ii) a Letter of Transmittal (or a manually signed
facsimile thereof), properly completed and duly executed with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message (as defined below), and (iii) any other documents required by the Letter
of Transmittal. See Section 3 below.
The term 'Agent's Message' means a message, transmitted by a Book-Entry
Transfer Facility (as defined in Section 3 below) to, and received by, the
Depositary and forming part of a Book-Entry Confirmation, which states that (i)
such Book-Entry Transfer Facility has received an express acknowledgment from
the participant in such Book-Entry Transfer Facility tendering Shares that are
the subject of such Book-Entry Confirmation, (ii) such participant has received
and agrees to be bound by the terms of the Letter of Transmittal, and (iii)
Purchaser may enforce such agreement against such participant.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment (and thereby purchased) Shares properly tendered to Purchaser and not
withdrawn, if and when Purchaser gives oral or written notice to the Depositary
of Purchaser's acceptance of such Shares. In all cases, 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 Stockholders for the purpose of receiving payment from Purchaser and
transmitting payment to tendering Stockholders.
If, for any reason, acceptance for payment of any Shares tendered pursuant
to the Offer is delayed, or Purchaser is unable to accept for payment Shares
tendered pursuant to the Offer, then, without prejudice to Purchaser's rights
under the Offer (but subject to Rule 14e-1(c) under the Exchange Act), the
Depositary may, nevertheless, on behalf of Purchaser, retain tendered Shares,
and such Shares may not be withdrawn, except to the extent that the tendering
Stockholders are entitled to exercise, and do exercise, withdrawal rights as
described in Section 4 below. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON
THE OFFER PRICE BY PURCHASER, 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 for any
reason or if certificates are submitted for more Shares than are tendered,
certificates for Shares not purchased or tendered will be returned pursuant to
the instructions of the tendering Stockholder without expense to the tendering
Stockholder (or, in the case of Shares delivered by book-entry transfer into the
Depositary's account at a Book-Entry Transfer Facility pursuant
4
<PAGE>
to the procedures set forth in Section 3 below, the Shares will be credited to
an account maintained at the appropriate Book-Entry Transfer Facility) as
promptly as practicable following the expiration or termination of the Offer.
If, prior to the Expiration Date, Purchaser increases the consideration to
be paid per Share pursuant to the Offer, Purchaser will pay the increased
consideration for all Shares purchased pursuant to the Offer, whether or not the
Shares were tendered prior to the increase in consideration.
Purchaser reserves the right to transfer or assign, in whole or from time
to time in part, to Parent or to one or more of its affiliates, the right to
purchase Shares tendered pursuant to the Offer, but any such transfer or
assignment will not relieve Purchaser of its obligations under the Offer and
will in no way prejudice the rights of tendering Stockholders to receive payment
for Shares validly tendered and accepted for payment pursuant to the Offer.
3. PROCEDURE FOR TENDERING SHARES
Valid Tenders. For a Stockholder to tender validly pursuant to the Offer,
either (i) a Letter of Transmittal (or a manually signed facsimile thereof),
properly completed and duly executed, together with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message, and
any other required documents, must be received by the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date and either (a) certificates evidencing Shares must be received
by the Depositary at any such address prior to the Expiration Date or (b) the
Shares must be delivered pursuant to the procedures for book-entry transfer set
forth below and a Book-Entry Confirmation (as defined below) must be received by
the Depositary prior to the Expiration Date; or (ii) the tendering Stockholder
must comply with the guaranteed delivery procedures set forth below. No
alternative, conditional or contingent tenders will be accepted.
Book-Entry Transfer. The Depositary will establish accounts with respect
to the Shares at The Depository Trust Company, Midwest Securities Trust Company
and Philadelphia Depository Trust Company (each, a 'Book-Entry Transfer
Facility' and, collectively, the 'Book-Entry Transfer Facilities') for purposes
of the Offer within two business days after the date of this Offer to Purchase.
Any financial institution that is a participant in any of the Book-Entry
Transfer Facilities' systems may make book-entry delivery of Shares by causing a
Book-Entry Transfer Facility to transfer the Shares into the Depositary's
account at the Book-Entry Transfer Facility in accordance with that Book-Entry
Transfer Facility's procedures for such transfer. However, although delivery of
the Shares may be effected through book-entry transfer into the Depositary's
account at a Book-Entry Transfer Facility, the Letter of Transmittal (or a
manually signed facsimile thereof), properly completed and duly executed, with
any required signature guarantees, or an Agent's Message, and any other required
documents, must, in any case, be transmitted to, and received by, the Depositary
at one of its addresses set forth on the back cover of this Offer to Purchase
prior to the Expiration Date, or the tendering Stockholder must comply with the
guaranteed delivery procedures described below. The confirmation of a book-entry
transfer of Shares into the Depositary's account at a Book-Entry Transfer
Facility as described above is referred to as a 'Book-Entry Confirmation.'
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH THE
BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
THE METHOD OF DELIVERY OF CERTIFICATES FOR SHARES, THE LETTER OF
TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND RISK OF THE
TENDERING STOCKHOLDER. IF DELIVERY IS MADE BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT
TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal (i) if the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facilities' systems whose name appears on a
security position listing as the owner of the Shares) of Shares tendered
therewith and such registered holder has not completed either the box entitled
'Special Delivery Instructions' or the box entitled 'Special Payment
Instructions' on the Letter of Transmittal; or (ii) if such Shares are tendered
for the account of a financial institution (including most
5
<PAGE>
commercial banks, savings and loan associations and brokerage houses) that is a
participant in the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program (an 'Eligible Institution'). In all other cases, all
signatures on the Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instruction 1 of the Letter of Transmittal. If the certificates
evidencing Shares are registered in the name of a person other than the signer
of the Letter of Transmittal or if payment is to be made or certificates for
Shares not tendered or not accepted for payment are to be returned to a person
other than the registered holder of the certificates surrendered, then the
tendered certificates evidencing Shares must be endorsed or accompanied by
appropriate stock powers, in each case signed exactly as the name (or names) of
the registered holder or owners appears on the certificates, with the signatures
on the certificates or stock powers guaranteed as described above and as
provided in the Letter of Transmittal. See Instructions 1 and 5 of the Letter of
Transmittal.
Guaranteed Delivery. If a Stockholder wishes to tender Shares pursuant to
the Offer and the Stockholder's certificates are not immediately available or
the procedures for book-entry transfer cannot be completed on a timely basis or
time will not permit all required documents to reach the Depositary prior to the
Expiration Date, such Stockholder's tender may be effected if all of the
following conditions are met:
(i) the tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Purchaser, is received by
the Depositary (as provided below) prior to the Expiration Date; and
(iii) the certificates for all tendered Shares in proper form for
transfer (or a Book-Entry Confirmation with respect to all such tendered
Shares), together with a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof) with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message, and any other documents, are received by the Depositary within
three trading days after the date of execution of the Notice of Guaranteed
Delivery. A 'trading day' is any day on which the New York Stock Exchange,
Inc. (the 'NYSE') is open for business.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by telegram, facsimile transmission or mailed to the Depositary and must include
a guarantee by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery.
IN ALL CASES, SHARES SHALL NOT BE DEEMED VALIDLY TENDERED UNLESS A PROPERLY
COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED
FACSIMILE THEREOF) IS RECEIVED BY THE DEPOSITARY.
Notwithstanding any other provision of this Offer to Purchase, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made only
after timely receipt by the Depositary of certificates for (or a timely
Book-Entry Confirmation with respect to) such Shares, a Letter of Transmittal
(or a manually signed facsimile), properly completed and duly executed, with any
required signature guarantees and any other documents required by the Letter of
Transmittal (or in the case of a book-entry transfer, an Agent's Message).
Determination of Validity. All questions as to the form of documents and
the validity, eligibility (including time of receipt) and acceptance for payment
of any tender of Shares pursuant to any of the procedures described above will
be determined by Purchaser in its sole discretion, which determination shall be
final and binding on all parties. Purchaser reserves the absolute right to
reject any or all tenders of Shares determined not to be in proper form or the
acceptance of or payment for which may, in the opinion of Purchaser's counsel,
be unlawful. Purchaser also reserves the absolute right to waive any defect or
irregularity in any tender of any Shares of any particular Stockholder whether
or not similar defects or irregularities are waived in the case of other
Stockholders. Purchaser's interpretation of the terms and conditions of the
Offer (including the Letter of Transmittal and its instructions) will be final
and binding on all parties. No tender of Shares will be deemed to have been
validly made until all defects and irregularities have been cured or waived.
None of Parent, Purchaser, the Dealer Manager, the Depositary, the Information
Agent or any other person will be under any duty to give notification of any
defects or irregularities in tenders or incur any liability for failure to give
any such notification.
6
<PAGE>
Backup Federal Income Tax Withholding. To prevent backup federal income
tax withholding of 31% of the payments made to Stockholders with respect to the
purchase price of Shares purchased pursuant to the Offer or the Merger, a
Stockholder must provide the Depositary with his or her correct taxpayer
identification number ('TIN') and certify that he or she is not subject to
backup federal income tax withholding by completing the substitute Form W-9
included in the Letter of Transmittal. See Instruction 10 of the Letter of
Transmittal; see Section 5 below.
A tender of Shares pursuant to any of the procedures described above will
constitute the tendering Stockholder's acceptance of the terms and conditions of
the Offer, as well as the tendering Stockholder's representation and warranty to
Purchaser that (i) the Stockholder has a net long position in the Shares being
tendered, within the meaning of Rule 14e-4 under the Exchange Act, and (ii) the
tender of the Shares complies with Rule 14e-4. It is a violation of Rule 14e-4
for a person, directly or indirectly, to tender Shares for his or her own
account, unless, at the time of tender, the person so tendering (i) has a net
long position equal to or greater than the amount of (a) Shares tendered or (b)
other securities immediately convertible into or exchangeable or exercisable for
the Shares tendered and that person will acquire the Shares for tender by
conversion, exchange or exercise and (ii) will cause Shares to be delivered in
accordance with the terms of the Offer. Rule 14e-4 provides a similar
restriction applicable to the tender or guarantee of a tender on behalf of
another person. Purchaser's acceptance for payment of Shares tendered pursuant
to the Offer will constitute a binding agreement between the tendering
Stockholder and Purchaser upon the terms and conditions of the Offer.
Appointment as Proxy. By executing a Letter of Transmittal, a tendering
Stockholder irrevocably appoints designees of Purchaser as his or her
attorneys-in-fact and proxies, with full power of substitution, in the manner
set forth in the Letter of Transmittal, to the full extent of the Stockholder's
rights with respect to the Shares tendered by the Stockholder and purchased by
Purchaser and with respect to any and all other Shares or other securities
issued or issuable in respect of those Shares, on or after the date of the
Offer. All such powers of attorney and proxies will be considered coupled with
an interest in the tendered Shares. Such appointment will be effective when, and
only to the extent that, Purchaser accepts the Shares for payment. Upon
acceptance for payment, all prior powers of attorney and proxies given by the
Stockholder with respect to the Shares (and any other Shares or other securities
so issued in respect of such purchased Shares) will be revoked, without further
action, and no subsequent powers of attorney and proxies may be given (and, if
given, will not be deemed effective) by the Stockholder. The designees of
Purchaser will be empowered to exercise all voting and other rights of the
Stockholder with respect to such Shares (and any other Shares or securities so
issued in respect of such purchased Shares) as they in their sole discretion may
deem proper, including, without limitation, in respect of any annual or special
meeting of the Stockholders, or any adjournment or postponement of any such
meeting, or in connection with any action by written consent in lieu of any such
meeting or otherwise (including any such meeting or action by written consent to
approve the Merger). Purchaser reserves the absolute right to require that, in
order for Shares to be validly tendered, immediately upon Purchaser's acceptance
for payment of the Shares, Purchaser must be able to exercise full voting and
other rights with respect to the Shares, including voting at any meeting of
Stockholders then scheduled.
4. WITHDRAWAL RIGHTS
Tenders of Shares made pursuant to the Offer are irrevocable, except as
otherwise provided in this Section 4. Shares tendered pursuant to the Offer may
be withdrawn pursuant to the procedures set forth below at any time prior to the
Expiration Date and, unless theretofore accepted for payment and paid for by
Purchaser pursuant to the Offer, may also be withdrawn at any time after Monday,
July 22, 1996. If Purchaser extends the Offer, is delayed in its purchase of or
payment for Shares or is unable to purchase or pay for Shares for any reason,
then, without prejudice to the rights of Purchaser, tendered Shares may be
retained by the Depositary on behalf of Purchaser and may not be withdrawn,
except to the extent that tendering Stockholders are entitled to withdrawal
rights as set forth in this Section 4. The reservation by Purchaser of the right
to delay the acceptance or purchase of or payment for Shares is subject to the
provisions of Rule 14e-1(c) under the Exchange Act, which requires Purchaser to
pay the consideration offered or return Shares deposited by or on behalf of
Stockholders promptly after the termination or withdrawal of the Offer.
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.
7
<PAGE>
Any such notice of withdrawal must specify the name of the persons 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 the
Shares. If certificates evidencing Shares have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of the
certificates, the tendering Stockholder must also submit to the Depositary the
serial numbers shown on the particular certificates that evidence the Shares to
be withdrawn, and the signature on the notice of withdrawal must be guaranteed
by an Eligible Institution (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 above, 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.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
whose determination will be final and binding on all parties. No withdrawal of
Shares will be deemed to have been properly made until all defects and
irregularities have been cured or waived. None of Parent, Purchaser, the Dealer
Manager, the Depositary, the Information Agent or any other person will be under
any duty to give notification of any defects or irregularities in any notice of
withdrawal or incur any liability for failing to give such notification.
Any Shares properly withdrawn will be deemed not validly tendered for
purposes of the Offer, but may be tendered at any subsequent time prior to the
Expiration Date by following any of the procedures described in Section 3 above.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER AND THE MERGER
The following is a summary of the principal federal income tax consequences
of the Offer and the Merger to Stockholders whose Shares are purchased pursuant
to the Offer or whose Shares are converted into the right to receive the Merger
Consideration in the Merger (including any cash amounts received by dissenting
Stockholders pursuant to the exercise of appraisal rights). This discussion is
based upon the provisions of the Internal Revenue Code of 1986, as amended (the
'Code'), the applicable Treasury Regulations promulgated and proposed
thereunder, judicial authority and administrative rulings and practice.
Legislative, judicial or administrative changes or interpretations are subject
to change, possibly on a retroactive basis, at any time and therefore could
alter or modify the statements and conclusions set forth below. This discussion
assumes that the Stockholders hold the Shares as 'capital assets' within the
meaning of Section 1221 of the Code (i.e., property held for investment). This
discussion does not address all aspects of federal income taxation that may be
relevant to a particular Stockholder in light of such Stockholder's personal
investment circumstances, or those Stockholders subject to special treatment
under the federal income tax laws (for example, life insurance companies,
tax-exempt organizations, foreign corporations and nonresident alien
individuals) or to Stockholders who acquired their Shares through the exercise
of employee stock options or other compensation arrangements. In addition, the
discussion does not address any aspect of foreign, state, local or estate and
gift taxation that may be applicable to a Stockholder.
Consequences of the Offer and the Merger to Stockholders. The receipt of
the Offer Price and the Merger Consideration (including any cash amounts
received by dissenting Stockholders pursuant to the exercise of appraisal
rights) will be a taxable transaction for federal income tax purposes (and also
may be a taxable transaction under applicable state, local and other income tax
laws). In general, for federal income tax purposes, a Stockholder will recognize
gain or loss equal to the difference between his or her adjusted tax basis in
the Shares sold pursuant to the Offer or converted to 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.
Backup Tax Withholding. Under the Code, a Stockholder may be subject,
under certain circumstances, to 'backup withholding' at a 31% rate with respect
to payments made in connection with the Offer or the Merger. Backup withholding
generally applies if the Stockholder (i) fails to furnish his or her Social
Security Number or employer identification number ('TIN'), (ii) furnishes an
incorrect TIN, (iii) fails properly to report interest or dividends or (iv)
under certain circumstances, fails to provide a certified statement, signed
under penalties of
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<PAGE>
perjury, that the TIN provided is his or her correct number and that he or she
is not subject to backup withholding. Backup withholding is not an additional
tax but merely an advance payment, which may be refunded to the extent it
results in an overpayment of tax. Certain persons generally are exempt from
backup withholding, including corporations and financial institutions. Certain
penalties apply for failure to furnish correct information and for failure to
include the reportable payments in income. Each Stockholder should consult with
his or her own tax advisor as to his or her qualifications for exemption from
withholding and the procedure for obtaining such exemption.
THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION PURPOSES ONLY. STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS TO
DETERMINE THE FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE OFFER
AND THE MERGER TO THEM IN VIEW OF THEIR OWN PARTICULAR CIRCUMSTANCES.
6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES
According to the Company 10-K, the principal trading market for the Shares
is the NYSE, where the trading symbol is 'ADA'. Prior to October 3, 1994, the
Company's common stock traded in the Nasdaq National Market ('NNM') under the
symbol 'SASZ'. The following table sets forth, for the periods indicated, the
high and low sales prices per Share, as reported by the NNM (prior to October 3,
1994) and the NYSE Composite Tape (since October 3, 1994):
High and low sale prices per Share as reported by the NNM for the periods
indicated:
<TABLE>
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
1994:
First Quarter.......................................... $23.25 $11.00
Second Quarter......................................... 17.25 11.00
Third Quarter (through September 30, 1994)............. 17.25 11.50
</TABLE>
High and low sale prices per Share as reported by the NYSE Composite Tape:
<TABLE>
<CAPTION>
HIGH LOW
------ ------
<S> <C> <C>
1994:
Fourth Quarter (October 3, 1994 through December 31,
1994)............................................... $15.50 $ 9.50
1995:
First Quarter.......................................... 10.75 7.00
Second Quarter......................................... 9.50 6.875
Third Quarter.......................................... 14.00 9.125
Fourth Quarter......................................... 11.75 9.00
1996:
First Quarter.......................................... 11.75 8.375
Second Quarter (through May 23, 1996).................. 15.375 9.125
</TABLE>
On May 17, 1996, the last full trading day before the public announcement
by Parent and the Company of the execution of the Merger Agreement and
Purchaser's intention to commence the Offer, the last reported sale price on the
NYSE was $15.375 per Share. On May 23, 1996, the last full trading day before
the commencement of the Offer, the last reported sale price on the NYSE was
$15.875 per Share. STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS
FOR THE SHARES.
According to published financial sources, the Company has not paid any
dividends on the Shares for the periods presented above.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES, STOCK EXCHANGE LISTING AND
EXCHANGE ACT REGISTRATION AND MARGIN SECURITIES
The purchase of Shares pursuant to the Offer will reduce the number of
Shares that might otherwise trade publicly and may reduce the number of holders
of Shares, which could adversely affect the liquidity and market value of the
remaining Shares held by Stockholders other than Purchaser. Purchaser cannot
predict whether the reduction in the number of Shares that might otherwise trade
publicly would have an adverse or beneficial effect
9
<PAGE>
on the market price for, or marketability of, the Shares or whether such
reduction would cause future market prices to be greater or less than the Offer
Price.
Depending upon the number of Shares purchased pursuant to the Offer, the
Shares may no longer meet the requirements of the NYSE for continued listing and
may, therefore, be delisted from such exchange. According to the NYSE's
published guidelines, the NYSE would consider delisting the Shares if, among
other things, the number of publicly held Shares (excluding Shares held by
officers, directors, their immediate families and other concentrated holdings of
10% or more) were less than 600,000, there were less than 1,200 holders of at
least 100 Shares or the aggregate market value of the publicly held Shares were
less than $5 million. The Company has represented that, as of May 20, 1996,
there were 22,281,302 Shares outstanding and 23,074 Shares held in the Company's
treasury. If, as a result of the purchase of Shares pursuant to the Offer, the
Shares no longer meet the requirements of the NYSE for continued listing and the
listing of Shares is discontinued, the market for the Shares could be adversely
affected.
If the NYSE were to delist the Shares (which Purchaser intends to cause the
Company to seek if it acquires control of the Company and the Shares no longer
meet the NYSE listing requirements), it is possible that the Shares would trade
on another securities exchange or in the over-the-counter market and that price
quotations for the Shares would be reported by such exchange or through the
National Association of Securities Dealers Automated Quotation System ('NASDAQ')
or other sources. The extent of the public market for the Shares and
availability of such quotations would, however, depend upon such factors as the
number of holders and/or the aggregate market value of the publicly held Shares
at such time, the interest in maintaining a market in the Shares on the part of
securities firms, the possible termination of registration of the Shares under
the Exchange Act and other factors.
The Shares are currently registered under the Exchange Act. Such
registration 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 the registration of the Shares
under the Exchange Act would substantially reduce the information required to be
furnished by the Company to holders of Shares and to the Commission and would
make certain of the provisions of the Exchange Act, such as the short-swing
profit recovery provisions of Section 16(b), the requirement of furnishing a
proxy statement pursuant to Section 14(a) in connection with a shareholders'
meeting and the related requirement of an annual report to stockholders and the
requirements of Rule 13e-3 under the Exchange Act with respect to 'going
private' transactions, no longer applicable to the Company. Furthermore,
'affiliates' of the Company and persons holding 'restricted securities' of the
Company may be deprived of the ability to dispose of such securities pursuant to
Rule 144 promulgated under the Securities Act of 1933, as amended (the
'Securities Act'). If registration of the Shares under the Exchange Act were
terminated, the Shares would no longer be 'margin securities' or eligible for
listing or NASDAQ reporting. Purchaser intends to seek to cause the Company to
terminate registration of the Shares under the Exchange Act as soon after
consummation of the Offer as the requirements for termination of registration of
the Shares are met.
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 such Shares. Depending upon factors similar to those
described above regarding listing and market quotations, the Shares might no
longer constitute 'margin securities' for the purposes of the Federal Reserve
Board's margin regulations and, therefore, could no longer be used as collateral
for loans made by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Delaware corporation with its principal executive offices
located at 700 Canal Street, Stamford, Connecticut 06902. According to the
Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995
(the 'Company 10-K'), the Company is an international provider of computing and
networking products and services to commercial, governmental and educational
users. The Company provides additional services, including network design and
support, maintenance, facilities management and outsourcing through its sales
offices nationwide. Through its subsidiaries, the Company also provides advance
systems consulting, application-specific systems development services and
personal computer equipment and networks.
10
<PAGE>
Set forth below is certain selected consolidated financial data, with
respect to the Company and its subsidiaries excerpted from the Company 10-K and
the Company 10-Q. 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
other documents and all the financial information (including any related notes)
contained therein. Such reports and other documents are available for inspection
and copies are obtainable in the manner set forth below under 'Available
Information.'
SELECTED CONSOLIDATED FINANCIAL DATA
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED DECEMBER 31,
ENDED MARCH ------------------------------------
INCOME STATEMENT DATA 31, 1996 1995 1994 1993
- --------------------------- ------------ ---------- ---------- --------
(UNAUDITED)
<S> <C> <C> <C> <C>
Total net revenues......... $ 452,799 $1,515,557 $1,018,545 $219,663
Total cost of revenues..... 390,055 1,311,445 895,094 187,959
Selling, general and
administrative
expenses................. 47,857 145,618 86,211 22,492
Operating income (loss).... 13,571 53,352 34,638 8,473
Interest income
(expense)................ (8,007) (24,951) (11,611) (1,648)
Net income (loss).......... $ 3,451 $ 17,268 $ 13,931 $ 4,257
Net income (loss) per
common share:
Primary............... $ .15 $ .79 $ .78 $ .36
Fully diluted......... $ .15 $ .77 $ .78 $ .35
</TABLE>
<TABLE>
<CAPTION>
AT DECEMBER 31,
AT MARCH 31, --------------------------------
BALANCE SHEET DATA 1996 1995 1994 1993
- --------------------------- ------------ -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C>
Total assets............... $ 713,327 $710,384 $438,085 $153,382
Total current
liabilities.............. 495,411 502,026 278,583 87,111
Long-term debt............. 12,206 11,605 36,221 1,119
Company-obligated,
mandatorily redeemable
preferred securities of
AmeriData Delaware,
L.L.C.................... 30,880 30,880
Stockholders' equity....... 164,983 156,951 121,494 65,002
</TABLE>
General Electric Pension Trust (the 'Pension Trust') is a master trust
which is tax exempt pursuant to Section 501(a) of the Code, and is the funding
vehicle for certain of the qualified defined benefit pension plans of GE and
those trades or businesses which are under common control as set forth in
Sections 414(b) and (c) of the Code and Section 4001(b)(1) of the Employee
Retirement Income Security Act of 1974, as amended ('ERISA'), including Parent.
As indicated in the Company's proxy statement dated April 4, 1996, as of
December 31, 1995, the Pension Trust owned 2,101,404 Shares (or approximately
9.7% of the outstanding Shares as of such date).
Certain Company Projections. During the course of discussions between
Parent and the Company that led to the execution of the Merger Agreement (see
Section 11 below), in a telephone call, the Company discussed with Lazard Freres
certain limited non-public business and financial information about the Company.
Subsequently, the Company provided Parent with more detailed written, non-public
business and financial information. The written information provided to Parent
included (i) a preliminary plan projecting profit for 1996 of approximately $30
million based on projected total revenue of approximately $2.1 billion, (ii)
balance sheet information that projected for 1996 (A) total assets of between
approximately $650 million and $763 million for each quarter of 1996, (B) total
liabilities of between approximately $461 million and $547 million for each
11
<PAGE>
quarter of 1996, and (C) total stockholders' equity of between approximately
$189 million and $216 million, and (iii) cash flow information projecting cash
from operations of approximately $36 million for 1996.
The Company does not as a matter of course make public any projections as
to future performance or earnings, and the projections set forth above are
included in this Offer to Purchase only because the information was provided to
Purchaser and Parent. The projections were not prepared with a view to public
disclosure or for compliance with the published guidelines of the Commission or
the guidelines established by the American Institute of Certified Public
Accountants regarding projections or forecasts. The Company has advised
Purchaser and Parent that its internal financial forecasts (upon which the
projections provided to Parent were based in part) are, in general, prepared
solely for internal use and capital budgeting and other management decisions,
and are subjective in many respects and thus susceptible to interpretation and
periodic revision based on actual experience and business developments. None of
the Company, Purchaser or Parent or their respective financial advisors or any
of their respective directors or officers assumes any responsibility for the
accuracy of any of the projections. Because the estimates and assumptions
underlying the projections are inherently subject to significant economic and
competitive uncertainties and contingencies that are difficult or impossible to
predict accurately and are beyond the Company's, Purchaser's and Parent's
control, there can be no assurance that the projections will be realized.
Accordingly, it is expected that there will be differences between actual and
projected results, and actual results may be materially higher or lower than
those projected.
Available Information. The Company is subject to the informational filing
requirements of the Exchange Act. In accordance with the Exchange Act, the
Company files periodic reports, proxy statements and other information with the
Commission that relates to its business, financial condition and other matters.
The Company is required to disclose in such proxy statements certain
information, as of particular dates, concerning the Company's directors and
officers, their remuneration, stock options granted to them, the principal
holders of the Company's securities and any material interest of those persons
in transactions with the Company. Such reports, proxy statements and other
information may be inspected at the Commission's office at 450 Fifth Street,
N.W., Washington, D.C. 20549, and also are available for inspection and copying
at the regional offices of the Commission located at Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and 7 World
Trade Center, 13th Floor, New York, New York 10048. Copies may be obtained upon
payment of the Commission's prescribed fees by writing to its principal office
at 450 Fifth Street, N.W., Washington, D.C. 20549. Such material can also be
obtained at the offices of the NYSE, 20 Broad Street, New York, New York 10005.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained in this Offer to Purchase has been taken from
or based upon publicly available documents on file with the Commission and other
publicly available information. Although Purchaser and Parent do not have any
knowledge that any such information is untrue, neither Purchaser nor Parent
takes any responsibility for the accuracy or completeness of such information or
for any failure by the Company to disclose events that may have occurred and may
affect the significance or accuracy of any such information.
9. CERTAIN INFORMATION CONCERNING PURCHASER, PARENT, GE CAPITAL SERVICES AND GE
Purchaser, a Delaware corporation, was organized to acquire all of the
outstanding Shares pursuant to the Offer and has not conducted any unrelated
activities since its organization. GAC Acquisition II Corp., a Delaware
corporation ('GAC II'), was organized for the purpose of effecting the
Second-Step Merger; and has not conducted any unrelated activities since its
organization. All of the outstanding capital stock of Purchaser is owned
directly by GAC II. GAC II is a direct wholly-owned subsidiary of Parent. The
principal executive offices of Purchaser and GAC II are located at 6875 Jimmy
Carter Boulevard, Suite 3200, Norcross, Georgia 30071.
Parent is a New York corporation and a direct, wholly-owned subsidiary of
General Electric Capital Services, Inc. ('GE Capital Services') which, in turn,
is a wholly-owned subsidiary of GE. Parent, together with its subsidiaries,
engages in financing services that include lending, equipment management
services and annuities. The principal executive offices of Parent are located at
260 Long Ridge Road, Stamford, Connecticut 06927.
GE Capital Services is a Delaware corporation and a direct, wholly-owned
subsidiary of GE. The business of GE Capital Services consists of the ownership
of two principal subsidiaries which, together with their
12
<PAGE>
affiliates, constitute GE's principal financial services businesses. The
principal executive offices of GE Capital Services are located at 260 Long Ridge
Road, Stamford, Connecticut 06927.
GE, a New York corporation, engages in providing a wide variety of
industrial, commercial and consumer products and services. The National
Broadcasting Company, Inc. ('NBC'), a wholly-owned subsidiary of GE, is engaged
principally in furnishing network television services, in operating television
stations and in providing cable programming and distribution services. The
principal executive offices of GE are located at 3135 Easton Turnpike,
Fairfield, Connecticut 06431.
Except as described in this Offer to Purchase, during the last five years,
none of Purchaser, Parent, GE, GE Capital Services and GAC II or, to the best
knowledge of Purchaser and Parent, any of the persons listed in Schedule I
hereto (i) has been convicted in a criminal proceeding (excluding traffic
violations and similar misdemeanors) or (ii) was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting activities subject to, federal or
state securities laws or finding any violation of such laws. The name, business
address, present principal occupation or employment, five-year employment
history and citizenship of each director and executive officer of Purchaser,
Parent, GE, GE Capital Services and GAC II are set forth in Schedule I.
Set forth below is certain selected consolidated financial information with
respect to Parent and its subsidiaries excerpted from Parent's Annual Report on
Form 10-K for the fiscal year ended December 31, 1995 and Parent's Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 1996, in each case
filed with the Commission by Parent. More comprehensive financial information is
included in such reports and other documents filed with the Commission by
Parent, and the following summary is qualified in its entirety by reference to
such reports and other documents and all financial information (including any
related notes) contained therein. Such reports and other documents should be
available for inspection and copies should be obtainable in the manner set forth
with respect to information about the Company in Section 8 (except that they
will not be available at the regional offices of the Commission).
SELECTED CONSOLIDATED FINANCIAL DATA
(AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED DECEMBER 31,
ENDED --------------------------------
MARCH 31, 1996 1995 1994 1993
-------------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C>
Statement of Current &
Retained Earnings:
Earned income.......... $ 5,620 $ 21,179 $ 16,923 $ 14,444
Net earnings........... 605 2,261 1,918 1,478
Financing Receivables--
net.................. 92,208 93,272 76,357 63,948
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS YEAR ENDED DECEMBER 31,
ENDED --------------------------------
MARCH 31, 1996 1995 1994 1993
-------------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C>
Statement of Financial
Position:
Total assets............ $ 160,975 $160,825 $130,904 $117,939
Short-term borrowings... 59,891 59,264 54,579 52,903
Long-term senior
notes................. 48,508 47,794 33,615 25,112
Long-term subordinated
notes................. 697 697 697 697
Minority interest....... 696 703 615 426
Equity.................. 14,249 14,202 10,540 10,370
</TABLE>
Except as described in this Offer to Purchase, (i) none of Purchaser,
Parent, GAC II, GE or GE Capital Services or, to the best knowledge of Purchaser
and Parent, any of the persons listed in Schedule I or any associate or
majority-owned subsidiary of any such person, beneficially owns or has a right
to acquire any equity security of the Company and (ii) none of Purchaser,
Parent, GAC II, GE or GE Capital Services or, to the best knowledge of Parent
and Purchaser, any of the other persons referred to above, or any of the
respective directors,
13
<PAGE>
executive officers or subsidiaries of any of the foregoing, has effected any
transaction in any equity security of the Company during the past 60 days.
10. SOURCE AND AMOUNT OF FUNDS
The Offer is not conditioned upon any financing arrangements. Purchaser
estimates that the total amount of funds required to consummate the Offer and
the Merger, to pay related fees and expenses and to pay outstanding indebtedness
of the Company that may become due as a result of the Offer and the Merger is
approximately $825 million. Purchaser expects to obtain these funds in the form
of capital contributions from GAC II. GAC II expects to obtain these funds from
capital contributions and/or loans from Parent. Parent expects to fund the
capital contributions and/or loans provided to GAC II from existing available
working capital and/or from existing commercial paper programs.
11. BACKGROUND
Background of the Offer
In early 1995, representatives of the Company contacted representatives of
Parent with respect to the possible acquisition by the Company of Parent's third
party computer maintenance business. The parties subsequently engaged in several
additional discussions concerning the possible acquisition, which discussions
ceased in early 1995.
In early 1996, a representative of Parent was contacted by a third party to
inquire whether Parent was interested in discussing a possible business
relationship between Parent and the Company. Parent's representative then
contacted a representative of the Company and arranged for an informal meeting
between representatives of each of the Company and Parent, which meeting was
held thereafter.
On February 6, 1996, Mr. Gerald Poch and Mr. Leonard Fassler, two of the
three Co-Chairmen of the Company, had dinner with Mr. Michael Ford, President
and Chief Executive Officer of Parent's Technology Management Services business
(the 'Technology Management Business'), and Mr. Michael Upton, Senior Vice
President of the Technology Management Business, to explore whether the parties
had an interest in entering into discussions relating to a possible business
relationship or business combination between Parent and the Company. The parties
determined to continue discussions and on February 15, 1996, the Company and
Parent entered into a Confidentiality Agreement.
On February 21, 1996, Mr. Poch met again with Mr. Upton. At that meeting,
Mr. Poch and Mr. Upton discussed a possible sale of the Company to Parent and
Mr. Poch described the Company's structure and capabilities.
On March 6, 1996, representatives of the Company including Messrs. Poch and
Fassler and the Company's chief accounting officer met with representatives of
Parent, including Mr. Upton, to further discuss the possibility of a sale of the
Company. On March 7, 1996, Mr. Poch met with representatives of Parent and
Lazard Freres, Parent's financial advisor, and made a formal presentation
relating to the Company's business, financial condition and results of
operations, as well as the Company's new computer system.
During mid to late March of 1996, representatives of the Company and Parent
continued to hold discussions regarding a possible sale of the Company to
Parent. In these discussions, the Company's representatives indicated that the
Company's board of directors was likely to require a price somewhat in excess of
$15 per Share. Parent's representatives, however, did not engage in negotiations
relating to price at that time.
On April 1, 1996, a representative of the Company met with a representative
of Parent and a representative of Lazard Freres. At this meeting, the Company's
representative indicated that he believed, based on his informal discussions
with the Company's board of directors, that a price somewhat in excess of $15
per Share would be required in order for the Company's board of directors to
approve a transaction.
During March, April and early May of 1996, representatives of Parent,
Lazard Freres, Weil, Gotshal & Manges LLP ('Weil Gotshal'), counsel to Parent,
and a consultant to Parent requested and received non-public information with
respect to the Company. In connection with Parent's due diligence of the Company
during this
14
<PAGE>
period, representatives of Parent, Lazard Freres, Weil Gotshal and
representatives of Parent's consultant and representatives of the Company and
Dewey Ballantine ('Dewey Ballantine'), legal counsel to the Company, contacted
each other from time to time to discuss issues relating to due diligence.
In early May of 1996, Parent's legal counsel furnished the Company and the
Company's legal counsel with a draft merger agreement. During the first three
weeks of May of 1996, representatives of Parent, Lazard Freres and Weil Gotshal
negotiated the terms of a merger agreement with representatives of the Company
and Dewey Ballantine. During these negotiations, representatives of Parent
indicated to representatives of the Company and the Company's legal counsel that
it was a condition to Parent's willingness to enter into a merger agreement that
certain Stockholders enter into a stockholders agreement pursuant to which such
Stockholders would agree, among other things, to tender their Shares in the
Offer. Also during the first three weeks of May of 1996, amendments to the
employment agreements of each of the three Co-Chairmen were negotiated with the
Company and Parent (the 'Amendment Agreements').
From Thursday, May 16 through the morning of Monday, May 20, 1996,
representatives of the Company and its legal counsel continued to meet with
representatives of Parent, Lazard Freres and Parent's legal counsel to negotiate
the terms of the merger agreement. During this same period, representatives of
Parent and its legal counsel negotiated the terms of the Stockholders Agreement
with the Selling Stockholders and representatives of Dewey Ballantine, and the
terms of the Amendment Agreements with the Company's three Co-Chairmen and
representatives of Dewey Ballantine. On May 17, 1996, Mr. Poch spoke with a
representative of Lazard Freres and indicated that the Company's board of
directors would not be prepared to accept an offer from Parent for the sale of
the Company at a price below $16 per Share. Later that day, a representative of
Alex Brown spoke with a representative of Lazard Freres and discussed Alex
Brown's valuation analysis of the Company. The negotiations from Thursday, May
16, 1996 through Monday, May 20, 1996 culminated in the Company and Parent
agreeing upon the form of definitive Merger Agreement, the Selling Stockholders
and Parent agreeing upon the form of definitive Stockholders Agreement and the
three Co-Chairmen of the Company, the Company and Parent agreeing upon the form
of definitive Amendment Agreements.
During the evening of May 19, 1996, Parent's board of directors approved
the Merger Agreement and the Stockholders Agreement and the transactions
contemplated therein, subject to satisfactory negotiation of the remaining
unresolved issues, including price. Later that evening, Parent's representatives
informed the Company's representatives that Parent was prepared to pay $16 per
Share to acquire the Company. During that same evening, the Company's
representatives informed Parent's representatives that the Company's board of
directors had approved the Merger Agreement and the transactions contemplated
therein and representatives of Dewey Ballantine informed representatives of
Parent that the Selling Stockholders had agreed to the terms of the Stockholders
Agreement and the transactions contemplated therein and that the Company's three
Co-Chairmen had agreed to the terms of the Amendment Agreements.
On May 20, 1996, the Merger Agreement, the Stockholders Agreement and the
Amendment Agreements were executed and the transaction was publicly announced.
Other
The Company 10-K indicates that during October 1994, the Company acquired
the business of American Computer Rental, Inc. ('ACR'), a provider of short-term
computer rental equipment to commercial and governmental users, and that in
connection with such acquisition the Company assumed certain obligations of ACR
to Parent related to the financing of rental equipment. As indicated in the
Company 10-K, at December 31, 1995, such obligations aggregated approximately
$4.3 million and bear interest at the prime rate plus 1.5%.
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY; THE MERGER
AGREEMENT; THE STOCKHOLDERS AGREEMENT; OTHER AGREEMENTS
Purpose of the Offer and the Merger
The purpose of the Offer and the Merger is to enable Purchaser to acquire,
in one or more transactions, control of the Company and the entire equity
interest in the Company. The Offer is intended to increase the likelihood that
the Merger will be completed promptly.
15
<PAGE>
Parent believes that the Company's business will strengthen Parent's
capabilities as a global desktop systems integrater by geographically expanding
the markets in which Parent's desktop systems integrater business operates.
Plans for the Company
It is currently contemplated that following the consummation of the Merger,
Parent will cause the Second-Step Merger to be effected. As a result of the
Second-Step Merger, certain options to purchase Shares granted by the Company
will thereafter represent the right to receive for each Share subject to such
option, upon exercise thereof in accordance with their terms, an amount in cash
equal to the difference between (i) the Offer Price, and (ii) the exercise price
with respect to such option.
Parent intends, from time to time after completion of the Offer, to
evaluate and review the Company's operations and consider what, if any, changes
would be desirable in light of circumstances that then exist. Except as noted in
this Offer to Purchase, Purchaser and Parent 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 or any other material changes in the
Company's capitalization, dividend policy, corporate structure, business or
composition of its management or Board.
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 of the
Merger Agreement and is qualified in its entirety by reference to the full text
of the Merger Agreement, which is incorporated by reference and a copy of which
has been filed with the Commission as an exhibit to the Schedule 14D-1. The
Merger Agreement may be examined, and copies obtained, as set forth in Section 8
above.
The Offer. The Merger Agreement provides for the commencement of the
Offer. Purchaser has expressly reserved the right to increase the price per
Share payable in the Offer or to make any other changes in the terms and
conditions of the Offer, except that without the prior written consent of the
Company, Purchaser has agreed that it will not (i) decrease or change the form
of the Offer Consideration or decrease the number of Shares sought pursuant to
the Offer, (ii) impose additional conditions to the Offer, (iii) extend the
Expiration Date of the Offer (except as required by law or the applicable rules
and regulations of the Commission and except that Purchaser may extend the
Expiration Date of the Offer (x) for up to twenty (20) business days after the
initial Expiration Date or (y) for longer periods (not to exceed 120 calendar
days from the date of commencement) in the event that any condition to the Offer
is not satisfied), or (iv) amend any term of the Offer in any manner adverse to
Stockholders; provided, however, that, except as set forth above, Purchaser may
waive any condition to the Offer in its sole discretion; and provided further,
that the Offer may be extended in connection with an increase in the
consideration to be paid pursuant to the Offer so as to comply with applicable
rules and regulations of the Commission. Assuming the prior satisfaction or
waiver of the conditions to the Offer, Purchaser will accept for payment, and
pay for, in accordance with the terms of the Offer, all Shares validly tendered
and not withdrawn pursuant to the Offer as soon as practical after the
Expiration Date thereof.
Payment for Shares. Prior to the Effective Time, Parent will deposit or
shall cause to be deposited with the Paying Agent (as defined in the Merger
Agreement) in a separate fund established for the benefit of the holders of
Shares, for payment in accordance with the Merger Agreement (the 'Payment
Fund'), immediately available funds in amounts necessary to make the payments
pursuant to the Merger Agreement to holders of Shares (other than the Company or
any wholly-owned subsidiary of the Company or Parent, Purchaser or any other
wholly-owned Subsidiary of Parent, or holders of Dissenting Shares (as defined
below)). The Paying Agent shall, pursuant to irrevocable instructions, pay the
Merger Consideration out of the Payment Fund.
Any portion of the Payment Fund which remains undistributed to the holders
of Shares for six months after the Effective Time shall be delivered to the
Company, upon demand, and any holders of Shares who have not theretofore
complied with the Merger Agreement and the Instructions set forth in the Letter
of Transmittal mailed to such holder after the Effective Time shall thereafter
look only to the Company for payment of the Merger Consideration to which they
are entitled; provided that if, but only if, the Company shall have defaulted in
its obligation to make such payment within a reasonable period of time after
receipt of written request therefor from
16
<PAGE>
any such holder, such holder may thereafter look to Parent for payment of the
Merger Consideration to which they are entitled. All interest accrued in respect
of the Payment Fund shall inure to the benefit of and be paid to Parent.
Board Representation. The Merger Agreement provides that promptly upon the
purchase pursuant to the Offer by Parent or any of its subsidiaries (including
Purchaser) of such number of Shares that represents at least a majority of the
Shares outstanding, and from time to time thereafter, Parent will be entitled to
designate such number of directors, rounded up to the next whole number, on the
Board that equals the product of (x) the number of directors (the 'Parent
Designees') on the Board (giving effect to any increase in the number of
directors pursuant to the Merger Agreement) and (y) the percentage that such
number of Shares so purchased bears to the aggregate number of Shares
outstanding (such number being the 'Board Percentage'), and the Company will,
subject to Parent's having theretofore provided the Company with the information
with respect to Parent's Designees required pursuant to compliance with Section
14(f) of the Exchange Act, promptly satisfy the Board Percentage by (i)
increasing the size of the Board or (ii) securing the resignations of such
number of directors as is necessary to enable Parent's Designees to be elected
to the Board (and the Company shall use its best efforts to cause the then
remaining members of the Board to promptly so elect Parent's Designees). At the
request of Parent, the Company will take, at the Company's expense, all lawful
action necessary to effect any such election, including, without limitation,
mailing to the Stockholders the information required by Section 14(f) of the
Exchange Act and Rule 14f-1 promulgated thereunder, unless such information has
previously been provided to the Company's Stockholders in the Schedule 14D-9.
Following the election or appointment of Parent's Designees pursuant to the
Merger Agreement and prior to the Effective Time, any amendment or termination
of the Merger Agreement, extension for the performance or waiver of the
obligations or other acts of Parent or Purchaser, or waiver of the Company's
rights under the Merger Agreement will require the concurrence of a majority of
directors of the Company then in office who are directors on the date of the
Merger Agreement and who voted to approve the Merger Agreement; provided that if
there are no such directors, such actions may be effected by majority vote of
the entire Board.
Consideration to be Paid in the Merger. The Merger Agreement provides
that, upon the terms and subject to the conditions set forth in the Merger
Agreement, and in accordance with the DGCL, Purchaser will be merged with and
into the Company at the Effective Time. At the Effective Time, the separate
corporate existence of Purchaser will cease, and the Company will continue as
the Surviving Corporation. At the Effective Time, by virtue of the Merger, each
Share issued and outstanding immediately prior to the Effective Time (excluding
Shares owned, directly or indirectly, by the Company or any wholly-owned
subsidiary of the Company or by Parent, Purchaser or any other wholly-owned
subsidiary of Parent and excluding Dissenting Shares (as defined below)) will be
converted into the right to receive the Merger Consideration, without any
interest thereon, upon surrender and exchange of a certificate which immediately
prior to the Effective Time represented such Shares (each, a 'Certificate').
Each share of the capital stock of Purchaser issued and outstanding immediately
prior to the Effective Time will be converted into one fully paid and
nonassessable share of common stock, par value $.01 per share, of the Surviving
Corporation, which will thereupon become an indirect, wholly-owned subsidiary of
Parent. Each Share and all other shares of capital stock of the Company that are
owned by the Company and all Shares and other shares of capital stock of the
Company owned by Parent, Purchaser or any other wholly-owned subsidiary of
Parent or the Company will be cancelled and retired and will cease to exist and
no consideration will be delivered or deliverable in exchange therefor. The
Merger will become effective upon the filing of a Certificate of Merger with the
Secretary of State of the State of Delaware or at such time thereafter as is
provided in the Certificate of Merger.
Options, Warrants and Other Purchase Rights. After the Effective Time,
each holder of (i) a then outstanding option (collectively, the 'Employee
Options') to purchase Shares under the Company's 1991 Stock Option Plan and the
Option Agreements between the Company and certain of its officers, directors,
employees and consultants (the 'Stock Option Plans'), (ii) a Warrant (as defined
in the Merger Agreement ), and (iii) except as provided in the Merger Agreement,
any other option, warrant or other right to acquire (upon purchase, exchange,
conversion or otherwise) Shares (collectively, the 'Other Options' and, together
with the Employee Options, the 'Options'), shall upon exercise of such Option or
Warrant in accordance with its terms, be entitled to receive for each Share
subject to such Option or Warrant, in settlement and cancellation thereof, an
amount (subject to any applicable withholding tax) in cash equal to the
difference between the Offer Price and the per
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Share exercise price of such Option or Warrant, as the case may be, to the
extent such difference is a positive number; provided, however, that with
respect to any person subject to Section 16(a) of the Exchange Act, any such
amount shall be paid as soon as practicable after the first date payment can be
made without liability to such person under Section 16(b) of the Exchange Act.
The surrender of an Option or Warrant to the Company in exchange for the
Option/Warrant Consideration shall be deemed a release of any and all rights the
holder had or may have in respect of such Option or Warrant.
At the Effective Time, each holder of a right to purchase Shares under the
Company's 1991 Stock Purchase Plan (the 'Stock Purchase Plan') pursuant to any
offering under the Stock Purchase Plan (a 'Right'), whether or not then
exercisable, shall, in settlement and cancellation thereof, receive for such
Right an amount (subject to any applicable withholding tax) in cash (such amount
being hereinafter referred to as the 'Rights Consideration') equal to the sum of
(i) the product of such holder's Accrued Shares (as defined below) with respect
to such offering times the difference between (A) the Offer Price and (B) the
lower of (I) 85% of the fair market value of the Shares on the effective date of
the related offering under the Stock Purchase Plan (determined in accordance
with the Stock Purchase Plan) and (II) 85% of the fair market value of the
Shares on the date immediately prior to the public announcement of the Offer
(such lower amount with respect to an offering, the 'Applicable Per Share
Price'), to the extent such difference is a positive number, plus (ii) an amount
equal to the aggregate amount in such holder's payroll deduction account with
the Company with respect to such offering at the Effective Time (the 'Related
Deduction Account Amount'); provided, however, that with respect to any person
subject to Section 16(a) of the Exchange Act, any such amount shall be paid as
soon as practicable after the first date payment can be made without liability
to such person under Section 16(b) of the Exchange Act. Upon receipt of the
related Rights Consideration, the Right shall be canceled and such receipt shall
be deemed a release of any and all rights the holder had or may have had in
respect of such Right. The 'Accrued Shares' of a holder of a Right with respect
to any offering under the Stock Purchase Plan shall mean the amount obtained by
dividing (I) the Related Deduction Account Amount with respect to such offering
by (II) the Applicable Per Share Price with respect to such offering, rounded up
to the next whole share.
After the Effective Time, each holder of a Subordinated Debenture shall be
entitled to receive, upon conversion thereof in accordance with the terms
thereof, in settlement and cancellation thereof, solely an amount (subject to
any applicable withholding tax) in cash equal to the amount receivable upon the
consummation of the Merger by a holder of that number of Shares into which the
Subordinated Debentures of such holder were convertible immediately prior to the
Merger. The foregoing will apply whether such conversion of the Subordinated
Debenture occurs upon conversion of any of the Preferred Securities in
accordance with the terms thereof or otherwise.
Prior to the Effective Time, the Company will use its commercially
reasonable efforts to obtain all necessary consents or releases from holders of
Options, Warrants, Rights, Preferred Securities and Subordinated Debentures
(collectively, the 'Equity Purchase Rights') and shall take all such other
lawful action as may be necessary to give effect to the transactions described
above. Prior to the Effective Time, the Company will (i) terminate the Stock
Option Plans and Stock Purchase Plan without liability to the Company or the
Surviving Corporation (other than as contemplated by the Merger Agreement) as of
the Effective Time and terminate or cancel as of the Effective Time the
provisions in any other plan, program or arrangement providing for the issuance
or grant of any other interest in respect of the capital stock of the Company or
any subsidiary thereof and (ii) take all action reasonably necessary to ensure
that following the Effective Time no holder of any Equity Purchase Right or
participant in any other plan, program or arrangement shall have any right
thereunder to acquire equity securities of the Company, the Surviving
Corporation or any subsidiary thereof.
Dissenting Shares. Shares that are outstanding immediately prior to the
Effective Time and which are held by Stockholders who shall have not voted in
favor of the Merger or consented thereto in writing and who shall have demanded
properly in writing appraisal for such shares in accordance with Section 262 of
the DGCL (collectively, the 'Dissenting Shares') will not be converted into or
represent the right to receive the Merger Consideration. Such Shares instead
will, from and after the Effective Time, represent only the right to receive
payment of the appraised value of such Shares held by them in accordance with
the provisions of such Section 262, except that all Dissenting Shares held by
Stockholders who shall have failed to perfect or who effectively shall have
withdrawn or lost their rights to appraisal of such Shares under such Section
262 shall thereupon be deemed to have been converted into and to have become
exchangeable, as of the Effective Time, for the right to
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receive, without any interest thereon, the Merger Consideration upon surrender,
in the manner provided in the Merger Agreement, of the Certificate or
Certificates that, immediately prior to the Effective Time, evidenced such
Shares.
Stockholders' Meeting. The Merger Agreement provides that the Company
will, as soon as practicable following the acceptance for payment of and payment
for Shares by Purchaser in the Offer, duly call, give notice of, convene and
hold a stockholders' meeting (the 'Company Stockholders' Meeting') for the
purpose of approving the Merger Agreement and the transactions contemplated
thereby. At the Company Stockholders' Meeting, the Board will recommend to its
stockholders the adoption and approval of the Merger Agreement and the
transactions contemplated thereby. As soon as practicable following the
acceptance for payment of and payment for Shares by Purchaser in the Offer, the
Company and Parent will prepare and file with the Commission a proxy statement,
if necessary. The Company shall use its best efforts to respond to all
Commission comments with respect to the proxy statement and to cause the proxy
statement and the form of proxy, which will comply as to form with all
applicable laws, to be mailed to the Stockholders at the earliest practicable
date.
Notwithstanding the preceding paragraph, in the event that Purchaser or any
other subsidiary of Parent acquires at least 90% of the outstanding Shares in
the Offer, the parties to the Merger Agreement have agreed, at the request of
Purchaser, to 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 253
of the DGCL. Subject to the foregoing sentence, Parent will cause Purchaser to
take all actions necessary to approve the Merger Agreement and the transactions
contemplated thereby.
Representations and Warranties. The Merger Agreement contains various
representations and warranties of the parties. These include representations and
warranties by the Company to the Parent and Purchaser with respect to (i)
organization; standing and power, (ii) capital structure, (iii) authority; no
violations; consents and approvals, (iv) Commission documents; financial
statements, (v) information supplied, (vi) compliance with applicable laws,
(vii) litigation, (viii) taxes, (ix) pension and benefit plans; ERISA, (x)
absence of certain changes or events, (xi) no undisclosed material liabilities,
(xii) opinion of financial advisor, (xiii) vote required, (xiv) labor matters,
(xv) intangible property, (xvi) environmental matters, (xvii) real property;
other assets, (xviii) insurance, (xix) material contracts, (xx) related party
transactions, (xxi) liens, (xxii) brokerage fees and commissions other fees,
(xxiii) no excess parachute payments, (xxiv) state takeover statutes, (xxv)
pending and proposed transactions and (xxvi) media interests.
Parent and Purchaser also have made certain representations and warranties
to the Company with respect to (i) organization; standing and power, (ii)
authority; no violations; consents and approvals; (iii) interim operations of
Purchaser, (iv) information supplied, (v) brokerage fees and commissions and
(vi) financial capability.
Conduct of Business Pending the Merger. The Company has agreed that during
the period from the date of the Merger Agreement and continuing until the
Effective Time (except as Parent otherwise consents to in writing), the Company
and its subsidiaries will carry on their businesses in the ordinary course in
substantially the same manner as previously conducted, and will use all
reasonable efforts to preserve intact its present business organizations, keep
available the services of its current officers and employees and preserve its
relationships with customers, suppliers and others having business dealings with
it to the end that its goodwill and ongoing business will not be impaired in any
material respect at the Effective Time. Except as provided in the Merger
Agreement, the Company has further agreed that neither it, nor any of its
subsidiaries will: (i) declare or pay any dividends on or make other
distributions in respect of any of its capital stock, except for cash dividends
or distributions paid on or with respect to the capital stock of a wholly-owned
subsidiary and except for cash distributions payable with respect to the
Preferred Securities in accordance with their present terms; (ii) split, combine
or reclassify any of its capital stock or issue or authorize or propose the
issuance of any other securities in respect of, in lieu of or in substitution
for, shares of its capital stock; (iii) redeem, repurchase or otherwise acquire,
or propose to redeem, repurchase or otherwise acquire, or permit any subsidiary
to purchase or otherwise acquire, any shares of its capital stock; (iv) grant
any options, warrants or rights to purchase Shares; (v) amend or reprice any
Option or Warrant or the Stock Option Plans or the Rights or the Stock Purchase
Plan; (vi) issue, deliver or sell, or pledge or otherwise encumber, or authorize
or propose to issue, deliver or sell, or pledge or otherwise encumber, any
shares of its capital stock of any class or series, any Company Voting Debt (as
defined in the Merger Agreement) or any securities convertible into or
exchangeable for, or any rights, warrants or options to acquire, any such
shares, Company Voting Debt or convertible or exchangeable securities,
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other than the issuance of Shares upon (A) the exercise of Options outstanding
on the date of the Merger Agreement in accordance with their present terms, (B)
the exercise of the Warrants outstanding on the date of the Merger Agreement in
accordance with their present terms, (C) the exercise of Rights pursuant to the
Stock Purchase Plan in accordance with their present terms, and (D) the
conversion of the Subordinated Debentures by the holders thereof in accordance
with their present terms; (vii) amend or propose to amend its Certificate of
Incorporation or Bylaws or other comparable constituent documents; (viii)
acquire or agree to acquire by merger or consolidation or purchase of a
substantial equity interest in or substantial portion of the assets of, or by
any other manner, any business or any corporation, partnership, association or
other business organization or division thereof or any assets that are material,
individually or in the aggregate, to the Company and its subsidiaries as a
whole; (ix) sell, lease, encumber or otherwise dispose of or agree to sell,
lease (whether such lease is an operating or capital lease), encumber or
otherwise dispose of any asset (except for dispositions in the ordinary course
of business consistent with past practice which are not (other than sales of
inventory) material, individually or in the aggregate to the Company and its
subsidiaries); (x) authorize, recommend, propose, adopt or announce an intention
to adopt a plan of complete or partial liquidation or dissolution of the Company
or any of its subsidiaries other than the dissolution of Dormant Subsidiaries
(as defined in the Merger Agreement); (xi) take or agree or commit to take any
action that is reasonably likely to result in any of the Company's
representations or warranties pursuant to the Merger Agreement being untrue in
any material respect, or in any of the conditions to the Merger Agreement not
being satisfied; (xii) grant any increases in the compensation of any of its
directors, officers or key employees other than regularly scheduled increases
representing (in the case of all directors and officers, and all key employees
whose annual compensation (including salary and bonus) exceeds $100,000) an
aggregate increase of not more than 5%; pay or agree to pay any pension,
retirement allowance or other employee benefit not required or contemplated by
any of the existing Company Benefit Plans or Company Pension Plans (each as
defined in the Merger Agreement) as in effect on the date of the Merger
Agreement to any such director, officer or key employee, whether past or
present; enter into any new, or materially amend any existing, employment or
severance or termination agreement with any such director, officer or key
employee other than At-Will Employment Agreements providing for total annual
compensation (including salary and bonus) of less than $100,000; terminate or
amend the employment agreements of Messrs. Poch and McCleary or the employment
or advisory agreements with Mr. Fassler; or, except as may be required to comply
with applicable law, become obligated under any new Company Employee Benefit
Plan or Company Pension Plan, which was not in existence on the date of the
Merger Agreement, or amend any such plan or arrangement in existence on the date
of the Merger Agreement if such amendment would have the effect of materially
enhancing any benefits thereunder; (xiii) except as permitted by the Merger
Agreement, assume or incur any Indebtedness (as defined in the Merger Agreement)
for borrowed money (other than pursuant to credit facilities existing on the
date of the Merger Agreement in accordance with their present terms) or
guarantee any such Indebtedness or issue or sell any debt securities or warrants
or rights to acquire any debt securities of the Company or any of its
subsidiaries or guarantee any debt securities of others or enter into any lease
(whether such lease is an operating or capital lease) or create any mortgages,
liens, security interests or other encumbrances on the assets or property of the
Company or any of its subsidiaries in connection with any Indebtedness thereof
(other than security interests arising pursuant to mortgages or other security
agreements in effect on the date of the Merger Agreement covering credit
facilities existing on the date of the Merger Agreement), or enter into any
'keep well' or other agreement or arrangement to maintain the financial
condition of another Person (as defined in the Merger Agreement) or make any
loans, advances or capital contributions to, or investments in, any other
person, other than to the Company or any direct or indirect wholly owned
subsidiary of the Company and other than loans or advances to customers and
employees in the ordinary course of business consistent with past practice;
(xiv) enter into, modify, rescind, terminate, waive, release or otherwise amend
in any material respect any of the terms or provisions of any contract
agreement, commitment, arrangement or right specified on a certain schedule to
the Merger Agreement or which, if such contract, agreement, arrangement or right
had existed as of the date of the Merger Agreement, would have been required to
be so specified; provided, however, that the foregoing does not limit the right
of the Company or any of its subsidiaries to enter into certain contracts in the
ordinary course of business consistent with past practice and involving annual
payments of not more than $5,000,000; (xv) permit a material change in any of
its financial reporting, tax, or accounting practices or policies or in any
assumption underlying such practices or policies, or in any method of
calculating any bad debt, contingency, or other reserve for financial reporting
purposes or for other accounting purposes, except as may be required by GAAP;
(xvi) except as permitted by the Merger Agreement and except for capital
expenditures for MIS and rental inventory purchases,
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make or authorize any capital expenditures in excess of $100,000 individually
and $500,000 in the aggregate per month; (xvii) make any tax election or settle
or compromise any material tax liability; or (xviii) pay, discharge, settle or
satisfy any claims, liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment, discharge,
settlement or satisfaction, in the ordinary course of business consistent with
past practice or in accordance with their terms, of any of its liabilities or
obligations, or waive the benefits of, or agree to modify in any manner, any
confidentiality, standstill or similar agreement to which the Company or any of
its subsidiaries is a party. The Company has further agreed that it and its
subsidiaries will: (i) confer with Parent to the extent reasonably requested by
Parent, report on operational matters and promptly advise Parent orally and in
writing of any change or event having, or which, insofar as reasonably can be
foreseen, could have, a Material Adverse Effect (as defined in the Merger
Agreement) on the Company, and promptly provide Parent (or its counsel) with
copies of all filings made by the Company with the Commission or any other
state, federal or foreign Governmental Entity in connection with the Merger
Agreement and the transactions contemplated thereby; (ii) prepare and timely
file any income tax return of the Company or any subsidiary that has not yet
been filed and is required to be filed on or prior to the Effective Time, in a
manner consistent with prior years and all applicable laws and regulations (or
shall obtain a valid extension of time in which to make such filings); (iii)
inform Parent of any notice or other communication from any person alleging that
their consent is or may be required in connection with the transactions
contemplated by the Merger Agreement; (iv) provide Parent with copies of all
filings made by the Company with the Commission or other governmental authority
or instrumentality, domestic or foreign (a 'Governmental Entity') in connection
with the Merger Agreement; and (v) promptly notify Parent of any actions, suits,
claims, investigations or proceedings commenced or, to the best of its
knowledge, threatened against, relating to or involving or otherwise affecting
the Company or any subsidiary which, if pending on the date of the Merger
Agreement, would have been required to have been disclosed pursuant to the
Merger Agreement or which relate to the consummation of the transactions
contemplated by the Merger Agreement.
Other Agreements. The Company, Purchaser and Parent have agreed to take
all reasonable actions necessary to comply promptly with all legal requirements
which may be imposed on such party with respect to the Offer, the Merger
(including furnishing all information required under the HSR Act and in
connection with approvals of or filings with any other Governmental Entity) and
the Stockholders Agreement and to cooperate with and furnish information to each
other. Without limiting the generality or effect of the foregoing, the Company
will, and will cause its subsidiaries to, take all reasonable actions necessary
to obtain (and will cooperate with each other in obtaining) any consent,
authorization, order or approval of, or any exemption by, any Governmental
Entity or other public or private third party, required to be obtained or made
by the Company, Parent or any of their subsidiaries in connection with the
Offer, the Merger, the Merger Agreement, or the taking of any action
contemplated hereby or thereby; provided, however, that Parent need not agree
with the Department of Justice or any other Governmental Entity to hold
separate, sell or otherwise dispose of any subsidiary of Parent or the Company
or assets or properties of any of the foregoing, or to agree to any conditions
deemed by Parent to be adverse to it or the Company (or any of their respective
subsidiaries).
No Solicitation. The Merger Agreement provides that from and after the
date of the Merger Agreement until the termination of the Merger Agreement, the
Company will not, and will not permit any of its subsidiaries, or any of its or
their officers, directors, employees, representatives, agents or affiliates
(including, without limitation, any investment banker, financial advisor,
attorney, accountant or other representative retained by the Company or any of
its subsidiaries) to, 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 of any proposal that
constitutes, or may reasonably be expected to lead to, any Acquisition Proposal
(as defined below), or enter into or maintain or continue discussions or
negotiate with any person in furtherance of such inquiries or to obtain or with
respect to an Acquisition Proposal or agree to or endorse any Acquisition
Proposal, provided, however, that prior to the Company Stockholders Meeting, if
in the good faith opinion of the Board, based on the advice of outside legal
counsel, the failure to proceed in accordance with clause (A) and/or (B) below
of this paragraph would violate its fiduciary duties to the Stockholders under
applicable law, the Company may, subject to compliance with certain notice
requirements to Parent concerning any inquiry with respect to or which could
lead to any Acquisition Proposal as specified in the Merger Agreement, in
response to an unsolicited written bona fide Acquisition Proposal that in the
good faith opinion of the Board, based on the advice of an independent
nationally recognized financial advisor and outside legal counsel, would
reasonably be
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expected to result in a Superior Proposal (as defined below), (A) furnish
information with respect to the Company to such person making such proposal
pursuant to a customary confidentiality agreement with such person and (B)
participate in negotiations regarding such Acquisition Proposal; provided that,
in the case of clauses (A) and (B) above, the Company has provided a written
notice to Parent of its intention to proceed under such clause (A) or (B) above.
The Merger Agreement further provides that without limiting the foregoing, any
violation of the restrictions set forth in the preceding sentence by any
director or executive officer of the Company or any of its subsidiaries or any
investment banker, financial advisor, attorney, accountant or other
representative of the Company or any of its subsidiaries, acting on behalf or
under authority of the Company or any subsidiary of the Company, would be deemed
to be a breach of this paragraph by the Company. For purposes of the Merger
Agreement, 'Acquisition Proposal' means an inquiry, offer or proposal regarding
any of the following (other than the transactions between the Company, Parent
and Purchaser contemplated under the Merger Agreement) involving the Company or
any of its subsidiaries: (w) any merger, consolidation, share exchange,
recapitalization, business combination, or other similar transaction; (x) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition of 20% or
more of the assets of the Company and its subsidiaries, taken as a whole, in a
single transaction or series of transactions; (y) any tender offer or exchange
offer for or other purchase of 20% or more of the outstanding shares of capital
stock of the Company or the filing of a registration statement under the
Securities Act in connection therewith; or (z) any public announcement of a
proposal, plan or intention to do any of the foregoing or any agreement to
engage in any of the foregoing.
The Company has also agreed that, except as set forth in the Merger
Agreement, the Board and any committee thereof will not (A) withdraw or modify,
or propose to withdraw or modify, in a manner adverse to Parent or Purchaser,
the approval or recommendation by such Board or any such committee of the Merger
or the Merger Agreement, (B) approve or recommend, or propose to approve or
recommend, any Acquisition Proposal or (C) enter into any agreement with respect
to any Acquisition Proposal. Notwithstanding the preceding sentence, in the
event that prior to the Company Stockholders' Meeting the Board determines in
good faith, based on the advice of outside counsel, that the failure to proceed
in accordance with clause (x), (y) and/or (z) below of this paragraph would
violate its fiduciary duties to the Company's stockholders under applicable law,
the Board may (subject to the terms of this sentence and the following sentence)
(x) withdraw or modify its recommendation of the Merger or the Merger Agreement,
(y) approve or recommend a Superior Proposal, and (z) cause the Company to enter
into an agreement with respect to a Superior Proposal, in each case at any time
following Parent's receipt of a written notice advising Parent that the Board
has received a Superior Proposal, specifying the material terms and conditions
of such Superior Proposal and identifying the person making such Superior
Proposal; provided that the Company will not take any of the actions specified
in such clauses (x), (y) or (z) unless the Company has furnished Parent with
written notice (defined in the Merger Agreement) specifying such actions to be
taken no later than 12:00 noon New York City time four business days prior to
the date such actions are proposed to be taken and will not take any of the
actions set forth in clauses (y) or (z) above if, after taking into account
modifications to the Merger Agreement proposed by Parent, such Acquisition
Proposal would not be a Superior Proposal. In addition, if the Board or the
Company proposes to take any of the actions permitted by the preceding sentence
with respect to any Acquisition Proposal, then the Company will, prior to taking
such action, pay, or cause to be paid, to Parent the Termination Payment (as
defined below), and, in the case of clauses (y) and (z), cause the person making
the Superior Proposal to acknowledge such obligations.
Under the Merger Agreement, the term 'Superior Proposal' means any bona
fide Acquisition Proposal that has the following characteristics: (x) it is a
proposal to acquire, directly or indirectly, for consideration consisting of
cash and/or readily marketable securities, (A) Shares representing 100% of the
voting power of (I) the outstanding Shares, (II) the Shares issuable upon (aa)
the conversion of the Subordinated Debentures, (bb) the exercise of the options
outstanding and (cc) the exercise of the warrants outstanding, or (B) all or
substantially all the assets of the Company, (y) the terms of such proposal in
the good faith judgment of the Board (based on the written opinion of an
independent financial advisor of nationally recognized reputation) provide a per
share consideration to the Stockholders which is higher than the per share
consideration provided by the Merger (after taking into account any
modifications to the Merger Agreement proposed by Parent) and (z) the
transactions envisioned by such proposal, in the good faith judgment of the
Board, based on the advice of an independent nationally recognized financial
advisor and outside legal counsel, is readily financeable and reasonably likely
to be consummated without unreasonable delay or unusual conditions compared to
the transactions contemplated by the Merger Agreement.
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In addition to the obligations set forth in the Merger Agreement with
respect to an Acquisition Proposal as stipulated in the Merger Agreement, the
Company will immediately advise Parent orally and in writing of any request for
information relating to an Acquisition Proposal or of any Acquisition Proposal,
or any inquiry with respect to or which could lead to any Acquisition Proposal,
the material terms and conditions of such request, Acquisition Proposal or
inquiry, and the identity of the person making any such request, Acquisition
Proposal or inquiry. The Company will keep Parent fully and timely informed of
the status and details (including amendments or proposed amendments) of any such
request, Acquisition Proposal or inquiry.
Fees and Expenses. The Merger Agreement provides that, except as described
below, all costs and expenses incurred in connection with the Merger Agreement
and the transactions contemplated by the Merger Agreement will be paid by the
party incurring the expense. The Company has agreed to immediately pay, or cause
to be paid, in same day funds to Parent the Termination Payment (as defined
below) upon demand if (a) Parent terminates the Merger Agreement in the event
that (i) the Board or any committee thereof withdraws or modifies its approval
or recommendation of the Merger Agreement or the Merger or approves or
recommends an Acquisition Proposal or resolves to do any of the foregoing or
(ii) the Company enters into an agreement with respect to an Acquisition
Proposal; (b) the Company terminates the Merger Agreement in the event that (x)
the Board withdraws or modifies its approval or recommendation of the Merger
Agreement or the Merger or (y) the Company enters into a definitive agreement
pursuant to an Acquisition Proposal as stipulated in the Merger Agreement; (c)
the Offer terminates, is withdrawn, is abandoned or expires by reason of the
failure of any condition set forth in Exhibit A to the Merger Agreement to be
satisfied and prior to such termination a bona fide Acquisition Proposal shall
have been made; (d) Parent or the Company terminates the Merger Agreement in the
event that Company Stockholder Approval has not been obtained by reason of the
failure to obtain the required vote upon a vote held at a duly held meeting of
shareholders or at any adjournment thereof and prior to such termination a bona
fide Acquisition Proposal shall have been made; or (e) the Company terminates
the Merger Agreement in the event that the Offer shall have expired or have been
withdrawn, abandoned or terminated without any Shares being purchased by
Purchaser thereunder on or prior to the 120th day after May 24, 1996 and, prior
to such termination, a bona fide Acquisition Proposal shall have been made.
'Termination Payment' means the sum of (i) all of Parent's out-of-pocket
expenses incurred in connection with the transactions contemplated by the Merger
Agreement (the 'Expenses') and (ii) $10,000,000 (the 'Termination Fee');
provided that if at or prior to the time the Termination Payment is payable the
Company has entered into a definitive agreement with a third party for such
third party to acquire the Company in a transaction which would qualify to be
accounted for, under applicable guidelines of the Commission, as a pooling of
interests transaction but for the size of the Termination Payment, then the
amount of the Termination Payment shall be reduced to the extent necessary to
enable such transaction to qualify as a pooling of interests (but in no event
will the Termination Payment be reduced below 1% of the transaction value). The
amount of Expenses so payable shall be the amount set forth in an estimate
delivered by Parent upon termination subject to upward or downward adjustment as
provided in the next sentence. In the event that Parent's actual out-of-pocket
expenses exceed such estimate, the amount of any such excess shall be payable
upon demand, and in the event that Parent's actual expenses are less than the
amount of such estimate, Parent shall promptly refund such lesser amount.
Brokers or Finders Fees. Pursuant to the Merger Agreement the Company
agrees to indemnify and hold Parent harmless from and against any and all
claims, liabilities or obligations with respect to any fees, commissions or
expenses asserted by any person to the extent such fee, commission or expense is
attributable to any action taken by or on behalf of the Company or any of its
subsidiaries or affiliates. Parent agrees to indemnify and hold Company harmless
from and against any and all claims, liabilities or obligations with respect to
any fees, commissions or expenses asserted by any person to the extent such fee,
commission or expense is attributable to any action taken by or on behalf of
Parent.
Conditions to the Merger. Pursuant to the Merger Agreement, the obligation
of each party to effect the Merger is subject to the satisfaction, prior to the
closing date of the Merger, of the following conditions: (i) the Merger
Agreement and the Merger will have been approved and adopted by the affirmative
vote of the holders of a majority of the Shares entitled to vote thereon if such
vote is required by applicable law, (ii) the waiting period (and any extension
thereof) applicable to the consummation of the Merger under the HSR Act will
have expired or been terminated, and any formal investigations relating to the
Merger that may have been opened by the Department of Justice or the Federal
Trade Commission (by means of a written request for additional information or
otherwise) will have been terminated, (iii) no temporary restraining order,
preliminary or permanent injunction
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or other order issued by any court of competent jurisdiction or other legal
restraint or prohibition preventing the consummation of the Merger will be in
effect; provided, however, that prior to invoking this condition, each party
will use all commercially reasonable efforts to have any such order, injunction,
restraint or prohibition vacated; and (iv) the FCC will have granted the Pro
Forma Application.
The obligations of Parent and Purchaser to effect the Merger are subject to
the satisfaction of the following conditions, any or all of which may be waived
in whole or in part by Parent and Purchaser: (a) Purchaser will have accepted
for payment and paid for all Shares tendered in the Offer such that, after such
acceptance and payment, Parent and its affiliates will own, at consummation of
the Offer, a sufficient number of outstanding Shares to satisfy the Minimum
Tender Condition, except if the failure of this condition to occur is caused by
the material breach of the Merger Agreement by Parent or Purchaser; (b) the
representations and warranties of the Company set forth in the Merger Agreement
will be true and correct as of the date of the Merger Agreement and (except to
the extent such representations and warranties expressly speak as of an earlier
date) as of the closing date of the Merger (the 'Closing Date') as though made
on and as of the Closing Date, and Parent will have received a certificate
signed on behalf of the Company by the chief executive officer and by the chief
accounting officer of the Company to such effect; (c) the Company will have
performed in all material respects all obligations and agreements, and complied
in all material respects with all covenants, required to be performed or
complied with by it under the Merger Agreement at or prior to the Effective
Time, and Parent will have received a certificate signed on behalf of the
Company by the chief executive officer and by the chief accounting officer of
the Company to such effect; (d) all consents and approvals (collectively,
'Consents') of third parties as are necessary to cure any violation of any
agreement arising out of the transactions contemplated by the Merger Agreement
will have been obtained, except with respect to those agreements listed or
referred to on a certain schedule of the Merger Agreement and such Consents the
failure to deliver which could not reasonably be expected to have a Material
Adverse Effect (as defined in the Merger Agreement) with respect to the Company;
(e) other than the filing of the Certificate of Merger as provided for in the
Merger Agreement, all licenses, permits, authorizations, consents, orders,
qualifications or approvals of, or declarations or filings with, or expirations
of waiting periods imposed by, any Governmental Entity (including those in
connection with: (1) premerger notification under the HSR Act and the expiration
or termination of the applicable waiting period thereunder, (2) the proxy
statement, Schedule 14D-9 or other reports required to be filed with the
Commission, (3) the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware and (4) certain filings, consents and approvals,
as may be required pursuant to the Competition Act (Canada), the Federal Law on
Economic Competition of Mexico, the Austrian Cartel Act of 1988, as amended, and
the FCC) requisite to consummation of the Merger and the transactions
contemplated thereby, will have been filed, occurred or been obtained, as the
case may be; (f) the transactions referred to in 'FCC Matters' below shall have
been consummated on terms reasonably satisfactory to Parent, and the Long-Form
Application (as defined below) shall have been filed; (g) there will not be
pending or threatened any suit, action or proceeding by any governmental entity
(i) challenging the acquisition by Parent of any Shares, seeking to restrain or
prohibit the consummation of the Offer or the Merger or any of the other
transactions contemplated by the Merger Agreement or seeking to obtain from the
Company, Parent, or any of their respective subsidiaries any damages that are
material in relation to the Company and its subsidiaries taken as a whole, (ii)
seeking to prohibit or limit the ownership or operation by the Company, Parent,
or any of their respective subsidiaries of any material portion of the business
or assets of the Company, Parent or any of their respective subsidiaries, or to
compel the Company, Parent or any of their respective subsidiaries to dispose of
or hold separate any material portion of the business or assets of the Company,
Parent or any of their respective subsidiaries as a result of the Offer or the
Merger or any of the other transactions contemplated by the Merger Agreement,
(iii) seeking to impose limitations on the ability of Parent or Purchaser to
acquire or hold, or exercise full rights of ownership of, any Shares or shares
of capital stock of the Company or the Surviving Corporation, including, without
limitation, the right to vote such capital stock on all matters properly
presented to the stockholders of the Surviving Corporation, (iv) seeking to
prohibit Parent from effectively controlling in any material respect the
business or operations of the Company or any of its subsidiaries or (v) which
otherwise is reasonably likely to have a Material Adverse Effect on the Company
or a Material Adverse Effect on Parent; and (h) on or prior to the date of the
Merger Agreement, the Company will have caused (i) the Stock Option Plan and the
Stock Purchase Plan to be amended, and (ii) the Subordinated Debentures to be
amended, in each case effective not later than the Effective Time, in such
manner as to provide
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that after the Effective Time, the holders of the Equity Purchase Rights
evidenced thereby will only be entitled to receive the consideration specified
in the Merger Agreement.
The obligation of the Company to effect the Merger is subject to the
satisfaction of the following conditions, any or all of which may be waived in
whole or in part by the Company: (i) the representations and warranties of
Parent and Purchaser set forth in the Merger Agreement will be true and correct
as of the date of the Merger Agreement and (except to the extent such
representations and warranties expressly speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date, except as otherwise
contemplated by the Merger Agreement, and the Company will have received a
certificate signed on behalf of Parent by an officer of Parent to such effect,
(ii) Parent and Purchaser will have performed in all material respects all
obligations required to be performed by them under the Merger Agreement at or
prior to the Closing Date, and the Company will have received a certificate
signed on behalf of Parent by an officer of Parent to such effect and (iii)
other than the filing of the Certificate of Merger as provided for in the Merger
Agreement, all licenses, permits, authorizations, consents, orders,
qualifications or approvals of, or declarations or filings with, or expirations
of waiting periods imposed by, any Governmental Entity (including those in
connection with: (1) premerger notification under the HSR Act and the expiration
or termination of the applicable waiting period thereunder, (2) the proxy
statement, Schedule 14D-9 or other Commission reports, (3) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware and
(4) certain filings, consents and approvals, as may be required pursuant to the
Competition Act (Canada), the Federal Law on Economic Competition of Mexico, the
Austrian Cartel Act of 1988, as amended and the FCC) requisite to consummation
of the Merger and the transactions contemplated thereby, will have been filed,
occurred or been obtained, as the case may be.
FCC Matters. The Merger Agreement obligates the Company to restructure its
interests in two subsidiaries that own and operate radio stations serving Stowe,
Vermont and Waco, Texas in order that, subject to FCC approval, control of such
subsidiaries will be transferred to a group (the 'Control Group') comprised of
not less than a majority of the directors of the Company as of the date of the
Merger Agreement. The Company is further obligated to file with the FCC an
application (the 'Pro Forma Application') for consent to the pro forma transfer
of control of these subsidiaries from the Company to the Control Group. The
Control Group is obligated to prepare and file with the FCC an application (the
'Long-Form Application') for consent to the transfer of control of such
subsidiaries to the Company following the consummation of the Offer. See Section
15.
Termination. The Merger Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, whether before or after
approval of the matters presented in connection with the Merger by the
stockholders of the Company or Parent by: (a) mutual written consent of the
Company and Parent; (b) either the Company or Parent (i) if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of the other as set forth in the Merger Agreement which breach has not been
cured within five business days following receipt by the breaching party of
notice of such breach from the other party, or (ii) if any permanent injunction
or other order of a court or other competent authority preventing the
consummation of the Merger has become final and non-appealable; (c) either the
Company or Parent if the Merger shall not have been consummated on or before
December 20, 1996; provided, that the right to terminate the Merger Agreement
under this paragraph will 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 to occur on or before such date; (d) Parent if (i) the
Board or any committee thereof withdraws or modifies its approval or
recommendation of the Merger Agreement or the Merger or approves or recommends
an Acquisition Proposal or resolves to do any of the foregoing or (ii) the
Company enters into an agreement with respect to an Acquisition Proposal; (e)
the Company, if Purchaser fails to commence the Offer within five business days
following the date of the initial public announcement of the Offer; (f) Parent,
if the Offer terminates, is withdrawn, is abandoned or expires by reason of the
failure of any condition set forth in Exhibit A to the Merger Agreement; (g) the
Company, if the Offer expires or is withdrawn, abandoned or terminated without
any Shares being purchased by Purchaser thereunder on or prior to the 120th day
after the date of commencement of the Offer pursuant to the Merger Agreement;
(h) the Company if (i) the Board withdraws or modifies its approval or
recommendation of the Merger Agreement or the Merger pursuant to an Acquisition
Proposal as stipulated in the Merger Agreement and (ii) the Company
simultaneously with terminating the Merger Agreement pays Parent the Termination
Payment in cash and otherwise complies with the Merger Agreement; (i) Parent or
the Company if the Company Stockholder Approval has not been obtained by reason
of the failure to obtain the required vote upon a vote held at a duly held
meeting of shareholders or at any adjournment thereof; (j) the Company if (i)
the Company enters
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into a definitive agreement pursuant to an Acquisition Proposal as stipulated in
the Merger Agreement and (ii) the Company simultaneously with terminating the
Merger Agreement pays Parent the Termination Payment in cash and otherwise
complies with the Merger Agreement; (k) Parent if any of the conditions
precedent with respect to each party or with respect to the Parent and the
Purchaser shall become impossible to fulfill (other than as a result of any
breach by Parent of the terms of the Merger Agreement) and have not been waived
in accordance with the terms of the Merger Agreement; or (l) the Company, if any
of the conditions precedent with respect to each party or with respect to the
Company shall become impossible to fulfill (other than as a result of any breach
by the Company of the terms of the Merger Agreement) and have not been waived in
accordance with the terms of the Merger Agreement.
Indemnification. The Merger Agreement provides that the indemnification
obligations set forth in the Company's Certificate of Incorporation and By-laws,
as amended to the date of the Merger Agreement, will survive the Merger and will
not be amended, repealed or otherwise modified for a period of six years after
the Effective Time in any manner that would adversely affect the rights
thereunder of individuals who on or prior to the Effective Time were directors
(including any members of the Company's Compensation Committee), officers,
employees or agents of the Company (the 'Indemnified Parties'). Parent will
cause Company to fulfill its indemnification obligations as set forth in this
paragraph.
For a period of two years after the Effective Time, the Surviving
Corporation will maintain in effect the employed lawyers' errors and omissions
liability policy maintained by the Company and its subsidiaries (provided that
the Surviving Corporation may substitute therefor policies of at least the same
coverage and amounts containing terms and conditions which are no less
advantageous in any material respect to the Indemnified Parties covered thereby)
with respect to matters arising before the Effective Time, provided that
Surviving Corporation will not be required to pay an annual premium for such
insurance in excess of $60,000, but in such case will purchase as much coverage
as possible for such amount.
Amendment. Subject to applicable law, the Merger Agreement may be amended,
modified or supplemented only by written agreement of Parent, Purchaser and the
Company at any time prior to the Effective Time with respect to any of the terms
contained in the Merger Agreement; provided, however, that after the Company
Stockholder Approval (as defined in the Merger Agreement) is obtained, no such
amendment or modification will reduce the amount or change the form of
consideration to be delivered to the Stockholders of the Company.
Timing. The exact timing and details for the Merger will depend upon legal
requirements and a variety of other factors, including the number of Shares
acquired by Purchaser pursuant to the Offer. Although Purchaser has agreed to
cause the Merger to be consummated on the terms and subject to the conditions
set forth above, there can be no assurance as to the timing of the Merger.
THE STOCKHOLDERS AGREEMENT
As an inducement and a condition to entering into the Merger Agreement,
Parent required that certain Stockholders (the 'Selling Stockholders') agree,
and the Selling Stockholders agreed, to enter into the Stockholders Agreement.
The following is a summary of the material terms of the Stockholders
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. The
Stockholders Agreement may be examined, and copies thereof may be obtained, as
set forth in Section 8 above.
Tender of Shares. Upon the terms and subject to the conditions of the
Stockholders Agreement, each Selling Stockholder has agreed to validly tender
(and not to withdraw) pursuant to and in accordance with the terms of the Offer,
not later than the fifth business day after commencement of the Offer, the
number of Shares set forth opposite such Stockholder's name on Schedule I to the
Stockholders Agreement (the 'Existing Shares'), as well as any Shares acquired
by such Stockholder after the date of the Stockholders Agreement and prior to
the termination of the Stockholders Agreement, whether upon the exercise of
options, warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution or
otherwise (collectively with the Existing Shares, the 'Shares').
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Voting. Each Selling Stockholder has agreed that during the period
commencing on the date of the Stockholders Agreement and continuing until the
first to occur of the Effective Time or termination of the Merger Agreement in
accordance with its terms, at any meeting of the Stockholders, however called,
or in connection with any written consent of the Stockholders, the Selling
Stockholders will vote (or cause to be voted) the Shares held of record or
beneficially owned by the Selling Stockholder whether now owned or hereafter
acquired, (i) in favor of the Merger, the execution and delivery by the Company
of the Merger Agreement and the approval of the terms thereof and each of the
other actions contemplated by the Merger Agreement and the Stockholders
Agreement and any actions required in furtherance thereof; (ii) against any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or the Stockholders Agreement (before giving
effect to any materiality or similar qualifications contained therein); and
(iii) except as otherwise agreed to in writing in advance by Parent, against the
following actions (other than the Merger and the transactions contemplated by
the Merger Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or its
subsidiaries; (B) a sale, lease or transfer of a material amount of assets of
the Company or its subsidiaries, or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries; (C) (1) any
change in a majority of the persons who constitute the Board; (2) any change in
the present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-Laws; (3) any other material change in the
Company's corporate structure or business; or (4) any other action involving the
Company or its subsidiaries which is intended, or could reasonably be expected,
to impede, interfere with, delay, postpone, or materially adversely affect the
Merger and the transactions contemplated by the Stockholders Agreement and the
Merger Agreement. Each Selling Stockholder has further agreed not to enter into
any agreement or understanding with any person or entity the effect of which
would be inconsistent or violative of the provisions and agreements described
above.
Representations and Warranties, Covenants and Other Agreements. Each
Selling Stockholder has made certain representations, warranties and covenants,
including with respect to (i) ownership of Shares, (ii) legal capacity, power
and authority to enter into and perform its obligations under the Stockholders
Agreement, (iii) absence of conflicts, (iv) absence of liens and encumbrances
with respect to the Shares, (v) absence of fees other than those arising from
existing financial advisory and investment banking agreements, (vi) prohibition
on solicitation, (vii) restrictions on the transfer of the Shares, and (viii)
waiver of appraisal rights.
EMPLOYMENT AGREEMENTS
Messrs. Poch, Fassler and McCleary have each amended their respective
employment agreements with the Company pursuant to their respective Amendment
Agreements effective upon, and subject to, the acceptance by Purchaser of, or
payment by Purchaser for, Shares pursuant to the Offer. Upon effectiveness of
the Amendment Agreements for each of Messrs. Poch and McCleary, such Amendment
Agreements shall (i) modify and extend to 48 months following the executive's
termination of employment the provisions relating to such executive's
non-competition with the Company, non-solicitation of customers of the Company
and non-disclosure of Company information, (ii) provide that the Company can
terminate the executive at any time, (iii) provide that the executive's
employment with the Company shall be deemed terminated if there is an attempt to
change the executive's place of work to a location more than 15 miles from its
present location and, in the case of Mr. Poch, if there is a material diminution
in the executive's duties, (iv) provide for severance pay if the executive's
employment is terminated (other than for cause or on account of death or
disability) (A) in the amount of $1,000,000 if such termination occurs during
the 12-month period following the effective date of the Amendment Agreement and
(B) if such termination occurs subsequent to such 12-month period, in a lump-sum
amount equal to the compensation not yet paid under the terms of such Amendment
Agreement, (v) provide that the Company and the executive will negotiate to
amend the bonus provisions in the executive's employment agreement so as not to
result in an enlargement or diminution of the executive's right to bonus
compensation following the Merger (except as provided in clause (vi)) and (vi)
in the case of Mr. Poch, provide for a $100,000 increase in the amount of his
bonus in respect of each of the first two years following the effective date of
his Amendment Agreement.
Upon the effectiveness of Mr. Fassler's Amendment Agreement, Mr. Fassler
will serve, pursuant to such agreement, as an advisor to the Company for a
period of two and one-half years in connection with future mergers and
acquisitions by the Company. During the first two years of the term of his
Amendment Agreement,
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Mr. Fassler will be available to the Company for up to 50 days per year and,
during the last six months of such agreement, he will be available to the
Company for up to 25 days. Mr. Fassler will not be required to perform advisory
services on a regular basis at a location which is more than 15 miles from
Stamford, Connecticut, other than reasonable travel requirements. The Company
will pay Mr. Fassler (i) $500,000 at the effective date of his Amendment
Agreement, (ii) $275,000 per year for the first two years of the term of his
Amendment Agreement and (iii) $100,000 for the last six months of the term of
his Amendment Agreement, in each case irrespective of whether the Company uses
Mr. Fassler's advisory services. To the extent that the employee benefits which
Mr. Fassler received prior to the effective date of his Amendment Agreement
cannot reasonably be provided to him under the Company's benefit plans, he will
receive a cash payment economically equivalent to such benefits. In the event of
termination of Mr. Fassler's employment prior to the end of the term of his
Amendment Agreement (other than for cause), Mr. Fassler is entitled to receive a
lump sum payment equal to his compensation pursuant to such agreement,
discounted based on the prime rate of Chemical Bank then in effect. The
non-competition, non-solicitation and non-disclosure provisions of Mr. Fassler's
employment agreement have been amended by his Amendment Agreement in the same
manner described above concerning Messrs. Poch and McCleary. Mr. Fassler's
Amendment Agreement does not provide for the future bonuses that he would
otherwise have been entitled to under his employment agreement.
Copies of the Amendments and the Advisory Agreement have been filed as an
exhibit to the Schedule 14D-1 of the Purchaser filed pursuant to Rule 14d-1
under the Exchange Act, and copies thereof may be obtained from the principal
office of the Commission in the manner set forth in Section 8 above (except that
they will not be available at the regional offices of the Commission).
OTHER MATTERS
Appraisal Rights. No appraisal rights are available to Stockholders in
connection with the Offer. However, if the Merger is consummated, a Stockholder
will have certain rights under Section 262 of the DGCL to dissent and to demand
appraisal of, and payment in cash for the fair value of, that Stockholder's
Shares. Those rights, if the statutory procedures are complied with, could lead
to a judicial determination of the fair value (excluding any value arising from
the Merger) required to be paid in cash to dissenting Stockholders for their
Shares. Any judicial determination of the fair value of Shares could be based
upon considerations other than or in addition to the Offer Price and the market
value of the Shares, including asset values and the investment value of the
Shares. The value so determined could be more or less than the Offer Price or
the Merger Consideration.
If a Stockholder who demands appraisal under Section 262 of the DGCL fails
to perfect, or effectively withdraws or loses, his or her right to appraisal, as
provided in the DGCL, the Shares of that Stockholder will be converted into the
Merger Consideration in accordance with the Merger Agreement. A Stockholder may
withdraw his or her demand for appraisal by delivering to Purchaser a written
withdrawal of such demand for appraisal and acceptance of the Merger.
Failure to follow the steps required by Section 262 of the DGCL for
perfecting appraisal rights may result in the loss of those rights.
Going Private Transactions. Rule 13e-3 under the Exchange Act is
applicable to certain 'going-private' transactions. Purchaser does not believe
that Rule 13e-3 will be applicable to the Merger unless, among other things, the
Merger is completed more than one year after termination of the Offer. If
applicable, Rule 13e-3 would require, among other things, that certain financial
information regarding the Company and certain information regarding the fairness
of the Merger and the consideration offered to minority Stockholders be filed
with the Commission and disclosed to minority Stockholders prior to consummation
of the Merger.
13. DIVIDENDS AND DISTRIBUTIONS
If, on or after the date of the Merger Agreement, the Company should (i)
split, combine or otherwise change the Shares or its capitalization, (ii)
acquire currently outstanding Shares or otherwise cause a reduction in the
number of outstanding Shares or (iii) issue or sell additional Shares, shares of
any other class of capital stock, other voting securities or any securities
convertible into, or rights, warrants or options, conditional or otherwise, to
acquire, any of the foregoing, then, subject to the provisions of Section 14
below, Purchaser, in its sole discretion, may make such adjustments as it deems
appropriate in the Offer Price and other terms of the Offer, including, without
limitation, the number or type of securities offered to be purchased.
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If, on or after the date of the Merger Agreement, the Company declares or
pays any cash dividend on the Shares, makes other distributions on the Shares or
issues, with respect to the Shares, any additional Shares, shares of any other
class of capital stock, other voting securities or any securities convertible
into, or rights, warrants or options, conditional or otherwise, to acquire, any
of the foregoing, payable or distributable to Stockholders of record prior to
the transfer of the Shares purchased pursuant to the Offer to Purchaser or its
nominee or transferee on the Company's stock transfer records, then, subject to
Section 14 below, (i) the Offer Price may, in the sole discretion of Purchaser,
be reduced by the amount of any cash dividend or cash distribution and (ii) the
whole of any non-cash dividend, distribution or issuance to be received by the
tendering Stockholders will (a) be received and held by the tendering
Stockholders for the account of Purchaser and will be required to be remitted
promptly and transferred by each tendering Stockholder to the Depositary for the
account of Purchaser, accompanied by appropriate documentation of transfer or
(b) at the direction of Purchaser, exercised for the benefit of Purchaser, in
which case the proceeds of exercise promptly will be remitted to Purchaser.
Pending the remittance and subject to applicable law, Purchaser will be entitled
to all rights and privileges as owner of any non-cash dividend, distribution,
issuance or proceeds and may withhold the entire Offer Price or deduct from the
Offer Price the amount or value of the non-cash dividend, distribution, issuance
or proceeds, as determined by Purchaser in its sole discretion.
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the two preceding paragraphs and
nothing in this Offer to Purchase shall constitute a waiver by Purchaser or
Parent of any of its rights under the Merger Agreement or a limitation of
remedies available to Purchaser or Parent for any breach of the Merger
Agreement, including termination of the Merger Agreement.
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer, Purchaser shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the Commission, including Rule 14e-1(c) under the Exchange Act
(relating to Purchaser's obligation to pay for or return tendered Shares
promptly after expiration or termination of the Offer), to pay for any Shares
tendered, and may postpone the acceptance for payment or, subject to the
restriction referred to above, payment for any Shares tendered, and may amend or
terminate the Offer (whether or not any Shares have theretofore been purchased
or paid for) (A) unless the following conditions have been satisfied: (i) there
have been validly tendered and not withdrawn prior to the time the Offer shall
otherwise expire a number of Shares which constitutes a majority of the Shares
outstanding on a fully-diluted basis on the date of purchase ('on a
fully-diluted basis' for purposes of such condition meaning, as of any date, the
number of Shares outstanding, together with Shares the Company is or may be
required to issue pursuant to obligations outstanding at that date under
employee stock option or other benefit plans, options, warrants or convertible
or exchangeable securities, or otherwise); (ii) prior to the time the Offer
shall otherwise expire, Preferred Securities outstanding on the date of the
Merger Agreement having an aggregate liquidation preference of more than 50% of
the aggregate liquidation preference of all Preferred Securities outstanding on
the date of the Merger Agreement will have been converted by the holders thereof
into Shares; (iii) all regulatory and related approvals of Governmental Entities
have been obtained or made on terms reasonably satisfactory to Purchaser
(including, without limitation, pursuant to the Competition Act (Canada), the
Federal Law on Economic Competition of Mexico and the Austrian Cartel Act of
1988, as amended); (iv) any applicable waiting periods under the HSR Act shall
have expired or been terminated prior to the expiration of the Offer; (v) the
Company shall have caused the Stock Option Plan, the Stock Purchase Plan and the
Subordinated Debentures to be amended, in each case effective no later than the
Effective Time, in such manner as to provide that after the Effective Time, the
holders of the Equity Purchase Rights evidenced thereby shall only be entitled
to receive the consideration specified in the Merger Agreement; (vi) the FCC
shall have granted the Pro-Forma Application, and the transactions contemplated
by the Merger Agreement with respect thereto shall have been consummated on
terms reasonably satisfactory to Parent (the 'FCC Condition'); and/or (B) if, at
any time on or after the date of the Merger Agreement and before acceptance for
payment of, or payment for, such Shares any of the following events shall occur
or shall be deemed by Purchaser to have occurred:
(i) there shall be threatened, instituted or pending by any United
States, Canadian or other court or Governmental Entity any suit, action or
proceeding (1) challenging the acquisition by Parent or Purchaser of any
Shares under the Offer or seeking to restrain or prohibit the making or
consummation of the Offer or Merger or seeking to obtain from the Company,
Parent or any of their respective subsidiaries any damages
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that are material in relation to the Company and its subsidiaries taken as
a whole, (2) seeking to prohibit or limit the ownership or operation by the
Company, Parent or any of their respective subsidiaries of any material
portion of the business or assets of the Company and its subsidiaries,
taken as a whole, or Parent and its subsidiaries, taken as a whole, or to
compel the Company or Parent to dispose of or hold separate any material
portion of the business or assets of the Company and its subsidiaries,
taken as a whole, or Parent and its subsidiaries, taken as a whole, as a
result of the Offer or any of the other transactions contemplated by the
Merger Agreement, (3) seeking to impose material limitations on the ability
of Parent or Purchaser to acquire or hold, or exercise full rights of
ownership of, any Shares accepted for payment pursuant to the Offer,
including, without limitation, the right to vote such Shares on all matters
properly presented to the Stockholders, or (4) seeking to prohibit Parent
or any of its subsidiaries from effectively controlling in any material
respect any material portion of the business or operations of the Company
and its subsidiaries; or
(ii) any United States, Canadian or other Governmental Entity or
authority or United States, Canadian or other domestic or foreign court of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, executive order, decree, injunction
or other order which is in effect and which (1) materially restricts,
prevents or prohibits consummation of the Offer, the Merger or any other
transaction contemplated by the Merger Agreement or results in the
obligation to pay material damages as a result of or in connection with the
transactions contemplated by the Merger Agreement, (2) prohibits or limits
materially the ownership or operation by the Company, Parent or any of
their subsidiaries of all or any material portion of the business or assets
of the Company and its subsidiaries taken as a whole or compels the
Company, Parent or any of their subsidiaries to dispose of or hold separate
all or any material portion of the business or assets of the Parent or any
of its subsidiaries, or of the Company and its subsidiaries taken as a
whole, (3) imposes limitations on the ability of Parent, Purchaser or any
other subsidiary of Parent to acquire or hold, or to exercise effectively
full rights of ownership of, any Shares, including, without limitation, the
right to vote any Shares acquired by Purchaser pursuant to the Offer or
otherwise on all matters properly presented to the Stockholders, including,
without limitation, the approval and adoption of the Merger Agreement and
the transactions contemplated thereby or (4) requires divestitures by
Parent, Purchaser or any other affiliate of Parent of any Shares;
(iii) the representations and warranties of the Company contained in
the Merger Agreement will not be true and correct when made or (except for
those representations and warranties that address matters as of a specific
date) will have ceased to be true as of the date of consummation of the
Offer as though made on and as of such date;
(iv) the Company shall not have performed or complied in all material
respects with any of its obligations under the Merger Agreement to be
performed or complied with by it;
(v) the Merger Agreement shall have been terminated in accordance with
its terms;
(vi) the Board will have (1) withdrawn or materially modified or
changed (including by amendment of the Schedule 14D-9) in a manner adverse
to Purchaser, its recommendation of the Offer, the Merger Agreement or the
Merger, or (2) the Board will have approved or recommended an Acquisition
Proposal;
(vii) all consents of third parties as are necessary in connection
with the transactions contemplated hereby (including consents necessary to
prevent any conflict, violation or breach of any agreement of the Company
or any of its subsidiaries, other than conflicts, breaches or violations of
the agreements identified on Schedule 4.1(c)(ii) to the Merger Agreement)
will have been obtained, except such consents the failure to deliver which
could not reasonably be expected to have a material adverse effect on the
business, operations, assets, condition (financial or otherwise) or
prospects of the Company and its subsidiaries, taken as a whole;
(viii) other than the filing of the Certificate of Merger with respect
to the Merger as provided for by Section 2.3 of the Merger Agreement, all
licenses, permits, authorizations, consents, orders, qualifications or
approvals of, or declarations or filings with, or expirations of waiting
periods imposed by, any Governmental Entity requisite to consummation of
the Merger and the transactions contemplated thereby, will have been filed,
occurred or been obtained, as the case may be;
(ix) (1) it shall have been publicly disclosed or Purchaser will have
otherwise learned that, except as contemplated by the Stockholders
Agreement, any person or 'group' (as defined in Section 13(d)(3) of the
Exchange Act), other than Parent or its affiliates or any group of which
any of them is a member, will have
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acquired beneficial ownership (determined pursuant to Rule 13d-3
promulgated under the Exchange Act) of more than 20% of any class or series
of capital stock of the Company (including the Shares), through the
acquisition of stock, the formation of a group or otherwise, or will have
been granted an option, right or warrant, conditional or otherwise, to
acquire beneficial ownership of more than 20% of any class or series of
capital stock of the Company (including the Shares); or (2) any person or
group will have entered into a definitive agreement or agreement in
principle with the Company with respect to (A) a merger, consolidation or
other business combination with, or acquisition of a material portion of
the assets of, the Company, or (B) a tender or exchange offer for Shares;
or
(x) there will have occurred, developed or come into effect or
existence any event, action, state, condition or major financial occurrence
of national or international consequence or any law, regulation, action,
government regulation, inquiry or other occurrence of any nature whatsoever
which, in the opinion of Purchaser, materially adversely affects or
involves, or is reasonably likely to materially adversely affect or
involve, (1) the financial markets in the United States generally, or (2)
the financial condition, business, operations, assets, affairs or prospects
of the Company and its subsidiaries taken as a whole or the value of the
Shares; or
which, in the judgment of Purchaser in any such case, and regardless of the
circumstances (including any action or omission by Parent or Purchaser) giving
rise to any such condition, makes it inadvisable to proceed with such acceptance
for payment or payment.
The foregoing conditions are for the sole benefit of Purchaser and its
affiliates and may be asserted by Purchaser regardless of the circumstances
(including, without limitation, any action or inaction by Purchaser or any of
its affiliates) giving rise to any such condition or may be waived by Purchaser,
in whole or in part, from time to time in its sole discretion, except as
otherwise provided in the Merger Agreement. The failure by Purchaser at any time
to exercise any of the foregoing rights will not be deemed a waiver of any such
right and each such right will be deemed an ongoing right and may be asserted at
any time and from time to time. Any determination by Purchaser concerning any of
the events described in the Merger Agreement will be final and binding.
15. CERTAIN 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, but without any independent
investigation, neither Purchaser nor Parent 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
Purchaser's acquisition of Shares as contemplated in this Offer to Purchase or
of any approval or other action by any governmental authority that would be
required for the acquisition or ownership of Shares by Purchaser as contemplated
in this Offer to Purchase. Should any such approval or other action be required,
Purchaser and Parent presently contemplate that such approval or other action
will be sought, except as described below under 'State Takeover Laws.' 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
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, Purchaser could decline to accept for payment or pay for any
Shares tendered. See Section 14 above for certain conditions to the Offer.
Litigation. On May 20, 1996, a purported class action was commenced in the
Court of Chancery of the State of Delaware, New Castle County, on behalf of
holders of Shares. The defendants are Leonard J. Fassler, Edward A. Kerbs,
Gerald M. LeBow, Gerald A. Poch, Anthony T. Towell, James K. McCleary, Richard
J. Williams (all of whom are Company directors), the Company and GE Capital
Services. The complaint alleges that the individual defendants breached a
fiduciary duty, and that the Company and GE Capital Services aided and abetted a
breach of fiduciary duty by, among other things, failing to implement
'procedures for the maximization of shareholder value' and arranging for the
payment of 'an unreasonably low and unfair price' in connection with GE Capital
Services' proposed purchase of the outstanding Shares of the Company. Damages in
an unspecified amount and injunctive relief, including an order enjoining GE
Capital Services' proposed
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purchase of the outstanding Shares of the Company, are sought. The absence of an
injunction, among other things, is a condition to Purchaser's obligation to
purchase the Shares tendered pursuant to the Offer. See Section 14. The
foregoing description of the complaint is qualified in its entirety by reference
to such complaint, filed as Exhibit (g)(1) to Purchaser's and Parent's Tender
Offer Statement on Schedule 14D-1 with respect to the Offer, filed with the
Commission on the date hereof and incorporated herein by reference.
State Takeover Laws. 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, stockholders, executive offices or places of business in those 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 was therefore unconstitutional. In CTS Corp.
v. Dynamics Corp. of America, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining stockholders, provided that the laws were applicable
only under certain conditions.
Section 203 of the DGCL limits the ability of a Delaware corporation to
engage in business combinations with 'interested stockholders' (defined as any
beneficial owner of 15% or more of the outstanding voting stock of the
corporation) unless, among other things, the corporation's board of directors
has given its prior approval of either the business combination or the
transaction that resulted in the stockholder becoming an 'interested
stockholder.' The Company has represented in the Merger Agreement that it
approved the Merger Agreement, the Stockholders Agreement and the transactions
contemplated thereby, including the Offer and the Merger, and has taken all
necessary steps to render Section 203 of the DGCL inapplicable to the Merger
Agreement, the Stockholders Agreement and the transactions contemplated thereby,
including the Offer and the Merger.
Based on information supplied by the Company and the Company's
representations in the Merger Agreement, Purchaser does not believe that any
state takeover statutes apply to the Offer or the Merger. Neither Purchaser nor
Parent has currently complied with any state takeover statute or regulation.
Purchaser 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 to be a waiver of that 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, Purchaser might be required to file certain information
with, or to receive approvals from, the relevant state authorities, and
Purchaser might be unable to accept for payment or pay for Shares tendered
pursuant to the Offer, or be delayed in consummating the Offer or the Merger. In
such case, Purchaser may not be obligated to accept for payment or pay for any
Shares tendered pursuant to the Offer.
Antitrust. Under the provisions of the HSR Act applicable to the Offer,
the purchase of Shares under the Offer may be consummated following the
expiration of a 15-calendar day waiting period that follows the filing by
Purchaser of a Notification and Report Form with respect to the Offer, unless
Purchaser receives a request for additional information or documentary material
from the Antitrust Division or the Federal Trade Commission (the 'FTC') or
unless early termination of the waiting period is granted. Such filing was made
on May 23, 1996 and such waiting period will expire at 11:59 p.m. on Friday ,
June 7, 1996. If, within the initial 15-day waiting period, either the Antitrust
Division or the FTC requests additional information or documentary material from
Purchaser concerning the Offer, the waiting period will be extended and would
expire 11:59 P.M., New York City time, on the tenth calendar day after the date
of substantial compliance by Purchaser with such request. Only one extension of
the waiting period pursuant to a request for additional information is
authorized by the HSR Act. Thereafter, the waiting period may be extended only
by court order or with the consent of Purchaser. In practice, complying with a
request for additional information or documentary material can take a
significant amount of time. In addition, if the Antitrust Division or the FTC
raises substantive issues in connection with a proposed transaction, the parties
frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while the negotiations continue. Moreover, the
Merger Agreement provides that the Offer may be extended for (x) for up to
twenty (20) business days after the initial expiration date of the Offer or (y)
for longer periods (not to exceed 120 calendar days from the commencement of the
Offer) in the event that any condition to the Offer is not satisfied.
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The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as Purchaser's proposed acquisition of
the Company. At any time before or after Purchaser'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
Purchaser or the divestiture of substantial assets of Purchaser or its
subsidiaries, or of 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 result of that challenge.
FCC Regulations. (i) The Company, through certain wholly owned
subsidiaries that it controls (the 'Licensee Subsidiaries'), owns and operates
an FM radio station serving Stowe, Vermont and an AM/FM combination station
serving Waco, Texas (the 'Waco Station'). In addition, a subsidiary of the
Company has a limited partnership interest in Radio Equity Partners, Limited
Partnership, certain subsidiaries of which own and operate radio stations. These
stations are subject to the Communications Act of 1934, as amended (the
'Communications Act') and the rules and regulations of the FCC. The
Communications Act and applicable FCC regulations prohibit the transfer of
control of a corporation, such as the Licensee Subsidiaries, that holds a
broadcast license or the assignment of such license without prior FCC approval.
An application must be filed with the FCC in order to obtain such approval. The
Communications Act requires the FCC to find that the proposed transfer or
assignment would serve the public interest, convenience and necessity and that
the proposed transferee or assignee possesses the requisite legal, financial,
technical and other qualifications to operate the stations before it may grant
the proposed transfer of control or assignment.
The Offer, if consummated, will result in a transfer of control of the
Licensee Subsidiaries that requires the prior approval of the FCC. Transfer of
the limited partnership interest in Radio Equity Partners, Limited Partnership
to the Purchaser does not require the prior approval of the FCC. The FCC's
regulations recognize two categories of transfers of control and assignments:
(i) pro forma or short-form transfers or assignments which, among other things,
do not involve a substantial change in ownership or control either because less
than 50% of the voting control of the licensed entity is changing hands or
because the same persons or entities will exercise de facto control over the
licensed entity both before and after the transfer of control or assignment and
(ii) long-form transfers or assignments that do involve a substantial change in
control. Applications for approval of short-form transfers or assignments are
filed on FCC Form 316 and do not require a 30-day public notice period prior to
action by the FCC. Applications for approval of long-form transfers or
assignments are filed on FCC Form 314 (assignments) or 315 (transfers of
control) and do require a 30-day public notice period prior to action by the FCC
on such applications.
To permit the Offer to proceed and to be consummated in advance of FCC
approval of a long-form application that transfers control of the Licensee
Subsidiaries to Purchaser, the Company intends to file promptly one or more
applications on FCC Form 316 (collectively, the 'Short-Form Application') that
seeks FCC approval of a transfer of control of the Licensee Subsidiaries to a
group (the 'Control Group') comprised of not less than a majority of the
Company's current directors. To effect this transfer of control, the Licensee
Subsidiaries (or a newly-formed corporation which would acquire the capital
stock of the Licensee Subsidiaries) would authorize two classes of capital
stock, Class A voting shares (the 'Voting Stock') representing one percent (1%)
of the equity and one percent (1%) of the total number of shares of outstanding
capital stock of the issuer and Class B non-voting shares (the 'Non-Voting
Stock') representing ninety-nine percent (99%) of the equity and ninety-nine
percent (99%) of the total number of shares of outstanding capital stock of the
issuer. The Voting Stock would be issued to the Control Group (either directly
or through a newly formed limited liability company ('New LLC'), the sole
members of which would be the Control Group). The Non-Voting Stock would be held
by the Company. The Control Group would have the right to vote all of the Voting
Stock. The Company would have no right to vote, except that the Company may vote
on certain matters deemed to be outside the ordinary course of business, as long
as the right to vote on such matters does not result in the Company holding an
'attributable' ownership interest in the Licensee Subsidiaries under and within
the meaning of the FCC's regulations.
Because the Control Group currently exercises de facto control over the
Licensee Subsidiaries and would exercise both de facto and de jure control over
the Licensee Subsidiaries, Purchaser believes that the proposed
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direct or indirect transfer of control of the Licensee Subsidiaries to the
Control Group does not involve a substantial change in ownership under and
within the meaning of the FCC's regulations and that approval therefor is
appropriately sought through the FCC's short-form application procedures. There
can be no assurance, however, that approval of the Short-Form Application will
be granted or, if granted, that such approval will be on terms and conditions
acceptable to the Company.
Upon grant of the Short-Form Application and transfer of control of the
Licensee Subsidiaries to the Control Group, the Control Group, the Licensee
Subsidiaries and Purchaser will promptly file with the FCC an application on FCC
Form 315 (the 'Long-Form Application') that seeks FCC approval of a transfer of
control of the Licensee Subsidiaries to Purchaser. Receipt of approval by the
FCC of the Short-Form Application will not eliminate the requirement that the
Purchaser seek and receive FCC approval of the Long-Form Application prior to
assuming direct or indirect control of the Licensee Subsidiaries. Approval of
the Short-Form Application and the filing of the Long-Form Application would,
however, satisfy the FCC Condition.
The FCC has recently granted an application to assign the licenses of the
Waco Station to a third party. It is not anticipated that the assignment of the
Waco Station will have been consummated prior to FCC action on the Short-Form
Application or that the filing of the Short-Form Application will have an
adverse effect on the assignment of the licenses of the Waco Station. It is
anticipated that consummation of the assignment of the Waco Station will occur
prior to the approval and consummation of the Long-Form Application in which
event the Waco Licensee Subsidiary will be omitted from the Long-Form
Application.
The FCC generally acts upon unopposed short-form applications within two to
three weeks of the filing of such applications. There can be no assurance that
the FCC will reach a decision on the Short-Form Application within such a time
period. Interested parties may file informal objections to the Short-Form
Application at any time prior to FCC action on the Short-Form Application. If an
objection is filed to a short-form application, the FCC generally will take
longer to reach a decision. There can be no assurance that an informal objection
will not be filed to the Short-Form Application.
Interested parties may file petitions to deny approval of the Long-Form
Application within 30 days after the date of the FCC's public notice announcing
the acceptance for filing of the Long-Form Application, and the FCC may not
grant the Long-Form Application prior to the completion of this 30-day public
notice period. Interested parties may file informal objections to the Long-Form
Application at any time prior to FCC action on the Long-Form Application. The
parties to the Long-Form Application are entitled to file an opposition to any
petitions to deny or informal objections filed against the Long-Form
Application. In recent years, the FCC has generally reached decisions regarding
applications for transfer of control in substantial mergers involving entities
with significant FCC regulated interests within 12 months or less of the filing
of the long-form application. There can be no assurance, however, that the FCC
will reach a decision on the Long-Form Application within such a time period.
The Communications Act and the FCC's regulations permit the FCC to delegate
authority to its staff in matters that do not present novel questions of fact,
law or policy. Under this delegated authority, FCC staff members regularly
review and either grant or deny applications for approval to transfer control of
FCC-licensed entities. Staff decisions made pursuant to delegated authority are
subject to reconsideration and to review by the full FCC. Petitions for
reconsideration and applications for review must be filed within 30 days after
public notice of the staff action at issue. In addition, the FCC may on its own
motion review actions taken pursuant to delegated authority. The FCC has 40 days
after public notice of such actions to begin such review. Generally, decisions
made by the FCC staff acting under delegated authority are reached in less time
than decisions made by the full FCC. Purchaser believes that action on the
Short-Form Application and the Long-Form Application will be taken by the FCC
staff acting under delegated authority, but there can be no assurance that the
full FCC will not act in the first instance on either or both of the Short-Form
Application and the Long-Form Application.
If the full FCC, rather than the staff, grants either or both of the
Short-Form Application or the Long-Form Application, interested parties may file
petitions for reconsideration of such orders granting approval. As to each such
application, petitions for reconsideration must be filed within 30 days after
the date on which the FCC releases public notices of its approval orders. The
filing of such a petition would not stay the FCC's approval automatically,
although a stay can be sought from the FCC or from a court. In addition, the FCC
may reconsider its approval orders within 30 days of the public notice even if
no such petitions are filed. Interested parties may also seek judicial review of
the FCC's decision, a request for which must also be filed within 30 days after
the date on which the FCC releases public notice of its order either approving
or disapproving the Short-Form
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Application or the Long-Form Application or its order disposing of any petitions
for reconsideration of the FCC's initial decision.
(ii) Alien Ownership. The Communications Act and the FCC's regulations
impose restrictions on the percentage of the stock of a corporation that holds a
broadcast license issued by the FCC that may be owned by foreign corporations or
persons who are not citizens of the United States. Purchaser does not believe
that its acquisition of control of the Licensee Subsidiaries through
consummation of the Long-Form Application would violate any of the restrictions
relating to ownership and control by foreign corporations and non-U.S. citizens,
(iii) Directors, Officers and Certain Shareholders. The FCC assesses, as
part of the process of considering applications for consent to transfers of
control, certain information with respect to the persons and entities deemed to
have an 'attributable interest' in the entity to which control is being
transferred. Through such consideration, the FCC determines whether the proposed
transferee of control possesses the requisite legal, financial, technical and
other qualifications to hold the FCC licenses. Under existing FCC regulations,
the officers, directors and, in most circumstances, equity holders who own five
percent (5%) or more of the outstanding voting stock (and their officers and
directors, if any) of a company that holds broadcast licenses are deemed to have
an attributable interest in the company for purposes of determining compliance
with the FCC's local and national multiple-ownership rules for television
broadcast stations, the local multiple-ownership rules for radio stations, the
cable/television broadcast station cross-ownership rule and the
newspaper/broadcast cross-ownership rule. Passive institutional investors, such
as mutual funds, insurance companies and bank trust departments, may own up ten
percent (10%) of the outstanding voting stock without being subject to
attribution. Indirect voting stock interests will be deemed attributable if the
product of the ownership percentages in each link of the vertical ownership
chain (excluding interests in excess of 50%) is equal to or greater than five
percent (5%).
The FCC also has a 'cross-interest' policy, which operates as an extension
of the multiple and cross-ownership rules to bar certain relationships not
expressly prohibited by the FCC's regulations. Under this policy, a person or
entity may be prohibited from having both an attributable interest in one media
property and a substantial non-attributable equity ownership interest in another
media property which serves substantially the same area if attributable
ownership interests in both media properties would violate the FCC's ownership
regulations.
Parent currently owns and operates through subsidiaries a television
station in San Juan, Puerto Rico. Parent also owns directly or through
subsidiaries non-attributable ownership interests in television broadcast
stations and cable television systems. GE currently owns and operates through
its NBC subsidiary nine television stations located in New York, New York;
Washington, D.C.; Philadelphia, Pennsylvania; Miami, Florida; Chicago, Illinois;
Los Angeles, California; Columbus, Ohio; Providence, Rhode Island; and
Raleigh-Durham (Goldsboro), North Carolina. Purchaser does not believe that any
of the attributable or non-attributable interests in media properties held by it
or its affiliates will result in a violation of the FCC's multiple or
cross-ownership rules or cross-interest policy when combined with the
attributable media interests of the Company.
Competition Act (Canada). Certain provisions of the Competition Act
require pre-merger notification to the Director of Investigation and Research
(the 'Canadian Director') of significant transactions, which may include the
acquisition of a large percentage of the stock of a public company that has
Canadian operations, or a merger or amalgamation involving such an entity.
Pre-merger notification is generally required with respect to transactions in
which the parties to the transaction and their affiliates have assets in Canada,
or annual gross revenues from sales in, from or into Canada in excess of Cdn.
$400 million and which involve the direct or indirect acquisition of an
operating business in Canada of which the value of the Canadian assets, or the
annual gross revenues from sales in or from Canada generated by such assets,
exceed Cdn. $35 million (or, in the case of an amalgamation of two or more
corporations, one or more of which carries on or controls a corporation that
carries on an operating business in Canada, the Canadian assets or the annual
gross revenues from sales in or from Canada of the entity that results from such
amalgamation or the entities controlled by such entity exceed Cdn. $70 million).
In the case of an acquisition of shares of a public company, the transaction
must also result in the acquiror holding voting shares that carry more than 20%
of the outstanding votes (or more than 50% if the acquiror already holds 20% or
more) attached to all the voting shares of the public company. If a transaction
is subject to the pre-merger notification requirements, the parties must file
either a short-form or long-form notification and wait the applicable waiting
period before completing the transaction. The waiting period for a
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short-form notification is seven days after a complete notification is filed,
and 21 days in the case of a long-form notification. If a short-form
notification is filed, the Canadian Director may require the filing of a
long-form notification at any time prior to the expiration of the seven-day
waiting period, in which event the waiting period would be extended to 21 days
after a complete long-form notification is filed. A 'no-action' advisory
opinion, while confirming that the Canadian Director does not currently intend
to challenge a transaction, does not bring with it the statutory bar on
subsequent challenge.
The Canadian Director may apply to the 'Competition Tribunal,' a
specialized tribunal empowered to deal with certain matters governed by the
Competition Act with respect to a 'merger' (as defined in the Competition Act)
and, if the Competition Tribunal finds that the merger prevents or lessens or is
likely to prevent or lessen competition substantially, it may order that the
merger not proceed or, in the event that the merger has been completed, order
its dissolution or the disposition of some or all the assets or shares involved.
A merger may be subjected to an order of the Competition Tribunal whether or not
it is a notifiable transaction. Notwithstanding the giving of the required
notice and expiration of the applicable waiting period, the Canadian Director
may apply for an order of the Competition Tribunal at a time up to three years
after the merger has been substantially completed. In some instances, the
Canadian Director may issue an 'advance ruling certificate,' in which he
certifies that he would not have sufficient grounds on which to apply to the
Competition Tribunal under the merger provisions of the Competition Act or a
'no-action' advisory opinion. If the Canadian Director issues an advance ruling
certificate in respect of a proposed transaction, that transaction is exempt
from the pre-merger notification provisions and the Canadian Director is
statutorily barred from challenging the merger solely on the basis of
information that is the same or substantially the same as the information on the
basis of which the advance ruling certificate was issued.
Parent intends to cause a short-form notification to be filed with respect
to the Offer and the Merger with the Canadian Director and, to the extent
necessary, to observe any applicable waiting period.
Cartel Act (Austria). Pursuant to certain provisions of the Austrian
Cartel Act of 1988, as amended (the 'Cartel Act'), certain significant
acquisition transactions require either pre-merger or post-merger notification
to the Oberlandesgericht Wien als Kartellgericht (the 'Cartel Court').
Transactions subject to pre-merger or post-merger notification include
acquisitions of shares of another company if, as a result, a 25% or 50% interest
in such company is achieved or exceeded. Post-merger notification is required if
the combined worldwide turnover ('turnover') of the parties involved was ATS 150
million in the last financial year. Pre-merger notification is required if the
combined world-wide total turnover of the parties to the transaction was ATS 3.5
billion or more in the financial year immediately preceding the proposed merger
and if at least two of the parties to the transaction achieved a turnover of ATS
5 million or more in the financial year immediately preceding the proposed
merger. A notice of merger may be submitted to the Cartel Court upon the
execution of the acquisition agreement. The transaction may be consummated after
clearance by the Cartel Court. Upon receipt of the notice, the Cartel Court
serves copies of the pre-merger notification filing to the Federal Chamber of
Commerce, the Attorney General's Office, the Federal Chamber of Labour, and the
Presidents' Conference of the Chambers of Agriculture (collectively, the
'Statutory Interveners'). Within four weeks of receipt of such filing, any of
the Statutory Interveners may request an investigation of the transaction by the
Cartel Court. A third party would only be entitled to file a petition with the
Cartel Court if a merger subject to pre-notification was implemented without or
prior to clearance by the Cartel Court. If no request by any Statutory
Intervenors is made within the four-week period, the Cartel Court is obligated
to issue a 'negative clearance,' which constitutes approval of the transaction.
If a request for an investigation is made, the Cartel Court is obligated to
review the competitive effects of the transaction. Pursuant to such an
investigation, the Cartel Court may prohibit the consummation of the
transaction. The Cartel Court is required to issue a prohibition order within
five months of receipt of the pre-merger notification in order to prohibit
consummation of the transaction.
Parent intends to file any required notice with respect to the Offer and
the Merger with the Cartel Court and, to the extent necessary, to observe any
applicable waiting period.
Federal Law on Economic Competition (Mexico). The Federal Law on Economic
Competition requires notification to the Mexican Federal Competition Commission
(the 'MFCC') regarding transactions that could be deemed a 'concentration' prior
to the consummation of the transaction in question. Such notification is
required for (a) any transaction or series of related transactions that exceed
12 million times the prevailing minimum wage for the Federal District of Mexico
(approximately US $36,747,000 based on the U.S. dollar to Mexican peso exchange
rate on May 22, 1996), (b) any transaction or series of related transactions
that result in
36
<PAGE>
the accumulation of 35% or more of the assets or shares of stock of an economic
agent whose assets or sales exceed 12 million times the prevailing minimum wage
for the Federal District of Mexico, or (c) any transaction that involves the
participation of two or more economic agents whose assets or annual sales volume
exceed, jointly or separately, 48 million times the prevailing minimum wage for
the Federal District of Mexico (approximately US $146,990,000 based on the U.S.
dollar to Mexican peso exchange rate on May 22, 1996), and such transaction
results in an additional accumulation of assets or capital stock in excess of
4.8 million times such minimum wage (approximately US $14,699,000 based on the
U.S. dollar to Mexican peso exchange rate on May 22, 1996). Once notification
has been received, the MFCC is required to raise any objection within 45
calendar days from the date of notification or, as the case may be, from the
date of filing of any additional information requested by the MFCC. If the
45-day period lapses without the MFCC raising any objection, the transaction
will be deemed approved.
Parent intends to file any required notice with respect to the Offer and
the Merger with the MFCC and, to the extent necessary, to observe any applicable
waiting period.
Other Foreign Approvals. According to the 1995 Annual Report, the Company
also owns property and conducts business in a number of other foreign countries
and jurisdictions. In connection with the acquisition of the Shares pursuant to
the Offer, the laws of certain of those foreign countries and jurisdictions may
require the filing of information with, or the obtaining of the approval of,
governmental authorities in such countries and jurisdictions. The governments in
such countries and jurisdictions might attempt to impose additional conditions
on the Company's operations conducted in such countries and jurisdictions as a
result of the acquisition of the Shares pursuant to the Offer or the proposed
Second-Step Merger. There can be no assurance that Parent or the Purchaser will
be able to cause the Company or its subsidiaries to satisfy or comply with such
laws or that compliance or noncompliance will not have adverse consequences for
the Company or any subsidiary after purchase of the Shares pursuant to the Offer
or the proposed Second-Step Merger.
16. FEES AND EXPENSES
Lazard Freres is acting as Dealer Manager in connection with the Offer and
has provided certain financial advisory services to Parent in connection with
the proposed acquisition of the Company. Parent has agreed to pay Lazard Freres
a fee of approximately $3.9 million, which became payable upon consummation of
the transaction. The fee is based on a percentage of the aggregate consideration
paid in connection with the Merger. The term 'aggregate consideration' is
defined in the letter agreement between Lazard Freres and the Company to be an
amount equal to the total amount of cash and the fair market value (on the date
of payment) of all other property paid or payable by Parent to the Company or
its Stockholders, including amounts paid or payable in respect of convertible
securities, warrants, stock appreciation rights, options and other similar
rights, plus the principal amount of all indebtedness for money borrowed as set
forth in the consolidated balance sheet of the Company. In addition, Parent has
agreed to reimburse Lazard Freres for all reasonable out-of-pocket expenses
incurred by Lazard Freres in connection with the transaction, including the fees
and reasonable expenses of counsel, and to indemnify Lazard Freres and certain
related persons against certain losses, claims, damages, liabilities and
expenses, including certain liabilities under the federal securities laws.
Lazard Freres Asset Management, a division of Lazard Freres, holds Shares on
behalf of clients and other accounts over which it may have discretionary
authority.
Purchaser has retained Georgeson & Company Inc. to act as the Information
Agent, and The Chase Manhattan Bank (National Association) to act as the
Depositary, in connection with the Offer. The Information Agent and the
Depositary each will receive reasonable and customary compensation for their
services, will be reimbursed for certain reasonable out-of-pocket expenses and
will be indemnified against certain liabilities and expenses in connection
therewith, including certain liabilities under the federal securities laws.
Except as set forth above, Purchaser will not pay any fees or commissions
to any broker or dealer or other person for soliciting tenders of Shares
pursuant to the Offer. Brokers, dealers, commercial banks and trust companies
will be reimbursed by Purchaser for customary mailing and handling expenses
incurred by them in forwarding the offering materials 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 who reside in any jurisdiction in which the making
of the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of the jurisdiction. However, Purchaser may,
in its discretion, take such
37
<PAGE>
action as it may deem necessary to make the Offer in any jurisdiction and to
extend the Offer to holders of Shares in that 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
Purchaser by one or more registered brokers or dealers that are licensed under
the laws of the jurisdiction.
Purchaser has filed the Schedule 14D-1 with the Commission containing
certain additional information with respect to the Offer pursuant to Rule 14d-1
under the Exchange Act. The Schedule and any amendments to the Schedule,
including exhibits, may be examined and copies may be obtained from the
principal office of the Commission in the manner set forth in Section 8 above
(except that they will not be available at the regional offices of the
Commission).
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER THAT IS NOT CONTAINED IN THE OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, THE INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
GAC ACQUISITION I CORP.
May 24, 1996
38
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER,
GAC ACQUISITION II CORP., PARENT,
GENERAL ELECTRIC CAPITAL SERVICES, INC. AND GENERAL ELECTRIC COMPANY
A. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT
The following table sets forth the name, present principal occupation or
employment and material occupations, positions, offices or employment for the
past five years of each director and executive officer of Parent. Unless
otherwise indicated below, the business address of each such person is 260 Long
Ridge Road, Stamford, Connecticut 06927 and each such person is a citizen of the
United States.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
NAME AND EMPLOYMENT AND FIVE-YEAR EMPLOYMENT
BUSINESS ADDRESS HISTORY
- --------------------------------------- ---------------------------------------
<S> <C>
Nigel D. T. Andrews(1) ................ Director; Executive Vice President of
Parent and GE Capital Services
(1993-present); Vice President and
General Manager of GE Plastics America
(1990-1993); Director of GE Capital
Services.
Nancy E. Barton ....................... Director; Senior Vice President,
General Counsel of Parent and GE
Capital Services (1995-present); Vice
President and Senior Litigation Counsel
(1991-1995); Partner, Weil, Gotshal &
Manges LLP (1991).
James R. Bunt ......................... Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Dennis D. Dammerman ................... Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Paolo Fresco(2) ....................... Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Dale F. Frey .......................... Director. See Part E.
General Electric Investment Corporation
3003 Sumner Street
Stamford, CT 06904
Benjamin W. Heineman, Jr. ............. Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Hugh J. Murphy ........................ Director. See Part D.
GE Power Generation Customer Service
One River Road
Schenectady, NY 12345
Denis J. Nayden ....................... Director; President and Chief Operating
Officer of Parent and Executive Vice
President of GE Capital Services;
President and Chief Operating Officer,
Kidder Peabody (1994-1995); Executive
Vice President of Parent (1991-1994);
Director of GE Capital Services.
</TABLE>
- ------------------
1. Mr. Andrews is a citizen of the United Kingdom.
2. Mr. Fresco is a citizen of Italy.
I-1
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
NAME AND EMPLOYMENT AND FIVE-YEAR EMPLOYMENT
BUSINESS ADDRESS HISTORY
- --------------------------------------- ---------------------------------------
<S> <C>
Michael A. Neal ....................... Director; Executive Vice President of
Parent and GE Capital Services
(1993-present); Vice President and
General Manager of Commercial Equipment
Financing (1991-1993); Director of GE
Capital Services.
James A. Parke ........................ Director; Senior Vice President,
Finance of Parent and GE Capital
Services (1989-present); Director of
Montgomery Ward.
John M. Samuels ....................... Director; Vice President and Senior
General Electric Company Counsel, Taxes of GE (1991-present);
3135 Easton Turnpike Director of GE Capital Services.
Fairfield, CT 06431
Edward D. Stewart ..................... Director; Executive Vice President of
Parent and GE Capital Services
(1992-present); Vice President and
General Manager, GE Capital Auto
Financial Services (1991-1992);
Director of Manheim Auto Auctions,
Stamford Hospital Foundation, Child
Guidance Center of Stamford and INROADS
of Fairfield-Westchester County, and GE
Capital Services.
John F. Welch, Jr. .................... Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Gary C. Wendt ......................... Chairman and Chief Executive Officer of
Parent and Chairman, President and
Chief Executive Officer of GE Capital
Services (1986-present); member of the
National Board of Governors Boys &
Girls Clubs of America; Trustee of the
Boy's and Girl's Club of Stamford and
past Campaign Chairman of its Capital
Fund Campaign; a Trustee of Outward
Bound USA; Chairman of The Regional
Plan Association; Director and past
Chairman of the Southwestern Area
Commerce & Industry Association of
Connecticut (SACIA); member of the
Board of Governors for the United Way
of Tri State.
James A. Colica ....................... Senior Vice President, Risk Management
& Credit Policy (1991-present).
Michael D. Fraizer .................... Senior Vice President, Insurance/
General Electric Capital Corporation Investment Products; employee of
292 Long Ridge Road Parent since 1991.
Stamford, CT 06927
Robert L. Lewis ....................... Senior Vice President, Finance of
General Electric Capital Corporation Parent and President of GE Capital
1600 Summer Street, 6th Floor Transportation and Industrial
Stamford, CT 06905 Financing; employed by Parent since
1973.
Lawrence J. Toole ..................... Senior Vice President, Human Resources
of Parent and GE Capital Services
(1991-present).
Jeffrey S. Werner ..................... Senior Vice President, Corporate
General Electric Capital Corporation Treasury and Global Funding Operation
777 Long Ridge Road of Parent and GE Capital Services
Stamford, CT 06927 (1992-present); Vice President and
Treasurer (1988-1992).
</TABLE>
I-2
<PAGE>
B. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER
The following table sets forth the name, present principal occupation or
employment and material occupation, positions, offices or employment for the
past five years of each director and executive officer of Purchaser. The
business address of each such person is 6875 Jimmy Carter Boulevard, Suite 3200,
Norcross, Georgia 30071, and each such person is a citizen of the United States.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
NAME AND EMPLOYMENT AND FIVE-YEAR EMPLOYMENT
BUSINESS ADDRESS HISTORY
- --------------------------------------- ---------------------------------------
<S> <C>
Michael S. Ford........................ Director and President of Purchaser and
GAC II (May 1996-present); President
and Chief Executive Officer of GE
Capital Technology Management Services
(1994-present); President and Chief
Executive Officer of GE Capital
Computer Leasing (1990-1994).
David J. Lidstone...................... Director, Vice President and Secretary
of Purchaser and GAC II (May
1996-present); Senior Vice President
and General Counsel, GE Capital
Technology Management Services
(1994-1996); Vice President and General
Counsel, GE Capital Computer Leasing
(1991-1994).
D. Michael Upton....................... Director, Vice President and Treasurer
of Purchaser and GAC II (May 1996-
present); Senior Vice President,
Business Developments, GE Capital
Technology Management Services
(1993-present); Manager, GE Rental/
Lease Operations (1991-1993).
</TABLE>
C. DIRECTORS AND EXECUTIVE OFFICERS OF GAC ACQUISITION II CORP.
The following table sets forth the name, present principal occupation or
employment and material occupation, positions, offices or employment for the
past five years of each director and executive officer of GAC II. The business
address of each such person is 6875 Jimmy Carter Boulevard, Suite 3200,
Norcross, Georgia 30071, and each such person is a citizen of the United States.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
NAME AND EMPLOYMENT AND FIVE-YEAR EMPLOYMENT
BUSINESS ADDRESS HISTORY
- --------------------------------------- ---------------------------------------
<S> <C>
Michael S. Ford........................ Director and President (May 1996-
present). See Part B.
David J. Lidstone...................... Director, Vice President and Secretary
(May 1996-present). See Part B.
D. Michael Upton....................... Director, Vice President and Treasurer
(May 1996-present). See Part B.
</TABLE>
I-3
<PAGE>
D. DIRECTORS AND EXECUTIVE OFFICERS OF GENERAL ELECTRIC CAPITAL SERVICES, INC.
The following table sets forth the name, present principal occupation or
employment and material occupations, positions, offices or employment for the
past five years of each director and executive officer of General Electric
Capital Services, Inc. Unless otherwise indicated below, the business address of
each such person is 260 Long Ridge Road, Stamford, Connecticut 06927 and each
such person is a citizen of the United States.
<TABLE>
<CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- --------------------------------------------------
<S> <C>
Kaj Ahlmann(1) .......... Director; Chairman, President and Chief Executive
Employers Reinsurance Officer, Employers Reinsurance Corporation
Corp. (1993-present); Chief Operating Officer, Employers
5200 Metcalf Reinsurance International Company (1992-1993);
Overland Park, KS 66201 Managing Director, Nordisk Reinsurance Company
(1988-1992).
Nigel D. T. Andrews(1) .. Director; Executive Vice President of Parent and
GE Capital Services (1993-present); Vice President
and General Manager of GE Plastics America
(1990-1993); Director of Parent.
James R. Bunt ........... Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Dennis D. Dammerman ..... Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Paolo Fresco(2) ......... Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Dale F. Frey ............ Director. See Part E.
General Electric
Investment Corporation
3003 Summer Street
Stamford, CT 06904
Benjamin W. Heineman, Jr. Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Hugh J. Murphy .......... Director; Senior Vice President, GE Power
GE Power Generation Generation Customer Service (1991-present);
Customer Service Director of Parent.
One River Road
Schenectady, NY 12345
Denis J. Nayden.......... Director; Executive Vice President. See Part A.
Michael A. Neal.......... Director; Executive Vice President. See Part A.
John M. Samuels ......... Director. See Part A.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Edward D. Stewart........ Director; Executive Vice President. See Part A.
John F. Welch, Jr. ...... Director. See Part E.
General Electric Company
3135 Easton Turnpike
Fairfield, CT 06431
Gary C. Wendt............ Chairman, President and Chief Executive Officer.
See Part A.
</TABLE>
- ------------------
(1) Mr. Ahlmann is a citizen of Denmark.
(2) Mr. Fresco is a citizen of Italy.
I-4
<PAGE>
<TABLE>
<CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- --------------------------------------------------
<S> <C>
Nancy E. Barton.......... Senior Vice President and General Counsel, Parent
and GE Capital Services (1995-present); Vice
President and Senior Litigation Counsel, Parent
(1991-1995); Partner, Weil, Gotshal & Manges LLP
(1991); Director of Parent.
James A. Parke........... Senior Vice President, Finance. See Part A.
Lawrence J. Toole........ Senior Vice President, Human Resources. See
Part A.
Jeffrey S. Werner ....... Senior Vice President, Corporate Treasury and
GE Capital Corporation Global Funding Operation. See Part A.
777 Long Ridge Road
Stamford, CT 06927
</TABLE>
E. DIRECTORS AND EXECUTIVE OFFICERS OF GE
The following table sets forth the name, present principal occupation or
employment and material occupations, positions, offices or employment for the
past five years of each director and executive officer of GE. Unless otherwise
indicated below, the business address of each such person is 3135 Easton
Turnpike, Fairfield, Connecticut 06431 and each such person is a citizen of the
United States.
<TABLE>
<CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- --------------------------------------------------
<S> <C>
D. Wayne Calloway ....... Chairman of the Board, and Director, PepsiCo,
PepsiCo, Inc. Inc., Beverages, Snack Foods and Restaurants,
700 Anderson Hill Road Purchase, N.Y. Director since 1991. A graduate
Purchase, NY 10577 of Wake Forest University, Mr. Calloway joined
PepsiCo in 1967, became president and chief
operating officer of Frito-Lay, Inc. in 1976 and
chairman of the board and chief executive
officer of Frito-Lay in 1978. Mr. Calloway
became executive vice president, chief financial
officer and director of PepsiCo in 1983,
president and chief operating officer in 1985
and chairman and chief executive officer in
1986. Mr. Calloway was Chief Executive Officer
of PepsiCo from 1986 to 1996. He is a director
of Citicorp and Exxon, chairman of Grocery
Manufacturers of America, and a member of the
Business Council and the Business Roundtable. He
is also a trustee of the Wake Forest University.
Silas S. Cathcart ....... Director and retired Chairman of the Board,
222 Wisconsin Avenue Illinois Tool Works, Inc., Diversified Products,
Suite 103 Chicago, Ill. Director 1972-1987 and since 1990.
Lake Forest, IL 60045 Following his graduation from Princeton in 1943,
Mr. Cathcart joined Illinois Tool Works, Inc., a
manufacturer of tools, fasteners, packaging and
other products. He was named a vice president in
1954, executive vice president in 1962,
president and director in 1964, and served as
chairman from 1972 to 1986. From 1987 to 1989,
he served as chairman of the board of Kidder,
Peabody Group Inc. Mr. Cathcart is a director of
Baxter International, Inc., Montgomery Ward &
Co., Inc. and Quaker Oats Company. He is also on
the board of the Chicago Botanic Garden and is a
trustee of the Buffalo Bill Historical Society.
Dennis D. Dammerman ..... Senior Vice President, Finance, and Chief
Financial Officer, General Electric Company.
Director since 1994. Mr. Dammerman joined GE
after graduating from the University of Dubuque
in 1967. He had financial assignments in several
GE businesses before being named vice president
and comptroller of General Electric Credit
Corporation (now General Electric Capital
Corporation) in 1979. In 1981, he became vice
president and general manager of GE Capital's
Commercial Financial Services Department and,
later that year, of GE Capital's Real Estate
Financial Services Division. In 1984, he was
elected senior vice president for finance and
became an executive officer of GE.
Paolo Fresco(1) ......... Vice Chairman of the Board and Executive Officer,
General Electric Company General Electric Company. Director since 1990. Mr.
(U.S.A) Fresco received a law degree from the University
3 Shortlands, Hammersmith of Genoa. After practicing law in Rome, he
London W6 8BX, England joined GE's Italian subsidiary, Compagnia
Generale di Elettricita (COGENEL), in 1962 as
corporate counsel, becoming president and
general manager of that
</TABLE>
- ------------------
(1) Mr. Fresco is a citizen of Italy.
I-5
<PAGE>
<TABLE>
<CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- --------------------------------------------------
<S> <C>
company in 1972. In 1976, he joined GE's
International Group and was elected a vice
president in 1977. Mr. Fresco became vice
president and general manager--Europe and Africa
Operations in 1979, and in 1985 was named vice
president and general manager--International
Operations. In 1987, he was elected senior vice
president--GE International. He became a member
of the Board in 1990, and was elected vice
chairman of the Board and executive officer in
1992.
Claudio X. Gonzalez(2) .. Chairman of the Board and Chief Executive Officer,
Kimberly-Clark de Mexico, Kimberly-Clark de Mexico, S.A. de C.V., Mexico
S.A. de C.V. City, and Director, Kimberly-Clark Corporation,
Jose Luis Lagrange 103, Consumer and Paper Products. Director since
Tercero Piso 1993. Mr. Gonzalez is a graduate of Stanford
Colonia Los Morales University. He was employed by Kimberly-Clark in
Mexico, D.F. 11510, 1956 and by Kimberly-Clark de Mexico, S.A. in
Mexico 1957. He was elected vice president of
operations of Kimberly-Clark de Mexico, S.A. in
1962 and executive vice president and managing
director in 1966. He assumed his present
position in 1973. Mr. Gonzalez is a director of
Kellogg Company, The Mexico Fund, Inc., Banco
Nacional de Mexico, Grupo Industrial ALFA, Grupo
Industrial Saltillo, Grupo Carso, Synkro and
Telefonos de Mexico.
Robert E. Mercer ........ Retired Chairman of the Board and former Director,
The Goodyear Tire & Rubber Company, Akron, Ohio.
Director since 1984. A graduate of Yale
University, Mr. Mercer joined Goodyear in 1947.
He became president of the Kelly-Springfield
Tire Company subsidiary in 1974 and was elected
an executive vice president of Goodyear in 1976.
Mr. Mercer was elected president of Goodyear in
1978, president and chief operating officer in
1981, vice chairman and chief executive officer
in 1982, and served as chairman and chief
executive officer from 1983 to 1989. He is also
chairman of the board of Roadway Express, Inc.
Gertrude G. Michelson ... Former Senior Vice President--External Affairs and
151 West 34th Street former Director, R. H. Macy & Co., Inc.,
New York, NY 10001 Retailers, New York, N.Y. Director since 1976.
Mrs. Michelson received a BA degree from
Pennsylvania State University in 1945 and an LLB
degree from Columbia University in 1947, at
which time she joined Macy's--New York. Mrs.
Michelson was elected a vice president in 1963,
senior vice president in 1979, and was named
senior vice president--external affairs in 1980.
She served as senior advisor to R. H. Macy &
Co., Inc. from 1992 to 1994. She is also a
director of The Chubb Corporation, The Goodyear
Tire & Rubber Company and Stanley Works. Mrs.
Michelson is chairman emeritus of the Board of
Trustees of Columbia University and a governor
of the American Stock Exchange.
John D. Opie ............ Vice Chairman of the Board and Executive Officer,
General Electric Company. Director since 1995. Mr.
Opie joined GE after graduating from Michigan
College of Mining and Technology with a BS
degree in 1961. He has held key leadership
positions in several GE materials and electrical
products businesses. He was named vice president
of the Lexan Products Division in 1980, vice
president of the Specialty Plastics Division in
1982, vice president of the Construction
Equipment Business Operations in 1983, and
senior vice president and head of General
Electric Lighting in 1986. He was elected vice
chairman of the Board and executive officer in
1995.
Roger S. Penske ......... Chairman of the Board, President and Director,
Penske Corporation Penske Corporation and Detroit Diesel Corporation,
13400 Outer Drive, West Transportation and Automotive Services, Detroit,
Detroit, MI 48239-4001 Mich. Director since 1994. A 1959 graduate of
Lehigh (Pa.) University, Mr. Penske became
president of Penske Corporation in 1969. He
became chief executive officer of Detroit Diesel
Corporation in 1988. Mr. Penske is also a
director of Philip Morris Companies Inc. He
serves as a trustee of the Henry Ford Museum and
Greenfield Village and as a director of Detroit
Renaissance.
</TABLE>
- ------------------
(2) Mr. Gonzalez is a citizen of Mexico.
I-6
<PAGE>
<TABLE>
<CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- --------------------------------------------------
<S> <C>
Barbara Scott Preiskel .. Former Senior Vice President, Motion Picture
Suite 3125 Associations of America, New York, NY. Director
60 East 42nd Street since 1982. Mrs. Preiskel graduated from
New York, NY 10165 Wellesley College and Yale Law School. She
joined the Motion Picture Associations of
America in 1959 as deputy attorney and served as
senior vice president and general counsel from
1977 to 1983. Mrs. Preiskel is a trustee of
Wellesley College and Tougaloo College, and is
the chairman of the New York Community Trust.
She is a director of American Stores Company,
Massachusetts Mutual Life Insurance Company,
Textron Inc. and the Washington Post Company.
Frank H.T. Rhodes ....... President Emeritus, Cornell University, Ithaca,
Cornell University N.Y. Director since 1984. An English-born
3104 Snee Building naturalized U.S. citizen, Dr. Rhodes holds
Ithaca, NY 14853 bachelor of science, doctor of philosophy and
doctor of science degrees from the University of
Birmingham (U.K.). He served as president of
Cornell University from 1977 to 1995. Dr. Rhodes
is a director of Tompkins County Trust Company.
He is a trustee of the Mellon Foundation and the
Committee for Economic Development. He was
appointed by President Reagan as a member of the
National Science Board, of which he is chairman,
and by President Bush as a member of the
President's Education Policy Advisory Committee.
Andrew C. Sigler ........ Chairman of the Board, Chief Executive Officer and
Champion International Director, Champion International Corporation,
Corporation Paper and Forest Products, Stamford, Conn.
1 Champion Plaza Director since 1984. A graduate of Dartmouth
Stamford, CT 06921 College with an MBA degree from its Amos Tuck
School of Business Administration, Mr. Sigler
joined Champion Papers Inc., a predecessor of
Champion International, in 1956. He because
executive vice president of Champion
International in 1972, a director in 1973,
president and chief executive officer in 1974,
and chairman in 1979. Mr. Sigler is also a
director of AlliedSignal, Inc., Bristol-Myers
Squibb Company and Chemical Banking Corporation,
and is a member of the Board of Trustees of
Dartmouth College. He is a member of the
Business Roundtable and the Business Council and
is active in various civic organizations.
Douglas A. Warner III ... Chairman of the Board, President, Chief Executive
J.P. Morgan & Co., Inc. & Officer and Director, J.P. Morgan & Co.
Morgan Guaranty Trust Co. Incorporated and Morgan Guaranty Trust Company,
60 Wall Street New York, N.Y. Director since 1992. Following
New York, NY 10260 graduation from Yale University in 1968, Mr.
Warner joined Morgan Guaranty Trust Company, a
wholly owned subsidiary of J.P. Morgan & Co.
Incorporated. He was named a senior vice
president of the bank in 1985, executive vice
president in 1987, executive vice president of
the parent in 1989, and managing director of the
bank and its parent in 1989. He was elected
president and director of the bank and its
parent in 1990 and became chairman and chief
executive officer in 1995. Mr. Warner is also a
director of Anheuser-Busch Companies, Inc., a
member of the Board of Managers and the Board of
Overseers of the Memorial Sloan-Kettering Cancer
Center, a trustee of Cold Spring Harbor
Laboratory and a trustee of the Pierpont Morgan
Library.
John F. Welch, Jr. ...... Chairman of the Board and Chief Executive Officer,
General Electric Company. Director since 1980. A
1957 graduate of the University of Massachusetts
with MS and PhD degrees from the University of
Illinois, Mr. Welch joined GE in 1960. Following
managerial assignments in the plastics and
chemical and metallurgical businesses, he was
elected a vice president in 1972. In 1973, he
was named vice president and group executive of
the Components and Materials Group. He became a
senior vice president and sector executive of
the Consumer Products and Services Sector in
1977 and was elected a vice chairman and named
an executive officer in 1979. Mr. Welch was
elected chairman and named chief executive
officer in 1981.
Philip D. Ameen ......... Vice President and Comptroller of GE; executive of
GE for the last five years.
James R. Bunt ........... Vice President and Treasurer; executive of GE for
the last five years; Director of Parent and GE
Capital Services.
</TABLE>
I-7
<PAGE>
<TABLE>
<CAPTION>
NAME AND PRESENT PRINCIPAL OCCUPATION OR
BUSINESS ADDRESS EMPLOYMENT AND FIVE-YEAR EMPLOYMENT HISTORY
- ------------------------- --------------------------------------------------
<S> <C>
David L. Calhoun ........ Vice President, GE Transportation Systems;
General Electric Company executive of GE for the last five years.
2901 East Lake Road
Erie, PA 16531
William J. Conaty ....... Senior Vice President--Human Resources; executive
of GE for the last five years.
Lewis S. Edelheit ....... Senior Vice President--Corporate Research and
General Electric Company Development (1992-present). Manager of Electronic
P.O. Box 8 Systems Research Center (1991-1992).
Schenectady, NY 12301
Dale F. Frey ............ Vice President and Chairman; President, General
General Electric Company Electric Investment Corporation; executive of GE
3003 Sumner Street for the last five years; Director of Parent and
Stamford, CT 06905 GE Capital Services.
Benjamin W. Heineman, Jr. Senior Vice President, General Counsel and
Secretary; executive of GE for the last five
years; Director of Parent and GE Capital
Services.
W. James McNerney, Jr. .. Senior Vice President, GE Lighting; executive of
General Electric Company GE for the last five years.
Nela Park
Cleveland, OH 44122
Eugene F. Murphy ........ Senior Vice President, GE Aircraft Engines;
General Electric Company executive of GE for the last five years.
1 Newmann Way
Cincinnati, OH 05215
Robert L. Nardelli ...... Senior Vice President, GE Power Systems; executive
General Electric Company of GE since 1992. President of Camco (1991-1992).
1 River Road
Schenectady, NY 12345
Robert W. Nelson ........ Vice President, Corporate Financial Planning and
Analysis; executive of GE for the last five years.
Gary M. Reiner .......... Senior Vice President, Chief Information Officer;
executive of GE for the last five years.
Gary L. Rogers .......... Senior Vice President, GE Plastics; executive of
General Electric Company GE for the last five years.
1 Plastics Avenue
Pittsfield, MA 01201
James W. Rogers ......... Vice President, GE Motors; executive of GE for the
General Electric Company last five years.
1635 Broadway
Fort Wayne, IN 46801
J. Richard Stonesifer ... Senior Vice President, GE Appliances; executive of
General Electric Company GE for the last five years.
Appliance Park
Louisville, KY 40225
John M. Trani ........... Senior Vice President, GE Medical Systems;
General Electric Company executive of GE for the last five years.
P.O. Box 414
Milwaukee, WI 53201
Lloyd G. Trotter ........ Vice President, GE Electrical Distribution and
General Electric Company Control; executive of GE for the last five years.
41 Woodford Avenue
Plainville, CT 06062
</TABLE>
I-8
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
signed, will be accepted. The Letter of Transmittal, certificates for Shares and
any other required documents should be sent or delivered by each stockholder of
the Company or his broker, dealer, commercial bank, trust company or other
nominee to the Depository, at one of the addresses set forth below:
The Depositary for the Offer is:
THE CHASE MANHATTAN BANK (National Association)
By Mail: By Overnight Delivery: By Hand:
Box 3032 c/o Chase Securities (9.00 a.m.--5:00 p.m.
4 Chase MetroTech Center Processing Corp. New York City Time)
Brooklyn, NY 11245 Fort Lee Executive Park 1 Chase Manhattan Plaza
1 Executive Drive Floor 1-B
(6th floor) Nassau and Liberty
Fort Lee, NJ 07024 Streets
By Facsimile Transmission New York, NY 10081
(201) 592-4372
Information and Confirm
by Telephone
(201) 592-4370
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal and other tender offer materials may be obtained from the
Information Agent as set forth below and will be furnished promptly at
Purchaser's expense. You may also contact your broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
GEORGESON & COMPANY INC.
WALL STREET PLAZA
NEW YORK, NEW YORK 10005
TOLL-FREE (800) 223-2064
BROKERS AND BANKS, PLEASE CALL COLLECT (212) 440-9800
THE DEALER MANAGER FOR THE OFFER IS:
LAZARD FRERES & CO. LLC
30 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
(CALL COLLECT) 212-632-6717
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
AMERIDATA TECHNOLOGIES, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED MAY 24, 1996
BY
GAC ACQUISITION I CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
GENERAL ELECTRIC CAPITAL CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
<TABLE>
<S> <C> <C>
By Mail: By Overnight Delivery: By Hand:
Box 3032 c/o Chase Securities (9:00 a.m.-5:00 p.m.
4 Chase MetroTech Center Processing Corp. New York City Time)
Brooklyn, NY 11245 Fort Lee Executive Park 1 Chase Manhattan Plaza
1 Executive Drive (6th Floor) Floor 1-B
Fort Lee, NJ 07024 Nassau and Liberty
Streets
By Facsimile Transmission New York, NY 10081
(201) 592-4372
Information and Confirmation
by Telephone
(201) 592-4370
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A 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 holders of Shares (as
defined below) of AmeriData Technologies, Inc. (the 'Stockholders') if
certificates evidencing Shares ('Certificates') are to be forwarded with this
Letter of Transmittal or if delivery of Shares is to be made by book-entry
transfer to an account maintained by The Chase Manhattan Bank (National
Association) (the 'Depositary') at The Depository Trust Company ('DTC'), the
Midwest Securities Trust Company ('MSTC') or the Philadelphia Depository Trust
Company ('PDTC') (each a 'Book-Entry Transfer Facility') pursuant to the
procedures set forth in Section 3 of the Offer to Purchase (as defined below).
Stockholders whose Certificates are not immediately available or who cannot
deliver either their Certificates for, or a Book-Entry Confirmation (as defined
in Section 3 of the Offer to Purchase) with respect to, their Shares and all
other required documents to the Depositary prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase) may tender their Shares according
to the guaranteed delivery procedure set forth in Section 3 of the Offer to
Purchase. See Instruction 2 hereof. Delivery of documents to a Book-Entry
Transfer Facility does not constitute delivery to the Depositary.
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER
FACILITY, AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY
TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER).
Name of Tendering Institution: ____________________________________________
Check Box of Book-Entry Transfer Facility:
/ / DTC / / MSTC / / PDTC
Account Number: ___________________________________________________________
Transaction Code Number: __________________________________________________
<PAGE>
/ / CHECK HERE IF SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING.
PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Holder(s): __________________________________________
Window Ticket Number (if any): ____________________________________________
Date of Execution of Notice of Guaranteed Delivery: _______________________
Name of Institution that Guaranteed Delivery: _____________________________
If delivered by book-entry transfer, check box of applicable Book-Entry
Transfer Facility:
/ / DTC / / MSTC / / PDTC
Account Number: ___________________________________________________________
Transaction Code Number: __________________________________________________
<TABLE>
<CAPTION>
DESCRIPTION OF SHARES TENDERED
Name(s) and Address(es) of Registered Holder(s) Share Number of Shares Number of
(Please fill in, if blank, exactly as name(s) Certificates Represented by Shares
appear(s) on the Certificate(s)) Number(s)(1) Certificate(s)(1) Tendered(2)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
------------- ----------------- ------------
------------- ----------------- ------------
------------- ----------------- ------------
------------- ----------------- ------------
------------- ----------------- ------------
------------- ----------------- ------------
Total Shares
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Need not be completed by Stockholders delivering Shares by Book-Entry
Transfer.
(2) Unless otherwise indicated, it will be assumed that all Shares
represented by Certificates delivered to the Depositary are being
tendered. See Instruction 4.
NOTE: SIGNATURE(S) MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to GAC Acquisition I Corp., a Delaware
corporation ('Purchaser'), and an indirect wholly-owned subsidiary of General
Electric Capital Corporation, a New York corporation ('Parent'), the
above-described shares of common stock, $.01 par value (the 'Shares'), of
AmeriData Technologies, Inc., a Delaware corporation (the 'Company'), for $16.00
per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated May 24, 1996 (the 'Offer to
Purchase'), receipt of which is hereby acknowledged, and in this Letter of
Transmittal (which together constitute the 'Offer'). The undersigned understands
that Purchaser reserves the right to transfer or assign, in whole or from time
to time in part, to any newly formed direct or indirect wholly-owned subsidiary
of Purchaser, the right to purchase all or any portion of the Shares tendered
pursuant to the Offer, but any such transfer or assignment will not relieve
Purchaser of its obligations under the Offer or prejudice the rights of
tendering Stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
Subject to, and effective upon, acceptance for payment of, or payment for,
Shares tendered with this Letter of Transmittal in accordance with the terms and
subject to the conditions of the Offer (including, if the Offer is extended or
amended, the terms or conditions of any such extension or amendment), the
undersigned hereby sells, assigns and transfers to, or upon the order of,
Purchaser all right, title and interest in and to all of 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 May 24, 1996 (a 'Distribution')
and irrevocably constitutes and appoints the Depositary as the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Shares (and
any Distributions), with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), to (i)
deliver Certificates evidencing such Shares (and any Distributions), or transfer
ownership of such Shares (and all Distributions) on the account books maintained
by a Book-Entry Transfer Facility together, in any such case, with all
accompanying evidences of transfer and authenticity to, or upon the order of,
Purchaser, upon receipt by the Depositary as the undersigned's agent, of the
purchase price with respect to such Shares; (ii) present such Shares (and any
Distributions) for transfer on the books of the Company; and (iii) receive all
benefits and otherwise exercise all rights of beneficial ownership of such
Shares (and any Distributions), all in accordance with the terms and subject to
the conditions of the Offer.
The undersigned hereby irrevocably appoints each designee of Purchaser as
the attorney-in-fact and proxy of the undersigned, each with full power of
substitution, to the full extent of the undersigned's rights with respect to all
Shares tendered hereby and accepted for payment and paid for by Purchaser (and
any Distributions) including, without limitation, the right to vote such Shares
(and any Distributions) in such manner as each such attorney and proxy or his
substitute shall, in his sole discretion, deem proper. All such powers of
attorney and proxies, being deemed to be irrevocable, shall be considered
coupled with an interest in the Shares tendered with this Letter of Transmittal.
Such appointment will be effective
<PAGE>
when, and only to the extent that, Purchaser accepts such Shares for payment.
Upon such acceptance for payment, all prior powers of attorney and proxies given
by the undersigned with respect to such Shares (and any Distributions) will be
revoked, without further action, and no subsequent powers of attorneys and
proxies may be given with respect thereto (and, if given, will be deemed
ineffective). The designees of Purchaser will, with respect to the Shares (and
any Distributions) for which such appointment is effective, be empowered to
exercise all voting and other rights of the undersigned with respect to such
Shares (and any Distributions) as they in their sole discretion may deem proper.
Purchaser reserves the absolute right to require that, in order for Shares to be
deemed validly tendered, immediately upon the acceptance for payment of such
Shares, Purchaser or its designees are able to exercise full voting rights with
respect to such Shares (and any Distributions), including voting at any meeting
of Stockholders then scheduled.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
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 Distributions) and that, when the same are accepted for
payment and paid for by Purchaser, Purchaser will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances, and that the Shares tendered hereby (and any Distributions)
will not be subject to any adverse claim. The undersigned, upon request, will
execute and deliver any additional documents deemed by the Depositary or
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of Shares tendered hereby (and any Distributions). In addition, the
undersigned shall promptly remit and transfer to the Depositary for the account
of Purchaser any and all Distributions issued to the undersigned on or after May
24, 1996 in respect of the Shares tendered hereby, accompanied by appropriate
documentation of transfer, and pending such remittance and transfer or
appropriate assurance thereof, Purchaser shall be entitled to all rights and
privileges as owner of any such Distributions and may withhold the entire
purchase price or deduct from the purchase price the amount of value thereof, as
determined by Purchaser in its sole discretion.
The undersigned understands that the valid tender of Shares pursuant to any
one of the procedures described in Section 3 of the Offer to Purchase and in the
instructions to this Letter of Transmittal will constitute a binding agreement
between the undersigned and Purchaser with respect to such Shares, upon the
terms and subject to the conditions of the Offer.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, Purchaser may not be required to accept for payment any
of the Shares tendered hereby.
Unless otherwise indicated in this Letter of Transmittal under 'Special
Payment Instructions,' please issue the check for the purchase price and return
any Certificates evidencing Shares not tendered or not accepted for payment in
the name(s) of the registered holder(s) appearing under 'Description of Shares
Tendered.' Similarly, unless otherwise indicated under 'Special Delivery
Instructions,' please mail the check for the purchase price and return any
Certificates evidencing Shares not tendered or not accepted for payment (and
accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing under 'Description of Shares Tendered.' In the event that
both the 'Special Payment Instructions' and the 'Special Delivery Instructions'
are completed, please issue the check for the purchase price and return any such
Certificates evidencing Shares not tendered or not accepted for payment (and
accompanying documents, as appropriate) in the name(s) of, and deliver such
check and return such Certificates (and accompanying documents, as appropriate)
to, the person(s) so indicated. Unless otherwise indicated in this Letter of
Transmittal under 'Special Payment Instructions,' in the case of a book-entry
delivery of Shares, please credit the account maintained at the Book-Entry
Facility indicated above with respect to any Shares not accepted for payment.
The undersigned recognizes that Purchaser has no obligation pursuant to the
'Special Payment Instructions' to transfer any Shares from the name of the
registered holder if Purchaser does not accept for payment any of the Shares
tendered hereby.
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
Number of Shares represented by the lost or destroyed Certificates:
_____________________________________
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
TO BE COMPLETED ONLY IF CERTIFICATES FOR SHARES NOT
TENDERED OR NOT ACCEPTED FOR PAYMENT AND/OR THE CHECK FOR
THE PURCHASE PRICE OF SHARES ACCEPTED FOR PAYMENT ARE TO
BE ISSUED IN THE NAME OF SOMEONE OTHER THAN THE
UNDERSIGNED, OR IF SHARES DELIVERED BY BOOK-ENTRY
TRANSFER THAT ARE NOT ACCEPTED FOR PAYMENT ARE TO BE
RETURNED BY CREDIT TO AN ACCOUNT MAINTAINED AT A
BOOK-ENTRY TRANSFER FACILITY, OTHER THAN TO THE ACCOUNT
INDICATED ABOVE.
Issue Check/Certificate(s) to:
Name:
----------------------------------------------------
(Please type or Print)
Address:
-------------------------------------------------
- ---------------------------------------------------------
(Include Zip Code)
- ---------------------------------------------------------
(Tax Identification or Social Security No.)
(See Substitute Form W-9)
Credit unpurchased Shares delivered by book-entry
transfer to the Book-Entry Transfer Facility account set
forth below:
/ / DTC / / MSTC / / PDTC
(Check One)
- ---------------------------------------------------------
(DTC/MSTC/PDTC Account Number)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
TO BE COMPLETED ONLY IF CERTIFICATES FOR SHARES NOT
TENDERED OR NOT ACCEPTED FOR PAYMENT AND THE CHECK FOR
THE PURCHASE PRICE OF SHARES ACCEPTED FOR PAYMENT ARE TO
BE SENT TO SOMEONE OTHER THAN THE UNDERSIGNED OR TO THE
UNDERSIGNED AT AN ADDRESS OTHER THAN THAT SHOWN ABOVE.
Mail Check/Certificate(s) to:
Name:
----------------------------------------------------
(Please type or Print)
Address:
-------------------------------------------------
- ----------------------------------------------------------
(Include Zip Code)
- ----------------------------------------------------------
(Tax Identification or Social Security No.)
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, no
signature guarantee is required on this Letter of Transmittal (a) if this Letter
of Transmittal is signed by the registered holder(s) (which term, for the
purposes of this document, includes any participant in any of the Book-Entry
Facilities' systems whose name appears on a security position listing as the
owner of the Shares) of Shares tendered herewith and such registered holder has
not completed either the box entitled 'Special Delivery Instructions' or the box
entitled 'Special Payment Instructions' on this Letter of Transmittal or (b) if
such Shares are tendered for the account of a financial institution (including
most commercial banks, savings and loan associations and brokerage houses) that
is a participant in the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program (an 'Eligible Institution'). In all other cases, all
signatures on the Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instruction 5. If the 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 delivered to, or Certificates evidencing unpurchased Shares are
to be issued or returned to, a person other than the registered owner, then the
tendered Certificates must be endorsed or accompanied by duly executed stock
powers, in either case signed exactly as the name or names of the registered
owner or owners appear on the Certificates, with the signatures on the
Certificates or stock powers guaranteed by an Eligible Institution as provided
in this Letter of Transmittal. See Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed
by Stockholders if Certificates evidencing Shares are to be forwarded with this
Letter of Transmittal or if delivery of Shares is to be made pursuant to the
procedures for book-entry transfer set forth in Section 3 of the Offer to
Purchase. For a Stockholder to validly tender Shares pursuant to the Offer,
either (a) a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile), with any required signature guarantees and any other
required documents, must be received by the Depositary at one of its addresses
set forth in this Letter of Transmittal on or prior to the Expiration Date (as
defined in the Offer to Purchase) and either (i) Certificates for tendered
Shares must be received by the Depositary at one of those addresses on or prior
to the Expiration Date or (ii) Shares must be delivered pursuant to the
procedures for book-entry transfer set forth in Section 3 of the Offer to
Purchase and a Book-Entry Confirmation must be received by the Depositary on or
prior to the Expiration Date or (b) the tendering Stockholder must comply with
the guaranteed delivery procedures set forth below and in Section 3 of the Offer
to Purchase.
Stockholders whose Certificates are not immediately available or who cannot
deliver their Certificates and all other required documents to the Depositary or
complete the procedures for book-entry transfer on or prior to the Expiration
Date may tender their Shares by properly completing and duly executing a Notice
of Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth
in Section 3 of the Offer to Purchase. Pursuant to such procedure: (i) tender
must be made by or through an Eligible Institution, (ii) a properly completed
and duly executed Notice of Guaranteed Delivery, substantially in the form made
available by Purchaser, must be received by the Depositary prior to the
Expiration Date, and (iii) Certificates representing all tendered Shares in
proper form for transfer, or a Book-Entry Confirmation with respect to all the
tendered Shares, together with a Letter of Transmittal (or a manually signed
facsimile thereof), properly completed and duly executed, with any required
signature guarantees or an Agent's Message (as defined in Section 2 of the Offer
to Purchase) in connection with a book-entry transfer and any other documents
required by this Letter of Transmittal, must be received by the Depositary
within three New York Stock Exchange, Inc. trading days after the date of such
Notice of Guaranteed Delivery. If Certificates are forwarded separately to the
Depositary, a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile) must accompany each delivery.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF TRANSMITTAL AND ANY
OTHER REQUIRED DOCUMENTS, IS AT THE OPTION AND SOLE RISK OF THE TENDERING
STOCKHOLDER AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY
THE DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering Stockholders, by execution of
this Letter of Transmittal (or a facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided in this Letter of Transmittal
is inadequate, the information required under 'Description of Shares Tendered'
should be listed on a separate signed schedule attached to this Letter of
Transmittal.
4. PARTIAL TENDERS. If fewer than all of the Shares represented by any
Certificates delivered to the Depositary with this Letter of Transmittal are to
be tendered, fill in the number of Shares that are to be tendered in the box
entitled 'Number of Shares Tendered.' In such cases, a new Certificate for the
remainder of the Shares that were evidenced by your old Certificate(s) will be
sent, without expense, to the person(s) signing this Letter of Transmittal,
unless otherwise provided in the box entitled 'Special Payment Instructions' or
the box entitled 'Special Delivery Instructions' on this Letter of Transmittal,
as soon as practicable after the Expiration Date. All Shares represented by
Certificate(s) delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, INSTRUMENTS OF TRANSFER AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered
holder(s) of the Shares tendered hereby, the signature(s) must correspond
exactly with the name(s) as written on the face of the Certificate(s) without
alteration, enlargement or any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all the owners must sign this Letter of Transmittal.
If any of the tendered Shares are registered in different names on several
Certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or instruments of
transfer are signed by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, that person
<PAGE>
should so indicate when signing, and proper evidence satisfactory to Purchaser
of that person's authority to so act must be submitted.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares listed and transmitted hereby, no endorsements of Certificates or
separate instruments of transfer are required unless payment is to be made, or
Certificates not tendered or not purchased are to be issued or returned, to a
person other than the registered holder(s). Signatures on the Certificates or
instruments of transfer 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 evidenced by the Certificate(s) listed and
transmitted hereby, the Certificate(s) must be endorsed or accompanied by
appropriate instruments of transfer, in either case signed exactly as the
name(s) of the registered holder(s) appear on the Certificate(s). Signatures on
the Certificate(s) or instruments of transfer must be guaranteed by an Eligible
Institution.
6. TRANSFER TAXES. Except as set forth in this Instruction 6, Purchaser
will pay or cause to be paid any transfer taxes with respect to the transfer and
sale of Shares to it or its order pursuant to the Offer. If, however, payment of
the purchase price is to be made to, or (in the circumstances permitted hereby)
if Certificates for Shares not tendered or not purchased are to be registered in
the name of, any person other than the registered holder(s), or if tendered
Certificates are registered in the name of any person other than the person(s)
signing this Letter of Transmittal, the amount of any transfer taxes (whether
imposed on the registered holder(s) or such person) 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 Certificate(s) listed in this Letter of
Transmittal.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check and Certificates
for unpurchased Shares are to be issued in the name of a person other than the
signer of this Letter of Transmittal or if a check is to be sent and
Certificates are to be returned to someone other than the signer of this Letter
of Transmittal or to an address other than that shown above, the appropriate
boxes on this Letter of Transmittal should be completed. If any tendered Shares
are not purchased for any reason and the Shares are delivered by Book-Entry
Transfer Facility, the Shares will be credited to an account maintained at the
appropriate Book-Entry Transfer Facility.
8. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests
for assistance may be directed to the Information Agent (as defined below) at
its address or telephone number set forth below and requests for additional
copies of the Offer to Purchase, this Letter of Transmittal and the Notice of
Guaranteed Delivery may be directed to the Information Agent or brokers,
dealers, commercial banks and trust companies and such materials will be
furnished at Purchaser's expense.
9. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by
Purchaser (subject to certain limitations in the Merger Agreement (as defined in
the Offer to Purchase)), in whole or in part, at any time or from time to time,
in Purchaser's sole discretion.
10. BACKUP WITHHOLDING TAX. Each tendering Stockholder is required to
provide the Depositary with a correct Taxpayer Identification Number ('TIN') on
Substitute Form W-9, which is provided under 'Important Tax Information' below
and to certify that the Stockholder is not subject to backup withholding.
Failure to provide the information on the Substitute Form W-9 may subject the
tendering Stockholder to a penalty and 31% backup federal income tax withholding
on the payment of the purchase price for the Shares. If the tendering
Stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future, the tendering Stockholder should check the
box in Part III of the Substitute Form W-9 and sign and date both the Substitute
Form W-9 and the 'Certificate of Awaiting Taxpayer Identification.' If the
Stockholder has indicated in the box in Part III that a TIN has been applied for
and the Depositary is not provided with a TIN by the time of payment, the
Depositary will withhold 31% of all payments of the purchase price, if any, made
thereafter pursuant to the Offer until a TIN is provided to the Depositary.
11. LOST OR DESTROYED CERTIFICATES. If any Certificate(s) representing
Shares has been lost, destroyed or stolen, the Stockholder should promptly
notify the Depositary by checking the box immediately preceding the special
payment/special delivery instructions and indicating the number of Shares lost.
The Stockholders will then be instructed as to the steps that must be taken in
order to replace the Certificate(s). This Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost or
destroyed Certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A MANUALLY SIGNED FACSIMILE
THEREOF (TOGETHER WITH CERTIFICATES OR A BOOK-ENTRY CONFIRMATION FOR SHARES AND
ANY OTHER REQUIRED DOCUMENTS) MUST BE RECEIVED BY THE DEPOSITARY, OR A NOTICE OF
GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY, ON OR PRIOR TO THE
EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under current federal income tax law, a Stockholder whose tendered Shares
are accepted for payment is required to provide the Depositary (as payer) with
such Stockholder's correct TIN on Substitute Form W-9 below. If such Stockholder
is an individual, the TIN is his Social Security Number. If the tendering
Stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future, the Stockholder should so indicate on the
Substitute Form W-9. See Instruction 10. If the Depositary is not provided with
the correct TIN, the Stockholder may be subject to a $50 penalty imposed by the
Internal Revenue Service. In addition, payments that are made to the Stockholder
with respect to Shares purchased pursuant to the Offer may be subject to backup
federal income tax withholding at a 31% rate.
Certain Stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements and should indicate their status by writing 'exempt' across the
face of, and by signing and dating, the Substitute Form W-9. In order for a
foreign individual to qualify as an exempt recipient, that Stockholder must
submit a statement, signed under penalties of perjury, attesting to that
individual's exempt status. Forms for such statements can be obtained from the
Depositary. See the enclosed Guidelines for Certificates of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
<PAGE>
If backup withholding applies, the Depositary is required to withhold 31%
of any payments made to the Stockholder. Backup withholding is not an additional
tax. Rather, the federal income tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup federal income tax withholding with respect to payment of
the purchase price for Shares purchased pursuant to the Offer, a Stockholder
must provide the Depositary with his correct TIN by completing the Substitute
Form W-9 below, certifying that the TIN provided on Substitute Form W-9 is
correct (or that the Stockholder is awaiting a TIN) and that (1) the Stockholder
has not been notified by the Internal Revenue Service that he is subject to
backup withholding as a result of failure to report all interest or dividends or
(2) the Internal Revenue Service has notified the Stockholder that he is no
longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The Stockholder is required to give the Depositary the Social Security
Number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are registered in more than one name or are not
in the name of the actual owner, consult the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional guidance on which number to report.
<PAGE>
IMPORTANT
STOCKHOLDER: SIGN HERE AND COMPLETE SUBSTITUTE
FORM W-9 ON REVERSE
--) (--
- --------------------------------------------------------------------------------
(Signature(s) of Stockholder(s))
--) (--
- --------------------------------------------------------------------------------
(Signature(s) of Stockholder(s))
Dated: ______________, 1996
(Must be signed by the registered holder(s) exactly as name(s) appear(s)
on the Certificate or on a security position listing or by person(s) authorized
to become registered holder(s) by Certificates and documents transmitted
herewith. If signature is by trustees, executors, administrators, guardians,
attorneys-in-fact, agents, officers or corporations or others acting in a
fiduciary or representative capacity, please provide the following information.
See Instruction 5.)
Name(s):
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Type or Print)
Capacity (Full Title):
----------------------------------------------------------
(See Instruction 5)
Address:
------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Daytime Area Code and Telephone Number:
-----------------------------------------
(Home)
- --------------------------------------------------------------------------------
(Business)
Taxpayer Identification or Social Security No.:
---------------------------------
(See Substitute Form W-9 on Reverse Side)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
- --------------------------------------------------------------------------------
(Authorized Signature(s))
- --------------------------------------------------------------------------------
(Name)
- --------------------------------------------------------------------------------
(Name of Firm)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Address Including Zip Code)
- --------------------------------------------------------------------------------
(Area Code and Telephone Number)
Dated: ______________, 1996
<PAGE>
PAYER'S NAME: THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
SUBSTITUTE
FORM W-9
DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE PAYER'S
REQUEST FOR TAXPAYER IDENTIFICATION NUMBER (TIN)
PART I -- PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING
AND DATING BELOW.
PART II -- For Payees exempt from backup withholding, see the enclosed
Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9 and complete as instructed therein.
PART III -- Social Security Number OR Employer Identification Number
- -------------------------------------
(If awaiting TIN write 'Applied for')
Certifications--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me); and
(2) I am not subject to backup withholding either because 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 the IRS has notified me that I am no longer subject to
backup withholding.
Certification Instructions--You must cross out item (2) above if you have been
notified by the IRS that you are subject to backup withholding because of
underreporting interest or dividends on your tax return. However, if after
being notified by the IRS that you are subject to backup withholding, you
receive another notification from the IRS that you were no longer subject to
backup withholding, do not cross out item (2). (Also see instructions in the
enclosed guidelines).
SIGNATURE DATE
-------------------------------------- -----------------------
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 TO PURCHASE. 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 WROTE 'APPLIED FOR' IN
THE BOX IN PART III OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a Taxpayer Identification Number to the appropriate
Internal Revenue Service Center or Social Security Administration Office
or (2) I intend to mail or deliver an application in the near future. I
understand that if I do not provide a Taxpayer Identification Number by
the time of payment, 31% of all payments of the purchase price pursuant to
the Offer made to me thereafter will be withheld until I provide a
number.
Signature Date
-------------------------------------- -----------------------
The Information Agent for the Offer is:
GEORGESON
& COMPANY INC.
-------------
Wall Street Plaza
New York, New York 10005
Call Toll-Free (800) 223-2064
Banks and Brokers, please call collect (212) 440-9800
The Dealer Manager for the Offer is:
LAZARD FRERES & CO. LLC
30 Rockefeller Plaza
New York, New York 10020
(212) 632-6717
(Call Collect)
May 24, 1996
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
OF
AMERIDATA TECHNOLOGIES, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED.
This Notice of Guaranteed Delivery or a notice substantially equivalent
hereto must be used to accept the Offer (as defined below) if certificates
representing the common stock, $.01 par value (the 'Shares'), of AmeriData
Technologies, Inc., a Delaware corporation, 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 Chase Manhattan Bank
(National Association) (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 transmitted by facsimile transmission or mail to the
Depositary. See Section 3 of the Offer to Purchase.
The Depositary for the Offer is:
THE CHASE MANHATTAN BANK (NATIONAL ASSOCIATION)
<TABLE>
<S> <C> <C>
By Mail: By Overnight Delivery: By Hand:
Box 3032 c/o Chase Securities (9:00 a.m.--5:00 p.m.
4 Chase MetroTech Center Processing Corp. New York City Time)
Brooklyn, NY 11245 Fort Lee Executive Park 1 Chase Manhattan Plaza
1 Executive Drive (6th Floor) Floor 1-B
Fort Lee, NJ 07024 Nassau and Liberty Streets
By Facsimile Transmission New York, NY 10081
(201) 592-4372
Information and Confirmation
by Telephone
(201) 592-4370
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an 'Eligible Institution' 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 and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to the Eligible Institution.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to GAC Acquisition I Corp., a Delaware
corporation ('Purchaser') and an indirect wholly-owned subsidiary of General
Electric Capital Corporation, a New York corporation ('Parent'), upon the terms
and subject to the conditions set forth in the Offer to Purchase, dated May 24,
1996 (the 'Offer to Purchase'), and in the related Letter of Transmittal (which
together constitute the 'Offer'), receipt of each of which is hereby
acknowledged, the number of Shares indicated below pursuant to the guaranteed
delivery procedures set forth in Section 3 of the Offer to Purchase.
Number of Shares: ______________________________________________________________
Certificate Nos. (if available): _______________________________________________
________________________________________________________________________________
Check ONE box if Shares will be tendered by book-entry transfer:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number: ________________________________________________________________
Date: ____________________________________________________________________, 1996
Name(s) of Record Holder(s): ___________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Type or Print)
Address(es): ___________________________________________________________________
________________________________________________________________________________
(Zip Code)
Area Code and Tel. No.: ________________________________________________________
Signature(s): __________________________________________________________________
________________________________________________________________________________
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, 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 such Shares, in either 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 Section 2 of the Offer to Purchase) in connection with a
book-entry transfer, and any other documents required by the Letter of
Transmittal, all within three New York Stock Exchange, Inc. trading days after
the date hereof.
Name of Firm: __________________________________________________________________
Address: _______________________________________________________________________
________________________________________________________________________________
(Zip Code)
Area Code and Tel. No.: ________________________________________________________
________________________________________________________________________________
(Authorized Signature)
Name: __________________________________________________________________________
(Please Type or Print)
Title: _________________________________________________________________________
Date: __________________________________________________________________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES FOR SHARES SHOULD ONLY BE SENT TOGETHER WITH
<PAGE>
LAZARD FRERES & CO. LLC
30 ROCKEFELLER PLAZA
NEW YORK, NEW YORK 10020
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERIDATA TECHNOLOGIES, INC.
AT
$16 NET PER SHARE
BY
GAC ACQUISITION I CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
GENERAL ELECTRIC CAPITAL CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED.
May 24, 1996
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been engaged by GAC Acquisition I Corp., a Delaware corporation and
an indirect wholly-owned subsidiary of General Electric Capital Corporation
('Purchaser'), to act as Dealer Manager in connection with Purchaser's offer to
purchase for cash all of the outstanding shares of common stock, $.01 par value
(the 'Shares'), of AmeriData Technologies, Inc., a Delaware corporation (the
'Company'), for $16 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated May 24, 1996
(the 'Offer to Purchase'), and in the related Letter of Transmittal (which,
together with the Offer to Purchase, constitute the 'Offer') enclosed. 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.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated May 24, 1996.
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 stockholders of the Company from Gerald A. Poch,
Co-Chairman and Co-President of the Company, together with a
Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission by the Company and mailed to
stockholders of the Company.
4. The Notice of Guaranteed Delivery for Shares to be used to accept
the Offer if neither of the two procedures for tendering Shares set forth
in the Offer to Purchase can be completed on a timely basis.
5. A printed form of letter that may be sent to your clients for
whose accounts you hold Shares registered in your name or in the name of
your nominee, with space provided for obtaining such clients' instructions
regarding the Offer.
<PAGE>
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 Chase Manhattan Bank (National
Association), 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 EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER
IS EXTENDED.
Please note the following:
1. The tender price is $16 per Share, net to the seller in cash.
2. The Offer is subject to there being validly tendered and not
properly withdrawn prior to the Expiration Date (as defined in the Offer to
Purchase) a majority of the outstanding Shares (on a fully diluted basis)
and certain other conditions. See the Introduction and Sections 1 and 14 of
the Offer to Purchase.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as otherwise provided in Instruction 6 of the
Letter of Transmittal, transfer taxes on the purchase of Shares by
Purchaser pursuant to the Offer. However, backup federal income tax
withholding at a rate of 31% may be required, unless an exemption applies
or unless the required taxpayer identification information is provided. See
Instruction 10 of the Letter of Transmittal.
5. The Offer and withdrawal rights will expire at 12:00 midnight, New
York City time, on Friday, June 21, 1996, unless the Offer is extended.
6. The board of directors of the Company has unanimously determined
that the Offer and the Merger (as defined in the Offer to Purchase) are
fair to, and in the best interests of, the Company and its stockholders;
has approved the Merger Agreement (as defined in the Offer to Purchase),
the Stockholders Agreement (as defined in the Offer to Purchase) and the
transactions contemplated by the Merger Agreement and the Stockholders
Agreement, including the Offer and the Merger; and recommends that the
Company's stockholders accept the Offer and tender all of their Shares
pursuant thereto.
7. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) certificates for (or a
timely Book-Entry Confirmation (as defined in Section 3 of the Offer to
Purchase) with respect to) such Shares, (b) the Letter of Transmittal (or a
manually signed facsimile thereof), properly completed and duly executed
with any required signature guarantees or an Agent's Message (as defined in
the Offer to Purchase) in connection with a book-entry transfer, and (c)
any other documents required by the Letter of Transmittal. Accordingly,
payment to all tendering stockholders may not be made at the same time
depending upon when certificates for Shares or Book-Entry Confirmation with
respect to Shares are actually received by the Depositary.
In order to take advantage of the Offer, (a) a duly executed and properly
completed Letter of Transmittal (or a manually signed facsimile thereof) and any
required signature guarantees or other required documents should be sent to the
Depositary and (b) certificates representing the tendered Shares or a timely
Book-Entry Confirmation (as defined in Section 3 of the Offer to Purchase) with
respect to such Shares should be delivered to the Depositary in accordance with
the instructions set forth in the Letter of Transmittal and in 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 (as defined in
the Offer to Purchase), a tender may be effected by following the guaranteed
delivery procedures specified in Section 3 of the Offer to Purchase.
Neither Purchaser nor Parent will pay any fees or commissions to any broker
or dealer or other person for soliciting tenders of Shares pursuant to the Offer
(other than the Dealer Manager, the Depositary and the
2
<PAGE>
Information Agent as described in the Offer to Purchase). Purchaser 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.
Purchaser 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
Lazard Freres & Co. LLC, the Dealer Manager for the Offer, at 30 Rockefeller
Plaza, New York, New York 10020, (212) 632-6717 or Georgeson & Company Inc., the
Information Agent for the Offer, at Wall Street Plaza, New York, New York 10005,
(212) 440-9800.
Requests for copies of the enclosed materials may also be directed to the
Dealer Manager or the Information Agent at the above addresses and telephone
numbers.
Very truly yours,
LAZARD FRERES & CO. LLC
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF PURCHASER, THE COMPANY, THE DEALER MANAGER, 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>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERIDATA TECHNOLOGIES, INC.
AT
$16 NET PER SHARE
BY
GAC ACQUISITION I CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
GENERAL ELECTRIC CAPITAL CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED.
May 24, 1996
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated May 24,
1996 (the 'Offer to Purchase'), and the related Letter of Transmittal (which
together constitute the 'Offer') relating to the offer by GAC Acquisition I
Corp., a Delaware corporation ('Purchaser') and an indirect wholly-owned
subsidiary of General Electric Capital Corporation, a New York corporation
('Parent'), to purchase all of the outstanding shares of common stock, $.01 par
value (the 'Shares'), of AmeriData Technologies, Inc., a Delaware corporation
(the 'Company'), at a purchase price of $16 per Share, net to the seller in
cash, upon the terms and subject to the conditions set forth in the Offer.
Holders of Shares whose certificates for such Shares are not immediately
available or who cannot deliver their certificates and all other required
documents to the depositary (the 'Depositary') or complete the procedures for
book-entry transfer prior to the Expiration Date (as defined in the Offer to
Purchase) must tender their Shares according to the guaranteed delivery
procedures set forth in Section 3 of the Offer to Purchase.
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 instruction as to whether you wish to have us
tender, on your behalf, any or all Shares held by us for your account pursuant
to the terms and conditions set forth in the Offer.
Please note the following:
1. The tender price is $16 per Share, net to the seller in cash.
2. The Offer is subject to there being validly tendered and not
properly withdrawn prior to the Expiration Date a majority of the
outstanding Shares (on a fully diluted basis) and certain other conditions.
See the Introduction and Sections 1, 14 and 15 of the Offer to Purchase.
3. The Offer is being made for all of the outstanding Shares.
4. Tendering stockholders will not be obligated to pay brokerage fees
or commissions or, except as otherwise provided in Instruction 6 of the
Letter of Transmittal, transfer taxes on the purchase of Shares by
Purchaser pursuant to the Offer. However, backup federal income tax
withholding at a rate of 31% may be required, unless an exemption applies
or unless the required taxpayer identification information is provided. See
Instruction 10 of the Letter of Transmittal.
<PAGE>
5. The Offer and withdrawal rights will expire at 12:00 midnight, New
York City time, on Friday, June 21, 1996, unless the Offer is extended.
6. The board of directors of the Company has unanimously determined
that the Offer and the Merger (as defined in the Offer to Purchase) are
fair to, and in the best interests of, the Company and its stockholders;
has approved the Merger Agreement (as defined in the Offer to Purchase),
the Stockholders Agreement (as defined in the Offer to Purchase) and the
transactions contemplated by the Merger Agreement and the Stockholders
Agreement, including the Offer and the Merger; and recommends that the
Company's stockholders accept the Offer and tender all of their Shares
pursuant thereto.
7. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) certificates for (or a
timely Book-Entry Confirmation (as defined in Section 3 to the Offer to
Purchase) with respect to) such Shares, (b) the Letter of Transmittal (or a
manually signed facsimile thereof), properly completed and duly executed
with any required signature guarantees or an Agent's Message (as defined in
the Offer to Purchase) in connection with a book-entry transfer, and (c)
any other documents required by the Letter of Transmittal. Accordingly,
payment to all tendering stockholders may not be made at the same time
depending upon when certificates for Shares or Book-Entry Confirmation with
respect to Shares are actually received by the Depositary.
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 specified below. An
envelope to return your instructions to us is enclosed herewith. Your
instructions should be forwarded to us in ample time to permit us to submit a
tender on your behalf prior to the expiration of the Offer.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares residing in any jurisdiction in which the making of
the Offer or the acceptance thereof would not be in compliance with the
securities, blue sky or other laws of such jurisdiction. However, Purchaser may,
in its discretion, take such action as it may deem necessary to make 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 Purchaser by one or more registered brokers or dealers that
are licensed under the laws of such jurisdiction.
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERIDATA TECHNOLOGIES, INC.
The undersigned acknowledge(s) receipt of your letter, the enclosed Offer
to Purchase, dated May 24, 1996, and the related Letter of Transmittal (which
together constitute the 'Offer') in connection with the offer by GAC Acquisition
I Corp., a Delaware corporation ('Purchaser') and an indirect wholly-owned
subsidiary of General Electric Capital Corporation, to purchase all outstanding
shares of common stock, par value $.01 per share ('Shares'), of AmeriData
Technologies, Inc., a Delaware corporation.
This will instruct you to tender to Purchaser 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*: ______________________________________________
Date: __________________________________________________________________________
________________________________________________________________________________
SIGN HERE
Signature(s): __________________________________________________________________
(Print Name(s)): _______________________________________________________________
(Print Address(es)): ___________________________________________________________
(Area Code and Telephone Number(s)): ___________________________________________
(Taxpayer Identification or Social Security Number(s)): ________________________
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
<PAGE>
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.
- --------------------------------------------------------------------------------
GIVE THE
SOCIAL SECURITY
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- --------------------------------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals The actual owner of the account or,
(joint account) if combined funds, any one of the
individuals(1)
3. Husband and wife The actual owner of the account or,
(joint account) if joint funds, either person(1)
4. Custodian account of a minor (Uniform The minor(2)
Gift to Minors Act)
5. Adult and minor The adult or, if the minor is the
(joint account) only contributor, the minor(1)
6. Account in the name of guardian or The ward, minor, or incompetent
committee for a designated ward, person(3)
minor, or incompetent person
7. a. The usual revocable savings trust The grantor-trustee(1)
account (grantor is also trustee)
b. So-called trust account that is The actual owner(1)
not a legal or valid trust under
State law
8. Sole proprietorship account The owner(4)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
GIVE THE EMPLOYER IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- --------------------------------------------------------------------------------
9. A valid trust, estate, or pension The legal entity (Do not furnish the
trust identifying number of the personal
representative or trustee unless the
legal entity itself is not
designated in the account title.)(5)
10. Corporate account The corporation
11. Association, club, religious, The organization
charitable, educational or
other tax-exempt organization
account
12. Partnership account The partnership
13. A broker or registered nominee The broker or nominee
14. 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
- --------------------------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) You must show your individual name, but you may also enter your business or
"doing business as" name. You may use your social security number or
employer identification number.
(5) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
o A corporation.
o A financial institution.
o An organization exempt from tax under section 501(a), or an individual
retirement plan.
o The United States or any agency or instrumentality thereof.
o A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
o A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
o An international organization or any agency, or instrumentality thereof.
o A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
o A real estate investment trust.
o A common trust fund operated by a bank under section 584(a).
o An exempt charitable remainder trust, or a nonexempt trust described in
section 4947(a)(1).
o An entity registered at all times under the Investment Company Act of 1940.
o A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
o Payments to nonresident aliens subject to withholding under section 1441.
o Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
o Payments of patronage dividends where the amount received is not paid in
money.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
o 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.
o Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
o Payments described in section 6049(b)(5) to non-resident aliens.
o Payments on tax-free covenant bonds under section 1451.
o Payments made by certain foreign organizations.
o Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE 'EXEMPT' ON THE FACE OF THE FORM IN PART II, SIGN
AND DATE THE FORM, AND RETURN IT TO THE PAYER.
Certain payments other than interest, dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041(a),
6045, and 6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. 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) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income and such failure is due to negligence, a
penalty of 20% is imposed on any portion of an under-payment attributable to
that failure.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.-- Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
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 May 24,
1996, and the related Letter of Transmittal and any amendments or supplements
thereto, and is being made to all holders of Shares. The Offer is not being made
to (nor will tenders be accepted from or on behalf of) holders of Shares in any
jurisdiction in which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction. In any jurisdiction
where the securities, blue sky or other laws require the Offer to be made by a
licensed broker or dealer, the Offer shall be deemed to be made on behalf of GAC
Acquisition I Corp., by Lazard Freres & Co. LLC or one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
AmeriData Technologies, Inc.
at
$16 Net Per Share
by
GAC Acquisition I Corp.
an indirect wholly-owned subsidiary of
General Electric Capital Corporation
GAC Acquisition I Corp., a Delaware corporation ("Purchaser") and an indirect
wholly-owned subsidiary of General Electric Capital Corporation, a New York
corporation ("Parent"), is offering to purchase all outstanding shares of common
stock, $.01 par value (the "Shares"), of AmeriData Technologies, Inc., a
Delaware corporation (the "Company"), at a price of $16 per Share (the "Offer
Price"), net to the seller in cash, upon the terms and subject to the conditions
set forth in the Offer to Purchase, dated May 24, 1996, and in the related
Letter of Transmittal (which, together with any amendments or supplements
thereto, collectively constitute the "Offer"). Tendering stockholders will not
be obligated to pay brokerage fees or commissions or, except as set forth in
Instruction 6 of the Letter of Transmittal, transfer taxes on the purchase of
Shares pursuant to the Offer. The purpose of the Offer is to acquire for cash as
many outstanding Shares as possible as a first step in acquiring the entire
equity interest in the Company. Following consummation of the Offer, Purchaser
intends to effect the merger described below.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON FRIDAY, JUNE 21, 1996, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, (1) a number of the Shares
representing a majority of all outstanding Shares on a fully diluted basis being
validly tendered and not withdrawn prior to the expiration of the Offer, (2)
Preferred Securities (as defined in the Offer to Purchase) outstanding on May
20, 1996 having an aggregate liquidation preference of more than 50% of the
aggregate liquidation preference of all Preferred Securities outstanding on May
20, 1996 having been converted by the holders thereof into Shares prior to the
expiration of the Offer and (3) the receipt of certain regulatory consents and
approvals.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
May 20, 1996 (the "Merger Agreement"), among Parent, Purchaser and the Company.
The Merger Agreement provides, among other things, for the commencement of the
Offer by Purchaser and further provides that after the purchase of Shares
pursuant to the Offer, subject to the satisfaction or waiver of certain
conditions, Purchaser will be merged with and into the Company (the "Merger"),
with the Company surviving the Merger as an indirect wholly-owned subsidiary of
Parent. At the effective time of the Merger, each outstanding Share (other than
Shares owned by the Company or any wholly-owned subsidiary of the Company or by
Parent, Purchaser or any other wholly-owned subsidiary of Parent, and Shares
owned by stockholders who shall have properly exercised their appraisal rights
under Delaware law) will be converted into the right to receive $16 in cash or
any greater amount paid pursuant to the Offer, without interest.
Concurrently with the execution of the Merger Agreement, Parent and Purchaser
entered into a Stockholders Agreement, dated May 20, 1996 (the "Stockholders
Agreement"), with certain stockholders of the Company (the "Selling
Stockholders"), pursuant to which such Selling Stockholders have agreed to
validly tender (and not to withdraw) in the Offer Shares beneficially owned by
such Selling Stockholders representing, in the aggregate, approximately 8% of
the Company's outstanding Shares (assuming the exercise of all such Selling
Stockholders' options subject to the Stockholders Agreement).
The Board of Directors of the Company (the "Board") has unanimously
determined that the Offer and the Merger are fair to, and in the best interests
of, the Company and its stockholders, has approved the Merger Agreement, the
Stockholders Agreement and the transactions contemplated by the Merger Agreement
and the Stockholders Agreement, including the Offer and the Merger, and
recommends that the Company's stockholders accept the Offer and tender all of
their Shares pursuant thereto.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment (and thereby purchased) tendered Shares as, if and when Purchaser gives
oral or written notice to The Chase Manhattan Bank (National Association) (the
"Depositary") of its acceptance of such Shares for payment pursuant to the
Offer. Upon the terms and subject to the conditions of the Offer, payment for
Shares purchased pursuant to the Offer will be made by deposit of the purchase
price therefor with the Depositary, which will act as agent for tendering
stockholders for the purposes of receiving payment from Purchaser and
transmitting payment to tendering stockholders whose Shares have theretofore
been accepted for payment. In all cases, payment for Shares purchased pursuant
to the Offer will be made only after timely receipt by the Depositary of (i)
certificates for (or a timely Book-Entry Confirmation (as defined in Section 3
of the Offer to Purchase) with respect to) such Shares and (ii) the Letter of
Transmittal (or a manually signed facsimile thereof), properly completed and
duly executed with all required signature guarantees or an agent's message, and
(iii) all other documents required by the Letter of Transmittal. Under no
circumstances will interest be paid on the purchase price for Shares to be paid
by Purchaser, regardless of any delay in making such payment.
The term "Expiration Date" shall mean 12:00 midnight, New York City time, on
Friday, June 21, 1996, unless and until Purchaser, in accordance with the terms
of the Offer and the Merger Agreement, shall have extended the period of time
during which the Offer is open, in which event the term "Expiration Date" shall
mean the latest time and date at which the Offer, as so extended by Purchaser,
shall expire. Subject to the terms of the Merger Agreement and applicable law,
Purchaser expressly reserves the right, at any time or from time to time, to
extend the period of time during which the Offer is open and thereby delay
acceptance for payment of, or payment for, any Shares by giving oral or written
notice of such extension to the Depositary and by making a public announcement
of such extension. Purchaser shall not have any obligation to pay interest on
the purchase price for tendered Shares whether or not Purchaser exercises its
right to extend the period of time during which the Offer is open. Any such
extension will be followed by a public announcement thereof by no later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date. During any such extension, all Shares previously
tendered and not withdrawn will remain subject to the Offer, subject to the
right of a tendering stockholder to withdraw such stockholder's Shares. Without
limiting the manner in which Purchaser may choose to make any public
announcement, Purchaser will have no obligation to publish, advertise or
otherwise communicate any such announcement other than by issuing a release to
the Dow Jones News Service or as otherwise may be required by law.
Except as otherwise provided in the Offer to Purchase, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn at any time
prior to the Expiration Date and, unless theretofore accepted for payment by
Purchaser as provided for in the Offer to Purchase, may also be withdrawn at any
time after Monday, July 22, 1996. For a withdrawal to be effective, a written,
telegraphic or facsimile transmission notice of withdrawal must be timely
received by the Depositary at its address 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 have been
delivered or otherwise identified to the Depositary, then, prior to the release
of such certificates, the tendering stockholder must also submit 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 in Section 3 of the Offer to Purchase
(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 specify the name and number of the account at the applicable
Book-Entry Transfer Facility (as defined in Section 3 of the Offer to Purchase)
to be credited with the withdrawn Shares. All questions as to the form and
validity (including time of receipt) of notices of withdrawal will be determined
by Purchaser, in its sole discretion, whose determination shall be final and
binding on all parties. Any Shares properly withdrawn will be deemed not
validly tendered for purposes of the Offer, but may be tendered at any
subsequent time prior to the Expiration Date by following any of the procedures
described in Section 3 of the Offer to Purchase.
The Company has provided Purchaser with the Company's stockholder list and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Offer to Purchase, the related Letter of Transmittal and, if
required, any 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 name of whose nominees, appear
on the Company's stockholders 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 by Purchaser.
The information required to be disclosed by paragraph (e)(1)(vii) of Rule
14d-6 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended, is contained in the Offer to Purchase and is incorporated
herein by reference.
The Offer to Purchase and the related Letter of Transmittal contain important
information which should be read carefully before any decision is made with
respect to the Offer.
Requests for copies of the Offer to Purchase, the Letter of Transmittal and
other tender offer documents may be directed to the Information Agent as set
forth below, and copies will be furnished promptly at Purchaser's expense.
Questions or requests for assistance may be directed to the Information Agent or
the Dealer Manager. Neither Purchaser nor Parent will pay any fees or
commissions to any broker or dealer or other person (other than the Dealer
Manager, the Depositary and the Information Agent) in connection with the
solicitation of tenders of Shares pursuant to the Offer. The Information Agent
for the Offer is:
[LOGO]
GEORGESON
& COMPANY INC.
Wall Street Plaza
New York, New York 10005
(212) 509-6240 (collect)
Banks and Brokers call collect (212) 440-9800
Call Toll Free: 1-800-223-2064
The Dealer Manager for the Offer is:
LAZARD FRERES & CO. LLC
30 Rockefeller Plaza
New York, New York 10020
(212) 632-6717
(call collect)
May 24, 1996
EXHIBIT 99.(a)(8)
[GE LOGO] GE Capital Services
- -------------------------------------------------------------------------------
General Electric Capital Services
260 Long Ridge Road, Stamford, CT 06927
Contact:
GE Capital Services
Mary Home
Office: 203-357-6978
David Elliott
Office: 404-249-8550
AmeriData Technologies Inc.
Jean Gleason
Office: 203-357-1464
FOR IMMEDIATE RELEASE
GE CAPITAL SERVICES AGREES TO
ACQUIRE AMERIDATA TECHNOLOGIES, INC.
STAMFORD, CT, May 20, 1996 -- GE Capital Services (GECS) and AmeriData
Technologies, Inc. (NYSE:ADA) jointly announced today the signing of a
definitive merger agreement pursuant to which GECS will acquire all of the
outstanding common stock of AmeriData at $16 per share or approximately $490
million. The purchase price represents a premium of approximately 40% over the
average trading price of the last 60 days.
To implement the agreement, GECS will commence a cash tender offer within five
business days. The completion of the tender offer is subject to a number of
customary conditions, including the acquisition of a majority of AmeriData's
outstanding common stock on a fully diluted basis, receipt of regulatory
approvals and the expiration of the waiting periods under the Hart-Scott-Rodino
Act. Management shareholders owning approximately 6% of the outstanding shares
of AmeriData have entered into binding agreements to tender their shares.
Shares not purchased under the tender offer will be acquired in a subsequent
merger at the same price as soon as practicable after completion of the tender
offer.
AmeriData, with 1995 revenues of more than US $1.5 billion and more than 3600
employees worldwide, is an international provider of distributed computer
products and services, as well as business and technology consulting services.
AmeriData was recently ranked #1 by Computerworld Magazine for customer
satisfaction among corporate information technology users.
AmeriData further announced that it has adjourned its Annual Meeting of
Stockholders which has been previously scheduled for Tuesday, May 21, 1996.
"The addition of AmeriData to GE Capital is another step in broadening the range
of services provided by our equipment management businesses in this fast
growing, high tech services market," explained Gary Wendt, chairman, president
and CEO of GE Capital Services. "We continue to build value for our information
technology (IT) customers by providing an ever increasing range of services on a
global basis."
AmeriData will become a subsidiary of GE Capital Technology Management Services
(TMS), one of GE Capital Services' equipment management businesses. GE Capital
TMS' strengths in the information technology services market include
procurement, logistics, asset tracking, help desk, network and data center
outsourcing services. GE Capital TMS is now the largest desktop systems
integrator in Canada, providing hardware, software, networking products and
support services. It is also a leading computer rental and leasing company in
North America, supporting desktop and mobile IT users.
"GE Capital TMS can now provide its customers in North America with a
comprehensive range of services that are unmatched in the industry," said Mike
Ford, president and CEO of GE Capital TMS. "Moreover, we can offer customers
consistent IT services on an increasingly global basis." In April, GE Capital
TMS acquired Ferntree Computer Corporation, the leading desktop services
integrator in Australia.
"The acquisition by a company with the financial strength of GE Capital Services
provides us with the ability to deliver stronger and more complete information
technology solutions to our customers," noted Gerald A. Poch, co-chairman and
co-president of AmeriData.
GE Capital Technology Management Services, headquartered in Norcross, GA, is a
GE Capital Services company that provides full life cycle services to help
customers more cost-effectively control and manage their technology investments.
GE Capital Services, a wholly owned subsidiary of General Electric Company, is a
diversified financial services company headquartered in Stamford, CT. GE Capital
Services' activities include equipment management, mid-market financing,
specialized financing, specialty insurance and consumer service. General
Electric Company is a diversified manufacturing, technology and services company
with operations worldwide.
###
<PAGE>
AGREEMENT AND PLAN OF MERGER
among
GENERAL ELECTRIC CAPITAL CORPORATION
GAC ACQUISITION I CORP.
and
AMERIDATA TECHNOLOGIES, INC.
dated May 20, 1996
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I
THE OFFER
1.1 The Offer.......................................... 2
1.2 Offer Documents.................................... 2
1.3 Company Actions.................................... 3
1.4 Directors.......................................... 4
ARTICLE II
THE MERGER
2.1 The Merger......................................... 5
2.2 Closing............................................ 5
2.3 Effective Time of the Merger....................... 5
2.4 Effects of the Merger.............................. 6
ARTICLE III
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF
THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
3.1 Effect on Capital Stock............................ 6
(a) Capital Stock of Sub......................... 6
(b) Cancellation of Treasury Stock and
Parent-Owned Stock........................... 6
3.2 Conversion of Securities........................... 7
3.3 Payment for Shares................................. 7
(a) Paying Agent................................. 7
(b) Payment Procedures........................... 8
(c) Termination of Payment Fund; Interest........ 9
(d) No Liability................................. 9
(e) Withholding Rights........................... 9
3.4 Stock Transfer Books............................... 9
3.5 Options, Warrants and Other Purchase Rights........ 9
3.6 Dissenting Shares.................................. 11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Company...... 12
(a) Organization, Standing and Power............. 12
(b) Capital Structure............................ 12
(c) Authority; No Violations;
Consents and Approvals..................... 15
(d) SEC Documents; Financial Statements.......... 17
(e) Information Supplied......................... 17
i
<PAGE>
(f) Compliance with Applicable Laws.............. 18
(g) Litigation................................... 18
(h) Taxes........................................ 19
(i) Pension And Benefit Plans; ERISA............. 20
(j) Absence of Certain Changes or Events......... 23
(k) No Undisclosed Material Liabilities.......... 24
(l) Opinion of Financial Advisor................. 24
(m) Vote Required................................ 24
(n) Labor Matters................................ 25
(o) Intangible Property.......................... 26
(p) Environmental Matters........................ 27
(q) Real Property; Other Assets.................. 30
(r) Insurance.................................... 31
(s) Material Contracts........................... 31
(t) Related Party Transactions................... 33
(u) Liens........................................ 33
(v) Brokerage Fees and Commissions; Other Fees... 34
(w) No Excess Parachute Payments................. 34
(x) State Takeover Statutes...................... 34
(y) Pending and Proposed Transactions............ 34
(z) Media Interests.............................. 34
4.2 Representations and Warranties of Parent and Sub... 35
(a) Organization, Standing and Power............. 35
(b) Authority; No Violations;
Consents and Approvals..................... 35
(c) Interim Operations of Sub.................... 36
(d) Information Supplied......................... 36
(e) Brokerage Fees and Commissions............... 36
(f) Financial Capability......................... 37
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Covenants of the Company........................... 37
(a) Ordinary Course.............................. 37
(b) Dividends; Changes in Stock.................. 37
(c) Issuance of Securities....................... 37
(d) Governing Documents.......................... 38
(e) No Solicitation.............................. 38
(f) No Acquisitions.............................. 40
(g) No Dispositions.............................. 40
(h) Advice of Changes; SEC Filings............... 40
(i) No Dissolution, Etc.......................... 41
(j) Other Actions................................ 41
(k) Certain Employee Matters..................... 41
ii
<PAGE>
(l) Indebtedness; Advances....................... 41
(m) Material Contracts........................... 42
(n) Accounting................................... 42
(o) Capital Expenditures......................... 42
(p) Tax Matters.................................. 42
(q) Discharge of Liabilities..................... 42
(r) Agreement to Take Action..................... 43
(s) Notices of Certain Events.................... 43
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Preparation of the Proxy Statement; Company
Stockholders Meeting; Merger without a Company
Stockholders Meeting............................... 43
6.2 Access to Information.............................. 44
6.3 Legal Conditions to Merger......................... 44
6.4 Fees and Expenses.................................. 45
6.5 Brokers or Finders................................. 45
6.6 Indemnification.................................... 46
6.7 Best Efforts; Notification......................... 46
6.8 Conduct of Business of Sub......................... 47
6.9 Publicity.......................................... 47
6.10 Benefit Plans...................................... 47
6.11 State Takeover Statutes............................ 48
6.12 Warrants........................................... 48
6.13 FCC Matters........................................ 48
6.14 Issuance of Shares................................. 50
ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation
to Effect the Merger............................. 50
(a) Stockholder Approval......................... 51
(b) HSR Act...................................... 51
(c) No Injunctions or Restraints................. 51
(d) FCC Approvals and Applications............... 51
7.2 Conditions of Obligations of Parent and Sub........ 51
(a) Payment for Shares........................... 51
(b) Representations and Warranties............... 51
(c) Performance of Obligations of the Company.... 51
(d) Consents, Etc................................ 52
(e) Other Approvals.............................. 52
(f) [Intentionally Omitted]...................... 52
(g) No Litigation................................ 52
iii
<PAGE>
(h) Options and Rights........................... 52
7.3 Conditions of Obligations of the Company........... 53
(a) Representations and Warranties............... 53
(b) Performance of Obligations of Parent and Sub. 53
(c) Government Approvals......................... 53
ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination........................................ 53
8.2 Effect of Termination.............................. 55
8.3 Amendment.......................................... 55
8.4 Extension; Waiver.................................. 55
ARTICLE IX
GENERAL PROVISIONS
9.1 Nonsurvival of Representations and Warranties...... 55
9.2 Notices............................................ 56
9.3 Interpretation..................................... 57
9.4 Counterparts....................................... 57
9.5 Entire Agreement; No Third Party
Beneficiaries; Rights of Ownership................. 57
9.6 Governing Law...................................... 57
9.7 No Remedy in Certain Circumstances................. 57
9.8 Assignment......................................... 57
9.9 Enforcement........................................ 58
SCHEDULES
4.1(a) Subsidiaries
4.1(b)(i) Restricted Stock Award Plan Shares
4.1(b)(ii)(A) Equity Purchase Rights
4.1(b)(ii)(B) Preferred Security Holders
4.1(b)(ii)(C) Company Voting Debt
4.1(b)(ii)(D) Contingent Payouts
4.1(b)(ii)(E) Incomplete Equity Purchase Rights
4.1(b)(iii)(A) Liens and Voting Restrictions with respect to
Subsidiary Stock
4.1(b)(iii)(B) Director Election Rights
4.1(b)(iv) Registration Rights
4.1(c)(ii) Conflicts
4.1(f) Compliance with Laws; Permits
4.1(g) Litigation
4.1(h) Tax Matters
iv
<PAGE>
4.1(i) Employee Benefit Matters
4.1(j) Certain Changes or Events
4.1(k) Undisclosed Material Liabilities
4.1(n) Labor Matters
4.1(o) Intangible Property
4.1(p) OSHA Complaints
4.1(q)(i) Owned Real Property
4.1(q)(ii) Leased Real Property
4.1(q)(iii) Liens on Real Property
4.1(q)(iv) Other Assets
4.1(r) Insurance
4.1(s) Material Contracts
4.1(t) Related Party Transactions
4.1(u) Liens
4.1(v) Fees
4.1(w) Excess Parachute Payments
4.1(y) Pending and Proposed Transactions
5.1(c) Securities to be Issued
5.1(g) Permitted Dispositions
5.1(k) Employee Matters
5.1(o) Capital Expenditures
v
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Glossary of Defined Terms
Defined Terms Defined in Section
- ------------- ------------------
Acquisition Proposal.................................................5.1(e)
Agreement..........................................................preamble
Alex Brown..............................................................1.3
At-Will Employment Agreement.........................................4.1(j)
Balance Sheet.....................................................4.1(q)(i)
Board Percentage........................................................1.4
CERCLA...............................................................4.1(p)
Certificate of Merger...................................................2.3
Certificates.........................................................3.3(b)
Closing.................................................................2.2
Closing Date............................................................2.2
Code............ ...................................................3.3(e)
Company............................................................preamble
Company Common Stock...............................................preamble
Company Employee Benefit Plans....................................4.1(i)(i)
Company ERISA Affiliate...........................................4.1(i)(i)
Company Intangible Property.......................................4.1(o)(i)
Company Intangible Property Licenses............................4.1(o)(iii)
Company Litigation...................................................4.1(g)
Company Order........................................................4.1(g)
Company Pension Plans.............................................4.1(i)(i)
Company Permits......................................................4.1(f)
Company SEC Documents................................................4.1(d)
Company Stockholder Approval....................................4.1(c)(iii)
Company Stockholders Meeting.........................................6.1(b)
Company Voting Debt..............................................4.1(b)(ii)
Confidentiality Agreement...............................................6.2
Constituent Corporations................................................2.1
Control Group..........................................................6.13
DGCL....................................................................2.2
Dissenting Shares.......................................................3.6
Dormant Subsidiary...................................................4.1(a)
Effective Time..........................................................2.3
Employee Options.....................................................3.5(a)
Equity Purchase Rights...............................................3.5(d)
ERISA.............................................................4.1(i)(i)
ERISA Affiliate...................................................4.1(i)(i)
Exchange Act............................................................1.1
FCC.............................................................6.13(a)(ii)
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Foreign Plan......................................................4.1(i)(i)
GAAP............ ...................................................4.1(d)
Governmental Entity.............................................4.1(c)(iii)
HSR Act.........................................................4.1(c)(iii)
Indebtedness.........................................................4.1(s)
Indemnified Parties.....................................................6.6
Injunction...........................................................7.1(c)
IRS..................................................................4.1(h)
Laws.............................................................4.1(c)(ii)
Legal Proceedings ..............................................4.1(p)(xii)
Material Adverse Effect..............................................4.1(a)
Merger.............................................................preamble
Merger Consideration.................................................3.2(a)
Multiemployer Plans...............................................4.1(i)(i)
Multiple Employer Plans...........................................4.1(i)(i)
OSHA...........................................................4.1(p)(i)(A)
Offer................................................................1.1(a)
Offer Consideration..................................................1.1(a)
Offer Documents.........................................................1.2
Options..............................................................3.5(a)
Option/Warrant Consideration.........................................3.5(a)
Other Options........................................................3.5(a)
Parent.............................................................preamble
Paying Agent.........................................................3.3(a)
Payment Fund.........................................................3.3(a)
PBGC............ ...............................................4.1(i)(iv)
Person...............................................................3.3(b)
Preferred Security...................................................3.5(c)
Preferred Stock......................................................4.1(b)
Permitted Investments................................................3.3(a)
Proxy Statement.................................................4.1(c)(iii)
Real Property Leases.............................................4.1(q)(ii)
Right................................................................3.5(b)
Rights Consideration.................................................3.5(b)
SEC..................................................................1.1(b)
Schedule 14D-1..........................................................1.2
Schedule 14D-9..........................................................1.3
Second-Step Merger.................................................preamble
Securities Act...................................................4.1(b)(iv)
Shares.............................................................preamble
Stock Option Plans...................................................3.5(a)
Stockholders Agreement.............................................preamble
Sub................................................................preamble
vii
<PAGE>
Subordinated Debenture...............................................3.5(c)
Subsidiary...........................................................3.1(b)
Superior Proposal ..............................................5.1(e)(iii)
Surviving Corporation...................................................2.1
Terminated Pension Plans..........................................4.1(i)(i)
Violation........................................................4.1(c)(ii)
Warrants..........................................................4.1(b)(i)
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated May 20, 1996 (the
"Agreement"), among GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation
("Parent"), GAC Acquisition I Corp., a Delaware corporation and an indirect,
wholly-owned subsidiary of Parent ("Sub"), and AMERIDATA TECHNOLOGIES, INC., a
Delaware corporation (the "Company").
WHEREAS, the respective Boards of Directors of Parent, Sub and
the Company have unanimously approved the acquisition of the Company by Parent,
by means of the merger of Sub with and into the Company (the "Merger"), upon the
terms and subject to the conditions set forth in the Agreement;
WHEREAS, to effectuate the acquisition, Parent and the Company
each desires that Parent cause Sub to commence a cash tender offer to purchase
all of the outstanding shares of common stock, par value $.01 per share, of the
Company ("Shares" or "Company Common Stock"), upon the terms and subject to the
conditions set forth in this Agreement and the Offer Documents (as defined in
Section 1.2), and the Board of Directors of the Company has unanimously approved
such tender offer and is recommending to its stockholders that they accept the
tender offer and tender their shares of Company Common Stock pursuant thereto;
and
WHEREAS, Parent and Sub are unwilling to enter into this
Agreement (and effect the transactions contemplated hereby) unless,
contemporaneously with the execution and delivery hereof, certain beneficial and
record holders of the Company Common Stock enter into agreements (collectively,
the "Stockholders Agreement") providing for certain matters with respect to
their Shares, the tender of their Shares and certain other actions relating to
the Offer (as defined in Section 1.1) and the other transactions contemplated by
this Agreement, and in order to induce Parent and Sub to enter into this
Agreement, the Company has approved the execution and delivery of the
Stockholders Agreement, and such stockholders have agreed to execute and deliver
the Stockholders Agreement; and
WHEREAS, it is currently contemplated that immediately
following the consummation of the Merger, the Company will be merged with and
into GAC Acquisition II Corp., a Delaware corporation and a direct, wholly-owned
subsidiary of Parent ("Sub II"), with Sub II continuing as the surviving
corporation (the "Second-Step Merger" and, together with the Merger, the
"Acquisition Mergers");
WHEREAS, Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Offer and the Merger and also to prescribe various conditions to consummation
thereof;
<PAGE>
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements herein
contained, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
THE OFFER
1.1 The Offer. (a) Provided that this Agreement shall not have
been terminated pursuant to Article VIII and none of the events set forth in
Exhibit A hereto shall have occurred and be continuing, as promptly as
practicable (but in any event not later than five business days after the public
announcement of the execution and delivery of this Agreement), Parent shall
cause Sub to commence (within the meaning of Rule 14d-2 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), an offer to purchase
(the "Offer") all outstanding shares of the Company Common Stock at a price of
$16.00 per share, net to the seller in cash (the "Offer Consideration"). The
obligation of Parent and Sub to commence the Offer, consummate the Offer, accept
for payment and to pay for shares of Company Common Stock validly tendered in
the Offer and not withdrawn shall be subject to those conditions set forth in
Exhibit A hereto, including the condition that a number of Shares representing a
majority of all outstanding Shares on a fully-diluted basis shall have been
validly tendered and not withdrawn prior to the expiration of the Offer.
(b) Sub expressly reserves the right to increase the price per
share payable in the Offer or to make any other changes in the terms and
conditions of the Offer, except that without the prior written consent of the
Company, Sub shall not (i) decrease or change the form of the Offer
Consideration or decrease the number of Shares sought pursuant to the Offer,
(ii) impose additional conditions to the Offer, (iii) extend the expiration date
of the Offer (except as required by law or the applicable rules and regulations
of the SEC and except that Sub may extend the expiration date of the Offer (x)
for up to twenty (20) business days after the initial expiration date or (y) for
longer periods (not to exceed 120 calendar days from the date of commencement)
in the event that any condition to the Offer is not satisfied), or (iv) amend
any term of the Offer in any manner adverse to holders of shares of Company
Common Stock; provided, however, that, except as set forth above, Sub may waive
any condition to the Offer in its sole discretion; and provided further, that
the Offer may be extended in connection with an increase in the consideration to
be paid pursuant to the Offer so as to comply with applicable rules and
regulations of the United States Securities and Exchange Commission (the
"SEC"). Assuming the prior satisfaction or waiver of the conditions to the
Offer, Sub shall accept for payment, and pay for, in accordance with the terms
of the Offer, all shares of Company Common Stock validly tendered and not
withdrawn pursuant to the Offer as soon as practicable after the expiration date
thereof.
1.2 Offer Documents. On the date of commencement of the Offer,
Parent and Sub shall file or cause to be filed with the SEC a Tender Offer
Statement on Schedule
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14D-1 (the "Schedule 14D-1") with respect to the Offer which shall contain the
offer to purchase and related letter of transmittal (such Schedule 14D-1, letter
of transmittal and other ancillary Offer documents and instruments pursuant to
which the Offer will be made, together with any supplements or amendments
thereto, the "Offer Documents") and shall contain (or shall be amended in a
timely manner to contain) all information which is required to be included
therein in accordance with the Exchange Act and the rules and regulations
thereunder and any other applicable law, and shall conform in all material
respects with the requirements of the Exchange Act and any other applicable law;
provided, however, that no agreement or representation hereby is made or shall
be made by Parent or Sub with respect to information supplied by the Company in
writing expressly for inclusion in, or with respect to Company information
derived from the Company's public SEC filings which is included or incorporated
by reference in, the Offer Documents. Parent, Sub and the Company each agrees
promptly to correct any information provided by them for use in the Offer
Documents if and to the extent that it shall have become false or misleading in
any material respect and Sub further agrees to take all lawful action necessary
to cause the Offer Documents as so corrected to be filed promptly with the SEC
and to be disseminated to holders of Company Common Stock, in each case as and
to the extent required by applicable law. The Company and its counsel shall be
given the opportunity to review and comment upon the Offer Documents to be filed
with the SEC prior to any such filing.
1.3 Company Actions. The Company hereby approves of and
consents to the Offer and represents and warrants that (a) the Company's Board
of Directors (at a meeting duly called and held) has (i) unanimously determined
that each of this Agreement and the transactions contemplated hereby, including
the Offer and the Merger, are fair to and in the best interests of the Company
and its stockholders, (ii) approved this Agreement, the Stockholders Agreement
and the transactions contemplated hereby and thereby, including the Offer and
the Merger, (iii) resolved to elect not to be subject to any state takeover law
that is or purports to be applicable to the Offer, the Merger or the
transactions contemplated by this Agreement or the Stockholders Agreement, (iv)
taken all steps necessary to render Section 203 of the DGCL inapplicable to this
Agreement, the Stockholders Agreement, and the transactions contemplated hereby
and thereby, including the Offer and the Merger and (v) subject to the fiduciary
duties of the Board of Directors applicable from time to time, resolved to
recommend that the holders of the Company Common Stock (the "Stockholders")
accept the Offer and tender all of their Shares pursuant thereto and approve the
Merger, and (b) Alex. Brown & Sons Incorporated ("Alex Brown") has delivered to
the Board of Directors of the Company its written opinion that the Offer
Consideration to be received by the holders of Company Common Stock in the Offer
and the Merger as contemplated in this Agreement is fair, from a financial point
of view, to such holders. The Company hereby consents to the inclusion in the
Offer Documents of the recommendation referred to in this Section 1.3. The
Company hereby agrees to file with the SEC simultaneously with the filing by
Parent and Sub of the Schedule 14D-1, a Solicitation/Recommendation Statement on
Schedule 14D-9 (together with all amendments and supplements thereto, the
"Schedule 14D-9") containing such recommendations of the Board of Directors of
the Company in favor of the Offer and
3
<PAGE>
the Merger and otherwise complying with Rule 14d-9 under the Exchange Act. The
Company covenants that the Schedule 14D-9 shall comply in all material respects
with the Exchange Act and any other applicable law and shall contain (or shall
be amended in a timely manner to contain) all information which is required to
be included therein in accordance with the Exchange Act and the rules and
regulations thereunder and any other applicable law. The Company, Parent and Sub
each agree promptly to correct any information provided by them for use in the
Schedule 14D-9 if and to the extent that it shall have become false or
misleading in any material respect and the Company further agrees to take all
lawful action necessary to cause the Schedule 14D-9 as so corrected to be filed
promptly with the SEC and disseminated to the holders of Company Common Stock,
in each case as and to the extent required by applicable law. Parent, Sub and
their counsel shall be given an opportunity to review and comment upon the
Schedule 14D-9 and any amendments thereto prior to the filing thereof with the
SEC. In connection with the Offer, the Company shall (or shall cause its
transfer agent to) promptly furnish Parent with mailing labels, security
position listings and all available listings or computer files containing the
names and addresses of the record holders of the Company Common Stock as of the
latest practicable date and shall furnish Parent with such information and
assistance (including updated lists of stockholders, mailing labels and lists of
security positions) as Parent or its agents may reasonably request in
communicating the Offer to the record and beneficial holders of Company Common
Stock. Subject to the requirements of applicable law, and except for such
actions as are necessary to disseminate the Offer Documents and any other
documents necessary to consummate the Offer and the Merger, Parent and Sub shall
hold in confidence the information contained in such labels and lists, shall use
such information only in connection with the Offer and the Merger, and, if this
Agreement is terminated in accordance with its terms, shall deliver promptly to
the Company (or destroy and certify to the Company the destruction of) all
copies of such information then in their possession.
1.4 Directors. (a) Promptly upon the purchase by Parent or any
of its Subsidiaries (including Sub) of such number of shares of Company Common
Stock which represents at least a majority of the outstanding shares of Company
Common Stock, and from time to time thereafter, Parent shall be entitled to
designate such number of directors (the "Parent's Designees"), rounded up to the
next whole number as will give Parent representation on the Board of Directors
of the Company equal to the product of (x) the number of directors on the Board
of Directors of the Company (giving effect to any increase in the number of
directors pursuant to this Section 1.4) and (y) the percentage that such number
of Shares so purchased bears to the aggregate number of Shares outstanding (such
number being, the "Board Percentage"), and the Company shall, subject to
Parent's having theretofore provided the Company with the information with
respect to Parent's Designees required pursuant to Section 14(f) of the Exchange
Act, promptly satisfy the Board Percentage by (i) increasing the size of the
Board of Directors of the Company or (ii) securing the resignations of such
number of directors as is necessary to enable Parent's Designees to be elected
to the Board of Directors of the Company (and the Company shall use its best
efforts to cause the then-remaining members of the Company's Board of Directors
to promptly so
4
<PAGE>
elect Parent's Designees). At the request of Parent, the Company shall take, at
the Company's expense, all lawful action necessary to effect any such election,
including, without limitation, mailing to the Company's stockholders the
information required by Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder, unless such information has previously been provided to
the Company's stockholders in the Schedule 14D-9.
(b) Following the election or appointment of Parent's
Designees pursuant to this Section 1.4 and prior to the Effective Time (as
defined in Section 2.3) of the Merger, any amendment or termination of this
Agreement, extension for the performance or waiver of the obligations or other
acts of Parent or Sub hereunder or waiver of the Company's rights hereunder
shall require the concurrence of a majority of directors of the Company then in
office who are directors on the date hereof and who voted to approve this
Agreement; provided that if there shall be no such directors, such actions may
be effected by majority vote of the entire Board of Directors of the Company.
ARTICLE II
THE MERGER
2.1 The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the Delaware General
Corporation Law (the "DGCL"), Sub shall be merged with and into the Company at
the Effective Time. At the Effective Time, the separate corporate existence of
Sub shall cease, and the Company shall continue as the surviving corporation and
an indirect wholly owned subsidiary of Parent (Sub and the Company are sometimes
hereinafter referred to as "Constituent Corporations" and, as the context
requires, the Company is sometimes hereinafter referred to as the "Surviving
Corporation"), and shall continue under the name "AMERIDATA TECHNOLOGIES, INC."
2.2 Closing. Unless this Agreement shall have been terminated
and the transactions herein contemplated shall have been abandoned pursuant to
Section 8.1, the closing of the Merger (the "Closing") shall take place at 10:00
a.m., New York time, on the third business day following satisfaction or waiver
of the conditions set forth in Article VII (the "Closing Date"), at the offices
of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153,
unless another date, time or place is agreed to in writing by the parties
hereto.
2.3 Effective Time of the Merger. Subject to the provisions of
this Agreement, the parties hereto shall cause the Merger to be consummated by
filing a certificate of merger (the "Certificate of Merger") with the Secretary
of State of the State of Delaware, as provided in the DGCL, as soon as
practicable on or after the Closing Date. The Merger shall become effective upon
such filing or at such time thereafter as is provided in the Certificate of
Merger (the "Effective Time").
5
<PAGE>
2.4 Effects of the Merger. (a) The Merger shall have
the effects as set forth in the applicable provisions of the DGCL.
(b) The directors and the officers of Sub immediately prior to
the Effective Time shall, from and after the Effective Time, be the initial
directors and 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 Surviving Corporation's
Certificate of Incorporation and Bylaws.
(c) The Certificate of Incorporation of the Sub immediately
prior to the Effective Time shall be the Certificate of Incorporation of the
Surviving Corporation, until duly amended in accordance with the terms thereof
and the DGCL.
(d) The Bylaws of the Sub as in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Corporation until
thereafter amended as provided by applicable law, the Certificate of
Incorporation or the Bylaws.
ARTICLE III
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF
THE CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
3.1 Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
shares of Company Common Stock or the holder of any capital stock of Sub:
(a) Capital Stock of Sub. Each share of the capital stock of
Sub issued and outstanding immediately prior to the Effective Time shall be
converted into and become one fully paid and nonassessable shares of Common
Stock, par value $.01 per share, of the Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned Stock.
Each share of Company Common Stock and all other shares of capital stock of the
Company that are owned by the Company and all shares of Company Common Stock and
other shares of capital stock of the Company owned by Parent, Sub or any other
wholly-owned Subsidiary (as defined below) of Parent or the Company shall be
canceled and retired and shall cease to exist and no consideration shall be
delivered or deliverable in exchange therefor. As used in this Agreement, the
word "Subsidiary", with respect to any party, means any corporation,
partnership, joint venture or other organization, whether incorporated or
unincorporated, of which: (i) such party or any other Subsidiary of such party
is a general partner; (ii) voting power to elect a majority of the Board of
Directors or others performing similar functions with respect to such
corporation, partnership, joint venture or other organization is held by such
party or by any one or more of
6
<PAGE>
its Subsidiaries, or by such party and any one or more of its Subsidiaries; or
(iii) at least 50% of the equity, other securities or other interests is,
directly or indirectly, owned or controlled by such party or by any one or more
of its Subsidiaries, or by such party and any one or more of its Subsidiaries.
3.2 Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of Sub, the Company or
the holders of any of the shares thereof:
(a) Subject to the other provisions of this Section 3.2, each
share of Company Common Stock issued and outstanding immediately prior to the
Effective Time (excluding shares owned, directly or indirectly, by the Company
or any wholly-owned Subsidiary of the Company or by Parent, Sub or any other
wholly-owned Subsidiary of Parent and excluding Dissenting Shares (as defined in
Section 3.6)) shall be converted into the right to receive the Offer
Consideration, payable to the holder thereof, without any interest thereon (the
"Merger Consideration"), upon surrender and exchange of the Certificates (as
defined in Section 3.3).
(b) All shares of Company Common Stock, when converted as
provided in Section 3.2(a), no longer shall be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each
Certificate previously evidencing such Shares shall thereafter represent only
the right to receive the Merger Consideration. The holders of Certificates
previously evidencing Shares outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to the Company Common Stock except
as otherwise provided herein or by law and, upon the surrender of Certificates
in accordance with the provisions of Section 3.3 (but subject to Section 3.6),
such certificates shall represent only the right to receive for their Shares the
Merger Consideration, without any interest thereon.
3.3 Payment for Shares. (a) Paying Agent. Prior to the
Effective Time, Sub shall appoint a United States bank or trust company selected
by Parent and reasonably acceptable to the Company to act as paying agent (the
"Paying Agent") for the payment of the Merger Consideration, and Parent shall
deposit or shall cause to be deposited with the Paying Agent in a separate fund
established for the benefit of the holders of shares of Company Common Stock,
for payment in accordance with this Article III, through the Paying Agent (the
"Payment Fund"), immediately available funds in amounts necessary to make the
payments pursuant to Section 3.2(a) and this Section 3.3 to holders of shares of
Company Common Stock (other than the Company or any wholly-owned Subsidiary of
the Company or Parent, Sub or any other wholly-owned Subsidiary of Parent, or
holders of Dissenting Shares). The Paying Agent shall, pursuant to irrevocable
instructions, pay the Merger Consideration out of the Payment Fund.
From time to time at or after the Effective Time, Parent shall
take all lawful action necessary to make or cause to be made the appropriate
cash payments, if any, to
7
<PAGE>
holders of Dissenting Shares. Prior to the Effective Time, Parent shall enter
into such appropriate commercial arrangements, if any, as may be necessary to
ensure effectuation of the immediately preceding sentence. The Paying Agent
shall invest portions of the Payment Fund as Parent directs in obligations of or
guaranteed by the United States of America, in commercial paper obligations
receiving the highest investment grade rating from both Moody's Investors
Services, Inc. and Standard & Poor's Corporation, or in certificates of deposit,
bank repurchase agreements or banker's acceptances of commercial banks with
capital exceeding $1,000,000,000 (collectively, "Permitted Investments");
provided, however, that the maturities of Permitted Investments shall be such as
to permit the Paying Agent to make prompt payment to former holders of Company
Common Stock entitled thereto as contemplated by this Section. All earnings on
Permitted Investments shall be paid to Parent. If for any reason (including
losses) the Payment Fund is inadequate to pay the amounts to which holders of
shares of Company Common Stock shall be entitled under this Section 3.3, Parent
shall promptly restore such amount of the inadequacy to the Payment Fund, and in
any event shall be liable for payment thereof. The Payment Fund shall not be
used for any purpose except as expressly provided in this Agreement.
(b) Payment Procedures. As soon as reasonably practicable
after the Effective Time, Parent shall instruct the Paying Agent to mail to each
holder of record (other than the Company or any wholly-owned Subsidiary of the
Company or Parent, Sub or any other wholly-owned Subsidiary of Parent) of a
Certificate or Certificates which, immediately prior to the Effective Time,
evidenced outstanding shares of Company Common Stock (the "Certificates"), (i) a
form of letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
proper delivery of the Certificates to the Paying Agent, and shall be in such
form and have such other provisions as Parent reasonably may specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for payment therefor. Upon surrender of a Certificate for cancellation to the
Paying Agent together with such letter of transmittal, duly executed, and such
other customary documents as may be required pursuant to such instructions, the
holder of such Certificate shall be entitled to receive in respect thereof cash
in an amount equal to the product of (x) the number of shares of Company Common
Stock represented by such Certificate and (y) the Merger Consideration, and the
Certificate so surrendered shall forthwith be canceled. No interest shall be
paid or accrued on the Merger Consideration payable upon the surrender of any
Certificate. If payment is to be made to a Person (as defined below) other than
the Person in whose name the surrendered Certificate is registered, it shall be
a condition of payment that the Certificate so surrendered shall be properly
endorsed or otherwise in proper form for transfer and that the Person requesting
such payment shall pay any transfer or other taxes required by reason of the
payment to a Person other than the registered holder of the surrendered
Certificate or establish to the satisfaction of the Surviving Corporation that
such tax has been paid or is not applicable. Until surrendered in accordance
with the provisions of this Section 3.3, after the Effective Time each
Certificate (other than Certificates representing Shares owned by the Company or
any wholly-owned Subsidiary of the Company or Parent, Sub or any other
wholly-owned Subsidiary of Parent)
8
<PAGE>
shall represent for all purposes only the right to receive the Merger
Consideration. For purposes of this Agreement, "Person" means an individual,
corporation, partnership, joint venture, association, trust, unincorporated
organization or other entity.
(c) Termination of Payment Fund; Interest. Any portion of the
Payment Fund which remains undistributed to the holders of Company Common Stock
for six months after the Effective Time shall be delivered to the Company, upon
demand, and any holders of Company Common Stock who have not theretofore
complied with this Article III and the instructions set forth in the letter of
transmittal mailed to such holder after the Effective Time shall thereafter look
only to the Company for payment of the Merger Consideration to which they are
entitled; provided that if, but only if, the Company shall have defaulted in its
obligation to make such payment within a reasonable period of time after receipt
of written request therefor from any such holder, such holder may thereafter
look to Parent for payment of the Merger Consideration to which they are
entitled. All interest accrued in respect of the Payment Fund shall inure to the
benefit of and be paid to Parent.
(d) No Liability. Neither Parent nor the Surviving Corporation
shall be liable to any holder of shares of Company Common Stock for any cash
from the Payment Fund delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(e) Withholding Rights. Parent or the Company shall be
entitled to deduct and withhold, or cause the Paying Agent to deduct and
withhold, from the consideration otherwise payable pursuant to this Agreement to
any holder of Certificates such amounts as are required to be deducted and
withheld with respect to the making of such payment under the Internal Revenue
Code of 1986, as amended (the "Code"), or any provision of state, local or
foreign tax law. To the extent that amounts are so withheld, (i) such withheld
amounts shall be treated for all purposes of this Agreement as having been paid
to the holder of the Certificates in respect of which such deduction and
withholding was made, and (ii) Parent or the Company shall provide, or cause the
Paying Agent to provide, to the holders of such Certificates written notice of
the amounts so deducted or withheld.
3.4 Stock Transfer Books. At the Effective Time, the
stock transfer books of the Company shall be closed and there shall be no
further registration of transfers of shares of Company Common Stock thereafter
on the records of the Company.
3.5 Options, Warrants and Other Purchase Rights.
(a) After the Effective Time, each holder of (i) a then
outstanding option (collectively, the "Employee Options") to purchase Shares
under the Company's 1991 Stock Option Plan and the Option Agreements between the
Company and certain of its officers, directors, employees and consultants (the
"Stock Option Plans"), (ii) a Warrant (as defined in Section 4.1(b)), and (iii)
except as provided in Sections 3.5(b) and (c) below, any other
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option, warrant or other right to acquire (upon purchase, exchange, conversion
or otherwise) shares of Company Common Stock (collectively, the "Other Options"
and, together with the Employee Options, the "Options"), shall, upon exercise of
such Option or Warrant in accordance with its terms, be entitled to receive for
each Share subject to such Option or Warrant, in settlement and cancellation
thereof, an amount (subject to any applicable withholding tax) in cash equal to
the difference between the Offer Consideration and the per Share exercise price
of such Option or Warrant, as the case may be, to the extent such difference is
a positive number (such amount being hereinafter referred to as, the
"Option/Warrant Consideration"); provided, however, that with respect to any
Person subject to Section 16(a) of the Exchange Act, any such amount shall be
paid as soon as practicable after the first date payment can be made without
liability to such Person under Section 16(b) of the Exchange Act. The Company
represents and warrants to Parent and Sub that the Stock Option Plans have been
amended to the extent necessary to give effect to the foregoing. Upon receipt of
the related Option/Warrant Consideration, the Option or Warrant, as the case may
be, shall be canceled. The surrender of an Option or Warrant to the Company in
exchange for the Option/Warrant Consideration shall be deemed a release of any
and all rights the holder had or may have had in respect of such Option or
Warrant.
(b) At the Effective Time, each holder of a right to purchase
Shares under the Company's 1991 Stock Purchase Plan (the "Stock Purchase Plan")
pursuant to any offering under the Stock Purchase Plan (a "Right"), whether or
not then exercisable, shall, in settlement and cancellation thereof, receive for
such Right an amount (subject to any applicable withholding tax) in cash (such
amount being hereinafter referred to as the "Rights Consideration") equal to the
sum of (i) the product of such holder's Accrued Shares (as defined below) with
respect to such offering times the difference between (A) the Offer
Consideration and (B) the lower of (I) 85% of the fair market value of the
Company Common Stock on the effective date of the related offering under the
Stock Purchase Plan (determined in accordance with the Stock Purchase Plan) and
(II) 85% of the fair market value of the Company Common Stock on the date
immediately prior to the public announcement of the Offer (such lower amount
with respect to an offering, the "Applicable Per Share Price"), to the extent
such difference is a positive number, plus (ii) an amount equal to the aggregate
amount in such holder's payroll deduction account with the Company with respect
to such offering at the Effective Time (the "Related Deduction Account Amount");
provided, however, that with respect to any Person subject to Section 16(a) of
the Exchange Act, any such amount shall be paid as soon as practicable after the
first date payment can be made without liability to such Person under Section
16(b) of the Exchange Act. Upon receipt of the related Rights Consideration, the
Right shall be canceled and such receipt shall be deemed a release of any and
all rights the holder had or may have had in respect of such Right. The "Accrued
Shares" of a holder of a Right with respect to any offering under the Stock
Purchase Plan shall mean the amount obtained by dividing (I) the Related
Deduction Account Amount with respect to such offering by (II) the Applicable
Per Share Price with respect to such offering, rounded up to the next whole
share. The Company
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represents and warrants to the Parent and Sub that the Stock Purchase Plan has
been amended to give effect to the foregoing.
(c) After the Effective Time, each holder of an 8% Convertible
Subordinated Debenture due 2003 of the Company (a "Subordinated Debenture")
shall be entitled to receive, upon conversion thereof in accordance with the
terms thereof, in settlement and cancellation thereof, solely an amount (subject
to any applicable withholding tax) in cash equal to the amount receivable upon
the consummation of the Merger by a holder of that number of shares of Company
Common Stock into which the Subordinated Debentures of such holder were
convertible immediately prior to the Merger. The foregoing shall apply whether
such conversion of the Subordinated Debenture occurs upon conversion of any of
the 8% Convertible Fixed Life Aggregated Securities (each, a "Preferred
Security") in accordance with the terms thereof or otherwise. The Company
represents and warrants to Parent and Sub that the Subordinated Debenture and
the Preferred Securities provide, by their terms, for the foregoing.
(d) Prior to the Effective Time, the Company shall use its
commercially reasonable efforts to obtain all necessary consents or releases
from holders of Options, Warrants, Rights, Preferred Securities and Subordinated
Debentures (collectively, the "Equity Purchase Rights") and shall take all such
other lawful action as may be necessary to give effect to the transactions
contemplated by this Section 3.5. Prior to the Effective Time, the Company shall
(i) terminate the Stock Option Plans and Stock Purchase Plan without liability
to the Company or the Surviving Company (other than as contemplated by this
Section 3.5) as of the Effective Time and terminate or cancel as of the
Effective Time the provisions in any other plan, program or arrangement
providing for the issuance or grant of any other interest in respect of the
capital stock of the Company or any Subsidiary thereof and (ii) take all action
reasonably necessary to ensure that following the Effective Time no holder of
any Equity Purchase Right or participant in any other plan, program or
arrangement shall have any right thereunder to acquire equity securities of the
Company, the Surviving Corporation or any Subsidiary thereof. The Company shall
take such steps as are reasonably necessary to satisfy Parent that no holder of
an Equity Purchase Right will have the right to acquire any stock or other
interest in the Company, the Surviving Corporation or any Subsidiary thereof as
a result of such Equity Purchase Right on or after the Effective Time.
3.6 Dissenting Shares. Notwithstanding any other provisions of
this Agreement to the contrary, shares of Company Common Stock that are
outstanding immediately prior to the Effective Time and which are held by
stockholders who shall have not voted in favor of the Merger or consented
thereto in writing and who shall have demanded properly in writing appraisal for
such shares in accordance with Section 262 of the DGCL (collectively, the
"Dissenting Shares") shall not be converted into or represent the right to
receive the Merger Consideration. Such shares instead shall, from and after the
Effective Time, represent only the right to receive payment of the appraised
value of such shares of Company Common Stock held by them in accordance with the
provisions of such Section
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262, except that all Dissenting Shares held by stockholders who shall have
failed to perfect or who effectively shall have withdrawn or lost their rights
to appraisal of such shares of Company Common Stock under such Section 262 shall
thereupon be deemed to have been converted into and to have become exchangeable,
as of the Effective Time, for the right to receive, without any interest
thereon, the Merger Consideration upon surrender, in the manner provided in
Section 3.3, of the Certificate or Certificates that, immediately prior to the
Effective Time, evidenced such shares of Company Common Stock.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Company. The
Company represents and warrants to Parent and Sub as follows:
(a) Organization, Standing and Power. Each of the Company and
its Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation, has all
requisite power and authority to own, lease and operate its properties and to
carry on its business as now being conducted, and is duly qualified and in good
standing to conduct business in each jurisdiction in which the business it is
conducting, or the operation, ownership or leasing of its properties, makes such
qualification necessary, other than in such jurisdictions where the failure so
to qualify could not reasonably be expected to have a Material Adverse Effect
(as defined below) with respect to the Company. The Company has heretofore made
available to Parent complete and correct copies of its and its Subsidiaries'
respective Certificates of Incorporation and Bylaws. All Subsidiaries of the
Company (other than those that do not have, and have not since January 1, 1996,
had, any business operations or any significant assets or liabilities,
contingent or otherwise (each, a "Dormant Subsidiary")), and their respective
jurisdictions of incorporation or organization are identified on Schedule
4.1(a). As used in this Agreement, a "Material Adverse Effect" shall mean, with
respect to any party, the result of one or more events, changes or effects
which, individually or in the aggregate, would have a material adverse effect on
the business, operations, assets, condition (financial or otherwise) or
prospects of such party and its Subsidiaries, taken as a whole.
(b) Capital Structure. (i) The authorized capital stock of the
Company consists of 50,000,000 shares of Company Common Stock and 10,000,000
shares of preferred stock, $.01 par value ("Preferred Stock"). As of the date of
this Agreement, (A) 22,281,302 shares of Company Common Stock (excluding (I)
64,550 shares of Company Common Stock to be issued pursuant to the Company's
Restricted Stock Award Plan and held in custody by the Company for participants'
accounts and (II) 113,732 shares of Company Common Stock to be issued pursuant
to the Asset Purchase Agreement, dated April 3, 1995, among AmeriData of Texas,
Inc., AmeriData Technologies, MicroComputer Power, Inc., MicroComputer Power of
Virginia, Inc., MicroComputer Power of Texas, Inc., Debra Wexler
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and Victor Grinshtein (the "MCP Shares")) and no shares of Preferred Stock were
issued and outstanding, (B) 2,310,512 shares of Company Common Stock were
reserved for issuance pursuant to the Stock Option Plans, (C) 1,458,041 shares
of Company Common Stock were reserved for issuance pursuant to the Stock
Purchase Plan, (D) 3,521,576 shares were reserved for issuance upon conversion
of the Subordinated Debentures, (E) 2,418,737 Shares were reserved for issuance
pursuant to the warrants listed on Schedule 4.1(b)(ii)(A) hereto under the
heading "Warrants" (the "Warrants"), and (F) 23,074 Shares were held by the
Company. Except as set forth above, as of the date of this Agreement no shares
of capital stock or other voting or equity securities of the Company were
issued, reserved for issuance or outstanding. Other than as set forth on
Schedule 4.1(b)(i), there are no Shares granted, allocated or otherwise awarded
under the Company's Restricted Stock Award Plan (whether subject to any
contingencies or otherwise) that are not already issued by the Company and
outstanding. The Subordinated Debenture is owned by AmeriData Delaware LLC.
(ii) Schedule 4.1(b)(ii)(A) sets forth, as of the
date hereof, a list of (A) each outstanding Employee Option, Other Option and
Warrant, the holder thereof, the date of grant, the number of such Options and
Warrants that are exercisable, the dates upon which such Other Options and
Warrants expire and the exercise prices applicable to such Options and Warrants,
(B) the aggregate number of Shares subject to Rights under the Stock Purchase
Plan with respect to each offering (as such term is used in the Stock Purchase
Plan) under the Stock Purchase Plan, the aggregate amount of each participant's
payroll deduction account with the Company with respect to each such offering,
the amount that is 85% of the fair market value of the Company Common Stock on
the effective date of each offering, and the date of the expiration of the
payroll deduction period (as defined in the Stock Purchase Plan) with respect to
each offering, and (C) each other right to acquire shares of Company Common
Stock pursuant to any other agreement or instrument (other than Preferred
Securities), describing such right and indicating the holder thereof. Schedule
4.1(b)(ii)(B) sets forth (x) the list provided by Continental Stock Transfer &
Trust Company, the Company's transfer agent, of the record holders of the
Preferred Securities, including the amount held by each such holder and (y) each
beneficial holder of Preferred Securities of which the Company is aware. Except
as set forth on Schedule 4.1(b)(ii)(E), the Company has provided to Parent true
and complete copies of all agreements or instruments evidencing each Equity
Purchase Right. Except as set forth on Schedule 4.1(b)(ii)(A) or Schedule
4.1(b)(ii)(C), there are (x) no employment, executive termination or other
agreements providing or which may provide, upon the occurrence of any
contingencies or otherwise, for the issuance of Shares at any time on or after
the date hereof, and (y) no bonds, debentures, notes or other instruments or
evidence of Indebtedness (as defined in Section 4.1(s)) having the right to vote
(or, other than the Subordinated Debentures, convertible into, or exercisable or
exchangeable for, securities having the right to vote) on any matters on which
the Company stockholders may vote ("Company Voting Debt") issued or outstanding.
There are no outstanding stock appreciation rights and, except as set forth on
Schedule 4.1(b)(ii)(D), there are no other outstanding contractual rights the
value of which is derived from the financial performance of the Company or any
of its Subsidiaries or the value of shares of Company Common Stock. All
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rights granted pursuant to Article III of that certain Asset Purchase Agreement,
dated September 9, 1994, among the Company, Mobile Systems Integration, Inc.,
the MSI Group, Inc. and the shareholders named therein (the "MSI Shareholders")
have been validly terminated in accordance with the terms of the MSI Agreement,
and none of the MSI shareholders currently have or will hereafter have any right
to any payment pursuant to Article III of the MSI Agreement.
(iii) All outstanding Shares are validly issued,
fully paid and nonassessable and are not subject to preemptive or other similar
rights. Except as set forth on Schedule 4.1(b)(iii)(A), all outstanding shares
of capital stock of the Subsidiaries of the Company are owned by the Company or
a direct or indirect Subsidiary of the Company, free and clear of all liens,
charges, encumbrances, claims and options of any nature. Except for the Equity
Purchase Rights set forth on Schedule 4.1(b)(ii)(A) and except for changes since
the date hereof resulting from the exercise of Equity Purchase Rights set forth
on Schedule 4.1(b)(ii)(A), there are outstanding: (A) no shares of capital
stock, Company Voting Debt or other voting or equity securities of the Company,
other than the outstanding Shares referred to in Section 4.1(b)(i); (B) no
securities of the Company or any Subsidiary of the Company convertible into, or
exchangeable or exercisable for (or which may in the future be convertible into
or exchangeable or exercisable for), shares of capital stock, Company Voting
Debt or other voting or equity securities of the Company or any Subsidiary of
the Company; and (C) no options, warrants, calls, rights (including preemptive
rights), commitments or agreements to which the Company or any Subsidiary of the
Company is a party or by which it is bound, in any case obligating (or which may
in the future obligate) the Company or any Subsidiary of the Company to issue,
deliver, sell, purchase, redeem or acquire, or cause to be issued, delivered,
sold, purchased, redeemed or acquired, additional shares of capital stock or any
Company Voting Debt or other voting or equity securities of the Company or of
any Subsidiary of the Company, or obligating the Company or any Subsidiary of
the Company to grant, extend or enter into any such option, warrant, call,
right, commitment or agreement. Except for the Stockholders Agreement, there are
not as of the date hereof and there will not be at the Effective Time any
stockholder agreements, voting trusts or other agreements or understandings to
which the Company is a party or by which it is bound relating to the voting or
disposition of any shares of the capital stock of the Company (including any
such agreements or understandings that may limit in any way the solicitation of
proxies by or on behalf of the Company from, or the casting of votes by, the
stockholders of the Company with respect to the Merger) or, except as set forth
on Schedule 4.1(b)(iii)(B), granting to any Person or group of Persons the right
to elect, or to designate or nominate for election, a director to the Board of
Directors of the Company. There are no restrictions on the Company's right or
ability to vote the stock of any of its Subsidiaries.
(iv) Set forth on Schedule 4.1(b)(iv) is a true and complete
list of all agreements or other obligations of the Company or any of its
Subsidiaries requiring the Company or any Subsidiary to register, under the
Securities Act of 1933, as amended (the "Securities Act"), any capital stock,
warrants, options, or other debt or equity securities of the
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Company or any of its Subsidiaries, including incidental registration rights
exercisable by any Person only upon the filing by the Company of a registration
statement (whether on its behalf or on behalf of any other security holder), in
each case indicating the securities so required to be registered, the Persons to
whom such registration rights were granted, the duration of the obligation to
register and maintain effective registration of such securities, and whether
such registration rights, by their terms, continue after the consummation of the
Merger. Except as set forth on Schedule 4.1(b)(iv), neither the Company nor any
of its Subsidiaries has any agreement or other obligation requiring the Company
or any Subsidiary to so register any such securities.
(v) Immediately following the Effective Time no holder of an
Equity Purchase Right or other Person (other than Parent or Sub) shall have any
right, contingent or otherwise, to acquire any capital stock of the Company or
any of its Subsidiaries.
(c) Authority; No Violations; Consents and Approvals.
(i) The Company has all requisite corporate power and
authority to enter into this Agreement and the Stockholders Agreement and,
subject, if required with respect to consummation of the Merger, to the Company
Stockholder Approval (as defined in Section 4.1(c)(iii)), to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the Stockholders Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of the Company, subject, if required with
respect to consummation of the Merger, to the Company Stockholder Approval. Each
of this Agreement and the Stockholders Agreement has been duly executed and
delivered by the Company and, assuming that such agreement constitutes the valid
and binding agreement of Parent and Sub, constitutes a valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms except that the enforcement hereof may be limited by (A) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and (B)
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity).
(ii) The execution and delivery of this Agreement and the
Stockholders Agreement and the consummation of the transactions contemplated
hereby (including, without limitation, the Second-Step Merger) and thereby will
not conflict with, or result in any violation of or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation, enhancement or acceleration of any obligation or the loss of a
material benefit under, or give rise to the creation of a lien, pledge, security
interest or other encumbrance on assets or property, or any right of first
refusal with respect to any asset or property (any such conflict, violation,
default, right of termination, cancellation, enhancement or acceleration, loss,
creation or right of first refusal, a "Violation"), pursuant to (A) any
provision of the Certificate of Incorporation or Bylaws of the Company or any of
its
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Subsidiaries, (B) except as set forth on Schedule 4.1(c)(ii) hereto, any loan or
credit agreement, note, mortgage, indenture, lease, Company Employee Benefit
Plan (as defined in Section 4.1(i)) or other agreement, obligation, instrument,
Company Permit (as defined in Section 4.1(f)), concession, franchise or license
to which the Company or any of its Subsidiaries is a party or by which it or any
of its properties or assets are bound, or (C) assuming the consents, approvals,
authorizations or permits and filings or notifications referred to in paragraph
(iii) of this Section 4.1(c) are duly and timely obtained or made and, if
required, the Company Stockholder Approval is obtained, any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to the Company or
any of its Subsidiaries or their respective properties or assets (collectively,
"Laws"), other than, in the case of clauses (B) and (C) of this Section
4.1(c)(ii), any such conflicts, violations, defaults, rights or liens that
individually or in the aggregate could not reasonably be expected to (W) have a
Material Adverse Effect with respect to the Company, (X) impair in any material
respect the ability of the Company to perform its obligations under this
Agreement, (Y) prevent or impede the consummation of any of the transactions
contemplated by this Agreement or (Z) result in any payment or repurchase
obligation (or the loss of any benefit or right having a value) exceeding,
individually or in the aggregate, $10,000,000.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, notice to, or permit from any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity"), is required by
or with respect to the Company or any of its Subsidiaries in connection with the
execution and delivery of this Agreement by the Company or the consummation by
the Company of the transactions contemplated hereby (including, without
limitation, the Second-Step Merger), except for: (A) the filing of a premerger
notification and report form by the Company under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act") and the
expiration or termination of the applicable waiting period thereunder; (B) the
filing with the SEC of (1), if required by applicable law, a proxy or
information statement in definitive form relating to a meeting of the holders of
Company Common Stock to approve the Merger ("Company Stockholder Approval")
(such proxy or information statement as amended or supplemented from time to
time, together with the letter to stockholders, notice of meeting, and form of
proxy, being hereinafter collectively referred to as the "Proxy Statement"), (2)
the Schedule 14D-9 in connection with the Offer, and (3) such reports under and
such other compliance with the Exchange Act and the rules and regulations
thereunder, as may be required in connection with this Agreement and the
transactions contemplated hereby; (C) the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware; (D) such filings, consents
and approvals as may be required pursuant to (i) the Competition Act (Canada),
(ii) the Federal Law on Economic Competition of Mexico and (iii) the Austrian
Cartel Act of 1988, as amended; and (E) the Pro Forma Application (as defined
below) shall have been filed with and granted by the Federal Communications
Commission.
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(d) SEC Documents; Financial Statements. The Company has made
available to Parent a true and complete copy of each report, schedule,
registration statement and definitive proxy statement filed by the Company with
the SEC (the "Company SEC Documents") which are all the documents (other than
preliminary material) that the Company was required to file with the SEC. As of
their respective filing dates (or, in the case of registration statements, their
respective effective dates), the Company SEC Documents complied in all material
respects with the requirements of the Securities Act or the Exchange Act, as the
case may be, and the rules and regulations thereunder. None of the Company SEC
Documents at the time filed (or in the case of registration statements, their
respective effective dates) contained any untrue statement of a material fact or
omitted 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. The Company has heretofore delivered to Parent (i) the
unaudited consolidated balance sheet of the Company and its Subsidiaries as of
March 31, 1996, and (ii) the unaudited statements of consolidated liabilities
and stockholder's equity, consolidated operations and consolidated cash flows of
the Company and its Subsidiaries for the three months ended March 31, 1996 ((i)
and (ii) collectively, the "Interim Financial Statements"). The financial
statements of the Company included in the Company SEC Documents and the Interim
Financial Statements complied as to form in all material respects with the
published rules and regulations of the SEC with respect thereto, were prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved ("GAAP") (except, in the case of
unaudited financial statements, as permitted by Rule 10-01 of Regulation S-X of
the SEC) and fairly present in all material respects in accordance with
applicable requirements of GAAP (subject, in the case of unaudited statements,
to normal, recurring adjustments, none of which will be material) the
consolidated financial position of the Company and its Subsidiaries as of their
respective dates and the consolidated results of operations and the consolidated
cash flows of the Company and its Subsidiaries for the periods presented
therein.
(e) Information Supplied. None of the information relating to
the Company and its Subsidiaries included in the Proxy Statement will, at the
time of (i) the mailing of the Proxy Statement or (ii) the meeting of the
stockholders to which the Proxy Statement relates or at the Effective Time, be
false or misleading with respect to any 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. The Proxy Statement will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
thereunder. None of the information relating to the Company and its affiliates
supplied in writing by the Company specifically for inclusion in the Offer
Documents will, at the respective times the Offer Documents are filed 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 the Effective Time the Company should
become aware of any event relating to the Company or any of its Subsidiaries
that is required by applicable law to be set forth in an amendment of,
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or supplement to, the Offer Documents, the Company shall promptly so inform the
Sub or the Parent and will furnish to the Sub or the Parent all information
relating to such event that is required under applicable law to be disclosed in
an amendment or supplement to the Offer Documents. The Schedule 14D-9 will
comply as to form in all material respects with the Exchange Act, and shall not,
when filed 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; provided, however, that no agreement or
representation hereby is made or shall be made by the Company with respect to
information supplied by Parent or Sub in writing expressly for inclusion in the
Schedule 14D-9.
(f) Compliance with Applicable Laws. The Company and its
Subsidiaries hold all permits, licenses, variances, exemptions, orders,
franchises and approvals of all Governmental Entities necessary for the lawful
conduct of their respective businesses (the "Company Permits"), except where the
failure to possess the same could not reasonably be expected to have a Material
Adverse Effect with respect to the Company. The Company and its Subsidiaries are
in all material respects in compliance with the terms of the Company Permits.
Except as disclosed on Schedule 4.1(f), the businesses of the Company and its
Subsidiaries are not being conducted (i) in violation of (A) any federal, state
or foreign anti-trust or competition Laws, (B) any federal, state or foreign
Laws regarding government procurement, or (C) the Foreign Corrupt Practices Act
of 1977, as amended (and the Company and its Subsidiaries are in compliance with
all such Laws), and (ii) in material violation of any other Laws (and the
Company and its Subsidiaries are in compliance in all material respects with all
such other Laws). To the knowledge of the Company, no investigation or review by
any Governmental Entity with respect to the Company or any of its Subsidiaries
is pending or threatened.
(g) Litigation. Except as disclosed in Schedule 4.1(g), (i)
there is no suit, action or proceeding pending or, to the knowledge of the
Company, threatened against or affecting the Company or any Subsidiary of the
Company ("Company Litigation"), (ii) the Company and its Subsidiaries have no
knowledge (after due inquiry) of any facts which are reasonably likely to give
rise to any Company Litigation, and (iii) there is no judgment, decree,
injunction, rule or order of any Governmental Entity or arbitrator outstanding
against the Company or any Subsidiary of the Company ("Company Order"), in each
case which, (A) involves a claim, or related claims arising out of the same
facts or circumstances, for amounts in excess of $1,000,000, (B) involves an
allegation of criminal misconduct or a violation of the Racketeer and Influenced
Corrupt Practices Act, as amended, (C) involves claims for equitable relief, (D)
involves claims made by the Company's ten largest customers and suppliers (based
upon the aggregate dollar amount of purchases made by such customer or from such
supplier during fiscal 1995), or (E) individually or in the aggregate, is
reasonably likely to (I) if adversely determined, result in a Material Adverse
Effect on the Company, (II) prevent, hinder or materially delay its ability to
consummate the transactions contemplated by or perform its obligations under
this Agreement (including the Acquisition Mergers) or (III)
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prevent the consummation of the transactions contemplated by this Agreement
(including the Acquisition Mergers).
(h) Taxes. The Company and each of its Subsidiaries have
timely filed all material tax returns required to be filed by such party (giving
effect to any valid extensions of time), have paid (or the Company has paid on
behalf of any such Subsidiary), or the Company has established an adequate
reserve for the payment of, all taxes required to be paid in respect of all
taxable periods of the Company and its Subsidiaries as to which the applicable
statute of limitations for assessment has not expired, and have properly
withheld and paid over to the appropriate taxing authorities all taxes required
to be so withheld and paid over. The most recent financial statements contained
in the Company SEC Documents filed prior to the date of this Agreement reflect
an adequate reserve for all taxes payable by the Company and its Subsidiaries
accrued through the date of such financial statements. All material deficiencies
for taxes which have been proposed, asserted or assessed against the Company or
any of its Subsidiaries have been fully paid, are reflected as a liability in
such financial statements in accordance with Statement of Financial Accounting
Standards No. 5, are being contested and an adequate reserve therefor has been
established and is reflected in such financial statements in accordance with
Statement of Financial Accounting Standards No. 5 or, to the extent set forth on
Schedule 4.1(h), the Company or such Subsidiary is entitled to indemnification
therefor. There are no liens for taxes (other than for current taxes not yet due
and payable) on the assets of the Company or its Subsidiaries. Except as set
forth on Schedule 4.1(h), no federal or state income tax returns of, or that
include, the Company or any of its Subsidiaries are under examination currently
by the United States Internal Revenue Service (the "IRS") or any state taxing
authority. Except as set forth on Schedule 4.1(h), no waiver of the statute of
limitations for the assessment of any tax against the Company or any of its
Subsidiaries has been granted and remains in effect. The Company has previously
delivered or made available to Parent true and complete copies of its federal
and state income tax returns for each of the taxable years ended December 31,
1993 through December 31, 1994. Except as set forth on Schedule 4.1(h), neither
the Company nor any of its Subsidiaries is a party to or bound by any agreement
providing for the allocation or sharing of taxes with any entity which is not,
either directly or indirectly, a Subsidiary of the Company. Except as set forth
on Schedule 4.1(h), neither the Company nor any of its Subsidiaries has (i)
filed a consent pursuant to or agreed to the application of Section 341(f) of
the Code, (ii) entered into a closing agreement pursuant to Section 7121 of the
Code or (iii) agreed to, or is required to make, any adjustments pursuant to
Section 481(a) of the Code which, in the case of items (ii) and (iii), has
continuing effect. The Company is not a "United States real property holding
corporation" as defined in Section 897(c)(2) of the Code during the applicable
period specified in Section 897(c)(1)(A)(ii) of the Code. For the purpose of
this Agreement, the term "tax" (and, with correlative meaning, the terms "taxes"
and "taxable") shall include all federal, state, local and foreign income,
profits, franchise, gross receipts, payroll, sales, employment, use, property,
capital, transactions, value-added, stamp, customs, withholding, excise and
other taxes, duties or assessments of any nature whatsoever, together with all
interest, penalties and additions imposed with respect to such amounts.
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(i) Pension And Benefit Plans; ERISA.
(i) Schedule 4.1(i)(i) hereto contains a true and complete
list of (A) all "employee benefit plans", as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and all
other employee benefit arrangements or payroll practices, including, without
limitation, severance pay, sick leave or other leave of absence, vacation or
holiday pay, salary continuation for disability, consulting, retirement,
deferred compensation, bonus or other incentive compensation, stock option,
award or purchase, hospitalization, medical insurance, life insurance and
scholarship or other educational assistance programs or agreements maintained by
the Company or any of its Subsidiaries or to which the Company or any of its
Subsidiaries contributed or is obligated to contribute thereunder other than
Foreign Plans (as defined below), "Multiemployer Plans" as defined in Section
4001(a)(3) of ERISA ("Multiemployer Plans") and terminated "Employee Benefit
Plans," as defined in Section 3(2) of ERISA, for which the Company or any of its
Subsidiaries or ERISA Affiliates (as defined below) have no further liability,
whether direct, contingent or otherwise ("Terminated Pension Plans")
(collectively, "Company Employee Benefit Plans"), and (B) all "employee pension
plans", as defined in Section 3(2) of ERISA maintained by the Company or any of
its Subsidiaries or any corporation, trade or business which is under common
control, or which is treated as a single employer with the Company under Section
414(b), (c), (m) or (o) of the Code ("ERISA Affiliate") or to which the Company
or any of its Subsidiaries or any ERISA Affiliate contributed or is obligated to
contribute thereunder other than Multiemployer Plans, Foreign Plans or
Terminated Pension Plans ("Company Pension Plans"). Except as disclosed on
Schedule 4.1(i)(i), none of the Company Employee Benefit Plans or the Company
Pension Plans is or has been subject to Sections 4063 or 4064 of ERISA
("Multiple Employer Plans"). Except as disclosed in Schedule 4.1(i)(i), neither
the Company nor any of its Subsidiaries nor any ERISA Affiliate contributed to
or is obligated to contribute to any Multiemployer Plan. Except as disclosed in
Schedule 4.1(i)(i) or as required by Section 3.5 hereof, there has not been any
amendment in any material respect by the Company or any of its Subsidiaries of
any Company Employee Benefit Plan or Company Pension Plan since December 31,
1995. Except as disclosed on Schedule 4.1(i)(i), there are no Terminated Pension
Plans. For purposes of this Agreement, "Foreign Plan" means each employee
benefit plan, including any statutory benefit, maintained outside of the United
States primarily for the benefit of persons substantially all of whom are
nonresident aliens.
(ii) Except as disclosed on Schedule 4.1(i)(ii), the Company
Pension Plans intended to qualify under Section 401 of the Code so qualify and
the trusts maintained pursuant thereto are exempt from federal income taxation
under Section 501 of the Code, and nothing has occurred with respect to the
operation of the Company Pension Plans which could cause the loss of such
qualification or exemption or the imposition of any material liability (except
for benefits, insurance premiums or administrative expenses), penalty, or tax
under ERISA or the Code.
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(iii) All contributions required by law to have been made
under any of the Company Employee Benefit Plans or the Company Pension Plans to
any funds or trusts established thereunder or in connection therewith have been
made by the due date thereof (including any valid extension) and no accumulated
funding deficiencies (without regard to any waivers granted under Section 412 of
the Code) exist in any of the Company Employee Benefit Plans or the Company
Pension Plans subject to Section 412 of the Code.
(iv) Except as disclosed on Schedule 4.1(i)(iv), there is no
"amount of unfunded benefit liabilities" (as defined in Section 4001(a)(18) of
ERISA) in any of the Company Pension Plans which are subject to Title IV of
ERISA, as calculated in accordance with the actuarial assumptions used by the
Pension Benefit Guaranty Corporation (the "PBGC") to determine the level of
funding required in the event of the termination of such Company Pension Plan.
(v) Except as disclosed in Schedule 4.1(i)(v), there has been
no "reportable event" as that term is defined in Section 4043 of ERISA and the
regulations thereunder with respect to the Company Pension Plans subject to
Title IV of ERISA which would require the giving of notice or any event
requiring disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA.
(vi) True, correct and complete copies of the following
documents, with respect to each of the Company Employee Benefit Plans and the
Company Pension Plans, have been made available or delivered by the Company to
Parent: (A) any plans and related trust documents, and amendments thereto, (B)
the most recent Form 5500 (with Schedules), (C) the most recent actuarial report
and valuation, (D) the most recent Internal Revenue Service determination
letter, (E) summary plan descriptions, (F) written descriptions of all material
non-written agreements relating to the Company Employee Benefit Plans and the
Company Pension Plans and (G) employment, consulting or individual compensation,
severance, deferred compensation or any similar agreement (and any amendments to
such agreements).
(vii) There are no pending actions, claims or lawsuits which
have been instituted or, to the knowledge of the Company or any of its
Subsidiaries, threatened against Company Employee Benefit Plans or the Company
Pension Plans, the assets of any of the trusts under such plans, the plan
sponsor, the plan administrator or any fiduciary of the Company Employee Benefit
Plans or the Company Pension Plans with respect to the operation of such plans
(other than routine benefit claims).
(viii) The Company Employee Benefit Plans and the Company
Pension Plans have been maintained and administered, in all material respects,
in accordance with their terms and with all provisions of ERISA (including
applicable regulations thereunder) and other applicable Federal and state law,
and neither the Company nor any of its Subsidiaries nor, to the Company's best
knowledge, any "party in interest" or "disqualified person" with
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respect to the Company Employee Benefit Plans and the Company Pension Plans has
engaged in a non-exempt "prohibited transaction" within the meaning of Section
4975 of the Code or Section 406 of ERISA.
(ix) None of the Company, any of its Subsidiaries or any
Company ERISA Affiliate has terminated any Company Pension Plan subject to Title
IV as to which there is any remaining liability, or incurred any outstanding
liability under Section 4062 of ERISA to the PBGC or to a trustee appointed
under Section 4042 of ERISA.
(x) Except as disclosed on Schedule 4.1(i)(x), none of the
Company Employee Benefit Plans provide for post-employment continuing health or
medical benefits or coverage for any participant or any beneficiary of a
participant except as may be required under Section 4980B of the Code, and at
the sole expense of the participant or the participant's beneficiary.
(xi) Except as disclosed on Schedule 4.1(i)(xi), none of the
Company, any of its Subsidiaries or any ERISA Affiliate has withdrawn in a
complete or partial withdrawal from any Multiemployer Plan prior to the
Effective Date, nor has any of them incurred any liability due to the
termination or reorganization of a Multiemployer Plan other than any such
withdrawal or liability as to which all liability has been fully satisfied.
(xii) None of the Company, any of its Subsidiaries, any ERISA
Affiliate or any organization to which the Company is a successor or parent
corporation within the meaning of Section 4069(b) of ERISA, has engaged in any
transaction within the meaning of Section 4069 of ERISA.
(xiii) Except as disclosed on Schedule 4.1(i)(xiii) or as
provided in Section 3.5 hereof, neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (A)
result in any payment becoming due to any employee or group of employees of the
Company or any of its Subsidiaries, (B) increase any benefits otherwise payable
under any Company Employee Benefit Plan or Company Pension Plan or (C) result in
the acceleration of the time of payment or vesting of any such benefits.
(xiv) None of the Company or any of its Subsidiaries has any
contract, plan, or commitment, to create any additional Company Employee Benefit
Plan or Company Pension Plan or to modify any existing Company Employee Benefit
Plan or Company Pension Plan.
(xv) With respect to any period for which any contribution to
or in respect of any Company Employee Benefit Plan or Company Pension Plan is
not yet due or owing, the Company and each of its Subsidiaries has made due and
sufficient current accruals for such contributions and other payments in
accordance with GAAP and such current accruals
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through March 31, 1996 are duly and fully provided for in the Interim Financial
Statements of such entity for the period then ended.
(xvi) All Foreign Plans are duly registered where required by
all applicable laws, and any regulations thereunder, and no events have occurred
or conditions exist that could materially jeopardize such status. All Foreign
Plans are in material compliance and have been maintained and are properly
funded in accordance with their terms and applicable law in all material
respects. In the aggregate, there exists no unfunded actuarial liabilities or
solvency deficiencies with respect to Foreign Plans. Neither the Company nor any
of its Subsidiaries have removed any actuarial surplus nor has any surplus ever
been used to offset any contributions obligations of the Company or any of its
Subsidiaries under any Foreign Plan.
(j) Absence of Certain Changes or Events. Except as disclosed
in the Company SEC Documents filed prior to the date of this Agreement or as set
forth on Schedule 4.1(j), since December 31, 1995, the business of the Company
has been carried on only in the ordinary and usual course and there has not been
(i) any change in its business, operations or financial condition which has
resulted in or reasonably could be expected to result in a Material Adverse
Effect with respect to the Company, (ii) any declaration, setting aside or
payment of any dividend or other distribution with respect to any capital stock
of the Company (except for cash distributions payable with respect to the
Preferred Securities in accordance with their present terms), (iii) any split,
combination or reclassification of any of the Company's capital stock or any
issuance or the authorization of any issuance of any other securities in respect
of, in lieu of or in substitution for shares of its capital stock, (iv) any
redemption, repurchase or other acquisition by the Company or any of its
Subsidiaries of any equity security of the Company, (v) other than with respect
to directors, officers and executive employees employed outside of the United
States, (A) any granting by the Company or any of its Subsidiaries to any
director, officer or executive employee of the Company or any of its
Subsidiaries of any increase in compensation, except in the ordinary course of
business consistent with prior practice, as disclosed in Schedule 4.1(j), or as
was required under employment agreements listed on Schedule 4.1(n)(i) hereto as
in effect as of December 31, 1995, (B) any granting by the Company or any of its
Subsidiaries to any such Person of any increase in severance or termination pay
or any agreement or commitment to increase severance or termination pay, except
(x) in the ordinary course of business consistent with past practice, (y) as was
required under employment, severance or termination agreements listed on
Schedule 4.1(n)(i) hereto as in effect as of December 31, 1995 or (z) as
disclosed in Schedule 4.1(j) or (C) any entry by the Company or any of its
Subsidiaries into any employment, severance or termination agreement with any
such Person, other than "at-will" employment agreements terminable by the
Company without penalty or cost at any time, with or without cause, on not more
than 30 days prior notice ("At-Will Employment Agreements") and providing for
total annual compensation (including salary and bonus) of less than $100,000,
(vi) any damage, destruction or loss, whether or not covered by insurance, that
has or reasonably could be expected to have a Material Adverse Effect with
respect to
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the Company, (vii) any change in accounting methods, principles or practices by
the Company, except insofar as may have been required by a change in GAAP or
(viii) any other event that would have required Parent's consent under Section
5.1 had this Agreement been in effect on and after December 31, 1995.
(k) No Undisclosed Material Liabilities. Except as set forth
in the Company SEC Documents filed prior to the date of this Agreement or in the
Interim Financial Statements, and except for liabilities and obligations
incurred in the ordinary course of business consistent with past practice since
March 31, 1996 that are not in the aggregate material, neither the Company nor
any of its Subsidiaries has any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) required by GAAP to be set
forth on a consolidated balance sheet of the Company and its Subsidiaries or in
the notes thereto. Except as specifically and individually set forth on Schedule
4.1(k) or the other schedules hereto (specific reference to which shall be made
on Schedule 4.1(k)), as of the date hereof, there are no liabilities of the
Company or any Subsidiary of any kind whatsoever, whether accrued, contingent,
absolute, determined, determinable or otherwise, that are reasonably likely to
have a Material Adverse Effect with respect to the Company, other than (i)
liabilities reflected on the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996 and the Company's Annual Report on Form 10-K for
the year ended December 31, 1995 and (ii) liabilities under this Agreement. As
of the date hereof, there is no pending claim by any director or officer of the
Company or any of its Subsidiaries for indemnification by the Company or any of
its Subsidiaries, and no director or officer has indicated to the Company or any
of its Subsidiaries his or her intention to assert any such claim.
(l) Opinion of Financial Advisor. The Company has received the
opinion of Alex Brown dated May 20, 1996, to the effect that, as of the date
hereof, the Offer Consideration to be received by the holders of Company Common
Stock in the Offer and the Merger as contemplated in this Agreement is fair from
a financial point of view to such holders, a signed, true and complete copy of
which opinion has been delivered to Parent, and such opinion has not been
withdrawn or modified.
(m) Vote Required. In the event that Section 253 of the DGCL
is inapplicable and unavailable to effectuate the Merger, the affirmative vote
of the holders of a majority of the outstanding shares of Company Common Stock
is the only vote of the holders of any class or series of the Company's capital
stock or other securities necessary (under applicable law or otherwise) to
approve the Merger and this Agreement and the transactions contemplated hereby.
(n) Labor Matters.
(i) Except as set forth on Schedule 4.1(n)(i) hereto and other
than At-Will Employment Agreements, neither the Company nor any of its
Subsidiaries is a party to any
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employment, severance, consulting, change of control or other compensation
contracts or any indemnification agreements entered into in connection with any
employment or consulting arrangements (collectively, "Employment Agreements"),
or any labor or collective bargaining agreement, in each case involving
expenditures in excess of $100,000 annually. The Company has heretofore made
available to Parent true and complete copies of (A) the Employment Agreements
listed on Schedule 4.1(n)(i) and (B) the labor or collective bargaining
agreements listed on Schedule 4.1(n)(i), together with all amendments,
modifications, supplements and side letters affecting the duties, rights and
obligations of any party thereunder.
(ii) Except as set forth in Schedule 4.1(n)(ii), no employees
of the Company or any of its Subsidiaries are represented by any labor
organization; no labor organization or group of employees of the Company or any
of its Subsidiaries has made a pending demand for recognition or certification,
and, to the Company's knowledge, there are no representation or certification
proceedings or petitions seeking a representation proceeding presently pending
or threatened in writing to be brought or filed with the National Labor
Relations Board or any other labor relations tribunal or authority. To the
knowledge of the Company, there are no organizing activities involving the
Company or any of its Subsidiaries pending with any labor organization or group
of employees of the Company or any of its Subsidiaries.
(iii) Except as set forth on Schedule 4.1(n)(iii), there are
no unfair labor practice charges, grievances or complaints pending or, to the
Company's knowledge, threatened in writing by or on behalf of any employee or
group of employees of the Company or any of its Subsidiaries.
(iv) Except as set forth on Schedules 4.1(n)(iii) and
4.1(n)(iv) hereto, there are no complaints, charges or claims against the
Company or any of its Subsidiaries pending, or, to the Company's knowledge,
threatened in writing to be brought or filed, with any Governmental Entity or
arbitrator based on, arising out of, in connection with, or otherwise relating
to the employment or termination of employment of any individual by the Company
or any of its Subsidiaries.
(v) Except as set forth on Schedule 4.1(n)(v) hereto, the
Company and each of its Subsidiaries is in compliance with all laws and orders
relating to the employment of labor, including all such laws and orders relating
to wages, hours, collective bargaining, discrimination, civil rights, safety and
health workers' compensation and the collection and payment of withholding
and/or Social Security taxes and similar taxes except where the failure to so
comply, individually or in the aggregate, is not reasonably likely to have a
Material Adverse Effect with respect to the Company.
(vi) Notwithstanding the foregoing, the representations set
forth in clauses (i), (ii), (iii) and (iv) of this Section 4.1(n) shall not
apply to employees of the Company
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employed outside of the United States or any agreements or labor matters with
respect to such non-U.S. Persons.
(o) Intangible Property.
(i) Schedule 4.1(o) sets forth a list of all software utilized
by the Company or any of its Subsidiaries that is not owned by the Company or
any of its Subsidiaries (the "Third Party Software"), other than (A)
commercially available software and (B) software that has been developed by the
Company or such Subsidiaries for use by a customer of such company and that is
not otherwise utilized by the Company or any of its Subsidiaries in its
business. Each material trademark, trade name, patent, service mark, brand mark,
brand name, computer program, database, industrial design and copyright owned,
used or useful in connection with the operation of the businesses of each of the
Company and its Subsidiaries (collectively, the "Company Intangible Property")
is owned by the Company or its Subsidiaries free and clear of any and all liens,
claims or encumbrances. The use of the Company Intangible Property and the Third
Party Software by the Company or its Subsidiaries does not conflict with,
infringe upon, violate or interfere with or constitute an appropriation of any
right, title, interest or goodwill, including, without limitation, any
intellectual property right, trademark, trade name, patent, service mark, brand
mark, brand name, computer program, database, industrial design, copyright or
any pending application therefor of any other Person and there have been no
claims made and neither the Company nor any of its Subsidiaries has received any
notice of any claim or otherwise knows that any of the Company Intangible
Property is invalid or conflicts with the asserted rights of any other Person or
has not been used or enforced or has failed to be used or enforced in a manner
that would result in the abandonment, cancellation or unenforceability of any of
the Company Intangible Property.
(ii) Each of the Company and its Subsidiaries own or have a
right to use all Company Intangible Property and Third Party Software necessary
for the operation of its respective business and has not forfeited or otherwise
relinquished any Company Intangible Property or right to use Third Party
Software.
(iii) Each of the material licenses or other contracts
relating to the Company Intangible Property and Third Party Software
(collectively, the "Company Intangible Property Licenses") is in full force and
effect and is valid and enforceable in accordance with its terms, and there is
no default under any Company Intangible Property License either by the Company
or any of its Subsidiaries or, to the knowledge of the Company, by any other
party thereto.
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(p) Environmental Matters.
(i) For purposes of this Agreement:
(A) "Environmental Costs and Liabilities" means any
and all losses, liabilities, obligations, damages, fines,
penalties, judgments, actions, claims, costs and expenses
(including, without limitation, the reasonable fees,
disbursements and expenses of legal counsel, experts,
engineers and consultants and the costs of investigation and
feasibility studies and Remedial Action (as defined below))
arising from or under any Environmental Law (as defined below)
or any order, agreement or contract with any governmental
authority or other person;
(B) "Environmental Law" means any applicable
federal, state, local or foreign law (including common law),
statute, regulation, code, ordinance, rule, regulation,
governmental order or other legal requirement, and any
administrative interpretation thereof, regulating or
prohibiting Releases (as defined below) or threatened Releases
or pertaining to pollution or the protection of natural
resources, the environment and public and employee health and
safety including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. ss. 9601 et seq.) ("CERCLA"), the Hazardous Materials
Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.),
the Clean Water Act (33 U.S.C. ss. 1251 et seq.), the Clean
Air Act (33 U.S.C. ss. 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. ss. 7401 et seq.), the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. ss. 136
et seq.), and the Occupational Safety and Health Act (29
U.S.C. ss. 651 et seq.) ("OSHA") and the regulations
promulgated pursuant thereto, as such laws have been and may
be amended or supplemented through the Closing Date;
(C) "Hazardous Material" means any substance,
material or waste which is regulated by any public or
governmental authority in the jurisdictions in which the
applicable party or its Subsidiaries conducts business, or the
United States, including, without limitation, any material or
substance or waste which is defined as a "hazardous waste,"
"hazardous material," "hazardous substance," "extremely
hazardous waste" or "restricted hazardous waste," "solid
waste," "contaminant," "toxic waste" or "toxic substance"
under any provision of any Environmental Law and shall also
include petroleum or any petroleum product;
(D) "Release" means any release, spill, effluent,
emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching, or
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<PAGE>
migration of Hazardous Materials into any part of the indoor
or outdoor environment, including, but not limited to, any
property owned, operated or leased by the Company or any of
its Subsidiaries; and
(E) "Remedial Action" means all actions, including,
without limitation, any capital expenditures, required by a
governmental entity or required under any Environmental Law,
or voluntarily undertaken to (I) clean up, remove, remediate,
treat, or in any other way ameliorate or address any Hazardous
Materials in the indoor or outdoor environment, (II) prevent
the Release or threat of Release, or minimize the further
Release of any Hazardous Material so it does not endanger or
threaten to endanger natural resources, or the public health
or welfare of the indoor or outdoor environment, (III) perform
pre-remedial studies and investigations or post-remedial
monitoring and care pertaining or relating to a Release or
threat of Release, or (IV) bring the applicable party into
compliance with any Environmental Law.
(ii) The operations of the Company and its Subsidiaries have
been and, as of the Closing Date, will be, in compliance with all Environmental
Laws, except where the failure to so comply could not reasonably be expected to
result in the Company and its Subsidiaries incurring Environmental Costs and
Liabilities in excess of $250,000 individually or $750,000 in the aggregate with
respect to any of the operations of the Company or its Subsidiaries.
(iii) The Company and its Subsidiaries have obtained and will,
as of the Closing Date, maintain in full force and effect, and be in material
compliance with all material permits, licenses, authorizations or other
approvals required under applicable Environmental Laws for the continued
operations of their respective businesses, except where failure to possess or
comply could not reasonably be expected to result in the Company and its
Subsidiaries incurring Environmental Costs and Liabilities in excess of $250,000
individually or $750,000 in the aggregate or materially interfere with the
anticipated operations of the Company and its Subsidiaries.
(iv) The Company and its Subsidiaries are not subject to any
outstanding orders, agreements or contracts with any Governmental Entity or
other Person respecting (A) Environmental Laws, (B) Remedial Action or (C) any
Release or threatened Release and to the knowledge of the Company none are
threatened.
(v) The Company and its Subsidiaries have not received any
written communication alleging, with respect to any such party, the violation of
or liability under any Environmental Law, which could reasonably be expected to
result in material Environmental Costs and Liabilities.
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(vi) Neither the Company nor any of its Subsidiaries has any
contingent liability in connection with the Release of any Hazardous Material
(whether on-site or off-site) which would reasonably be likely to result in the
Company and its Subsidiaries incurring Environmental Costs and Liabilities in
excess of $250,000 individually or $750,000 in the aggregate.
(vii) There is not now, nor to the knowledge of the Company,
has there been on or in any property owned, operated or leased by the Company or
its Subsidiaries any of the following, the presence of which could reasonably be
expected to result, either individually or in the aggregate, in material
Environmental Costs and Liabilities: (A) any underground storage tanks or
surface impoundments, containing Hazardous Materials; (B) any
asbestos-containing materials; or (C) any polychlorinated biphenyls.
(viii) The Company has delivered to Parent copies of all
environmental investigations, studies, audits, tests, reviews and other
analyses, including soil and groundwater analysis, conducted by or on behalf of,
or that are in the possession custody or control of the Company or any of its
Subsidiaries, in relation to any site or facility owned or leased, at any time,
by the Company or any of its Subsidiaries (collectively the "Sites") or any of
their respective predecessors.
(ix) None of the Sites are subject to any statutory land use
regulation or prohibition under any Environmental Law or any law of any
Governmental Authority relating to the protection of wetlands, woodlands and the
like, which would prevent or significantly impair current or reasonably
anticipated use and development of the Site.
(x) Except as set forth on Schedule 4.1(p) hereto, there have
been no citations, notices or complaints issued to any of the Company or any
Subsidiary by the Occupational Safety and Health Administration or any state
occupational safety and health administration since January 1, 1992.
(xi) None of the operations of the Company or its Subsidiaries
or of any of their predecessors, or, to the knowledge of the Company, of any
owner of premises leased or operated by Company or any Subsidiary involves or
previously involved the generation, transportation, treatment, storage or
disposal of hazardous waste, as defined under 40 C.F.R. parts 260-270 or any
state, local or foreign equivalent and neither the Company nor any of its
Subsidiaries or any of their predecessors, nor any owner of premises leased or
operated by the Company or its Subsidiaries has filed any notice under federal,
state, local or foreign law indicating past or present treatment, storage, or
disposal of, or reporting a Release of, Hazardous Materials.
(xii) There are no judicial, administrative or arbitral
actions, suits, proceedings (public or private) or governmental proceedings
(collectively "Legal Proceedings") pending or, to the knowledge of the Company,
threatened against the Company
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<PAGE>
or its Subsidiaries and, to the knowledge of the Company, there is no
investigation pending or threatened, against the Company or its Subsidiaries
alleging the violation of or seeking to impose liabilities pursuant to any
Environmental Law, except for Legal Proceedings that do not or would not require
disclosure under rules and regulations of the Securities and Exchange Commission
and could not reasonably be expected to result in the Company and its
Subsidiaries incurring Environmental Costs and Liabilities in excess of $250,000
individually or $750,000 in the aggregate.
(xiii) The Company and its Subsidiaries have not caused or
suffered to occur any Release at, under, above, or within any real property
owned or leased by the Company or any Subsidiary.
(q) Real Property; Other Assets.
(i) Schedule 4.1(q)(i) sets forth all of the real property
owned in fee by the Company and its Subsidiaries (the "Owned Real Property").
Each of the Company and its Subsidiaries has good and marketable title to each
parcel of Owned Real Property free and clear of all mortgages, pledges, liens,
encumbrances and security interests, except (A) those reflected or reserved
against in the balance sheet of the Company dated as of December 31, 1995 (the
"Balance Sheet"), (B) taxes and general and special assessments not in default
and payable without penalty and interest, and (C) other liens, mortgages,
pledges, encumbrances and security interests which do not materially interfere
with the Company's use and enjoyment of the Owned Real Property or Leased Real
Property (as defined below), as applicable, or materially detract from or
diminish the value thereof and, if related to a dollar amount, are reflected on
the Balance Sheet (collectively "Permitted Liens").
(ii) Schedule 4.1(q)(ii) sets forth all leases, subleases and
other agreements (the "Real Property Leases") under which the Company or any of
its Subsidiaries uses or occupies or has the right to use or occupy, now or in
the future, any real property (the "Leased Real Property"). The Company has
heretofore delivered to Parent true, correct and complete copies of all Real
Property Leases (including all modifications, amendments and supplements
hereto). Each Real Property Lease is valid, binding and in full force and
effect, all rent and other sums and charges payable by the Company and its
Subsidiaries as tenants thereunder are current in all material respects, and no
termination event or condition or uncured default of a material nature on the
part of the Company or any such Subsidiary or, to the Company's knowledge, the
landlord, exists under any Real Property Lease. Each of the Company and its
Subsidiaries has a good and valid leasehold interest in each parcel of Leased
Real Property free and clear of all mortgages, pledges, liens, encumbrances and
security interests, except for Permitted Liens.
(iii) The Company or one of its Subsidiaries has good and
valid title to all its properties and assets, in each case free and clear of all
liens, except (A) such as are set forth in Schedule 4.1(q)(iii), (B) mechanics',
carriers', workmen's, repairmen's or other
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similar liens arising or incurred in the ordinary course of business, (C) liens
arising under conditional sales contracts and equipment leases with third
parties entered into in the ordinary course of business, (D) liens for taxes
which are not due and payable or which may thereafter be paid without penalty,
(E) liens which secure Indebtedness that is set forth on Schedule 4.1(s) and (F)
other imperfections of title or encumbrances, if any, which do not, individually
or in the aggregate, materially impair the continued use and operation of the
assets to which they relate in the business of the Company and its Subsidiaries
or materially impair the value of such assets. This paragraph (iii) does not
relate to interests in real property, such items being the subject of paragraph
(ii) above.
(iv) Except for its Subsidiaries or as set forth on Schedule
4.1(q)(iv), the Company does not own, directly or indirectly, through any
Subsidiaries or otherwise, any capital stock or other equity interests in any
corporation, partnership, limited liability company, joint venture or other
Person.
(r) Insurance. Set forth on Schedule 4.1(r) is a list of
insurance policies (including information on the premiums (other than premiums
with respect to any insurance policies maintained outside of the United States)
payable in connection therewith and the scope and amount of the coverage
provided thereunder) maintained by the Company or any of its Subsidiaries.
(s) Material Contracts. Set forth in Schedule 4.1(s) is a list
of (i) all loan or credit agreements, notes, bonds, mortgages, indentures and
other agreements and instruments pursuant to which any Indebtedness (as defined
below) of the Company or any of its Subsidiaries in a principal amount in excess
of $100,000 is outstanding or may be incurred, other than pursuant to
performance bonds, performance guarantees or letters of credit securing
performance granted in the ordinary course of business in each case for amounts
not exceeding $5,000,000, indicating (A) with respect to any term or fixed
loans, the respective principal amounts outstanding thereunder as of March 31,
1996, and (B) whether such Indebtedness is prepayable and any applicable
prepayment or similar penalties, (ii) all agreements of the Company or any of
its Subsidiaries involving annual payments in excess of $200,000 or aggregate
payments in excess of $500,000, other than agreements of the type referred to in
clause (iv) of this Section 4.1(s), (iii) (A) the twelve largest U.S. vendor
contracts (measured by dollar purchase amount) of the Company and its
Subsidiaries in the United States for fiscal 1995 and the name of each vendor
agreement pursuant to which the Company or any of its Subsidiaries is currently
making purchases in excess of $500,000 outside the United States; (iv) (A) all
domestic contracts for the delivery of goods or services pursuant to which the
Company and its Subsidiaries recognized revenues during fiscal 1995 of
$1,000,000 or more or, with respect to domestic contracts of AmeriData Computer
Rental Inc. or AmeriData Consulting, Inc., the top ten customers in fiscal year
1995 of each such Subsidiary, and (B) all foreign contracts pursuant to which
the Company or any of its Subsidiaries is receiving payments of $500,000 or
more, (v) all agreements ("Acquisition Agreements") pursuant to which the
Company or any of its Subsidiaries has acquired, or
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agreed to acquire, all or a substantial portion of the assets of or equity
interests in any corporation, partnership or other entity (or any Subsidiary,
division or business thereof), (vi) all agreements pursuant to which the Company
or any of its Subsidiaries has merged with or into, or agreed to merge with or
into, any other Person, (vii) all agreements pursuant to which the Company or
any of its Subsidiaries has disposed of, or agreed to dispose of, any business
or Subsidiary or all or a substantial portion of the assets of any business or
Subsidiary, (viii) all commitments of the Company or any Subsidiary for capital
expenditures in excess of $100,000 individually or $500,000 in the aggregate per
month, excluding MIS and rental inventory purchases, (ix) all agreements of the
Company or any of its Subsidiaries containing an unexpired covenant not to
compete or similar restriction applying to the Company or any of its
Subsidiaries or affiliates or, to the Company's knowledge, any of their
respective officers or directors (other than covenants of such officers or
directors not to compete with the Company or any of its Subsidiaries), (x) any
interest rate, currency or commodity hedging, swap or similar derivative
transaction, (xi) all contracts, agreements or arrangements with holders of
equity interests in Subsidiaries of the Company, (xii) all agreements or
arrangements to which the Company or any Subsidiary is a party providing for the
escrow of any assets (including, without limitation, cash or securities) of the
Company or any of its Subsidiaries or any other Person and (xiii) any other
contract or amendment thereto that would be required to be filed as an exhibit
to a Form 10-K filed by the Company with the SEC as of the date of this
Agreement. Except as set forth in Schedule 4.1(s), each of the agreements listed
in Schedule 4.1(s) and each Employment Agreement is a valid and binding
obligation of the Company or a Subsidiary of the Company, as the case may be,
and, to the Company's knowledge, of each other party thereto, and each such
agreement is in full force and effect and is enforceable by the Company or a
Subsidiary of the Company in accordance with its terms, except that the
enforcement thereof may be limited by (A) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity). There are no existing defaults (or
circumstances or events that, with the giving of notice or lapse of time or
both, would become defaults) of the Company or any of its Subsidiaries (or, to
the knowledge of the Company, any other party thereto) under any of the
agreements listed in Schedule 4.1(s) or any Employment Agreement except for
defaults that have not and are not reasonably likely to, individually or in the
aggregate, have a Material Adverse Effect with respect to the Company. Except as
set forth on Schedule 4.1(s) under the heading "Contingent Payments", the
Company has no undischarged obligations (other than contingent indemnification
obligations) for the payment of any deferred consideration pursuant to any
Acquisition Agreement, or any undischarged obligations to make any payment to
any third party that is contingent upon the financial performance of the Company
or any of its Subsidiaries (other than obligations pursuant to employee benefit
plans that are based upon the performance of the particular employees
participating therein).
For purposes of this Agreement, "Indebtedness" means, with
respect to any Person, without duplication, (A) all obligations of such Person
for borrowed money, or with
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respect to deposits or advances of any kind, (B) all obligations of such Person
evidenced by bonds, debentures, notes or similar instruments, (C) all
obligations of such Person upon which interest charges are customarily paid
(other than trade payables incurred in the ordinary course of business), (D) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person, (E) all obligations of
such Person issued or assumed as the deferred purchase price of property or
services (exclud- ing obligations of such Person to creditors for raw materials,
inventory, services and supplies incurred in the ordinary course of such
Person's business), (F) all lease obligations of such Person capitalized on the
books and records of such Person, (G) all obligations of others secured by any
lien on property or assets owned or acquired by such Person, whether or not the
obligations secured thereby have been assumed, (H) all obligations of such
Person under interest rate, or currency or commodity hedging, swap or similar
derivative transactions (valued at the termination value thereof), (I) all
letters of credit issued for the account of such Person (excluding letters of
credit issued for the benefit of suppliers to support accounts payable to
suppliers incurred in the ordinary course of business) and (J) all guarantees
and arrangements having the economic effect of a guarantee of such Person of any
indebtedness of any other Person.
(t) Related Party Transactions. Except as set forth on
Schedule 4.1(t) hereto or in the Company's proxy statement, dated April 4, 1996,
no director, officer, partner, employee, "affiliate" or "associate" (as such
terms are defined in Rule 12b-2 under the Exchange Act) of the Company or any of
its Subsidiaries (i) has loaned or otherwise advanced money to, or has
outstanding any Indebtedness or other similar obligations to, the Company or any
of its Subsidiaries, in each case in an amount exceeding $60,000; (ii) owns any
direct or indirect interest of any kind in, or is a director, officer, employee,
partner, affiliate or associate of, or consultant or lender to, or borrower
from, or has the right to participate in the management, operations or profits
of, any Person or entity which is (A) a competitor, supplier, customer,
distributor, lessor, tenant, creditor or debtor of the Company or any of its
Subsidiaries, (B) engaged in a business related to the business of the Company
or any of its Subsidiaries or (C) participating in any transaction to which the
Company or any of its Subsidiaries is a party involving an amount in excess of
$60,000 or goods or services having a value in excess of $60,000 or (iii) is
otherwise a party to any contract, arrangement or understanding with the Company
or any of its Subsidiaries for or involving an amount in excess of $60,000 or
goods or services having a value in excess of $60,000.
(u) Liens. Except as set forth on Schedule 4.1(u) and other
than liens, including but not limited to liens under Environmental Law,
mortgages, security interests, pledges and encumbrances which do not materially
interfere with the Company's use and enjoyment of real property or materially
diminish or detract from the value thereof, neither the Company nor any of its
Subsidiaries has granted, created or suffered to exist with respect to any of
its assets, any mortgage, pledge, charge, hypothecation, collateral assignment,
lien (statutory or otherwise), encumbrance or security agreement of any kind or
nature whatsoever.
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(v) Brokerage Fees and Commissions; Other Fees. Except for
Alex Brown (a copy of whose engagement letter with the Company has been
furnished to Parent) and Am- Tech Corporation ("Am Tech") and Triumph Capital
Group, Inc. ("Triumph"), no Person or entity is entitled to receive from the
Company or any of its Subsidiaries any investment banking, brokerage or finder's
fee or fees for financial consulting or other advisory services in connection
with this Agreement or the transactions contemplated hereby based upon
arrangements made by or on behalf of the Company or any of its Subsidiaries. The
aggregate fees required to be paid by the Company or any of its Subsidiaries to
each of Alex Brown, Am Tech and Triumph and each other Person listed on Schedule
4.1(v) in connection with this Agreement and the transactions contemplated
hereby will not exceed the amounts set forth on Schedule 4.1(v) with respect to
each such Person.
(w) No Excess Parachute Payments. Except as set forth in
Schedule 4.1(w), any amount that could be received (whether in cash or property
or the vesting of property) as a result of any of the transactions contemplated
by this Agreement by any employee, officer or director of the Company or any of
its affiliates who is a "disqualified individual" (as such term is defined in
proposed Treasury Regulation Section 1.280G-1) under any employment, severance
or termination agreement, other compensation arrangement or Benefit Plan
currently in effect would not be characterized as an "excess parachute payment"
(as such term is defined in Section 280G(b)(1) of the Code).
(x) State Takeover Statutes. The Board of Directors of the
Company has approved this Agreement and the Stockholders Agreement and the
transactions contemplated hereby and thereby, including the Merger, and such
approval is sufficient to render the provisions of Section 203 of the DGCL
inapplicable to the Merger, this Agreement, the Stockholders Agreement and the
other transactions contemplated by this Agreement. No other state takeover
statute or similar statute or regulation applies or purports to apply to the
Merger, this Agreement, the Stockholders Agreement or the other transactions
contemplated by this Agreement or the Stockholders Agreement.
(y) Pending and Proposed Transactions. Except as set forth on
Schedule 4.1(y), neither the Company nor any of its Subsidiaries has entered
into any agreement, whether oral or written, with respect to, or is engaged in
negotiations with respect to, the acquisition (whether by purchase of assets or
securities, or by merger or otherwise) or disposition of all or a substantial
portion of the business of any Subsidiary or any business or division of the
Company or any of its Subsidiaries.
(z) Media Interests. SBC Technologies, Inc. holds a limited
partner interest in Radio Equity Partners, Limited Partnership (the "REP
Interest"). SBG Communications Corp. owns the non-license assets of the radio
stations WACO-AM and WACO-FM, located in Waco, Texas (the "WACO Stations"), and
SBG Communications of Texas, Inc. is the licensee of, and operates, the WACO
Stations. Sage Broadcasting Corp. of Vermont owns and operates the radio station
WVMX (the "Vermont Station" and, together with the WACO
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Stations, the "Radio Stations"). Except for the Radio Stations and the REP
Interest, neither the Company nor any of its Subsidiaries has any direct or
indirect interest in any radio, television, cable or other business subject to
regulation by the FCC, except SBC Technologies, Inc. holds certain notes issued
by Americus Communications #1 Limited Partnership and Muzzy Broadcasting, LLC,
and two additional promissory notes in the aggregate principal amount of
approximately $440,000 (none of which notes constitute an attributable ownership
interest in a media property within the meaning of or subject to the regulations
of the FCC). Other than the WACO Stations and the Vermont Station and the
licenses, equipment and other assets related thereto, neither SBG Communications
Corp. nor Sage Broadcasting Corp. of Vermont own or operate any other businesses
or material assets or, other than SBG Communications of Texas, Inc., have any
direct or indirect Subsidiaries. Except with respect to the Radio Stations, none
of the Company or any of its Subsidiaries owns or holds any media licenses
issued by the FCC or any state or federal authority requiring the prior approval
of such authority of any transfer of control.
4.2 Representations and Warranties of Parent and Sub.
Parent and Sub represent and warrant to the Company as follows:
(a) Organization, Standing and Power. Each of Parent
and Sub is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation or organization.
(b) Authority; No Violations; Consents and Approvals.
(i) Each of Parent and Sub has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Parent and Sub. This Agreement
has been duly executed and delivered by each of Parent and Sub and, assuming
this Agreement constitutes the valid and binding agreement of the Company,
constitutes a valid and binding obligation of Parent and Sub enforceable in
accordance with its terms except that the enforcement hereof may be limited by
(A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (B) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity).
(ii) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by each of Parent and Sub
will not result in any Violation pursuant to any provision of the Articles of
Incorporation or Bylaws (or comparable governing instruments) of Parent or Sub.
(iii) No consent, approval, order or authorization of, or
registration, declaration or filing with, notice to, or permit from any
Governmental Entity is required by or
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with respect to Parent or Sub in connection with the execution and delivery of
this Agreement by each of Parent and Sub or the consummation by each of Parent
or Sub of the transactions contemplated hereby, which the failure to obtain or
make would have a material adverse effect on the ability of Parent or Sub to
consummate the transactions contemplated by this Agreement, except for: (A)
filings under the HSR Act; (B) the filing with the SEC of (I) the Schedules
14D-1 and 14F-1, respectively, in connection with the commencement and
consummation of the Offer and (II) such reports under and such other compliance
with the Exchange Act and the rules and regulations thereunder, as may be
required in connection with this Agreement and the transactions contemplated
hereby; (C) the filing of the Certificate of Merger with the Secretary of State
of the State of Delaware; and (D) such filings and approvals as may be required
by any foreign pre-merger notification, securities, corporate or other law, rule
or regulation.
(c) Interim Operations of Sub. Sub was formed solely for the
purpose of engaging in the transactions contemplated hereby and has not engaged
in any business activities or conducted any operations other than in connection
with the transactions contemplated hereby.
(d) Information Supplied. None of the information relating to
Parent and its affiliates supplied in writing by Parent specifically for
inclusion in the Schedule 14D-9 will, at the time the Schedule 14D-9 is filed
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 the Effective Time Parent should
become aware of any event relating to Parent or any of its Subsidiaries that is
required by applicable law to be set forth in an amendment of, or supplement to,
the Schedule 14D-9, Parent shall promptly so inform the Company and will furnish
to the Company all information relating to such event that is required under
applicable law to be disclosed in an amendment or supplement to the Schedule
14D-9. The Schedule 14D-1 will comply as to form in all material respects with
the requirements of the Exchange Act, and shall not, when filed 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; provided, however, that no agreement or representation hereby is
made or shall be made by Parent or Sub with respect to information supplied by
the Company in writing expressly for inclusion in, or with respect to Company
information derived from the Company's public SEC filings which is included or
incorporated by reference in, the Schedule 14D-1.
(e) Brokerage Fees and Commissions. Except for Lazard, Freres
& Co. LLC, no Person or entity is entitled to receive from Parent or Sub any
investment banking, brokerage or finder's fee or fees for financial consulting
or other advisory services in connection with this Agreement or the transactions
contemplated hereby based upon arrangements made by or on behalf of Parent or
Sub.
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(f) Financial Capability. Parent has sufficient
available cash and marketable securities to consummate the transactions
contemplated hereby.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 Covenants of the Company. During the period from the date
of this Agreement and continuing until the Effective Time, the Company agrees
that (except as Parent shall otherwise consent in writing):
(a) Ordinary Course. The Company shall, and shall cause each
of its Subsidiaries to, carry on their businesses in the ordinary course in
substantially the same manner as heretofore conducted and shall use all
reasonable efforts to preserve intact its present business organizations, keep
available the services of its current officers and employees and preserve its
relationships with customers, suppliers and others having business dealings with
it to the end that its goodwill and ongoing business shall not be impaired in
any material respect at the Effective Time. Without limiting the generality of
the foregoing, the Company shall, and shall cause its Subsidiaries to, comply
with the provisions of Sections 5.1(b) through 5.1(r) below.
(b) Dividends; Changes in Stock. The Company shall not, and
shall not permit any of its Subsidiaries to: (i) declare or pay any dividends on
or make other distributions in respect of any of its capital stock, except for
cash dividends or distributions paid on or with respect to the capital stock of
a wholly-owned Subsidiary of the Company and except for cash distributions
payable with respect to the Preferred Securities in accordance with their
present terms; (ii) split, combine or reclassify any of its capital stock or
issue or authorize or propose the issuance of any other securities in respect
of, in lieu of or in substitution for, shares of its capital stock; or (iii)
redeem, repurchase or otherwise acquire, or propose to redeem, repurchase or
otherwise acquire, or permit any Subsidiary to purchase or otherwise acquire,
any shares of its capital stock.
(c) Issuance of Securities. Except as set forth in Schedule
5.1(c), the Company shall not, and shall not permit any of its Subsidiaries to,
(i) grant any options, warrants or rights to purchase shares of Company Common
Stock, (ii) amend or reprice any Option or Warrant or the Stock Option Plans or
the Rights or the Stock Purchase Plan, or (iii) issue, deliver or sell, or
pledge or otherwise encumber, or authorize or propose to issue, deliver or sell,
or pledge or otherwise encumber, any shares of its capital stock of any class or
series, any Company Voting Debt or any securities convertible into or
exchangeable for, or any rights, warrants or options to acquire, any such
shares, Company Voting Debt or convertible or exchangeable securities, other
than the issuance of Company Common Stock upon (A) the exercise of Options
outstanding on the date of this Agreement in accordance with their present
terms, (B) the exercise of the Warrants outstanding on the date of this
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Agreement in accordance with their present terms, (C) the exercise of Rights
pursuant to the Stock Purchase Plan in accordance with their present terms, and
(D) the conversion of the Subordinated Debentures by the holders thereof in
accordance with their present terms.
(d) Governing Documents. The Company shall not, and
shall not permit any of its Subsidiaries to, amend or propose to amend its
Certificate of Incorporation or Bylaws, or other comparable constituent
documents.
(e) No Solicitation. (i) From and after the date hereof until
the termination of this Agreement, the Company shall not, and shall not
authorize or permit any of its Subsidiaries, or any of its or their officers,
directors, employees, representatives, agents or affiliates (including, without
limitation, any investment banker, financial advisor, attorney, accountant or
other representative retained by the Company or any of its Subsidiaries), to,
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 of any proposal that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal (as defined below),
or enter into or maintain or continue discussions or negotiate with any Person
in furtherance of such inquiries or to obtain or with respect to an Acquisition
Proposal or agree to or endorse any Acquisition Proposal, provided, however,
that prior to the Company Stockholders Meeting (as defined in Section 6.1(b)),
if in the good faith opinion of the Board of Directors of the Company, based on
the advice of outside legal counsel, the failure to proceed in accordance with
clause (A) and/or (B) below of this Section 5.1(e)(i) would violate its
fiduciary duties to the Company's stockholders under applicable law, the Company
may, subject to compliance with Section 5.1(e)(iv), in response to an
unsolicited written bona fide Acquisition Proposal that in the good faith
opinion of the Board of Directors, based on the advice of an independent
nationally recognized financial advisor and outside legal counsel, would
reasonably be expected to result in a Superior Proposal (as defined below), (A)
furnish information with respect to the Company to such Person making such
proposal pursuant to a customary confidentiality agreement with such Person and
(B) participate in negotiations regarding such Acquisition Proposal; provided
that, in the case of clauses (A) and (B) above, the Company has provided a
written notice to Parent of its intention to proceed under such clause (A) or
(B) above. Without limiting the foregoing, it is agreed that any violation of
the restrictions set forth in the preceding sentence by any director or
executive officer of the Company or any of its Subsidiaries or any investment
banker, financial advisor, attorney, accountant or other representative of the
Company or any of its Subsidiaries, acting on behalf or under authority of the
Company or any Subsidiary of the Company, shall be deemed to be a breach of this
Section 5.1(e)(i) by the Company. For purposes of this Agreement, "Acquisition
Proposal" shall mean an inquiry, offer or proposal regarding any of the
following (other than the transactions between the Company, Parent and Sub
contemplated hereunder) involving the Company or any of its Subsidiaries: (w)
any merger, consolidation, share exchange, recapitalization, business
combination, or other similar transaction; (x) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of 20% or more of the assets of
the Company and its Subsidiaries, taken as a whole, in a single
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transaction or series of transactions; (y) any tender offer or exchange offer
for or other purchase of 20% or more of the outstanding shares of capital stock
of the Company or the filing of a registration statement under the Securities
Act in connection therewith; or (z) any public announcement of a proposal, plan
or intention to do any of the foregoing or any agreement to engage in any of the
foregoing.
Except as set forth in this Section 5.1(e)(ii), neither the Board of
Directors of the Company nor any committee thereof shall (A) withdraw or modify,
or propose to withdraw or modify, in a manner adverse to Parent or Sub, the
approval or recommendation by such Board of Directors or any such committee of
the Merger or this Agreement, (B) approve or recommend, or propose to approve or
recommend, any Acquisition Proposal or (C) enter into any agreement with respect
to any Acquisition Proposal. Notwithstanding the foregoing, prior to the Company
Stockholders Meeting, if in the good faith opinion of the Board of Directors,
based on the advice of outside counsel, the failure to proceed in accordance
with clause (x), (y) and/or (z) below of this Section 5.1(e)(ii) would violate
its fiduciary duties to the Company's stockholders under applicable law, the
Board of Directors may (subject to the terms of this sentence and the following
sentence) (x) withdraw or modify its recommendation of the Merger or this
Agreement, (y) approve or recommend a Superior Proposal, and (z) cause the
Company to enter into an agreement with respect to a Superior Proposal, in each
case at any time following Parent's receipt of a written notice advising Parent
that the Board of Directors has received a Superior Proposal, specifying the
material terms and conditions of such Superior Proposal and identifying the
Person making such Superior Proposal; provided that the Company shall not take
any of the actions specified in such clauses (x), (y) or (z) unless the Company
shall have furnished Parent with written notice (a "Section 5.1(e)(i) Notice")
specifying such actions to be taken no later than 12:00 noon New York City time
four business days prior to the date such actions are proposed to be taken and
shall not take any of the actions set forth in clauses (y) or (z) above if,
after taking into account modifications to this Agreement proposed by Parent,
such Acquisition Proposal would not be a Superior Proposal. In addition, if the
Board of Directors or the Company proposes to take any of the actions permitted
by the preceding sentence with respect to any Acquisition Proposal, then the
Company shall, prior to taking such action, pay, or cause to be paid, to Parent
the Termination Payment (as defined in Section 6.4), and, in the case of clauses
(y) and (z), cause the Person making the superior proposal to acknowledge such
obligations.
(iii) The term "Superior Proposal" shall mean any bona fide
Acquisition Proposal that has the following characteristics: (x) it is a
proposal to acquire, directly or indirectly, for consideration consisting of
cash and/or readily marketable securities, (A) shares of Company Common Stock
representing 100% of the voting power of (I) the outstanding shares of Company
Common Stock, (II) the shares of Company Common Stock issuable upon (aa) the
conversion of the Subordinated Debentures, (bb) the exercise of the Options
outstanding and (cc) the exercise of the Warrants outstanding, or (B) all or
substantially all the assets of the Company, (y) the terms of such proposal in
the good faith judgment of the
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Board of Directors of the Company (based on the written opinion of an
independent financial advisor of nationally recognized reputation) provide a per
share consideration to the Company's stockholders which is higher than the per
share consideration provided by the Merger (after taking into account any
modifications to this Agreement proposed by Parent) and (z) the transactions
envisioned by such proposal, in the good faith judgment of the Board of
Directors of the Company, based on the advice of an independent nationally
recognized financial advisor and outside legal counsel, is readily financeable
and reasonably likely to be consummated without unreasonable delay or unusual
conditions compared to the transactions contemplated by this Agreement.
(iv) In addition to the obligations set forth in clause (ii)
of this Section 5.1(e), the Company shall immediately advise Parent orally and
in writing of any request for information which may relate to an Acquisition
Proposal or of any Acquisition Proposal, or any inquiry with respect to or which
could lead to any Acquisition Proposal, the material terms and conditions of
such request, Acquisition Proposal or inquiry, and the identity of the Person
making any such request, Acquisition Proposal or inquiry. The Company will keep
Parent fully and timely informed of the status and details (including amendments
or proposed amendments) of any such request, Acquisition Proposal or inquiry.
(f) No Acquisitions. The Company shall not, and shall not
permit any of its Subsidiaries to, acquire or agree to acquire (i) by merging or
consolidating with, or by purchasing a substantial equity interest in or a
substantial portion of the assets of, or by any other manner, any business or
any corporation, partnership, association or other business organization or
division thereof, or (ii) any assets that are material, individually or in the
aggregate, to the Company and its Subsidiaries as a whole.
(g) No Dispositions. Other than as set forth on Schedule
5.1(g) hereto and dispositions in the ordinary course of business consistent
with past practice which are not (except for sales of inventory) material,
individually or in the aggregate, to the Company and its Subsidiaries taken as a
whole, the Company shall not, and shall not permit any of its Subsidiaries to,
sell, lease, encumber or otherwise dispose of, or agree to sell, lease (whether
such lease is an operating or capital lease), encumber or otherwise dispose of,
any of its assets.
(h) Advice of Changes; SEC Filings. The Company shall confer
with Parent to the extent reasonably requested by Parent, report on operational
matters and promptly advise Parent orally and in writing of any change or event
having, or which, insofar as reasonably can be foreseen, could have, a Material
Adverse Effect on the Company. The Company shall promptly provide Parent (or its
counsel) with copies of all filings made by the Company with the SEC or any
other state, federal or foreign Governmental Entity in connection with this
Agreement and the transactions contemplated hereby.
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(i) No Dissolution, Etc. The Company shall not authorize,
recommend, propose, adopt or announce an intention to adopt a plan of complete
or partial liquidation or dissolution of the Company or any of its Subsidiaries,
other than the dissolutions of Dormant Subsidiaries.
(j) Other Actions. Except as provided by this Agreement, the
Company will not and will cause its Subsidiaries not to take or agree or commit
to take any action that is reasonably likely to result in any of the Company's
representations or warranties hereunder being untrue in any material respect or
in any of the conditions to the Merger not being satisfied.
(k) Certain Employee Matters. Except as set forth on Schedule
5.1(k) hereto, the Company and its Subsidiaries shall not (without the prior
written consent of Parent): (i) grant any increases in the compensation of any
of its directors, officers or key employees, other than regularly scheduled
increases representing (in the case of all directors and officers, and all key
employees whose annual compensation (including salary and bonus) exceeds
$100,000) an aggregate increase for any such Person of not more than 5%; (ii)
pay or agree to pay any pension, retirement allowance or other employee benefit
not required or contemplated by any of the existing Company Benefit Plans or
Company Pension Plans as in effect on the date hereof to any such director,
officer or key employee, whether past or present; (iii) enter into any new, or
materially amend any existing, employment or severance or termination agreement
with any such director, officer or key employee, other than At-Will Employment
Agreements providing for total annual compensation (including salary and bonus)
of less than $100,000; or (iv) terminate or amend the employment agreements of
Messrs. Poch and McCleary or the employment or advisory agreement with Mr.
Fassler; or (v) except as may be required to comply with applicable law, become
obligated under any new Company Employee Benefit Plan or Company Pension Plan,
which was not in existence on the date hereof, or amend any such plan or
arrangement in existence on the date hereof if such amendment would have the
effect of materially enhancing any benefits thereunder.
(l) Indebtedness; Advances. The Company shall not, and shall
not permit any of its Subsidiaries to, (i) other than Indebtedness under capital
leases, entered into as permitted under Section 5.1(o), assume or incur any
Indebtedness for borrowed money (other than pursuant to credit facilities
existing on the date hereof in accordance with their present terms) or guarantee
any such Indebtedness or issue or sell any debt securities or warrants or rights
to acquire any debt securities of the Company or any of its Subsidiaries or
guarantee any debt securities of others or enter into any lease (whether such
lease is an operating or capital lease) or create any mortgages, liens, security
interests or other encumbrances on the assets or property of the Company or any
of its Subsidiaries in connection with any Indebtedness thereof (other than
security interests arising pursuant to mortgages or other security agreements in
effect on the date hereof covering credit facilities existing on the date
hereof), or enter into any "keep well" or other agreement or arrangement to
maintain the financial condition of another Person, or (ii) make any loans,
advances or
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capital contributions to, or investments in, any other Person, other than to the
Company or any direct or indirect wholly owned Subsidiary of the Company and
other than loans or advances to customers and employees in the ordinary course
of business consistent with past practice.
(m) Material Contracts. The Company shall not, and shall not
permit any of its Subsidiaries to, enter into, modify, rescind, terminate,
waive, release or otherwise amend in any material respect any of the terms or
provisions of any contract, agreement, commitment, arrangement or right listed
on Schedule 4.1(s) hereto or which, if such contract, agreement, arrangement or
right had existed as of the date of this Agreement, would have been required to
be listed on Schedule 4.1(s); provided, however, that the foregoing shall not
limit the right of the Company or any of its Subsidiaries to enter into any
contracts of the type referred to in Section 4.1(s)(iv) in the ordinary course
of business consistent with past practice and involving annual payments of not
more than $5,000,000.
(n) Accounting. The Company will, and will cause each of its
Subsidiaries to, maintain its books and records in the usual manner and
consistent with past practice and not permit a material change in any of its
financial reporting, tax, or accounting practices or policies or in any
assumption underlying such practices or policies, or in any method of
calculating any bad debt, contingency, or other reserve for financial reporting
purposes or for other accounting purposes, except as may be required by GAAP or
applicable law.
(o) Capital Expenditures. Except as set forth on Schedule
5.1(o) and except for capital expenditures for MIS and rental inventory
purchases, the Company shall not make or authorize nor shall the Company permit
any of its Subsidiaries to make or authorize any capital expenditures in excess
of $100,000 individually and $500,000 in the aggregate per month.
(p) Tax Matters. If any income tax return of the Company or
any Subsidiary that has not yet been filed is required to be filed on or prior
to the Effective Time, the Company or its Subsidiaries, as the case may be,
shall prepare and timely file such tax return in a manner consistent with prior
years and all applicable laws and regulations (or shall obtain a valid extension
of time in which to make such filings). The Company shall not, and shall not
permit any of its Subsidiaries to, make any tax election or settle or compromise
any material tax liability.
(q) Discharge of Liabilities. The Company shall not, and shall
not permit any of its Subsidiaries to, pay, discharge, settle or satisfy any
claims, liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge, settlement or
satisfaction, in the ordinary course of business consistent with past practice
or in accordance with their terms, of any of its liabilities or obligations, or
waive the benefits of, or agree to modify in any manner, any confidentiality,
standstill or similar agreement to which the Company or any of its Subsidiaries
is a party.
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(r) Agreement to Take Action. The Company shall not,
and shall not permit any of its Subsidiaries to, authorize any of, or commit or
agree to take any of, the foregoing actions.
(s) Notices of Certain Events. The Company shall
promptly notify Parent of:
(i) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection with the
transactions contemplated by this Agreement;
(ii) any notice or other communication from any
Governmental Entity in connection with the transactions contemplated by this
Agreement; and
(iii) any actions, suits, claims, investigations or
proceedings commenced or, to the best of its knowledge, threatened against,
relating to or involving or otherwise affecting the Company or any Subsidiary
which, if pending on the date of this Agreement, would have been required to
have been disclosed pursuant to Section 4.1(g) or which relate to the
consummation of the transactions contemplated by this Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Preparation of the Proxy Statement; Company Stockholders
Meeting; Merger without a Company Stockholders Meeting. (a) As soon as
practicable following the acceptance for payment of and payment for shares of
Company Common Stock by Sub in the Offer, the Company and Parent shall prepare
and file with the SEC the Proxy Statement. The Company shall use its best
efforts to respond to all SEC comments with respect to the Proxy Statement and
to cause the Proxy Statement and the form of proxy, which shall comply as to
form with all applicable laws, to be mailed to the Company's stockholders at the
earliest practicable date.
(b) The Company will, as soon as practicable following the
acceptance for payment of and payment for shares of Company Common Stock by Sub
in the Offer, duly call, give notice of, convene and hold a stockholders meeting
(the "Company Stockholders Meeting") for the purpose of approving this Agreement
and the transactions contemplated hereby. At the Company Stockholders Meeting,
the Board of Directors of the Company will recommend to its stockholders the
adoption and approval of this Agreement and the transactions contemplated
hereby.
(c) Notwithstanding the foregoing clauses (a) and (b), in the
event that Parent or any other Subsidiary of Parent shall acquire at least 90%
of the outstanding shares
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of Company Common Stock in the Offer, the parties hereto agree, at the request
of Sub, to 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 253
of the DGCL.
(d) Subject to Section 6.1(c) above, Parent shall (i) cause
Sub promptly to submit this Agreement and the transactions contemplated hereby
for approval and adoption by the written consent of its sole stockholder; (ii)
cause the shares of capital stock of Sub to be voted for adoption and approval
of this Agreement and the transactions contemplated hereby; and (iii) cause to
be taken all additional actions necessary for Sub to adopt and approve this
Agreement and the transactions contemplated hereby.
6.2 Access to Information. The Company shall (and shall cause
each of its Subsidiaries to) afford to the officers, employees, accountants,
counsel and other representatives of the Parent access, during normal business
hours and in a manner so as to not unreasonably interfere with the conduct of
the business of the Company during the period prior to the Effective Time, to
all of the personnel, properties, books, contracts, commitments and records
(including, without limitation, tax returns) of the Company and its Subsidiaries
and to use its commercially reasonable efforts to cause the Company's and its
Subsidiaries' independent accountants to provide access to their work papers and
such other information as the Parent or Subsidiary may reasonably request and,
during such period, the Company shall (and shall cause each of its Subsidiaries
to) furnish promptly to the Parent (a) a copy of each report, schedule,
registration statement and other document filed or received by it during such
period pursuant to SEC requirements and (b) all other information concerning its
business, properties and personnel as the Parent may reasonably request. Parent
agrees that it will not, and will cause its representatives not to, use any
information obtained pursuant to this Section 6.2 for any purpose unrelated to
the consummation of the transactions contemplated by this Agreement, and will
hold confidential, and will cause its officers, employees, accountants, counsel,
financial advisors and other representatives and affiliates to hold
confidential, all such information in accordance with the Confidentiality
Agreement, dated February 15, 1996, between GE Capital Technology Management
Services and the Company (the "Confidentiality Agreement").
6.3 Legal Conditions to Merger. Each of the Company, Parent
and Sub will take all reasonable actions necessary to comply promptly with all
legal requirements which may be imposed on such party with respect to the Offer,
the Merger (including furnishing all information required under the HSR Act and
in connection with approvals of or filings with any other Governmental Entity)
and the Stockholders Agreement and will promptly cooperate with and furnish
information to each other in connection with any such requirements imposed upon
any of them or any of their Subsidiaries in connection with the Offer, the
Merger and the Stockholders Agreement; provided, however, that Parent need not
so comply if required by the Department of Justice or any other Governmental
Entity to hold separate, sell or otherwise dispose of any Subsidiary of Parent
or the Company or assets or
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properties of any of the foregoing, or to agree to any conditions deemed by
Parent to be adverse to it or the Company (or any of their respective
Subsidiaries). The Company will, and will cause its Subsidiaries to, take all
reasonable actions necessary to obtain (and will cooperate with each other in
obtaining) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party, required to
be obtained or made by the Company or any of its Subsidiaries in connection with
the Offer, the Merger, the Stockholders Agreement or the taking of any action
contemplated hereby or thereby.
6.4 Fees and Expenses. (a) Except as otherwise provided in
this Section 6.4, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expense.
(b) The Company shall immediately pay, or cause to be paid, in
same day funds to Parent the Termination Payment (as defined below) upon demand
if (A) Parent terminates this Agreement in accordance with Section 8.1(d), (B)
the Company terminates this Agreement in accordance with Section 8.1(h) and/or
Section 8.1(j), or (C) Parent or the Company terminates this Agreement in
accordance with Section 8.1(f), 8.1(g) or 8.1(i) and prior to such termination a
bona fide Acquisition Proposal shall have been made. "Termination Payment" shall
mean the sum of (i) all of Parent's out-of-pocket expenses incurred in
connection with the transactions contemplated by this Agreement (the "Expenses")
and (ii) $10,000,000 (the "Termination Fee"); provided that if at or prior to
the time the Termination Payment is payable the Company shall have entered into
a definitive agreement with a third party for such third party to acquire the
Company in a transaction which would qualify to be accounted for, under
applicable guidelines of the SEC, as a pooling of interests transaction but for
the size of the Termination Payment, then the amount of the Termination Payment
shall be reduced to the extent necessary to enable such transaction to qualify
as a pooling of interests (but in no event shall the Termination Payment be
reduced below 1% of the transaction value). The amount of Expenses so payable
shall be the amount set forth in an estimate delivered by Parent upon
termination subject to upward or downward adjustment as provided in the next
sentence. In the event that Parent's actual out-of-pocket expenses exceed such
estimate, the amount of any such excess shall be payable upon demand, and in the
event that Parent's actual expenses are less than the amount of such estimate,
Parent shall promptly refund such lesser amount.
Promptly after the date hereof, the Parent and the Company
shall seek an appropriate determination as to whether any circumstances could
exist so as to require reduction of the Termination Payment as provided in the
foregoing paragraph.
6.5 Brokers or Finders. (a) The Company agrees to indemnify
and hold Parent harmless from and against any and all claims, liabilities or
obligations with respect to any fees, commissions or expenses asserted by any
Person to the extent such fee, commission
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or expense is attributable to any action taken by or on behalf of the Company or
any of its Subsidiaries or affiliates.
(b) Parent agrees to indemnify and hold Company harmless from
and against any and all claims, liabilities or obligations with respect to any
fees, commissions or expenses asserted by any Person to the extent such fee,
commission or expense is attributable to any action taken by or on behalf of
Parent.
6.6 Indemnification. (a) The indemnification obligations set
forth in the Company's Certificate of Incorporation and by-laws, as amended to
the date of this Agreement, shall survive the Merger and shall not be amended,
repealed or otherwise modified for a period of six years after the Effective
Time in any manner that would adversely affect the rights thereunder of
individuals who on or prior to the Effective Time were directors (including any
members of the Company's Compensation Committee), officers, employees or agents
of the Company (the "Indemnified Parties"). Parent shall cause the Company to
fulfill its indemnification obligations as set forth in this Section 6.6(a).
(b) For a period of two years after the Effective Time, the
Surviving Corporation shall cause to be maintained in effect the employed
lawyers' errors and omissions liability policy maintained by the Company and its
Subsidiaries (provided that the Surviving Corporation may substitute therefor
policies of at least the same coverage and amounts containing terms and
conditions which are no less advantageous in any material respect to the
Indemnified Parties covered thereby) with respect to matters arising before the
Effective Time, provided that Surviving Corporation shall not be required to pay
an annual premium for such insurance in excess of $60,000, but in such case
shall purchase as much coverage as possible for such amount.
(c) The provisions of this Section 6.6 are intended to be for
the benefit of, and shall be enforceable by, each Indemnified Party, his heirs
and his personal representatives and shall be binding on all successors and
assigns of Sub, the Company and the Surviving Corporation.
6.7 Best Efforts; Notification. (a) Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use its
reasonable commercial efforts to take, or cause to be taken, all action and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement and the Stockholders Agreement,
subject, as applicable, to the Company Stockholder Approval, including
cooperating fully with the other party, including by provision of information
and making of all necessary filings in connection with, among other things,
approvals under the HSR Act; provided, however, that neither Parent nor Sub need
comply with any requirement by the Department of Justice or any other
Governmental Entity to hold separate, sell or otherwise dispose of any
Subsidiary of Parent or the Company or assets or properties of Parent, the
Company or any of their Subsidiaries or to
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agree to conditions deemed by Parent to be adverse to it or the Company (or any
of their respective Subsidiaries). In case at any time after the Effective Time,
any further action is necessary or desirable to carry out the purposes of this
Agreement or to vest the Surviving Corporation with full title to all
properties, assets, rights, approvals, immunities and franchises of either of
the Constituent Corporations, the proper officers and directors of each party to
this Agreement shall take all such necessary action.
(b) The Company shall give prompt notice to Parent, and Parent
shall give prompt notice to the Company, of (i) any representation or warranty
made by it contained in this Agreement that is qualified as to materiality
becoming untrue or inaccurate in any respect or any representation or warranty
not so qualified becoming untrue or inaccurate in any material respect
(including in the case of representations or warranties by the Company or
Parent, as applicable, such party's receiving knowledge of any fact, event or
circumstance which may cause any representation qualified as to the knowledge of
such party to be or become untrue or inaccurate in any respect or material
respect, as applicable) or (ii) the failure by it to comply with or satisfy in
any material respect any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement; provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement.
6.8 Conduct of Business of Sub. During the period of time from
the date of this Agreement to the Effective Time, Sub shall not engage in any
activities of any nature except as provided in or contemplated by this
Agreement.
6.9 Publicity. The parties will consult with each other and
will mutually agree upon any press release or public announcement pertaining to
the Offer and the Merger and shall not issue any such press release or make any
such public announcement prior to such consultation and agreement, except as may
be required by applicable law or by the rules of any national securities
exchange or national securities quotation system, in which case the party
proposing to issue such press release or make such public announcement shall use
reasonable efforts to consult in good faith with the other party before issuing
any such press release or making any such public announcement.
6.10 Benefit Plans. Parent shall cause the Surviving
Corporation to take such actions as are reasonably necessary so that, for a
period of not less than one year after the Effective Time, nonunion employees of
the Company and its Subsidiaries who continue their employment after the
Effective Time will be provided employee benefits which in the aggregate are at
least generally comparable to those provided to such employees as of the date
hereof; provided, that it is understood that after the Effective Time (a) with
respect to employees covered by Foreign Plans prior to the Effective Time,
Parent shall cause the Surviving Corporation to provide such employees with
employee benefits which are either comparable to the Foreign Plans or comparable
plans which are offered to similarly situated employees of the Parent, (b),
neither Parent nor the Surviving Corporation will have any
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obligation to issue or adopt any plans or arrangements to provide for the
issuance of shares of capital stock, warrants, options, stock appreciation
rights or other rights in respect of any shares of capital stock of any entity
or any securities convertible or exchangeable into such shares pursuant to any
such plan or program, (c) nothing herein shall require the Surviving Corporation
to maintain any particular plan or arrangement or to employ or to continue to
employ any Person and (d) nothing herein shall prevent or preclude the Surviving
Corporation from continuing any requirements for employee contributions under
any employee benefit plans in the same proportions as the employee-paid portion
under such plans constituted prior to the Effective Time.
6.11 State Takeover Statutes. The Company shall, upon the
request of Parent, take all reasonable steps to assist in any challenge by
Parent to the validity or applicability to the Offer or the Merger of any state
takeover law.
6.12 Warrants. On or prior to the Effective Time, the Company
shall cause effective provisions to be made with respect to the Warrants such
that following the Effective Time, each Warrant shall be exercisable only for
the consideration specified in Section 3.5(a)(iii).
6.13 FCC Matters. (a) Within 7 business days after the
execution of this Agreement, the Company shall create a new holding company
("SBC") to which the capital stock of SBG Communications Corp. and Sage
Broadcasting Corp. of Vermont (the "Radio Licensees") would be contributed by
SBC Technologies, Inc. in exchange for all of the outstanding capital stock of
SBC, all in a manner satisfactory to Parent and reasonably satisfactory to the
Company, so as to provide for two classes of capital stock, Class A voting
shares (the "Voting Stock") representing one percent (1%) of the equity (and 1%
of the total number of shares of outstanding capital stock) of SBC and Class B
non-voting shares (the "Non-Voting Stock") representing ninety-nine percent
(99%) of the equity (and 99% of the total number of shares of outstanding
capital stock) of SBC.
(i) Each holder of Voting Stock shall have one vote per share
of Voting Stock. Each holder of Non-Voting Stock shall have no right to vote
except that such holder shall be entitled to vote (on the basis of one vote per
share of Non-Voting Stock) on all extraordinary matters outside the ordinary
course of business (subject to clause (ii) below), including the following
matters:
(A) the termination or removal of any officer or
director of SBC or any of its Subsidiaries in the event of an act or omission by
such officer or director that constitutes Cause for Termination, which shall
mean fraud, conviction of a felony, dishonesty, gross negligence or willful
misconduct in the performance of such person's duties to SBC or breach of such
person's duty of loyalty or duty of care to SBC or any of its Subsidiaries;
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(B) any amendment of the certificate of
incorporation or bylaws of SBC or any of its Subsidiaries;
(C) the sale of all or a substantial portion of
the assets of SBC or any of its Subsidiaries except for the sale of the assets
owned by SBC Communications of Texas, Inc. pursuant to that certain Asset
Purchase Agreement, dated as of December 4, 1995, among SBG Communications
Corp., SBG Communications of Texas, Inc. and Gulfstar Communications, Inc., as
amended as of January 11, 1996;
(D) the liquidation or dissolution of SBC or any of
its Subsidiaries;
(E) any acquisition by SBC or any of its
Subsidiaries of, or merger of SBC or any of its Subsidiaries with or into,
another Person or business;
(F) any incurrence by SBC or any of its
Subsidiaries of indebtedness, or the granting by SBC or any of its Subsidiaries
of any liens, not in the ordinary course of its business; and
(G) any dividend or distribution by SBC in respect
of its capital stock.
No action of the type referred to in clauses (B) through (F)
above shall be taken without the approval of the holders of Non-Voting Stock;
and SBC shall (and shall cause its Subsidiaries to) take the action described in
clause (A) above upon the affirmative vote of the holders of the Non-Voting
Stock.
(ii) Notwithstanding the foregoing, the holder of the
Non-Voting Stock will not have the rights set forth in Section 6.12(a)(i) above
to the extent that the exercise of such rights would result in the attribution
to such holder of a cognizable interest in SBC under (and within the meaning of)
the regulations of the Federal Communications Commission (the "FCC").
(b) Within 7 business days after the execution of this
Agreement, the Company shall duly prepare and file with the FCC an application
on FCC Form 316 (the "Pro Forma Application") for consent to the pro forma
transfer of control of SBC from the Company to not less than a majority of the
directors of the Company as of the date hereof (the "Control Group"). The
Company shall use its reasonable efforts to cause such application to be
approved as promptly as practicable.
(c) Within 2 business days after the grant of the Pro Forma
Application by the FCC, the Company shall transfer the Voting Stock to the
Control Group (without representation, warranty or recourse) equally among the
Control Group in consideration of $10.00 pursuant to an agreement between SBC,
the Company and the Control Group
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reasonably satisfactory to Parent, which will include without limitation the
following obligations:
(i) Within 2 business days after the transfer of the Voting
Stock to the Control Group, the Control Group shall duly prepare and file with
the FCC an application on FCC Form 315 (the "Long Form Application") for consent
to the transfer of control of SBC to the holder of the Non-Voting Stock
following the consummation of the Offer. The Parent shall cooperate with the
Company in the preparation and filing of the Long Form Application, and the
Company and the Control Group shall use their reasonable efforts to cause such
application to be approved as promptly as practicable (and the Parent shall
reasonably cooperate with such efforts).
(ii) Within 2 business days after the grant of the Long Form
Application by the FCC, the Control Group shall transfer the Voting Stock to the
Company (without representation, warranty or recourse), free and clear of all
liens created by such Control Group member or arising after the acquisition of
such stock by such member.
(iii) Except as provided in clause (ii) above, the Voting
Stock shall be non-transferrable by the Control Group.
(d) If requested by the Company or Parent after the date
hereof, the parties will consider and negotiate in good faith the alternative of
revising the transactions described above so as to (i) in lieu of the creation
of SBC, effect the recapitalization of each of the Radio Licensees such that
their capital stock would consist of Voting Stock and Non-Voting Stock, with the
Voting Stock of each Radio Licensee held by the Control Group and the Non-
Voting Stock of each Radio Licensee held by the Company, and/or (ii) issuing the
Voting Stock to either (x) a limited liability company the members of which are
not less than a majority of the directors of the Company as of the date hereof
reasonably satisfactory to Parent and Company, or (y) any other person or entity
satisfactory to Parent and Company to whom such transfer does not result in a
change of control for purposes of applicable FCC rules and regulations (either
of which will then be deemed to be the Control Group).
6.14 Issuance of Shares. Within 10 business days after the
execution of this Agreement, the Company shall issue (A) the shares granted
pursuant to the Restricted Stock Award Plan and (B) the MCP Shares, which shares
are identified on Schedule 4.1(b)(ii)(A) hereto, such that such shares shall be
legally issued and outstanding.
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ARTICLE VII
CONDITIONS PRECEDENT
7.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction prior to the Closing Date of the following
conditions:
(a) Stockholder Approval. This Agreement and the Merger
shall have been approved and adopted by the affirmative vote of the holders of a
majority of the Shares entitled to vote thereon if such vote is required by
applicable law.
(b) HSR Act. The waiting period (and any extension thereof)
applicable to the consummation of the Merger under the HSR Act shall have
expired or been terminated; and any formal investigations relating to the Merger
that may have been opened by the Department of Justice or the Federal Trade
Commission (by means of a written request for additional information or
otherwise) shall have been terminated.
(c) No Injunctions or Restraints. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect; provided, however, that prior to
invoking this condition, each party shall use all commercially reasonable
efforts to have any such order, injunction, restraint or prohibition vacated.
(d) FCC Approvals and Applications. The FCC shall have
granted the Pro Forma Application.
7.2 Conditions of Obligations of Parent and Sub. The
obligations of Parent and Sub to effect the Merger are subject to the
satisfaction of the following conditions, any or all of which may be waived in
whole or in part by Parent and Sub:
(a) Payment for Shares. Sub shall have accepted for payment
and paid for the shares of Company Common Stock tendered in the Offer such that,
after such acceptance and payment, Parent and its affiliates shall own, at
consummation of the Offer, a sufficient number of outstanding shares of the
Company Common Stock to satisfy the Minimum Condition (as defined in Exhibit A),
except if the failure of this condition to occur is caused by the material
breach of this Agreement by Parent or Sub.
(b) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement shall be true and correct
as of the date of this Agreement and (except to the extent such representations
and warranties expressly speak as of an earlier date) as of the Closing Date as
though made on and as of the Closing Date, and
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Parent shall have received a certificate signed on behalf of the Company by the
chief executive officer and by the chief accounting officer of the Company to
such effect.
(c) Performance of Obligations of the Company. The Company
shall have performed in all material respects all obligations and agreements,
and complied in all material respects with all covenants, required to be
performed or complied with by it under this Agreement at or prior to the
Effective Time, and Parent shall have received a certificate signed on behalf of
the Company by the chief executive officer and by the chief accounting officer
of the Company to such effect.
(d) Consents, Etc. All consents and approvals (collectively,
"Consents") of third parties as are necessary to cure any Violation of any
agreement arising out of the transactions contemplated hereby shall have been
obtained, except with respect to those agreements listed or referred to on
Schedule 4.1(c)(ii) and such Consents the failure to deliver which could not
reasonably be expected to have a Material Adverse Effect with respect to the
Company.
(e) Other Approvals. Other than the filing provided for by
Section 2.3, all licenses, permits, authorizations, consents, orders,
qualifications or approvals of, or declarations or filings with, or expirations
of waiting periods imposed by, any Governmental Entity (including those
described in Section 4.1(c)(iii) and 4.2(b)(iii)) requisite to consummation of
the Merger and the transactions contemplated thereby, shall have been filed,
occurred or been obtained, as the case may be.
(f) FCC Matters. (i) The transactions contemplated by
Section 6.13 above shall have been consummated on terms reasonably satisfactory
to Parent.
(ii) The Long Form Application shall have been
filed.
(g) No Litigation. There shall not be pending or threatened
any suit, action or proceeding by any Governmental Entity (i) challenging the
acquisition by Parent of any shares of capital stock of the Company, seeking to
restrain or prohibit the consummation of the Offer or the Merger or any of the
other transactions contemplated by this Agreement or seeking to obtain from the
Company, Parent, or any of their respective Subsidiaries any damages that are
material in relation to the Company and its Subsidiaries taken as a whole, (ii)
seeking to prohibit or limit the ownership or operation by the Company, Parent,
or any of their respective Subsidiaries of any material portion of the business
or assets of the Company, Parent or any of their respective Subsidiaries, or to
compel the Company, Parent or any of their respective Subsidiaries to dispose of
or hold separate any material portion of the business or assets of the Company,
Parent or any of their respective Subsidiaries as a result of the Offer or the
Merger or any of the other transactions contemplated by this Agreement, (iii)
seeking to impose limitations on the ability of Parent or Sub to acquire or
hold, or exercise full rights of ownership of, any shares of Company Common
Stock or shares of capital stock
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of the Company or the Surviving Corporation, including, without limitation, the
right to vote such capital stock on all matters properly presented to the
stockholders of the Surviving Corporation, (iv) seeking to prohibit Parent from
effectively controlling in any material respect the business or operations of
the Company or any of its Subsidiaries or (v) which otherwise is reasonably
likely to have a Material Adverse Effect on the Company or a Material Adverse
Effect on Parent.
(h) Options and Rights. On or prior to the date hereof, the
Company shall have caused (i) the Stock Option Plan and the Stock Purchase Plan
to be amended and (ii) the Subordinated Debentures to be amended, in each case
effective not later than the Effective Time, in such manner as to provide that
after the Effective Time, the holders of the Equity Purchase Rights evidenced
thereby shall only be entitled to receive the consideration specified in Section
3.5 hereof.
7.3 Conditions of Obligations of the Company. The
obligation of the Company to effect the Merger is subject to the satisfaction of
the following conditions, any or all of which may be waived in whole or in part
by the Company:
(a) Representations and Warranties. The representations and
warranties of Parent and Sub set forth in this Agreement shall be true and
correct as of the date of this Agreement and (except to the extent such
representations and warranties expressly speak as of an earlier date) as of the
Closing Date as though made on and as of the Closing Date, except as otherwise
contemplated by this Agreement, and the Company shall have received a
certificate signed on behalf of Parent by an officer of Parent to such effect.
(b) Performance of Obligations of Parent and Sub. Parent and
Sub shall have performed in all material respects all obligations required to be
performed by them under this Agreement at or prior to the Closing Date, and the
Company shall have received a certificate signed on behalf of Parent by an
officer of Parent to such effect.
(c) Government Approvals. Other than the filing provided for
by Section 2.3, all licenses, permits, authorizations, consents, orders,
qualifications or approvals of, or declarations or filings with, or expirations
of waiting periods imposed by, any Governmental Entity (including those
described in Section 4.1(c)(iii) and 4.2(b)(iii)) requisite to consummation of
the Merger and the transactions contemplated thereby, shall have been filed,
occurred or been obtained, as the case may be.
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ARTICLE VIII
TERMINATION AND AMENDMENT
8.1 Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, whether before
or after approval of the matters presented in connection with the Merger by the
stockholders of the Company or Parent:
(a) by mutual written consent of the Company and Parent;
(b) by either the Company or Parent (i) if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of the other set forth in this Agreement which breach has not been cured
within five business days following receipt by the breaching party of notice of
such breach from the other party, or (ii) if any permanent injunction or other
order of a court or other competent authority preventing the consummation of the
Merger shall have become final and non-appealable;
(c) by either the Company or Parent if the Merger shall not
have been consummated on or before December 20, 1996; provided, that the right
to terminate this Agreement under this Section 8.1(c) 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 to occur on or before such
date;
(d) by Parent if (i) the Board of Directors or any committee
thereof withdraws or modifies its approval or recommendation of this Agreement
or the Merger or approves or recommends an Acquisition Proposal or resolves to
do any of the foregoing or (ii) the Company shall have entered into an agreement
with respect to an Acquisition Proposal;
(e) by the Company, if Sub shall have failed to commence the
Offer within five business days following the date of the initial public
announcement of the Offer;
(f) by Parent, if the Offer terminates, is withdrawn,
is abandoned or expires by reason of the failure of any condition set forth in
Exhibit A hereto to be satisfied;
(g) by the Company, if the Offer shall have expired or have
been withdrawn, abandoned or terminated without any shares of Company Common
Stock being purchased by Sub thereunder on or prior to the 120th day after the
date of commencement of the Offer pursuant to Section 1.2 hereof;
(h) by the Company if (i) the Board of Directors pursuant to
Section 5.1(e)(ii) withdraws or modifies its approval or recommendation of this
Agreement or the Merger and
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(ii) the Company simultaneously with terminating this Agreement pays Parent the
Termination Payment in cash and otherwise complies with the provisions of
Section 5.1(e)(ii);
(i) by Parent or the Company if the Company Stockholder
Approval shall not have been obtained by reason of the failure to obtain the
required vote upon a vote held at a duly held meeting of shareholders or at any
adjournment thereof;
(j) by the Company if (i) the Company enters into a definitive
agreement in accordance with Section 5.1(e)(ii) and (ii) the Company
simultaneously with terminating pays Parent the Termination Payment in cash and
otherwise complies with the provisions of Section 5.1(e)(ii);
(k) by Parent if any of the conditions set forth in Section
7.1 or 7.2 shall become impossible to fulfill (other than as a result of any
breach by Parent of the terms of this Agreement) and shall not have been waived
in accordance with the terms of this Agreement; or
(l) by the Company, if any of the conditions set forth in
Section 7.1 or 7.3 shall become impossible to fulfill (other than as a result of
any breach by the Company of the terms of this Agreement) and shall not have
been waived in accordance with the terms of this Agreement.
8.2 Effect of Termination. In the event of termination of this
Agreement by either the Company or Parent as provided in Section 8.1, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Parent, Sub or the Company or their respective
affiliates, officers, directors or shareholders except (a) pursuant to the
second sentence of Section 6.2, and Sections 6.4, 6.5, this Section 8.2 and
Article IX, and (b) to the extent that such termination results from the willful
breach by a party hereto of any of its representations or warranties, or of any
of its covenants or agreements, in each case, as set forth in this Agreement,
other than as provided in the second sentence of Section 9.7.
8.3 Amendment. Subject to applicable law, this Agreement may
be amended, modified or supplemented only by written agreement of Parent, Sub
and the Company at any time prior to the Effective Date with respect to any of
the terms contained herein; provided, however, that, after the Company
Stockholder Approval is obtained, no such amendment or modification shall reduce
the amount or change the form of consideration to be delivered to the
stockholders of the Company.
8.4 Extension; Waiver. At any time prior to the Effective
Time, the parties hereto, by action taken or authorized by their respective
Boards of Directors, may, to the extent legally allowed: (a) extend the time for
the performance of any of the obligations or other acts of the other parties
hereto; (b) waive any inaccuracies in the representations and
55
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warranties of the other parties contained herein or in any document delivered
pursuant hereto; and (c) waive compliance by the other parties with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in a
written instrument signed on behalf of such party. The failure of any party
hereto to assert any of its rights hereunder shall not constitute a waiver of
such rights.
ARTICLE IX
GENERAL PROVISIONS
9.1 Nonsurvival of Representations and Warranties.
None of the representations and warranties in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time.
9.2 Notices. Any notice or communication required or permitted
hereunder shall be in writing and either delivered personally, telegraphed or
telecopied or sent by certified or registered mail, postage prepaid, and shall
be deemed to be given, dated and received when so delivered personally,
telegraphed or telecopied or, if mailed, five business days after the date of
mailing to the following address or telecopy number, or to such other address or
addresses as such Person may subsequently designate by notice given hereunder:
(a) if to Parent or Sub, to:
General Electric Capital Corporation
260 Long Ridge Road
Stamford, CT 06902
Attn: Victor Guaglianone, Esq.
Telephone: (203) 357-4584
Telecopy: (203) 357-4729
with a copy to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attn: William M. Gutowitz, Esq.
Telephone: (212) 310-8000
Telecopy: (212) 310-8007
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(b) if to the Company, to:
AmeriData Technologies, Inc.
700 Canal Street
Stamford, CT 06902
Attn: President
Telephone: (203) 357-1464
Telecopy: (203) 357-1531
with copies to:
Dewey Ballantine
1301 Sixth Avenue
New York, New York 10019
Attn: Jonathan L. Freedman, Esq.
Telephone: (212) 259-8000
Telecopy: (212) 259-6333
9.3 Interpretation. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. The table of contents, and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the word "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation". The phrase "made available" in this
Agreement shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available.
9.4 Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
9.5 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership. This Agreement (together with the Confidentiality Agreement, the
Stockholders Agreement and any other documents and instruments referred to
herein) constitutes the entire agreement (and supersedes all prior agreements
and understandings, both written and oral) among the parties hereto with respect
to the subject matter hereof and, except as provided in Section 6.6, is not
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.
9.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
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YORK, WITHOUT REGARD TO ANY APPLICABLE CONFLICTS OF LAW, EXCEPT TO THE EXTENT
THE DGCL SHALL BE HELD TO GOVERN THE TERMS OF THE MERGER.
9.7 No Remedy in Certain Circumstances. Each party agrees
that, should any court or other competent authority hold any provision of this
Agreement or part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith or not to take an action consistent
herewith or required hereby, the validity, legality and enforceability of the
remaining provisions and obligations contained or set forth herein shall not in
any way be affected or impaired thereby. Except as otherwise provided by this
Agreement, to the extent that a party hereto took an action inconsistent
herewith or failed to take action consistent herewith or required hereby
pursuant, in each case, to an order or judgment of a court or other competent
authority, such party shall incur no liability or obligation unless such party
did not in good faith seek to resist or object to the imposition or entering of
such order or judgment.
9.8 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that Sub
may assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to any newly-formed wholly-owned Subsidiary of Parent.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and assigns.
9.9 Enforcement. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of New York or in New York state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of New York or
any New York state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, and (b) agrees that
it will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
AMERIDATA TECHNOLOGIES, INC.
By: /s/ Gerald A. Poch
-----------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Michael S. Ford
-----------------------------------
GAC ACQUISITION I CORP.
By: /s/ Michael S. Ford
-----------------------------------
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EXHIBIT A
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, Sub shall
not be required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to Sub's obligation to pay for or return tendered Shares promptly after
expiration or termination of the Offer), to pay for any Shares tendered, and may
postpone the acceptance for payment or, subject to the restriction referred to
above, payment for any Shares tendered, and may amend or terminate the Offer
(whether or not any Shares have theretofore been purchased or paid for) (A)
unless the following conditions have been satisfied: (i) there have been validly
tendered and not withdrawn prior to the time the Offer shall otherwise expire a
number of Shares which constitutes a majority of the Shares outstanding on a
fully-diluted basis on the date of purchase ("on a fully-diluted basis" for
purposes hereof meaning, as of any date, the number of Shares outstanding,
together with Shares the Company is or may be required to issue pursuant to
obligations outstanding at that date under employee stock option or other
benefit plans, options, warrants or convertible or exchangeable securities, or
otherwise) (the "Minimum Condition"); (ii) prior to the time the Offer shall
otherwise expire, Preferred Securities outstanding on the date of the Merger
Agreement having an aggregate liquidation preference of more than 50% of the
aggregate liquidation preference of all Preferred Securities outstanding on the
date of the Merger Agreement shall have been converted by the holders thereof
into Shares; (iii) all regulatory and related approvals of Governmental Entities
have been obtained or made on terms reasonably satisfactory to Sub (including,
without limitation, pursuant to the Competition Act (Canada), the Federal Law on
Economic Competition of Mexico and the Austrian Cartel Act of 1988, as amended);
(iv) any applicable waiting periods under the HSR Act shall have expired or been
terminated prior to the expiration of the Offer; (v) the Company shall have
caused the Stock Option Plan, the Stock Purchase Plan and the Subordinated
Debentures to be amended, in each case effective not later than the Effective
Time, in such manner as to provide that after the Effective Time, the holders of
the Equity Purchase Rights evidenced thereby shall only be entitled to receive
the consideration specified in the Merger Agreement; (vi) the FCC shall have
granted the Pro Forma Application, and the transactions contemplated by the
Merger Agreement with respect thereto shall have been consummated on terms
reasonably satisfactory to Parent; and/or (B) if, at any time on or after the
date of the Merger Agreement and before acceptance for payment of, or payment
for, such Shares any of the following events shall occur or shall be deemed by
Sub to have occurred:
(a) there shall be threatened, instituted or pending by any
United States, Canadian or other court or governmental entity any suit,
action or proceeding (1) challenging the acquisition by Parent or Sub
of any Shares under the Offer or seeking to restrain or prohibit the
making or consummation of the Offer or Merger or seeking to obtain from
the Company, Parent or any of their respective Subsidiaries any damages
that are material in relation to the Company and its Subsidiaries taken
as a
A-1
<PAGE>
whole, (2) seeking to prohibit or limit the ownership or operation by
the Company, Parent or any of their respective subsidiaries of any
material portion of the business or assets of the Company and its
subsidiaries, taken as a whole, or Parent and its subsidiaries, taken
as a whole, or to compel the Company or Parent to dispose of or hold
separate any material portion of the business or assets of the Company
and its subsidiaries, taken as a whole, or Parent and its subsidiaries,
taken as a whole, as a result of the Offer or any of the other
transactions contemplated by this Agreement, (3) seeking to impose
material limitations on the ability of Parent or Sub to acquire or
hold, or exercise full rights of ownership of, any Shares accepted for
payment pursuant to the Offer, including, without limitation, the right
to vote such Shares on all matters properly presented to the
shareholders of the Company, or (4) seeking to prohibit Parent or any
of its subsidiaries from effectively controlling in any material
respect any material portion of the business or operations of the
Company and its subsidiaries; or
(b) any United States, Canadian or other governmental entity
or authority or United States, Canadian or other domestic or foreign
court of competent jurisdiction shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation,
executive order, decree, injunction or other order which is in effect
and which (1) materially restricts, prevents or prohibits consummation
of the Offer, the Merger or any other transaction contemplated by the
Merger Agreement or results in the obligation to pay material damages
as a result of or in connection with the transactions contemplated by
this Agreement, (2) prohibits or limits materially the ownership or
operation by the Company, Parent or any of their Subsidiaries of all or
any material portion of the business or assets of the Company and its
Subsidiaries taken as a whole or compels the Company, Parent, or any of
their Subsidiaries to dispose of or hold separate all or any material
portion of the business or assets of the Parent or any of its
Subsidiaries, or of the Company and its Subsidiaries taken as a whole,
(3) imposes limitations on the ability of Parent, Sub or any other
Subsidiary of Parent to acquire or hold, or to exercise effectively
full rights of ownership of, any Shares, including, without limitation,
the right to vote any Shares acquired by Sub pursuant to the Offer or
otherwise on all matters properly presented to the Company's
stockholders, including, without limitation, the approval and adoption
of the Merger Agreement and the transactions contemplated thereby or
(4) requires divestitures by Parent, Sub or any other affiliate of
Parent of any Shares;
(c) the representations and warranties of the Company
contained in the Merger Agreement shall not be true and correct when
made or (except for those representations and warranties that address
matters as of a specific date) shall have ceased to be true as of the
date of consummation of the Offer as though made on and as of such
date;
A-2
<PAGE>
(d) the Company shall not have performed or complied in
all material respects with any of its obligations under the Merger
Agreement to be performed or complied with by it;
(e) the Merger Agreement shall have been terminated in
accordance with its terms;
(f) the Board of Directors of the Company shall have (i)
withdrawn or materially modified or changed (including by amendment of
the Schedule 14D-9) in a manner adverse to Sub its recommendation of
the Offer, the Merger Agreement or the Merger, or (ii) the Board of
Directors shall have approved or recommended an Acquisition Proposal;
(g) all consents of third parties as are necessary in
connection with the transactions contemplated hereby (including
consents necessary to prevent any conflict, violation or breach of any
agreement of the Company or any of its Subsidiaries, other than
conflicts, breaches or violations of the agreements identified on
Schedule 4.1(c)(ii) to the Merger Agreement) shall have been obtained,
except such Consents the failure to deliver which could not reasonably
be expected to have a material adverse effect on the business,
operations, assets, condition (financial or otherwise) or prospects of
the Company and its Subsidiaries, taken as a whole;
(h) other than the filing of the Certificate of Merger with
respect to the Merger as provided for by Section 2.3 of the Merger
Agreement, all licenses, permits, authorizations, consents, orders,
qualifications or approvals of, or declarations or filings with, or
expirations of waiting periods imposed by, any Governmental Entity
requisite to consummation of the Merger and the transactions
contemplated thereby, shall have been filed, occurred or been obtained,
as the case may be;
(i) (1) it shall have been publicly disclosed or Sub shall
have otherwise learned that, except as contemplated by the Stockholders
Agreement, any Person or "group" (as defined in Section 13(d)(3) of the
Exchange Act), other than Parent or its affiliates or any group of
which any of them is a member, shall have acquired beneficial ownership
(determined pursuant to Rule 13d-3 promulgated under the Exchange Act)
of more than 20% of any class or series of capital stock of the group
or otherwise, or shall have been granted an option, right or warrant,
conditional of capital stock of the Company (including the Shares); or
(2) any person or group Company with respect to (A) a merger,
consolidation or other business combination with, or acquisition of a
material portion of the assets of, the Company, or (B) a tender or
exchange offer for Shares;
A-3
<PAGE>
(j) there shall have occurred, developed or come into effect or
existence any event, action, state, condition or major financial
occurrence of national or international consequence or any law,
regulation, action, government regulation, inquiry or other occurrence
of any nature whatsoever which, in the opinion of Sub, materially
adversely affects or involves, or is reasonably likely to materially
adversely affect or involve, (1) the financial markets in the United
States generally, or (2) the financial condition, business, operations,
assets, affairs or prospects of the Company and its Subsidiaries taken
as a whole or the value of the Shares;
which, in the judgment of Sub in any such case, and regardless of the
circumstances (including any action or omission by Parent or Sub) giving rise to
any such condition, makes it inadvisable to proceed with such acceptance for
payment or payment.
The foregoing conditions are for the sole benefit of
Sub and its affiliates and may be asserted by Sub regardless of the
circumstances (including, without limitation, any action or inaction by Sub or
any of its affiliates) giving rise to any such condition or may be waived by
Sub, in whole or in part, from time to time in its sole discretion, except as
otherwise provided in the Agreement. The failure by Sub at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right and
each such right shall be deemed an ongoing right and may be asserted at any time
and from time to time. Any determination by Sub concerning any of the events
described herein shall be final and binding. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them in the
Agreement and Plan of Merger among the Parent, Sub and the Company to which this
Exhibit A is attached.
A-4
<PAGE>
STOCKHOLDERS AGREEMENT
AGREEMENT, dated May 20, 1996, among General Electric Capital
Corporation, a New York corporation ("Parent"), GAC Acquisition I Corp., a
Delaware corporation and an indirect wholly-owned subsidiary of Parent ("Sub"),
and the other parties signatory hereto (each a "Stockholder", and collectively,
the "Stockholders").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Parent, Sub and AmeriData
Technologies, Inc., a Delaware corporation (the "Company"), are entering into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"; capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement),
pursuant to which, among other things, Sub will be merged with and into the
Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company
have agreed that as soon as practicable (and not later than five business days)
after the first public announcement of the execution and delivery of the Merger
Agreement, Sub will commence a cash tender offer to purchase all outstanding
shares of Company Common Stock (as defined in Section 1), including all of the
Shares (as defined in Section 2) Beneficially Owned (as defined in Section 1) by
the Stockholders; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect
to any securities shall mean having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as within the meaning of Section 13(d)(3) of
the Exchange Act.
(b) "Company Common Stock" shall mean at any time the common stock, $.01
par value, of the Company.
<PAGE>
(c) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
2. Tender of Shares.
(a) Each Stockholder hereby agrees to validly tender (and not
to withdraw) pursuant to and in accordance with the terms of the Offer, not
later than the fifth business day after commencement of the Offer pursuant to
Section 1.1 of the Merger Agreement and Rule 14d-2 under the Exchange Act, the
number of shares of Company Common Stock set forth opposite such Stockholder's
name on Schedule I hereto (the "Existing Shares"), as well as any shares of
Company Common Stock acquired by such Stockholder after the date hereof and
prior to the termination of this Agreement, whether upon the exercise of
options, warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution or
otherwise (collectively with the Existing Shares, the "Shares"; provided,
however, that with respect to any Shares the tender of which would result in
liability under Section 16(b) of the Exchange Act, such tender need not take
place until such tender may be made without liability under Section 16(b) of the
Exchange Act. Each Stockholder hereby acknowledges and agrees that Sub's
obligation to accept for payment and pay for Shares in the Offer is subject to
the terms and conditions of the Offer.
(b) Each Stockholder hereby agrees to permit Parent and Sub to
publish and disclose in the Offer Documents and, if approval of the Merger by
the Company's shareholders (other than Parent or any of its wholly-owned
subsidiaries) is required under applicable law, in the Proxy Statement
(including all documents and schedules filed with the SEC) his or its identity
and ownership of Company Common Stock and the nature of his or its commitments
under this Agreement.
3. Provisions Concerning Company Common Stock. Each
Stockholder hereby agrees that during the period commencing on the date hereof
and continuing until the first to occur of the Effective Time or termination of
the Merger Agreement in accordance with its terms, at any meeting of the holders
of Company Common Stock, however called, or in connection with any written
consent of the holders of Company Common Stock, such Stockholder shall vote (or
cause to be voted) the Shares held of record or Beneficially Owned by such
Stockholder, whether now owned or hereafter acquired, (i) in favor of the
Merger, the execution and delivery by the Company of the Merger Agreement and
the approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in furtherance
thereof and hereof; (ii) against any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or this
Agreement (before giving effect to any materiality or similar qualifications
contained therein); and (iii) except as otherwise agreed to in writing in
advance by Parent, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its subsidiaries; (C) (1) any change in a majority of the persons who constitute
the Board of Directors of the Company; (2) any change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or Bylaws; (3) any other
2
<PAGE>
material change in the Company's corporate structure or business; or (4) any
other action involving the Company or its subsidiaries which is intended, or
could reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the Merger and the transactions contemplated by this
Agreement and the Merger Agreement. Such Stockholder shall not enter into any
agreement or understanding with any person or entity the effect of which would
be inconsistent or violative of the provisions and agreements contained in this
Section 3.
4. Other Covenants, Representations and Warranties.
Each Stockholder severally and not jointly hereby represents and warrants
to Parent as follows:
(a) Ownership of Shares. Such Stockholder is either (i) the
record and Beneficial Owner of, or (ii) the Beneficial Owner but not the record
holder of, the number of Shares set forth opposite such Stockholder's name on
Schedule I hereto. On the date hereof, the Existing Shares set forth opposite
such Stockholder's name on Schedule I hereto constitute all of the shares of
securities issued by the Company owned of record or Beneficially Owned by such
Stockholder. Such Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 2 and 3 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares set forth
opposite such Stockholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights, subject to applicable securities
laws and the terms of this Agreement.
(b) Power; Binding Agreement. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, shareholders agreement or voting trust. This Agreement has
been duly and validly executed and delivered by such Stockholder and constitutes
a valid and binding agreement of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except as such enforceability may be
limited by (A) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (B) general principles of equity regardless of
whether enforceability is considered in a proceeding at law or in equity. There
is no beneficiary or holder of a voting trust certificate or other interest of
any trust of which such Stockholder is Trustee whose consent is required for the
execution and delivery of this Agreement or the consummation by such shareholder
of the transactions contemplated hereby.
(c) No Conflicts. Except for filings under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if
applicable, (A) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority or any other Person
is necessary for the execution of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby and (B)
none of the execution and delivery of this Agreement by such Stockholder, the
consummation by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof shall (1)
conflict with or result in any breach of any applicable organizational documents
applicable to such Stockholder, (2) result in a violation or breach of, or
constitute (with or without notice or lapse of time
3
<PAGE>
or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which such Stockholder is a party or by which such
Stockholder or any of such Stockholder's properties or assets may be bound, or
(3) violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to such Stockholder or any of such Stockholder's
properties or assets.
(d) No Encumbrances. Except as applicable in connection with
the transactions contemplated by Section 2 hereof, such Stockholder's Shares and
the certificates representing such Shares are now, and at all times during the
term hereof will be, held by such Stockholder, or by a nominee or custodian for
the benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any such encumbrances arising
hereunder and except for the liens on up to an aggregate of $350,000 in value of
shares and an aggregate of $500,000 in value of shares held by Mr. Poch and Mr.
Fassler, respectively, arising out of such Shares being held in margin accounts.
The transfer by each Stockholder of his or its Shares to Sub in the Offer or
upon exercise of the Stock Option shall pass to and unconditionally vest in Sub
good and valid title to the number of Shares set forth opposite such
Stockholder's name on Schedule I hereto, free and clear of all claims, liens,
restrictions, security interests, pledges, limitations and encumbrances
whatsoever, except for those created by any action or inaction of Parent or Sub.
(e) No Finder's Fees. Other than existing financial advisory
and investment banking arrangements and agreements entered into by the Company,
no broker, investment banker, financial adviser or other person is entitled to
any broker's, finder's, financial adviser's or other similar fee or commission
in connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of such Stockholder.
(f) No Solicitation. No Stockholder shall, in his or its
capacity as such, directly or indirectly, solicit (including by way of
furnishing information) or respond to the making of any proposal by any person
or entity (other than Parent or any affiliate of Parent) with respect to his or
its Shares or with respect to the Company that constitutes an Acquisition
Proposal, except that a Stockholder may take actions in his capacity as a
director of the Company to the extent permitted by the Merger Agreement. If any
Stockholder receives any such inquiry or proposal, then such Stockholder shall
promptly inform Parent of the existence thereof. Each Stockholder will
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
(g) Restriction on Transfer, Proxies and Non-Interference.
Except as applicable in connection with the transactions contemplated by Section
2 hereof, no Stockholder shall (i) directly or indirectly, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, sale, transfer, tender, pledge, encumbrance,
assignment or other disposition of, any or all of such Stockholder's Shares or
any interest therein; (ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any Shares into a voting trust or enter
into a voting
4
<PAGE>
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of such Stockholder contained herein untrue or
incorrect in any material respect or have the effect of preventing or disabling
such Stockholder from performing such Stockholder's obligations under this
Agreement.
(h) Waiver of Appraisal Rights. Each Stockholder hereby
waives any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
(i) Reliance by Parent. Such Stockholder understands and
acknowledges that Parent is entering into, and causing Sub to enter into, the
Merger Agreement in reliance upon such Stockholder's execution and delivery of
this Agreement.
(j) Further Assurances. From time to time, at the other
party's reasonable request and without further consideration, each party hereto
shall execute and deliver such additional documents and take all such further
lawful action as may be necessary or desirable to consummate and make effective,
in the most expeditious manner practicable, the transactions contemplated by
this Agreement.
5. Stop Transfer; Changes in Shares. Each Stockholder agrees
with, and covenants to, Parent that such Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, unless
such transfer is made in compliance with this Agreement (including the
provisions of Section 2 hereof). In the event of a stock dividend or
distribution, or any change in the Company Common Shares by reason of any stock
dividend, split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the Shares as
well as all such stock dividends and distributions and any shares into which or
for which any or all of the Shares may be changed or exchanged.
6. Termination. Except as otherwise provided herein, the
covenants and agreements contained herein with respect to the Shares shall
terminate upon the earlier of (x) the Effective Time and (y) the first
anniversary of the date hereof; provided, however, that the provisions of
Sections 4(f), 4(g)(i) and 4(g)(ii) shall terminate upon any earlier termination
of the Merger Agreement.
7. Stockholder Capacity. No person executing this Agreement
who is or becomes during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as such director.
8. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
5
<PAGE>
(b) Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Stockholder's heirs, guardians,
administrators or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party, provided that Parent may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly owned subsidiary of
Parent, but no such assignment shall relieve Parent of its obligations hereunder
if such assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated, with
respect to any one or more Stockholders, except upon the execution and delivery
of a written agreement executed by Parent and such Stockholder or Stockholders;
provided that Schedule I hereto may be supplemented by Parent by adding the name
and other relevant information concerning any shareholder of the Company who
agrees to be bound by the terms of this Agreement without the agreement of any
other party hereto, and thereafter such added shareholder shall be treated as a
"Stockholder" for all purposes of this Agreement.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to Stockholders: At the addresses set forth on Schedule I hereto
copy to: Dewey Ballantine
1301 Sixth Avenue
New York, New York 10019
Attention: Jonathan Freedman, Esq.
If to Parent: General Electric Capital Corporation
260 Long Ridge Road
Stamford, CT 06927
Attention: Victor Guaglianone, Esq.
6
<PAGE>
copy to: Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
(212) 310-8000 (telephone)
(212) 310-8007 (telecopier)
Attention: William M. Gutowitz, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law thereof.
7
<PAGE>
(l) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to
be part of or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
8
<PAGE>
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Michael S. Ford
------------------------------
Name: Michael S. Ford
Title: President
GAC ACQUISITION I CORP.
By: /s/ Michael S. Ford
------------------------------
Name: Michael S. Ford
Title: President
/s/ Gerald A. Poch
-----------------------------------
GERALD A. POCH
/s/ Leonard J. Fassler
-----------------------------------
LEONARD J. FASSLER
/s/ James K. McCleary
-----------------------------------
JAMES K. MCCLEARY
AGREED TO AND ACKNOWLEDGED
(with respect to Section 5):
AMERIDATA TECHNOLOGIES, INC.
By: /s/ Gerald A. Poch
------------------------------
Name: Gerald A. Poch
Title: Co-President
9
<PAGE>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Percentage of Out-
Name and Address Number of standing Common Stock
of Stockholder Shares Owned (to nearest hundredth)
- ------------------ ------------ ----------------------
Gerald A. Poch 653,098 2.86
c/o AmeriData Technologies, Inc.
700 Canal Street
Stamford, CT 06902
Leonard J. Fassler 633,537 2.78
c/o AmeriData Technologies, Inc.
700 Canal Street
Stamford, CT 06902
James McCleary 533,136 2.34
c/o AmeriData Technologies, Inc.
5121 Winnetka Avenue
Minneapolis, MN 55428
10
<PAGE>
EXHIBIT 99.(g)(1)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
|
KENNETH STEINER, Individually and | Civil Action No. 15005
on behalf of all others similarly |
situated |
Plaintiff | SUMMONS
|
v. |
|
LEONARD J. FASSLER, EDWARD A. |
KERBS, GERALD M. LeBOW, |
GERALD A. POCH, ANTHONY P. TOWELL, |
JAMES K. McCLEARY, RICHARD J. |
WILLIAMS, AMERIDATA TECHNOLOGIES, |
INC. AND GE CAPITAL SERVICES, INC. |
|
Defendants |
|
|
|
THE STATE OF DELAWARE
TO THE SPECIAL PROCESS SERVER
YOU ARE COMMANDED:
To Summon the above named defendants so that, within 20 days after
service hereof upon defendants, exclusive of the day of service, defendants
shall serve upon Joseph A. Rosenthal, Esquire, plaintiff's attorney whose
address is Suite 1401, Mellon Bank Center, PO Box 1070, Wilm., DE an answer to
the complaint.
To serve upon defendants a copy hereof and of the complaint.
/s/ Priscilla B. Rakestraw
--------------------------
Register in Chancery
Dated May 21, 1996
TO THE ABOVE NAMED DEFENDANTS:
In case of your failure, within 20 days after service hereof upon you,
exclusive of the day of service, to serve on plaintiff's attorney named above
an answer to the complaint, judgement by default will be rendered against you
for the relief demanded in the complaint.
/s/ Priscilla B. Rakestraw
--------------------------
Register in Chancery
<PAGE>
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- - - - - - - - - - - - - - - - - - - - - x
:
KENNETH STEINER, Individually and :
On Behalf of All Others Similarly : Civil Action No. 15005
Situated, :
:
:
Plaintiff, : CLASS ACTION
: COMPLAINT
- v. - :
:
LEONARD J. FASSLER, EDWARD A. :
KERBS, GERALD M. LeBOW, GERALD A. :
POCH, ANTHONY P. TOWELL, JAMES K. :
McCLEARY, RICHARD J. WILLIAMS, :
AMERIDATA TECHNOLOGIES, INC. and GE :
CAPITAL SERVICES, INC. :
:
Defendants. :
:
- - - - - - - - - - - - - - - - - - - - - x
Plaintiff alleges on information and belief, except
as to the allegations of paragraph 2 which are alleged on
knowledge, as follows:
1. Plaintiff brings this action as a class action
on behalf of himself and all other stockholders of AmeriData
Technologies, Inc. ("AmeriData" or the "Company") who are
similarly situated, to enjoin certain actions of the
defendants related to the proposed purchase of the outstanding
shares of AmeriData stock by defendant GE Capital Services,
Inc. ("GE").
PARTIES
2. Plaintiff is and has been at all relevant times
the owner of shares of AmeriData common stock.
<PAGE>
3. (a) Defendant AmeriData, a corporation
organized and existing under the laws of the State of
Delaware, provides computer products and services to
commercial, governmental and educational users. The Company
also designs, manufactures and sells public alerting,
notification and emergency response systems for use in the
event of natural disasters. As of March 31, 1996, AmeriData
had approximately 22.1 million shares of common stock issued
and outstanding held by 6,900 shareholders of record.
(b) AmeriData is named herein as nominal
defendant in order to effectuate the relief sought.
4. (a) Defendant Leonard J. Fassler ("Fassler")
is and was at all relevant times AmeriData's Co-Chairman.
Fassler is also President of Sage Equities, Inc., a private
investment company.
(b) Defendant James K. McCleary ("McCleary")
it and was at all relevant times AmeriData's Co-Chairman and
Co-President.
(c) Defendant Gerald A. Poch ("Poch") is and
was at all relevant times AmeriData's Co-Chairman, Co-
President and Chief Executive Officer.
(d) Defendant Gerald M. LeBow ("LeBow") is and
was at all relevant times AmeriData'a Executive Vice
President, General Manager and a director.
(e) Defendants Edward A. Kerbs ("Kerbs")
Anthony P. Towell ("Towell") and Richard J. Williams
2
<PAGE>
("Williams") are and were at all relevant times directors of
AmeriData. Defendant Williams is also a principal of Triumph
Connecticut Limited Partnership ("TCLP") an entity which has
invested in the Company.
5. Defendant GE is a New York corporation and a
wholly-owned subsidiary of General Electric Company, which
through General Electric Pension Trust owns 2,101,404 shares
of AmeriData common stock representing 9.7% of the Company's
outstanding common stock. GE is named herein as an aider and
abettor of the individual defendants' breach of fiduciary
duty.
6. By virtue of the individual defendants'
positions as directors and officers of AmeriData, said
defendants were and are in a fiduciary relationship with
plaintiff and the other public stockholders of the Company,
and owe to plaintiff and the other members of the Class the
highest obligations of good faith and fair dealing.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action for declaratory,
injunctive and other relief on his own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of
Chancery and on behalf of all common stockholders of AmeriData
(except defendants herein and any person, firm, trust,
corporation or other entity related to or affiliated with any
of the defendants) or their successors in interest, who are
being deprived of the opportunity to maximize the value of
3
<PAGE>
their AmeriData shares by the wrongful acts of the defendants
as described herein.
8. This action is properly maintainable as a class
action for the following reasons:
(a) The Class of stockholders for whose
benefit this action it brought is so numerous that joinder of
all Class members is impracticable. There are more than 9
million common shares of AmeriData outstanding, owned by
thousands of stockholders. Members of the Class are scattered
throughout the United States.
(b) There are questions of law and fact which
are common to members of the Class and which predominate over
all questions affecting only individual members, including
whether the defendants have breached the fiduciary duties owed
by them to plaintiff and members of the Class by reason of the
acts described herein.
(c) The claims of plaintiff are typical of the
claims of the other members of the Class and plaintiff has no
interests that are adverse or antagonistic to the interests of
the Class.
(d) Plaintiff is committed to the vigorous
prosecution of this action and has retained competent counsel
experienced in litigation of this nature. Accordingly,
plaintiff is an adequate representative of the Class and will
fairly and adequately protect the interests of the Class.
- 4 -
<PAGE>
(e) The prosecution of separate actions by
individual members of the Class would create a risk of
inconsistent or varying adjudications with respect to
individual members of the Class and establish incompatible
standards of conduct for the party opposing the Class.
(f) Defendants have acted and are about to act
on grounds generally applicable to the Class, thereby making
appropriate final injunctive or corresponding declaratory
relief with respect to the Class as a whole.
FACTUAL BACKGROUND
9. On or about May 20, 1996, GE announced that it
has entered into a definitive agreement to acquire AmeriData.
Pursuant to the terms of the agreement, GE will pay $16 cash
per share for each share of AmeriData common stock (the
"Transaction").
10. The Transaction will be effected in two steps,
commencing with a tender offer by GE for the Company's
outstanding common stock at $16 cash per share. Shares not
purchased in the tender offer will be acquired in a subsequent
merger at $16 per share.
11. The market price of AmeriData closed at $15 3/8
per share on the trading day prior to the announcement of the
Transaction.
12. AmeriData just released, on May 14, 1996, its
financial results for the quarter ended March 31, l996, which
results were outstanding. The Company reported revenues of
-5-
<PAGE>
$452,799,000 and net income of $3,451,000 or $0.15 per share,
compared with revenues of $274,901,000 and net income of
$1,604,000 or $0.08 per share for the same period in 1995.
The news propelled the Company's stock to close at $15 3/8 per
share by May 17, 1996.
13. Additionally, on April 1, 1996, AmeriData
confirmed to the investment community that it expected to
record revenue of $2 billion for the 1996 fiscal year,
exclusive of additional acquisitions in 1996.
14. AmeriData's growth has been fueled in part by
the acquisition of nearly 36 smaller re-sellers and service
companies over the past few years. In fact, in January 1996,
the Company, in a stock swap, purchased Brenner Technology,
Inc., a company which provides consulting services in the New
York City area. Thus, the market has yet to fully absorb all
the information about the Company, and the corresponding
impact which this news will have on AmeriData's future trading
price.
15. By virtue of its ownership in AmeriData, GE has
been privy to material non-public information concerning
AmeriData's business, products and financial results.
Accordingly, GE has, in part based upon non-public
information, positioned itself to purchase the remaining
interest in AmeriData at an unreasonably low and unfair price,
to the detriment of plaintiff and the other public
stockholders of the Company.
-6-
<PAGE>
16. The Transaction, if consummated, will transfer
control of AmeriData and its valuable assets and businesses
from its present stockholders to GE. The individual
defendants are obligated in connection with any contemplated
transfer of such control of AmeriData to seek to maximize
shareholder value by such means as an auction, active market
check or other exploration of strategic alternatives under the
circumstances. The individual defendants have failed to
implement such procedures for the maximization of shareholder
value and are permitting the transfer of control of AmeriData
and its assets at a value which fails to reflect the long-term
value of its stock given the positive trends AmeriData has
shown, as described above. Defendants have not engaged in any
effort to solicit competing bids for the Company or to explore
other strategic alternatives involving other potential
parties.
17. If consummated, the merger agreement will deny
Class members their right to share proportionately in the true
value of AmeriData's valuable assets, profitable businesses
and future growth.
18. The actions taken by the individual defendants
are in gross disregard of their fiduciary duties owed to
plaintiff and the other members of the Class
19. AmeriData knowingly aided and abetted the
breaches of fiduciary duty committed by the individual
defendants complained of herein. Indeed, the Transaction
- 7 -
<PAGE>
between AmeriData and GE could not take place without the
knowing participation of AmeriData.
20. Plaintiff and the other members of the Class
will suffer irreparable injury unless the Transaction is
enjoined.
21. Plaintiff and the Class have no adequate remedy
at law.
WHEREFORE, plaintiff demands judgment and
preliminary and permanent relief, including injunctive relief,
in his favor and in favor of the Class and against defendants
as follows:
A. Declaring that this action is properly
maintainable as a class action, and certifying plaintiff as
class representative;
B. Enjoining the Transaction;
C. Ordering the individual defendants to carry out
their fiduciary duties to plaintiff and other members of the
Class by announcing their intention to:
(i) cooperate fully with any person or entity,
having a bona fide interest in proposing any transaction which
would maximize shareholder value, including, but not limited
to, a buyout or takeover of the Company;
(ii) undertake an appropriate evaluation of
AmeriData's worth as a merger acquisition candidate;
- 8 -
<PAGE>
(iii) take all appropriate steps to enhance
AmeriData's value and attractiveness as a merger/acquisition
candidate;
(iv) take all appropriate steps to effectively
expose AmeriData to the market place to create an active
auction of AmeriData;
(v) act independently so that the interests of
AmeriData's public shareholders will be protected; and
(vi) adequately ensure that no conflicts of
interest exist between the individual defendants' own
interests and their fiduciary obligation to maximize
shareholder value or, if such conflicts exist, ensure that all
conflicts are resolved in the best interests of AmeriData's
public shareholders.
D. Awarding plaintiff and the Class rescissory
damages, if the Transaction is consummated before judgment,
and compensatory damages;
E. Awarding plaintiff the costs and disbursements
of this action, including reasonable attorneys' and experts'
fees; and
- 9 -
<PAGE>
F. Granting such other and further relief as this
Court may deem just and proper.
Dated: May 20, 1996
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Authorized Signature
-----------------------------
Mellon Bank Center, Suite 1401
919 North Market Street
Wilmington, Delaware 18801
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
GOODKIND LABATON RUDOFF & SUCHAROW
100 Park Avenue
New York, New York 10017
(212) 907-0700
- 10 -
<PAGE>
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
|
KENNETH STEINER, Individually and | Civil Action No. 15005
on behalf of all others similarly |
situated |
Plaintiff | SUMMONS PURSUANT
| TO 10 DEL.C. SECTION 3114
v. |
|
LEONARD J. FASSLER, EDWARD A. |
KERBS, GERALD M. LeBOW, |
GERALD A. POCH, ANTHONY P. TOWELL, |
JAMES K. McCLEARY, RICHARD J. |
WILLIAMS, AMERIDATA TECHNOLOGIES, |
INC. AND GE CAPITAL SERVICES, INC. |
|
Defendants |
|
|
|
THE STATE OF DELAWARE
TO THE SPECIAL PROCESS SERVER
YOU ARE COMMANDED:
To Summon the above named individual defendants by service pursuant to
10 Del. C. Section 3114 upon their designated agent for service of process in
Delaware, The Prentice-Hall Corporation Systems, Inc. being the registered agent
for Ameridata Technologies, Inc., a Delaware corporation, so that within the
time required by law, such defendants shall serve upon Joseph A. Rosenthal,
Esquire, plaintiff's attorney whose address is Suite 1401, PO Box 1070, Wilm.,
DE an answer to the complaint.
To serve upon defendants a copy hereof, of the complaint and of a
statement of plaintiff filed pursuant to Chancery Court Rule 4(dc) ( l ).
/s/ Priscilla B. Rakestraw
--------------------------
Dated May 21, 1996 Register in Chancery
TO THE ABOVE NAMED DEFENDANTS:
In case of your failure, within the time permitted by l0 Del. C.
Section 3114*, to serve on plaintiff's attorney named above an answer to the
complaint, judgment by default may be rendered against you for the relief
demanded in the complaint.
/s/ Priscilla B. Rakestraw
-------------------------
Register in Chancery
*The text of 10 Del. C. Section 3114 is set out on the reverse of this Summons.
CIVIL ACTION NO. 15005
KENNETH STEINER
Plaintiff
v.
LEONARD J. FASSLER, ET AL
Defendant
SUMMONS
1. Leonard J. Fassler
2. Edward A. Kerbs
3. Gerald M. LeBow
4. Gerald A. Poch
5. Anthony P. Towell
6. James K. McCleary
7. Richard J. Williams
by serving the registered agent for Ameridata Technologies, Inc.
The Prentice-Hall Corporation Systems, Inc.
c/o The Corporation Service Company
1013 Centre Road
Wilmington, De
SERVICE TO BE COMPLETED BY SPECIAL PROCESS SERVER
Section 3114. Service of process on non-resident directors, trustees or
members of the governing body of Delaware corporations.
(a) Every non-resident of this State who after September 1, 1977,
accepts election or appointment as a director, trustee or member of the
governing body of a corporation organized under the laws of this State or
who after June 30, 1978, serves in such capacity and every resident of this
State who so accepts election or appointment or serves in such capacity
and thereafter removes his residence from this State shall, by such
acceptance or by such service, be deemed thereby to have consented to the
appointment of the registered agent of such corporation (or, if there is
none, the Secretary of State) as his agent upon whom service of process may
be made in all civil actions or proceedings brought in this State, by or
on behalf of, or against such corporation, in which such director, trustee
or member is a necessary or proper party, or in any action or proceeding
against such director, trustee or member for violation of his duty in such
capacity, whether or not he continues to serve as such director, trustee or
member at the time suit is commenced. Such acceptance or service as such
director, trustee or member shall be a signification of the consent of such
director, trustee or member that any process when so served shall be of the
same legal force and validity as if served upon such director, trustee or
member within this State and such appointment of the registered agent (or,
if there is none, Secretary of State) shall be irrevocable.
(b) Service of process shall be effected by serving the registered agent
(or, if there is none, the Secretary of State) with 1 copy of such process
in the manner provided by law for service of writs of summons. In addition,
the Prothonotary or the Register in Chancery of the court in which the civil
action or proceeding is pending shall, within 7 days of such service,
deposit in the United States mails, by registered mail, postage prepaid, true
and attested copies of the process, together with a statement that service
is being made pursuant to this section, addressed to such director, trustee or
member at the corporation's principal place of business and at his residence
address as the same appears on the records of the Secretary of State, or, if
no such residence address appears, at his address last known to the party
desiring to make such service.
(c) In any action in which any such director, trustee or member has been
served with process as hereinabove provided, the time in which a defendant
shall be required to appear an file a responsive pleading shall be computed
from the date of mailing by the Prothonotary or the Register in Chancery as
provided in subsection (b) of this section; however, the court in which such
action has been commenced may order such continuance or continuances as may
be necessary to afford such director, trustee or member reasonable
opportunity to defend the action.
(d) Nothing herein contained limits or affects the right to serve process
in any other manner now or hereafter provided by law. This section is an
extension of and not a limitation upon the right otherwise existing of service
of legal process upon non-residents.
(e) The Court of Chancery and the Superior Court may make all necessary
rules respecting the form of process, the manner of issuance and return
thereof and such other rules which may be necessary to implement this section
and are not inconsistent with this section (61 Del. Laws, c. 119, Section 1.)
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
- - - - - - - - - - - - - - - - - - - - - x
:
KENNETH STEINER, Individually and :
On Behalf of All Others Similarly : Civil Action No. 15005
Situated, :
:
:
Plaintiff, : CLASS ACTION
: COMPLAINT
- v. - :
:
LEONARD J. FASSLER, EDWARD A. :
KERBS, GERALD M. LeBOW, GERALD A. :
POCH, ANTHONY P. TOWELL, JAMES K. :
McCLEARY, RICHARD J. WILLIAMS, :
AMERIDATA TECHNOLOGIES, INC. and GE :
CAPITAL SERVICES, INC. :
:
Defendants. :
:
- - - - - - - - - - - - - - - - - - - - - x
Plaintiff alleges on information and belief, except
as to the allegations of paragraph 2 which are alleged on
knowledge, as follows:
1. Plaintiff brings this action as a class action
on behalf of himself and all other stockholders of AmeriData
Technologies, Inc. ("AmeriData" or the "Company") who are
similarly situated, to enjoin certain actions of the
defendants related to the proposed purchase of the outstanding
shares of AmeriData stock by defendant GE Capital Services,
Inc. ("GE").
PARTIES
2. Plaintiff is and has been at all relevant times
the owner of shares of AmeriData common stock.
<PAGE>
3. (a) Defendant AmeriData, a corporation
organized and existing under the laws of the State of
Delaware, provides computer products and services to
commercial, governmental and educational users. The Company
also designs, manufactures and sells public alerting,
notification and emergency response systems for use in the
event of natural disasters. As of March 31, 1996, AmeriData
had approximately 22.1 million shares of common stock issued
and outstanding held by 6,900 shareholders of record.
(b) AmeriData is named herein as a nominal
defendant in order to effectuate the relief sought.
4. (a) Defendant Leonard J. Fassler ("Fassler")
is and was at all relevant times AmeriData's Co-Chairman.
Fassler is also President of Sage Equities, Inc., a private
investment company.
(b) Defendant James K. McCleary ("McCleary")
is and was at all relevant times AmeriData's Co-Chairman and
Co-President.
(c) Defendant Gerald A. Poch ("Poch") is and
was at all relevant times AmeriData's Co-Chairman, Co-
President and Chief Executive Officer.
(d) Defendant Gerald M. LeBow ("LeBow") is and
was at all relevant times AmeriData'a Executive Vice
President, General Manager and a director.
(e) Defendants Edward A. Kerbs ("Kerbs")
Anthony P. Towell ("Towell") and Richard J. Williams
- 2 -
<PAGE>
("Williams") are and were at all relevant times directors of
AmeriData. Defendant Williams is also a principal of Triumph
Connecticut Limited Partnership ("TCLP") an entity which has
invested in the Company.
5. Defendant GE is a New York corporation and a
wholly-owned subsidiary of General Electric Company, which
through General Electric Pension Trust owns 2,101,404 shares
of AmeriData common stock representing 9.7% of the Company's
outstanding common stock. GE is named herein as an aider and
abettor of the individual defendants' breach of fiduciary
duty.
6. By virtue of the individual defendants'
positions as directors and officers of AmeriData, said
defendants were and are in a fiduciary relationship with
plaintiff and the other public stockholders of the Company,
and owe to plaintiff and the other members of the Class the
highest obligations of good faith and fair dealing.
CLASS ACTION ALLEGATIONS
7. Plaintiff brings this action for declaratory,
injunctive and other relief on his own behalf and as a class
action, pursuant to Rule 23 of the Rules of the Court of
Chancery and on behalf of all common stockholders of AmeriData
(except defendants herein and any person, firm, trust,
corporation or other entity related to or affiliated with any
of the defendants) or their successors in interest, who are
being deprived of the opportunity to maximize the value of
- 3 -
<PAGE>
their AmeriData shares by the wrongful acts of the defendants
as described herein.
8. This action is properly maintainable as a class
action for the following reasons:
(a) The Class of stockholders for whose
benefit this action is brought is so numerous that joinder of
all Class members is impracticable. There are more than 9
million common shares of AmeriData outstanding, owned by
thousand of stockholders. Members of the Class are scattered
throughout the United States.
(b) There are questions of law and fact which
are common to members of the Class and which predominate over
all questions affecting only individual members, including
whether the defendants have breached the fiduciary duties owed
by them to plaintiff and members of the Class by reason of the
acts described herein.
(c) The claims of plaintiff are typical of the
claims of the other members of the Class and plaintiff has no
interests that are adverse or antagonistic to the interests of
the Class.
(d) Plaintiff it committed to the vigorous
prosecution of this action and has retained competent counsel
experienced in litigation of this nature. Accordingly,
plaintiff is an adequate representative of the Class and will
fairly and adequately protect the interests of the Class.
- 4 -
<PAGE>
(e) The prosecution of separate actions by
individual members of the Class would create a risk of
inconsistent or varying adjudications with respect to
individual members of the Class and establish incompatible
standards of conduct for the party opposing the Class.
(f) Defendants have acted and are about to act
on grounds generally applicable to the Class, thereby making
appropriate final injunctive or corresponding declaratory
relief with respect to the Class as a whole.
FACTUAL BACGROUND
9. On or about May 20, 1996, GE announced that it
has entered into a definitive agreement to acquire AmeriData.
Pursuant to the terms of the agreement, GE will pay $16 cash
per share for each share of AmeriData common stock (the
"Transaction" ).
10. The Transaction will be effected in two steps,
commencing with a tender offer by GE for the Company's
outstanding common stock at $16 cash per share. Shares not
purchased in the tender offer will be acquired in a subsequent
merger at $16 per share
11. The market price of AmeriData closed at $15-3/8
per share on the trading day prior to the announcement of the
Transaction.
12. AmeriData just released, on May 14, 1996, its
financial results for the quarter ended March 31, 1996, which
results were outstanding. The Company reported revenues of
- 5 -
<PAGE>
$452,799,000 and net income of $3,451,000 or $0.15 per share,
compared with revenues of $274,901,000 and net income of
$1,604,000 or $0.08 per share for the same period in 1995.
The news propelled the Company's stock to close at $15 3/8 per
share by May 17, 1996.
13. Additionally, on April 1, 1996, AmeriData
confirmed to the investment community that it expected to
record revenue of $2 billion for the 1996 fiscal year,
exclusive of additional acquisitions in 1996.
14. AmeriData's growth has been fueled in part by
the acquisition of nearly 36 smaller re-sellers and service
companies over the past few years. In fact, in January 1996,
the Company, in a stock swap, purchased Brenner Technology,
Inc., a company which provides consulting services in the New
York City area. Thus, the market has yet to fully absorb all
the information about the Company, and the corresponding
impact which this news will have on AmeriData's future trading
price.
15. By virtue of its ownership in AmeriData, GE has
been privy to material non-public information concerning
AmeriData's business, products and financial results.
Accordingly, GE has, in part based upon non-public
information, positioned itself to purchase the remaining
interest in AmeriData at an unreasonably low and unfair price,
to the detriment of plaintiff and the other public
stockholders of the Company.
- 6 -
<PAGE>
16. The Transaction, if consummated, will transfer
control of AmeriData and its valuable assets and businesses
from its present stockholders to GE. The individual
defendants are obligated in connection with any contemplated
transfer of such control of AmeriData to seek to maximize
shareholder value by such means as an auction, active market
check or other exploration of strategic alternatives under the
circumstances. The individual defendants have failed to
implement such procedures for the maximization of shareholder
value and are permitting the transfer of control of AmeriData
and its assets at a value which fails to reflect the long-term
value of its stock given the positive trends AmeriData has
shown, as described above. Defendants have not engaged in any
effort to so1icit competing bids for the Company or to explore
other strategic alternatives involving other potential
parties.
17. If consummated, the merger agreement will deny
Class members their right to share proportionately in the true
value of AmeriData's valuable assets, profitable businesses
and future growth.
18. The actions taken by the individual defendants
are in gross disregard of their fiduciary duties owed to
plaintiff and the other members of the Class.
19. AmeriData knowingly aided and abetted the
breaches of fiduciary duty committed by the individual
defendants complained of herein. Indeed, the Transaction
- 7 -
<PAGE>
between AmeriData and GE could not take place without the
knowing participation of AmeriData.
20. Plaintiff and the other members of the Class
will suffer irreparable injury unless the Transaction is
enjoined.
21. Plaintiff and the Class have no adequate remedy
at law.
WHEREFORE, plaintiff demands judgment and
preliminary and permanent relief, including injunctive relief,
in his favor and in favor of the Class and against defendants
as follows:
A. Declaring that this action is properly
maintainable as a class action, and certifying plaintiff as
class representative;
B. Enjoining the Transaction;
C. Ordering the individual defendants to carry out
their fiduciary duties to plaintiff and other members of the
Class by announcing their intention to:
(i) cooperate fully with any person or entity,
having a bona fide interest in proposing any transaction which
would maximize shareholder value, including, but not limited
to, a buyout or takeover of the Company;
(ii) undertake an appropriate evaluation of
AmeriData's worth as a merger/acquisition candidate;
- 8 -
<PAGE>
(iii) take all appropriate steps to enhance
AmeriData's value and attractiveness as a merger/acquisition
candidate;
(iv) take all appropriate steps to effectively
expose AmeriData to the market place to create an active
auction of AmeriData;
(v) act independently so that the interests of
AmeriData's public shareholders will be protected; and
(vi) adequately ensure that no conflicts of
interest exist between the individual defendants' own
interests and their fiduciary obligation to maximize
shareholder value or, if such conflicts exist, ensure that all
conflicts are resolved in the best interests of AmeriData's
public shareholders.
D. Awarding plaintiff and the Class rescissory
damages, if the Transaction is consummated before judgment,
and compensatory damage;
E. Awarding plaintiff the costs and disbursements
of this action, including reasonable attorneys' and experts'
fees; and
- 9 -
<PAGE>
F. Granting such other and further relief as this
Court may deem just and proper.
Dated: May 20, 1996
ROSENTHAL, MONHAIT, GROSS
& GODDESS, P.A.
By: /s/ Authorized Signature
-----------------------------
Mellon Bank Center, Suite 1401
919 North Market Street
Wilmington, Delaware 18801
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
GOODKIND LABATON RUDOFF & SUCHAROW
100 Park Avenue
New York, New York 10017
(212) 907-0700
- 10 -
