<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(d)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------
MYR GROUP INC.
(NAME OF SUBJECT COMPANY)
GPU, INC.
GPX ACQUISITION CORP.
(BIDDERS)
COMMON STOCK, $0.01 PAR VALUE
(TITLE OF CLASS OF SECURITIES)
554053108
(CUSIP NUMBER OF COMMON STOCK)
T.G. HOWSON
VICE PRESIDENT AND TREASURER
GPU, INC.
300 MADISON AVENUE
MORRISTOWN, NEW JERSEY 07962-1911
(973) 455-8200
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
WITH A COPY TO:
PAUL M. REINSTEIN, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10004-1930
(212) 859-8000
WITH A COPY TO:
DOUGLAS E. DAVIDSON, ESQ.
BERLACK, ISRAELS & LIBERMAN LLP
120 WEST 45TH STREET
NEW YORK, NEW YORK 10036
(212) 704-0100
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CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
<S> <C>
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$242,842,918 $48,569
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* For purposes of calculating fee only. This amount is based on a per share
offering price of $30.10, for 8,067,871 shares of common stock. Pursuant to
an Agreement and Plan of Merger, dated as of December 21, 1999, by and among
GPU, Inc. ("Parent"), MYR Group Inc. (the "Company") and GPX Acquisition
Corp. ("Offeror"), the Company represented to Parent and Offeror that, as of
such date, the Company had (i) 6,429,135 shares of common stock outstanding,
(ii) options to purchase 756,650 shares of common stock outstanding and
(iii) convertible debt convertible into 882,086 shares of common stock
outstanding. The amount of the filing fee, calculated in accordance with
Rule 0-11 under the Securities Exchange Act of 1934, as amended, equals
1/50 of one percent of the aggregate of the cash offered by Offeror.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
<TABLE>
<S> <C> <C> <C>
AMOUNT PREVIOUSLY PAID: N/A FILING PARTY: N/A
FORM OR REGISTRATION NO.: N/A DATE FILED: N/A
</TABLE>
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This Tender Offer Statement on Schedule 14D-1 relates to a tender offer by
GPX Acquisition Corp., a Delaware corporation ("Offeror") and a direct wholly
owned subsidiary of GPU, Inc., a Pennsylvania corporation ("Parent"), to
purchase all issued and outstanding shares of common stock, par value $0.01 per
share (the "Shares"), of MYR Group Inc., a Delaware corporation (the "Company"),
at a purchase price of $30.10 per Share, net to the seller in cash, without
interest, upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated December 29, 1999 (the "Offer to Purchase"), and in the related
Letter of Transmittal (which, together with the Offer to Purchase and any
amendments or supplements to each document, collectively constitute the
"Offer"), copies of which are filed as Exhibits (a)(1) and (a)(2), respectively,
hereto and which are incorporated herein by reference. Offeror is a corporation
that does not have any operations.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is MYR Group Inc. The address of the
principal executive offices of the Company is 1701 W. Golf Road, Rolling
Meadows, Illinois 60008.
(b) The information set forth in the Introduction and Section 1 ("Terms of
the Offer; Expiration Date") of the Offer to Purchase is incorporated herein by
reference.
(c) The information set forth in Section 6 ("Price Range of Shares;
Dividends") of the Offer to Purchase is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a) through (d), (g) This Schedule 14D-1 is filed by Parent and Offeror.
The information set forth in the Introduction and Section 9 ("Certain
Information Concerning Parent and Offeror") of the Offer to Purchase and in
Schedule I thereto is incorporated herein by reference.
(e) and (f) None of Offeror or Parent or, to the best of their knowledge,
any of the persons listed in Schedule I of the Offer to Purchase, has during the
last five years (i) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) been a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting activities subject to, federal or
state securities laws or finding any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a) and (b) The information set forth in the Introduction, Section 8
("Certain Information Concerning the Company"), Section 9 ("Certain Information
Concerning Parent and Offeror"), Section 11 ("Background of the Offer") and
Section 12 ("Purpose of the Offer and the Merger; Plans for the Company; The
Transaction Documents") of the Offer to Purchase is incorporated herein by
reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in Section 10 ("Source and Amount of Funds")
of the Offer to Purchase is incorporated herein by reference.
(b) and (c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a) through (e) The information set forth in the Introduction, Section 12
("Purpose of the Offer and the Merger; Plans for the Company; The Transaction
Documents") and Section 13 ("Dividends and Distributions") of the Offer to
Purchase is incorporated herein by reference.
(f) through (g) The information set forth in Section 7 ("Effect of the
Offer on the Market for Shares; Stock Quotation; Exchange Act Registration;
Margin Securities") of the Offer to Purchase is incorporated herein by
reference.
2
<PAGE> 3
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) None.
(b) Not applicable.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the Introduction, Section 1 ("Terms of the
Offer; Expiration Date"), Section 9 ("Certain Information Concerning Parent and
Offeror"), Section 10 ("Source and Amount of Funds"), Section 11 ("Background of
the Offer"), Section 12 ("Purpose of the Offer and the Merger; Plans for the
Company; The Transaction Documents"), Section 13 ("Dividends and Distributions")
and Section 14 ("Certain Conditions to the Offer") of the Offer to Purchase is
incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the Introduction and Section 16 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 9 ("Certain Information Concerning
Parent and Offeror") of the Offer to Purchase is incorporated herein by
reference.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in the Introduction, Section 1 ("Terms of the
Offer; Expiration Date"), Section 9 ("Certain Information Concerning Parent and
Offeror"), Section 11 ("Background of the Offer"), Section 12 ("Purpose of the
Offer and the Merger; Plans for the Company; The Transaction Documents"),
Section 13 ("Dividends and Distributions") and Section 14 ("Certain Conditions
to the Offer") of the Offer to Purchase is incorporated herein by reference.
(b) and (c) The information set forth in Section 15 ("Certain Regulatory
and Legal Matters") of the Offer to Purchase is incorporated herein by
reference.
(d) The information set forth in Section 7 ("Effect of the Offer on the
Market for Shares; Stock Quotation; Exchange Act Registration; Margin
Securities") of the Offer to Purchase is incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase, a copy of which is
attached as Exhibit (a)(1), and the Letter of Transmittal, a copy of which is
filed as Exhibit (a)(2) hereto, is incorporated herein by reference.
3
<PAGE> 4
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
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(a)(1) Offer to Purchase, dated December 29, 1999.
(a)(2) Letter of Transmittal.
(a)(3) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to Clients.
(a)(5) Notice of Guaranteed Delivery.
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(7) Summary Announcement, dated December 29, 1999.
(a)(8) Joint Press Release, dated December 22, 1999.
(b) Not applicable.
(c)(1) Agreement and Plan of Merger, dated as of December 21, 1999,
by and among Parent, Offeror and the Company.
(c)(2) Letter Agreement with Charles M. Brennan III and Byron D.
Nelson, dated December 21, 1999.
(c)(3) Confidentiality Agreement, dated September 13, 1999, between
GPU Service, Inc. and Berenson Minella & Company on behalf
of the Company.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
4
<PAGE> 5
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
GPU, INC.
By: /s/ T.G. HOWSON
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Name: T.G. Howson
Title: Vice President and Treasurer
GPX ACQUISITION CORP.
By: /s/ T.G. HOWSON
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Name: T.G. Howson
Title: Treasurer
Dated: December 29, 1999
5
<PAGE> 6
EXHIBIT INDEX
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<CAPTION>
EXHIBIT DESCRIPTION NO.
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<S> <C> <C> <C>
(a)(l) -- Offer to Purchase, dated December 29, 1999.
(a)(2) -- Letter of Transmittal.
(a)(3) -- Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(4) -- Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to Clients.
(a)(5) -- Notice of Guaranteed Delivery.
(a)(6) -- Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(7) -- Summary Announcement, dated December 29, 1999.
(a)(8) -- Joint Press Release, dated December 22, 1999.
(b) -- Not applicable.
(c)(1) -- Agreement and Plan of Merger, dated as of December 21, 1999,
by and among Parent, Offeror and the Company.
(c)(2) -- Letter Agreement with Charles M. Brennan III and Byron D.
Nelson, dated as of December 21, 1999
(c)(3) -- Confidentiality Agreement, dated September 13, 1999, between
GPU Service, Inc. and Berenson Minella & Company on behalf
of the Company.
(d) -- None.
(e) -- Not applicable.
(f) -- None.
</TABLE>
6
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
MYR GROUP INC.
AT
$30.10 NET PER SHARE
BY
GPX ACQUISITION CORP.
A DIRECT WHOLLY OWNED SUBSIDIARY OF
GPU, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, FEBRUARY 29, 2000, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) SUCH NUMBER OF
SHARES OF MYR GROUP INC. (THE "COMPANY") COMMON STOCK ("SHARES") HAVING BEEN
VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE OF THE OFFER
THAT, TOGETHER WITH SHARES BENEFICIALLY OWNED BY GPU, INC. ("PARENT") AND ANY OF
ITS AFFILIATES ON THAT DATE, CONSTITUTE MORE THAN 50.1% OF THE SHARES, ASSUMING
EXERCISE AND CONVERSION OF ALL OUTSTANDING OPTIONS AND CONVERTIBLE SECURITIES OF
THE COMPANY AND (B) THE SECURITIES AND EXCHANGE COMMISSION HAVING ISSUED AN
ORDER UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, AS AMENDED,
REASONABLY ACCEPTABLE TO PARENT AND GPX ACQUISITION CORP. ("OFFEROR")
AUTHORIZING THE ACQUISITION OF SHARES, THE MERGER (AS DEFINED BELOW) AND THE
OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT REFERRED TO HEREIN. SEE
SECTIONS 12 AND 14.
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THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT, DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO AND IN THE BEST
INTERESTS OF THE STOCKHOLDERS OF THE COMPANY (OTHER THAN PARENT AND ITS
SUBSIDIARIES) AND RECOMMENDS THAT ALL STOCKHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER ALL THEIR SHARES PURSUANT TO THE OFFER.
------------------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (i) complete and sign the related Letter of Transmittal (or
a manually signed facsimile thereof) in accordance with the instructions in the
Letter of Transmittal and mail or deliver the certificate(s) representing the
tendered Shares, and all other required documents, to the Depositary or tender
such Shares pursuant to the procedure for book-entry transfer set forth in
Section 3 or (ii) request such stockholder's broker, dealer, commercial bank,
trust company or other nominee to effect the transaction for such stockholder. A
stockholder whose Shares are registered in the name of a broker, dealer,
commercial bank, trust company or other nominee must contact such person if such
stockholder desires to tender such Shares.
A stockholder who desires to tender Shares and whose certificates
representing such Shares are not immediately available or who cannot comply with
the procedures for book-entry transfer on a timely basis may tender such Shares
by following the procedures for guaranteed delivery set forth in Section 3.
Questions and requests for assistance may be directed to Georgeson & Co.,
the Information Agent, at its address and telephone number set forth on the back
cover of this Offer to Purchase. Additional copies of this Offer to Purchase,
the Letter of Transmittal, the Notice of Guaranteed Delivery and other related
materials may be obtained from the Information Agent or from brokers, dealers,
commercial banks and trust companies.
------------------------
THE INFORMATION AGENT FOR THE OFFER IS:
[GEORGESON SHAREHOLDER COMMUNICATIONS INC. LOGO]
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December 29, 1999
<PAGE> 2
TABLE OF CONTENTS
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PAGE
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<C> <S> <C>
1. Terms of the Offer; Expiration Date......................... 4
2. Acceptance for Payment and Payment for Shares............... 4
3. Procedures for Tendering Shares............................. 5
4. Withdrawal Rights........................................... 7
5. Certain Federal Income Tax Consequences..................... 8
6. Price Range of Shares; Dividends............................ 9
7. Effect of the Offer on the Market for Shares; Stock
Quotation; Exchange Act Registration; Margin Securities..... 9
8. Certain Information Concerning the Company.................. 10
9. Certain Information Concerning Parent and Offeror........... 13
10. Source and Amount of Funds.................................. 14
11. Background of the Offer..................................... 14
12. Purpose of the Offer and the Merger; Plans for the Company;
The Transaction Documents................................... 15
13. Dividends and Distributions................................. 25
14. Certain Conditions to the Offer............................. 25
15. Certain Regulatory and Legal Matters........................ 26
16. Fees and Expenses........................................... 30
17. Miscellaneous............................................... 30
Schedule I -- CERTAIN INFORMATION CONCERNING THE DIRECTORS AND
EXECUTIVE OFFICERS OF PARENT AND OFFEROR........... I-1
</TABLE>
i
<PAGE> 3
To the Holders of Common Stock of
MYR GROUP INC.
INTRODUCTION
GPX Acquisition Corp., a Delaware corporation ("Offeror") and a direct
wholly owned subsidiary of GPU, Inc., a Pennsylvania corporation ("Parent"),
hereby offers to purchase all outstanding shares of Common Stock, par value
$0.01 per share (the "Common Stock" or the "Shares"), of MYR Group Inc., a
Delaware corporation (the "Company"), at a purchase price of $30.10 per Share,
net to the seller in cash, without interest (the "Offer Price"), upon the terms
and subject to the conditions set forth in this Offer to Purchase and in the
related Letter of Transmittal (which, together with any amendments or
supplements hereto or thereto, collectively constitute the "Offer").
Offeror is a corporation that does not have any operations. For information
concerning Parent, see Section 9.
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.
Offeror will pay all charges and expenses of ChaseMellon Shareholder Services,
L.L.C. (the "Depositary") and Georgeson & Co. (the "Information Agent").
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT, DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO AND IN THE BEST
INTERESTS OF THE STOCKHOLDERS OF THE COMPANY (OTHER THAN PARENT AND ITS
SUBSIDIARIES) AND RECOMMENDS THAT ALL STOCKHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER ALL THEIR SHARES PURSUANT TO THE OFFER.
BERENSON MINELLA & COMPANY, THE COMPANY'S FINANCIAL ADVISOR (THE "FINANCIAL
ADVISOR"), HAS DELIVERED TO THE BOARD OF DIRECTORS OF THE COMPANY ITS WRITTEN
OPINION TO THE EFFECT THAT, AS OF DECEMBER 21, 1999, THE CONSIDERATION TO BE
PAID TO STOCKHOLDERS OF THE COMPANY PURSUANT TO THE OFFER AND THE MERGER IS FAIR
TO THE STOCKHOLDERS OF THE COMPANY FROM A FINANCIAL POINT OF VIEW. SUCH OPINION
IS SET FORTH IN FULL AS AN ANNEX TO THE COMPANY'S SOLICITATION/RECOMMENDATION
STATEMENT ON SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"), WHICH IS BEING MAILED TO
STOCKHOLDERS OF THE COMPANY CONCURRENTLY HEREWITH.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (A) SUCH NUMBER OF
SHARES HAVING BEEN VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION
DATE OF THE OFFER THAT, TOGETHER WITH SHARES BENEFICIALLY OWNED BY PARENT AND
ANY OF ITS AFFILIATES ON THAT DATE, CONSTITUTE MORE THAN 50.1% OF THE SHARES,
ASSUMING EXERCISE AND CONVERSION OF ALL OUTSTANDING OPTIONS AND CONVERTIBLE
SECURITIES OF THE COMPANY (SUCH CONDITION, THE "MINIMUM CONDITION") AND (B) THE
SECURITIES AND EXCHANGE COMMISSION HAVING ISSUED AN ORDER UNDER THE PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935, AS AMENDED (THE "1935 ACT"), REASONABLY
ACCEPTABLE TO PARENT AND OFFEROR AUTHORIZING THE ACQUISITION OF SHARES, THE
MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT REFERRED
TO HEREIN (THE "1935 ACT CONDITION"). SEE SECTIONS 12 AND 14.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated
as of December 21, 1999 (the "Merger Agreement"), by and among Parent, Offeror
and the Company, pursuant to which, as promptly as practicable following the
later of the consummation of the Offer and the satisfaction or waiver of certain
conditions, Offeror will be merged with and into the Company (the "Merger").
Following the consummation of the Merger, the Company will be the surviving
corporation (the "Surviving Corporation"). In the Merger, each outstanding Share
will be converted into, and become exchangeable for, the right to receive the
highest
1
<PAGE> 4
price paid pursuant to the Offer, subject to applicable withholding or backup
withholding taxes, if any, payable to the holder thereof, without any interest
thereon (the "Merger Consideration"), and the Company will become a direct
wholly owned subsidiary of Parent. See Section 12.
If by 12:00 midnight, New York City time, on Tuesday, February 29, 2000 (or
any other date or time then set as the Expiration Date), any or all conditions
to the Offer have not been satisfied or waived, Offeror reserves the right (but
shall not be obligated), subject to the terms and conditions contained in the
Merger Agreement and to the applicable rules and regulations of the Securities
and Exchange Commission (the "Commission"), to (i) terminate the Offer and not
accept for payment any Shares and return all tendered Shares to tendering
stockholders, (ii) waive all the unsatisfied conditions and, subject to
complying with the terms of the Merger Agreement and the applicable rules and
regulations of the Commission, accept for payment and pay for all Shares validly
tendered prior to the Expiration Date and not theretofore withdrawn, (iii)
extend the Offer and, subject to the right of stockholders to withdraw Shares
until the Expiration Date, retain the Shares that have been tendered during the
period or periods for which the Offer is extended, or (iv) amend the Offer.
There can be no assurance that Offeror will exercise its right to extend
the Offer. Any extension, waiver, amendment or termination will be followed, as
promptly as practicable, by public announcement thereof. In the case of an
extension, Rule 14e-1(d) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), requires that the announcement be issued no later than
9:00 a.m., eastern time, on the next business day after the previously scheduled
Expiration Date in accordance with the public announcement requirements of Rule
14d-4(c) under the Exchange Act, subject to applicable law (including Rules
14d-4(c) and 14d-6(d) under the Exchange Act, which require that any material
change in the information published, sent or given to stockholders in connection
with the Offer be promptly disseminated to stockholders in a manner reasonably
designed to inform stockholders of such change). Without limiting the obligation
of Offeror under such rules or the manner in which Offeror may choose to make
any public announcement, Offeror will not have any obligation to publish,
advertise or otherwise communicate any such public announcement other than by
issuing a release to the Dow Jones News Service.
In the Merger Agreement, Offeror has agreed that it will not, without the
prior consent of the Company, extend the Offer, except that Offeror may, without
the consent of the Company, (i) extend the Offer, from time to time beyond any
scheduled expiration date, for a period not to exceed 20 business days, if at
any scheduled expiration date, any of the conditions to Offeror's obligation to
accept for payment, and pay for, the Shares is not satisfied or waived, until
such time within such 20 business day period as Offeror reasonably concludes is
necessary after all such conditions are satisfied or waived, (ii) extend the
Offer for any period required by any rule, regulation, interpretation or
position of the Commission or the staff thereof applicable to the Offer, and
(iii) extend the Offer for an aggregate period of not more than 15 business days
beyond the latest expiration date that would otherwise be permitted under clause
(i) or (ii) of this sentence if there have not been tendered sufficient Shares
so that the Merger can be effected in accordance with Section 253 of the General
Corporation Law of the State of Delaware ("Delaware Law"). In addition, Offeror
has agreed that, without the prior consent of the Company, it will not (i) waive
the Minimum Condition, (ii) reduce the number of Shares to be purchased in the
Offer, (iii) reduce the Offer Price, (iv) modify or add to the conditions to the
Offer set forth in Section 14, (v) change the form of consideration payable in
the Offer, or (vi) amend any other term of the Offer in a manner adverse to the
holders of Common Stock. In addition to the foregoing, Parent may provide for a
"subsequent offering period", to the extent provided in Rule 14d-11 under the
Exchange Act, as in effect as of January 24, 2000, after the purchase of Shares
pursuant to the Offer.
If Offeror makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer
(including, with the consent of the Company, the Minimum Condition), Offeror
will disseminate additional tender offer materials and extend the Offer to the
extent required by Rules 14d-4(c), 14d-6(d) and 14e-l under the Exchange Act.
The minimum period during which an offer must remain open following material
changes in the terms of the offer or information concerning the offer, other
than a change in price or a change in the percentage of securities sought, will
depend upon the facts and circumstances then existing, including the relative
materiality of the changed terms or information.
2
<PAGE> 5
With respect to a change in price or a change in the percentage of securities
sought, a minimum period of ten business days is generally required to allow for
adequate dissemination to stockholders.
Based on the representations and warranties of the Company contained in the
Merger Agreement, and information provided by the Company, as of December 21,
1999, (i) 6,429,135 Shares were issued and outstanding (including 335,927 shares
of restricted stock issued under the Company's stock option and restricted stock
plans which are subject to forfeiture), (ii) no Shares were held in treasury,
(iii) no class or series of preferred stock of the Company was issued, (iv)
options to purchase 756,650 Shares which were granted pursuant to the Company's
stock option plans were outstanding, and (v) convertible notes of the Company
that are convertible into 882,086 Shares (with the Company having the right to
repurchase 600,183 of such Shares at $5.67954 per Share) were outstanding.
Pursuant to the Merger Agreement, all stock options to purchase Shares
(each, a "Stock Option") outstanding immediately prior to the Effective Time (as
defined below) will, by virtue of the Merger and without any action on the part
of the holder thereof, entitle the holder thereof to receive in settlement of
the exercisable portion thereof a cash payment from the Company in an amount
(the "Option Cash-Out Amount"), if any, equal to the product of (i) the excess
of the Merger Consideration over the per share exercise price of such Stock
Option, and (ii) the total number of Shares that the holder of such Stock Option
is entitled to purchase under such portion of the Stock Option (whereupon such
portion of the Stock Option will be canceled). Each Stock Option, or portion
thereof, that is not exercisable at the Effective Time will be canceled as of
such time and the holder thereof will become entitled to receive on the date
such Stock Option, or portion thereof, otherwise would have become exercisable a
cash payment from the Company in an amount equal to the Option Cash-Out Amount.
Notwithstanding the foregoing, subject to the receipt of any required regulatory
approvals, within 20 business days after the Effective Time each holder of Stock
Options may elect in writing, in lieu of the cash settlement set forth in the
two immediately preceding sentences, to have any of such outstanding Stock
Options assumed by Parent, which assumed Stock Options will continue to have,
and be subject to, the same terms and conditions set forth in the stock option
plans and agreements pursuant to which the Stock Options were issued as in
effect immediately prior to the Effective Time, with appropriate adjustments.
As of the Effective Time, each outstanding award of Company restricted
stock ("Restricted Stock") will, by virtue of the Merger and without any action
on the part of the holder thereof, entitle the holder thereof to receive in
settlement of the vested portion thereof a cash payment from the Company in an
amount (the "Restricted Stock Cash-Out Amount") equal to the product of (i) the
Merger Consideration and (ii) the total number of vested shares of Restricted
Stock to which the holder is entitled. With respect to any shares of Restricted
Stock that are not vested at the Effective Time, each holder thereof will become
entitled to receive on the date such shares of Restricted Stock become vested a
cash payment from the Company in an amount equal to the Restricted Stock
Cash-Out Amount. Notwithstanding the foregoing, if the approval of Parent's
Board of Directors and any required regulatory approvals are obtained, within 20
business days after the Effective Time, each holder of Restricted Stock, whether
or not vested, may elect in writing, in lieu of the cash settlement set forth in
the preceding two sentences, to have all or any part of such outstanding
Restricted Stock converted into Parent restricted stock ("Parent Restricted
Stock"), subject to the same terms and conditions set forth in the plans and
agreements pursuant to which the Restricted Stock was issued as in effect
immediately prior to the Effective Time, with appropriate adjustments.
Based on the foregoing, the Minimum Condition will be satisfied if
4,033,936 Shares are validly tendered and not withdrawn prior to the Expiration
Date. The number of Shares required to be validly tendered and not withdrawn in
order to satisfy the Minimum Condition will increase to the extent additional
Shares or securities exercisable or convertible into Shares become outstanding.
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 of the Company. Under the
Delaware Law and the Company's certificate of incorporation, the stockholder
vote necessary to approve the Merger will be the affirmative vote of the holders
of at least a majority of the outstanding Shares, including Shares held by
Offeror and its affiliates. Accordingly, if Offeror acquires a
3
<PAGE> 6
majority of the outstanding Shares, Offeror will have the voting power required
to approve the Merger without the affirmative vote of any other stockholders of
the Company. Furthermore, if Offeror acquires at least 90% of each class of
outstanding shares pursuant to the Offer or otherwise, Offeror would be able to
effect the Merger pursuant to the "short-form" merger provisions of Section 253
of the Delaware Law, without prior notice to, or any action by, any other
stockholder of the Company. In such event, Offeror intends to effect the Merger
as promptly as practicable following the purchase of Shares in the Offer. The
Merger Agreement is more fully described in Section 12.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER. THIS OFFER TO PURCHASE CONTAINS FORWARD-LOOKING
STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES, INCLUDING THE RISKS ASSOCIATED
WITH SATISFYING THE CONDITIONS TO THE OFFER. CERTAIN OF THESE RISK FACTORS, AS
WELL AS ADDITIONAL RISKS AND UNCERTAINTIES, ARE DETAILED IN THE COMPANY'S
PERIODIC FILINGS WITH THE COMMISSION.
1. TERMS OF THE OFFER; EXPIRATION DATE.
Upon the terms and subject to the conditions to the Offer (including, if
the Offer is extended or amended, the terms and conditions of any such extension
or amendment), Offeror will accept for payment and pay for all Shares validly
tendered prior to the Expiration Date and not withdrawn in accordance with
Section 4. The term "Expiration Date" means 12:00 midnight, New York City time,
on Tuesday, February 29, 2000, unless and until Offeror (subject to the terms of
the Merger Agreement) shall have extended the period of time during which the
Offer is open, in which event the term "Expiration Date" shall mean the latest
time and date at which the Offer, as so extended by Offeror, shall expire.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition, the 1935 Act Condition and the other conditions set forth in Section
14. Subject to the terms and conditions contained in the Merger Agreement,
Offeror reserves the right (but shall not be obligated) to waive any or all such
conditions.
The Company is providing Offeror with its list of stockholders and security
position listings for the purpose of disseminating the Offer to holders of
Shares. This Offer to Purchase, the related Letter of Transmittal and other
relevant materials will be mailed by Offeror to record holders of Shares and
will be furnished by Offeror to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose nominees,
appear on the 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.
Subject to and in accordance with the terms and subject to the conditions
of the Offer (including, if the Offer is extended or amended, the terms and
conditions of any such extension or amendment), Offeror will accept for payment
and will pay for all Shares validly tendered prior to the Expiration Date, and
not properly withdrawn in accordance with Section 4, as soon as practicable
after the Expiration Date. Offeror expressly reserves the right to delay
acceptance for payment of, or payment for, Shares in order to comply in whole or
in part with any applicable law. Any such delays will be effected in compliance
with Rule 14e-1(c) under the Exchange Act (relating to Offeror's obligation to
pay for or return tendered Shares promptly after the termination or withdrawal
of the Offer).
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) certificates for
such Shares or timely confirmation (a "Book-Entry Confirmation") of the
book-entry transfer of such Shares into the Depositary's account at The
Depository Trust Company or the Philadelphia Depository Trust Company (each a
"Book-Entry Transfer Facility" and, collectively, the "Book-Entry Transfer
Facilities") pursuant to the procedures set forth in Section 3, (ii) 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 below) in connection with a book-entry transfer, and (iii) any other
documents required by the Letter of Transmittal.
The per Share consideration paid to any stockholder pursuant to the Offer
will be the highest per Share consideration paid to any other stockholder
pursuant to the Offer.
4
<PAGE> 7
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, that states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares that are the subject of such Book-Entry
Confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that Offeror may enforce such agreement
against such participant.
For purposes of the Offer, Offeror will be deemed to have accepted for
payment (and thereby purchased) Shares validly tendered to Offeror and not
withdrawn on or prior to the Expiration Date if, as and when Offeror gives oral
or written notice to the Depositary of Offeror's acceptance for payment of such
Shares pursuant to the Offer. Upon the terms and subject to the conditions of
the Offer, payment for Shares accepted for payment pursuant to the Offer will be
made by deposit of the purchase price with the Depositary, which will act as
agent for tendering stockholders for the purpose of receiving payment from
Offeror and transmitting payment to tendering stockholders. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE
PAID BY OFFEROR, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING
SUCH PAYMENT.
If any tendered Shares are not purchased pursuant to the Offer because of
an invalid tender or otherwise, certificates for any such Shares will be
returned, without expense to the tendering stockholder (or, in the case of
Shares delivered by book-entry transfer of such Shares into the Depositary's
account at a Book-Entry Transfer Facility pursuant to the procedures set forth
in Section 3, such Shares will be credited to an account maintained at the
appropriate Book-Entry Transfer Facility), as promptly as practicable after the
expiration or termination of the Offer.
3. PROCEDURES FOR TENDERING SHARES.
Valid Tender. For Shares to be validly tendered pursuant to the Offer, a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof), together with any required signature guarantees, or an
Agent's Message in connection with a book-entry transfer of Shares, and any
other documents required by the Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase prior to the Expiration Date. In addition, either (i) certificates for
tendered Shares must be received by the Depositary along with the Letter of
Transmittal at one of such addresses or such Shares must be tendered pursuant to
the procedure for book-entry transfer set forth below (and a Book-Entry
Confirmation received by the Depositary), in each case prior to the Expiration
Date, or (ii) the tendering stockholder must comply with the guaranteed delivery
procedures set forth below.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL
BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY
IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at each Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any financial
institution that is a participant in either of the Book-Entry Transfer
Facilities' systems may make book-entry delivery of Shares by causing a
Book-Entry Transfer Facility to transfer such Shares into the Depositary's
account at a Book-Entry Transfer Facility in accordance with such Book-Entry
Transfer Facility's procedures for such transfer. However, although delivery of
Shares may be effected through book-entry at a Book-Entry Transfer Facility, a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof) with any required signature guarantees or an Agent's Message
in connection with a book-entry delivery of Shares, and any other documents
required by the Letter of Transmittal, must, in any case, be transmitted to, and
received by, the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase prior to the Expiration Date, or the tendering
stockholder must comply with the guaranteed delivery procedures described below.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH
BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
5
<PAGE> 8
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal if (i) the Letter of Transmittal is signed by the registered holder
of Shares (which term, for purposes of this Section, includes any participant in
either of the Book-Entry Transfer Facilities whose name appears on a security
position listing as the owner of the Shares) tendered therewith and such
registered holder has not completed either the box entitled "Special Delivery
Instructions" or the box entitled "Special Payment Instructions" on the Letter
of Transmittal or (ii) such Shares are tendered for the account of a bank,
broker, dealer, credit union, savings association or other entity that is a
member in good standing of a recognized Medallion Program approved by The
Securities Transfer Association, Inc. (an "Eligible Institution"). In all other
cases, all signatures on the Letter of Transmittal must be guaranteed by an
Eligible Institution. See Instructions 1 and 5 to the Letter of Transmittal. If
the certificates for Shares are registered in the name of a person other than
the signer of the Letter of Transmittal, or if payment is to be made or
certificates for Shares not tendered or not accepted for payment are to be
issued to a person other than the registered holder of the certificates
surrendered, the tendered certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name or names of
the registered holders or owners appear on the certificates, with the signatures
on the certificates or stock powers guaranteed as described above. See
Instruction 5 to the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the procedure for a 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 the following conditions are met:
(1) such tender is made by or through an Eligible Institution;
(2) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Offeror herewith, is
received by the Depositary as provided below, prior to the Expiration Date;
and
(3) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to such Shares),
together with a properly completed and duly executed Letter of Transmittal
(or a manually signed facsimile thereof), with any required signature
guarantees and any other documents required by the Letter of Transmittal,
are received by the Depositary within three Trading Days after the date of
execution of such Notice of Guaranteed Delivery. A "Trading Day" is any day
on which the New York Stock Exchange is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
Depositary and must include a signature guarantee by an Eligible Institution in
the form set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (i) certificates for the Shares or a Book-Entry
Confirmation with respect to such Shares, (ii) a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof) with any
required signature guarantees or an Agent's Message in connection with a
book-entry delivery of Shares, and (iii) any other documents required by the
Letter of Transmittal. Accordingly, tendering stockholders may be paid at
different times depending upon when certificates for Shares or Book-Entry
Confirmations are actually received by the Depositary. UNDER NO CIRCUMSTANCES
WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY OFFEROR,
REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
The valid tender of Shares pursuant to one of the procedures described
above will constitute a binding agreement between the tendering stockholder and
Offeror upon the terms and subject to the conditions of the Offer.
Backup Withholding. Under the United States federal income tax backup
withholding rules, payments in connection with the Offer or the Merger may be
subject to "backup withholding" as discussed in Section 5.
Appointment. By executing the Letter of Transmittal, the tendering
stockholder will irrevocably appoint designees of Offeror as such stockholder's
attorneys-in-fact and proxies in the manner set forth in the Letter of
Transmittal, each with full power of substitution, to the full extent of such
stockholder's rights with respect to
6
<PAGE> 9
the Shares tendered by such stockholder and accepted for payment by Offeror and
with respect to any and all other Shares or other securities or rights issued or
issuable in respect of such Shares on or after December 29, 1999. All such
proxies shall be considered coupled with an interest in the tendered Shares.
Such appointment will be effective when, and only to the extent that, Offeror
accepts for payment Shares tendered by such stockholder as provided herein. Upon
such acceptance for payment, all prior powers of attorney and proxies given by
such stockholder with respect to such Shares or other securities or rights will,
without further action, be revoked and no subsequent powers of attorney and
proxies may be given (and, if given, will not be deemed effective). The
designees of Offeror will thereby be empowered to exercise all voting and other
rights with respect to such Shares or other securities or rights in respect of
any annual, special or adjourned meeting of the Company's stockholders, or
otherwise, as they in their sole discretion deem proper. Offeror reserves the
right to require that, in order for Shares to be deemed validly tendered,
immediately upon Offeror's acceptance for payment of such Shares, Offeror must
be able to exercise full voting and other rights with respect to such Shares and
other securities or rights, including voting at any meeting of stockholders then
scheduled.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any tender
of Shares will be determined by Offeror, in its sole discretion, which
determination will be final and binding. Offeror reserves the absolute right to
reject any or all tenders determined by it not to be in proper form or the
acceptance for payment of or payment for which may, in the opinion of Offeror's
counsel, be unlawful. Offeror also reserves the absolute right, in its sole
discretion, subject to the terms and conditions of the Merger Agreement, to
waive any of the conditions to the Offer or any defect or irregularity in any
tender with respect to any particular Shares, whether or not similar defects or
irregularities are waived in the case of other Shares. No tender of Shares will
be deemed to have been validly made until all defects or irregularities relating
thereto have been cured or waived. None of Parent, Offeror, the Depositary, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. Offeror's interpretation of the terms
and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless accepted for payment and paid for by Offeror pursuant to the Offer, may
also be withdrawn at any time after February 26, 2000.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person who tendered the Shares to be withdrawn, the
number of Shares to be withdrawn and the name of the registered holder of the
Shares to be withdrawn, if different from the name of the person who tendered
the Shares. If certificates for Shares have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and, unless such Shares have been tendered by an Eligible
Institution, the signatures on the notice of withdrawal must be guaranteed by an
Eligible Institution. If Shares have been tendered pursuant to the procedures
for book-entry transfer set forth in Section 3, the notice of withdrawal must
specify the name and number of the account at the appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares. Withdrawals of
tenders of Shares may not be rescinded, and any Shares properly withdrawn will
thereafter be deemed not validly tendered for any purposes of the Offer.
However, withdrawn Shares may be retendered by following one of the procedures
described in Section 3 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Offeror in its sole discretion,
which determination will be final and binding. None of Offeror, Parent, the
Depositary, the Information Agent or any other person will be under any duty to
give notification of any defects or irregularities in any notice of withdrawal
or incur any liability for failure to give any such notification.
7
<PAGE> 10
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The following is a summary of certain federal income tax consequences of
the Offer and the Merger to holders whose Shares are purchased pursuant to the
Offer or whose Shares are converted into the right to receive cash in the
Merger. The summary is based on the provisions of the Internal Revenue Code of
1986, as amended (the "Code"), applicable current and proposed United States
Treasury Regulations issued thereunder, judicial authority and administrative
rulings and practice, all of which are subject to change, possibly with
retroactive effect, at any time and, therefore, the following statements and
conclusions could be altered or modified. The discussion does not address
holders of Shares in whose hands Shares are not capital assets, nor does it
address holders who received Shares as part of a hedging, "straddle," conversion
or other integrated transaction, upon conversion of securities or exercise of
warrants or other rights to acquire Shares or pursuant to the exercise of
employee stock options or otherwise as compensation, or to holders of Shares who
are in special tax situations (such as insurance companies, tax-exempt
organizations, financial institutions, United States expatriates or non-U.S.
persons). Furthermore, the discussion does not address the tax treatment of
holders who exercise appraisal rights in the Merger, nor does it address any
aspect of foreign, state or local taxation or estate and gift taxation.
THE FEDERAL INCOME TAX CONSEQUENCES SET FORTH BELOW ARE INCLUDED FOR
GENERAL INFORMATIONAL PURPOSES ONLY. BECAUSE INDIVIDUAL CIRCUMSTANCES MAY
DIFFER, EACH HOLDER OF SHARES SHOULD CONSULT SUCH HOLDER'S OWN TAX ADVISOR TO
DETERMINE THE APPLICABILITY OF THE RULES DISCUSSED BELOW TO SUCH STOCKHOLDER AND
THE PARTICULAR TAX EFFECTS OF THE OFFER AND THE MERGER, INCLUDING THE
APPLICATION AND EFFECT OF STATE, LOCAL AND OTHER INCOME TAX LAWS.
The receipt of cash for Shares pursuant to the Offer or the Merger will be
a taxable transaction for federal income tax purposes under the Code (and also
may be a taxable transaction under applicable state, local, foreign and other
income tax laws). In general, for federal income tax purposes, a holder of
Shares will recognize gain or loss in an amount equal to the difference between
its adjusted tax basis in the Shares sold pursuant to the Offer or converted
into the right to receive cash in the Merger and the amount of cash received
therefor. Gain or loss must be determined separately for each block of Shares
(i.e., Shares acquired at the same cost in a single transaction) sold pursuant
to the Offer or converted to cash in the Merger. Such gain or loss will be
capital gain or loss and will be long-term gain or loss if, on the date of sale
(or, if applicable, the date of the Merger), the Shares were held for more than
one year.
Under the United States federal income tax backup withholding rules,
payments in connection with the Offer or the Merger may be subject to "backup
withholding" at a rate of 31%. In order to avoid backup withholding, each
tendering stockholder, unless an exemption applies, must provide the Depositary
with such stockholder's correct taxpayer identification number and certify that
such stockholder is not subject to such backup withholding by completing the
Substitute Form W-9 included in the Letter of Transmittal. Backup withholding is
not an additional tax but merely an advance payment, which may be refunded to
the extent it results in an overpayment of tax. Certain persons generally are
entitled to an exemption from backup withholding, including corporations,
financial institutions and certain foreign individuals. Each stockholder should
consult with such holder's own tax advisor as to such holder's qualification for
exemption from backup withholding and the procedure for obtaining such an
exemption.
All stockholders surrendering Shares pursuant to the Offer should complete
and sign the main signature form and the Substitute Form W-9 included as part of
the Letter of Transmittal to provide the information and certification necessary
to avoid backup withholding (unless an applicable exemption exists and is proved
in a manner satisfactory to Offeror and the Depositary). Noncorporate foreign
stockholders should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal.
8
<PAGE> 11
6. PRICE RANGE OF SHARES; DIVIDENDS.
The Shares are included for trading on the New York Stock Exchange under
the trading symbol "MYR". The following table sets forth, for the periods
indicated, the high and low sales prices per Share on the New York Stock
Exchange and the aggregate per share of Common Stock amount of dividends paid on
the Common Stock (the stock price and dividends declared reflect a
five-for-three stock split in the form of a stock dividend on December 15,
1997).
<TABLE>
<CAPTION>
DIVIDEND
HIGH LOW AMOUNT
------ ------ --------
<S> <C> <C> <C>
1997:
First Quarter............................................... $ 8.40 $ 7.20 $0.033
Second Quarter............................................ $10.99 $ 6.98 $0.033
Third Quarter............................................. $14.18 $10.50 $0.033
Fourth Quarter............................................ $14.85 $12.44 $0.033
1998:
First Quarter............................................. $12.81 $11.31 $0.035
Second Quarter............................................ $14.25 $11.31 $0.035
Third Quarter............................................. $16.88 $10.69 $0.035
Fourth Quarter............................................ $12.88 $10.13 $0.035
1999:
First Quarter............................................. $12.00 $10.06 $0.0375
Second Quarter............................................ $18.00 $11.75 $0.0375
Third Quarter............................................. $22.50 $16.75 $0.0375
Fourth Quarter (through December 28, 1999)................ $29.50 $17.88 $0.0375
</TABLE>
On December 21, 1999, the last full trading day before the public
announcement of the execution of the Merger Agreement, the closing sales price
per Share as reported on the New York Stock Exchange was $21. On December 28,
1999, the last full trading day before the commencement of the Offer, the
closing sales price per Share as reported on the New York Stock Exchange was
$29.38. STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE
SHARES.
7. EFFECT OF THE OFFER ON THE MARKET FOR SHARES; STOCK QUOTATION; EXCHANGE ACT
REGISTRATION; MARGIN SECURITIES.
The purchase of Shares pursuant to the Offer will reduce the number of
holders of Shares and the number of Shares that might otherwise trade publicly
and could adversely affect the liquidity and market value of the remaining
Shares, if any, held by the public.
The Shares are currently listed and traded on the New York Stock Exchange
(the "NYSE"), which constitutes the principal trading market for the Shares.
According to the NYSE's published guidelines, the NYSE would consider delisting
the Shares if, among other things, the number of record holders of at least 100
Shares falls below 1,200, the number of publicly held Shares (exclusive of
holdings of officers, directors and their families and other concentrated
holdings of 10% or more ("NYSE Excluded Holdings")) falls below 600,000 or the
aggregate market value of publicly held Shares (exclusive of NYSE Excluded
Holdings) falls below $5,000,000. 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,
it is possible that the Shares would continue to trade on another securities
exchange or in the over-the-counter market and that price or other quotations
would be reported by other sources. The extent of the public market for such
Shares and the availability of such quotations would depend, however, upon such
factors as the number of stockholders and/or the aggregate market value of such
publicly held securities remaining outstanding at such time, the interest in
maintaining a market in the Shares on the part of securities firms, the possible
termination of registration under the Exchange Act as described below, and other
factors. Parent cannot predict whether the reduction in the number of Shares
that might otherwise trade publicly would have an adverse or beneficial effect
on the market price for, or marketability of, the Shares or whether it would
cause future market prices to be greater or less than the Offer Price.
9
<PAGE> 12
The Shares are currently registered under the Exchange Act. Registration of
the Shares under the Exchange Act may be terminated upon application of the
Company to the Commission if the Shares are neither listed on a national
securities exchange nor held by 300 or more holders of record. Termination of
registration of the Shares under the Exchange Act would substantially reduce the
information required to be furnished by the Company to its stockholders and to
the Commission and would make certain provisions of the Exchange Act no longer
applicable to the Company, such as the short-swing profit recovery provisions of
Section 16(b) of the Exchange Act, the requirement of furnishing a proxy
statement pursuant to Section 14(a) of the Exchange Act in connection with
stockholders' meetings and the related requirement of furnishing an annual
report to stockholders, and the requirements of Rule 13e-3 under the Exchange
Act with respect to "going private" transactions. Furthermore, the ability of
"affiliates" of the Company and persons holding "restricted securities" of the
Company to dispose of such securities pursuant to Rule 144 or 144A promulgated
under the Securities Act of 1933, as amended, may be impaired or eliminated.
Parent intends to seek delisting of the Shares from the New York Stock
Exchange and to cause the Company to apply for termination of registration of
the Shares under the Exchange Act as soon after the consummation of the Offer as
the requirements for such delisting and termination are met. If registration of
the Shares is not terminated prior to the Merger, then the Shares will cease to
be reported on the New York Stock Exchange and the registration of the Shares
under the Exchange Act will be terminated following the consummation of the
Merger.
The Shares are currently "margin securities" under the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve Board"),
which has the effect, among other things, of allowing brokers to extend credit
on the collateral of the Shares. Depending upon factors similar to those
described above regarding listing and market quotations, it is possible that
following the Offer the Shares would no longer constitute "margin securities"
for the purposes of the margin regulations of the Federal Reserve Board and
therefore could no longer be used as collateral for loans made by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as specifically set forth herein, the historical information
concerning the Company contained in this Offer to Purchase, including financial
information, has been taken from or based upon publicly available documents and
records on file with the Commission and other public sources. None of Parent,
Offeror, the Information Agent or the Depositary assumes any responsibility for
the accuracy or completeness of the information concerning the Company contained
in such documents and records or for any failure by the Company to disclose to
Parent or Offeror events that may have occurred or may affect the significance
or accuracy of any such information.
The Company is a Delaware corporation with its principal place of business
located at Three Continental Towers, 1701 W. Golf Road, Suite 1012, Rolling
Meadows, Illinois 60008. According to the Company's Annual Report on Form 10-K
for the year ended December 31, 1998 (the "Company Form 10-K"), the Company,
which conducts its business through its direct and indirect operating
subsidiaries, provides construction services that are principally involved in
two areas, infrastructure services and commercial/ industrial services. The
commercial/industrial services include electrical construction and mechanical
construction.
Set forth below is certain selected historical consolidated financial
information with respect to the Company and its subsidiaries excerpted or
derived from the audited consolidated financial statements included in the
Company Form 10-K and from the unaudited consolidated financial statements
included in the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999. More comprehensive financial information is included in such
reports and other documents filed by the Company with the Commission, and the
following summary is qualified in its entirety by reference to such reports and
such other documents and all the financial information (including any related
notes) contained therein. The reports and other documents filed with the
Commission should be available for inspection and copies thereof should be
obtainable in the manner set forth below under "Available Information".
10
<PAGE> 13
MYR GROUP INC.
SELECTED HISTORICAL FINANCIAL DATA
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------------- ------------------------------
1999 1998 1998 1997 1996
-------- -------- -------- -------- --------
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Contract revenue........................ $348,116 $342,619 $459,343 $431,276 $310,577
Contract cost........................... 306,645 310,413 414,123 391,616 278,936
-------- -------- -------- -------- --------
Gross profit............................ 41,471 32,206 45,220 39,660 31,641
Selling, general and administrative
expenses.............................. 25,967 22,064 30,885 28,164 23,623
-------- -------- -------- -------- --------
Income from operations.................. 15,504 10,142 14,335 11,496 8,018
Other income (expense)
Interest income....................... 76 9 31 40 23
Interest expense...................... (760) (1,588) (2,160) (1,720) (1,826)
Gain (loss) on sale of property and
equipment.......................... 742 500 550 (76) 668
Other................................. (93) 1 175 178 (483)
-------- -------- -------- -------- --------
Income from continuing operations before
income taxes.......................... 15,469 9,064 12,931 9,918 6,400
Income tax expense...................... 6,188 3,626 5,043 3,967 2,432
-------- -------- -------- -------- --------
Income from continuing operations....... 9,281 5,438 7,888 5,951 3,968
Gain (loss) from discontinued
operations............................ -- -- -- 602 (530)
-------- -------- -------- -------- --------
Net income.............................. $ 9,281 $ 5,438 $ 7,888 $ 6,553 $ 3,438
======== ======== ======== ======== ========
Basic net income (loss) per common
share.................................
Earnings per share
Basic................................. $ 1.57 $ .97 $ 1.40 $ 1.20 $ .64
Diluted............................... $ 1.38 $ .82 $ 1.20 $ .96 $ .54
</TABLE>
<TABLE>
<CAPTION>
AT DECEMBER 31,
AT SEPTEMBER 30, ------------------
1999 1998 1997
---------------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
BALANCE SHEET DATA (AT END OF PERIOD):
Total current assets..................................... $103,575 $92,968 $99,999
Total assets............................................. 120,769 110,199 117,424
Total current liabilities................................ 67,013 62,792 77,401
Total liabilities........................................ 72,293 70,851 86,346
</TABLE>
11
<PAGE> 14
Certain Company Projections
To the knowledge of Parent and Offeror, the Company does not as a matter of
course make public forecasts as to its future financial performance. However, in
connection with the preliminary discussions concerning the feasibility of the
Offer and the Merger, the Company furnished Parent with certain financial
projections.
The projections set forth below (the "Projections") are derived or
excerpted from information provided by the Company and are based on numerous
assumptions concerning future events. The Projections have not been adjusted to
reflect the effects of the Offer or the Merger. The Projections should be read
together with the other information contained in this Section 8.
<TABLE>
<CAPTION>
YEAR ENDING DEC. 31,
------------------------
1999 2000
(IN MILLIONS, EXCEPT PER
SHARE DATA)
<S> <C> <C>
Revenue..................................................... $464.9 $519.9
Net Income.................................................. 12.8 16.5
Earnings Per Share.......................................... $ 1.90 $ 2.40
</TABLE>
The Company also estimated that a purchaser of the Company could
potentially achieve over time annual cost savings of between $2.9 million and
$4.1 million.
THE PROJECTIONS WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE OR
COMPLIANCE WITH PUBLISHED GUIDELINES OF THE COMMISSION OR THE GUIDELINES
ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS REGARDING
PROJECTIONS OR FORECASTS AND ARE INCLUDED HEREIN ONLY BECAUSE SUCH INFORMATION
WAS PROVIDED TO PARENT. THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO CERTAIN
RISKS AND UNCERTAINTIES THAT COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY
FROM THE PROJECTIONS. THE PROJECTIONS REFLECT NUMEROUS ASSUMPTIONS (NOT ALL OF
WHICH WERE STATED IN THE PROJECTIONS AND NOT ALL OF WHICH WERE PROVIDED TO
PARENT), ALL MADE BY MANAGEMENT OF THE COMPANY, WITH RESPECT TO INDUSTRY
PERFORMANCE, GENERAL BUSINESS, ECONOMIC, MARKET AND FINANCIAL CONDITIONS AND
OTHER MATTERS, ALL OF WHICH ARE DIFFICULT TO PREDICT, MANY OF WHICH ARE BEYOND
THE COMPANY'S CONTROL AND NONE OF WHICH WERE SUBJECT TO APPROVAL BY PARENT OR
OFFEROR. ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT THE ASSUMPTIONS MADE IN
PREPARING THE PROJECTIONS WILL PROVE ACCURATE, AND ACTUAL RESULTS MAY BE
MATERIALLY GREATER OR LESS THAN THOSE CONTAINED IN THE PROJECTIONS. THE
INCLUSION OF THE PROJECTIONS HEREIN SHOULD NOT BE REGARDED AS AN INDICATION THAT
ANY OF PARENT, OFFEROR OR THE COMPANY OR THEIR RESPECTIVE REPRESENTATIVES
CONSIDERED OR CONSIDER THE PROJECTIONS TO BE A RELIABLE PREDICTION OF FUTURE
EVENTS, AND THE PROJECTIONS SHOULD NOT BE RELIED UPON AS SUCH. NONE OF PARENT OR
OFFEROR AND THEIR RESPECTIVE REPRESENTATIVES ASSUMES ANY RESPONSIBILITY FOR THE
VALIDITY, REASONABLENESS, ACCURACY OR COMPLETENESS OF THE PROJECTIONS. NONE OF
PARENT, OFFEROR, THE COMPANY OR ANY OF THEIR RESPECTIVE REPRESENTATIVES HAS
MADE, OR MAKES, ANY REPRESENTATION TO ANY PERSON REGARDING THE INFORMATION
CONTAINED IN THE PROJECTIONS AND NONE OF THEM INTENDS TO UPDATE OR OTHERWISE
REVISE THE PROJECTIONS TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE WHEN
MADE OR TO REFLECT THE OCCURRENCE OF FUTURE EVENTS EVEN IN THE EVENT THAT ANY OR
ALL OF THE ASSUMPTIONS UNDERLYING THE PROJECTIONS ARE SHOWN TO BE IN ERROR.
Available Information
The Company is subject to the reporting requirements of the Exchange Act
and, in accordance therewith, is required to file reports and other information
with the Commission relating to its business, financial condition and other
matters. Information as of particular dates concerning the Company's directors
and officers, their remuneration, options granted to them, the principal holders
of the Company's securities and any material interests of such persons in
transactions with the Company is required to be disclosed in proxy statements
distributed to the Company's stockholders and filed with the Commission. Such
reports, proxy statements and other information should be available for
inspection at the public reference facilities of the Commission located at 450
Fifth Street, N.W., Washington, D.C. 20549. Copies should be obtainable, by
mail, upon payment of the Commission's customary charges, by writing to the
Commission's principal office at 450 Fifth Street, N.W., Washington, D.C. 20549.
The Commission also maintains a World Wide Web site on
12
<PAGE> 15
the Internet at http://www.sec.gov that contains reports, proxy statements and
other information regarding registrants that file electronically with the
Commission.
9. CERTAIN INFORMATION CONCERNING PARENT AND OFFEROR.
Parent is a holding company registered under the Public Utility Holding
Company Act of 1935, as amended (the "1935 Act"). Parent does not directly
operate any utility properties, but owns all the outstanding common stock of
three domestic electric utilities serving customers in New Jersey -- Jersey
Central Power & Light Company -- and Pennsylvania -- Metropolitan Edison Company
and Pennsylvania Electric Company. Through its subsidiaries, Parent also owns
and operates electric and gas transmission and distribution systems in foreign
countries as well as develops and operates generation facilities in the United
States and foreign countries. Parent and its consolidated affiliates have
approximately 9,000 employees worldwide. For the year ended December 31, 1998,
Parent and its subsidiaries had operating revenues of approximately $4.2
billion, and net earnings of approximately $360 million. The stockholders'
equity of Parent and its subsidiary companies at September 30, 1999 was
approximately $3.6 billion. Parent's principal executive offices are located at
300 Madison Avenue, Morristown, New Jersey 07962. Parent is subject to the
reporting requirements of the Exchange Act and, in accordance therewith, is
required to file reports and other information with the Commission relating to
its business, financial condition and other matters. Information as of
particular dates concerning Parent's directors and officers, their remuneration,
options granted to them, the principal holders of Parent's securities and any
material interests of such persons in transactions with Parent is required to be
disclosed in proxy statements distributed to Parent's stockholders and filed
with the Commission. Such reports and other documents should be available for
inspection and copies should be attainable from the offices of the Commission in
the same manner as set forth under "Available Information" in Section 8 above.
Offeror, a Delaware corporation, is a wholly owned subsidiary of Parent
that does not have any operations. The offices of Offeror are located at 300
Madison Avenue, Morristown, New Jersey 07962. Parent directly owns all the
outstanding capital stock of Offeror. It is not anticipated that, prior to the
consummation of the Offer and the Merger, Offeror will have any significant
assets or liabilities or will engage in any activities other than those incident
to the Offer and the Merger.
For certain information concerning the directors and executive officers of
Parent and Offeror, see Schedule I to this Offer to Purchase.
Except as set forth in this Offer to Purchase: (i) none of Parent nor
Offeror nor, to the best knowledge of any of the foregoing, any of the persons
listed in Schedule I to this Offer to Purchase or any associate or majority
owned subsidiary of any of the foregoing, beneficially owns or has a right to
acquire any Shares or any other equity securities of the Company; (ii) none of
Parent nor Offeror nor, to the best knowledge of any of the foregoing, any of
the persons or entities referred to in clause (i) above or any of their
executive officers, directors, or subsidiaries has effected any transaction in
the Shares or any other equity securities of the Company during the past 60
days; (iii) none of Parent nor Offeror nor, to the best knowledge of any of the
foregoing, any of the persons listed in Schedule I to this Offer to Purchase has
any contract, arrangement, understanding or relationship with any other person
with respect to any securities of the Company, including, but not limited to,
contracts, arrangements, understandings or relationships concerning the transfer
or voting thereof, joint ventures, loan or option arrangements, puts or calls,
guaranties of loans, guaranties against loss or the giving or withholding of
proxies, consents or authorizations; (iv) since January 1, 1996, there have been
no transactions or business relationships which would be required to be
disclosed under the rules and regulations of the Commission between any of
Parent, Offeror or any of their respective subsidiaries or, to the best
knowledge of any of Parent or Offeror, any of the persons listed in Schedule I
to this Offer to Purchase, on the one hand, and the Company or any of its
executive officers, directors or affiliates, on the other hand; and (v) since
January 1, 1996, there have been no contacts, negotiations or transactions
between any of Parent, Offeror or any of their respective subsidiaries or, to
the best knowledge of any of Parent, Offeror or any of the persons listed in
Schedule I to this Offer to Purchase, on the one hand, and the Company or its
subsidiaries or affiliates, on the other hand, concerning a merger,
consolidation or acquisition, tender offer or other acquisition
13
<PAGE> 16
of securities, an election of directors or a sale or other transfer of a
material amount of assets of the Company or any of its subsidiaries.
Each of Parent and Offeror disclaims that it is an "affiliate" of the
Company within the meaning of Rule 13e-3 under the Exchange Act.
10. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by Offeror to purchase all of the Shares
(assuming that (i) all Shares issuable upon the exercise of outstanding vested
Stock Options are tendered, (ii) all Shares of vested Restricted Stock are
tendered, and (iii) all Shares issuable upon the conversion of the Company's
convertible notes that cannot be repurchased by the Company are tendered) and to
pay related fees and expenses is expected to be approximately $202 million.
Offeror intends to obtain all of such funds from Parent which in turn will
obtain such funds from Parent's existing commercial bank lines or the sale of
commercial paper.
11. BACKGROUND OF THE OFFER.
In July 1999, Parent contacted representatives of the Company to determine
mutual interest in a potential transaction involving Parent and the Company.
Parent expressed an interest in pursuing discussions with the Company regarding
a potential acquisition of the Company by Parent.
On July 22, 1999, representatives of the Company met with representatives
of Parent, at Parent's invitation, concerning a possible acquisition of the
Company by Parent. The discussions included strategy, business fit, and
background information with respect to the Company's and Parent's businesses.
In August 1999, Parent was contacted by a representative of the Financial
Advisor who informed Parent that the Company was conducting a process in which
interested parties were being asked to submit proposals to acquire the Company
and discussed the timing and procedures associated with that process.
On September 14, 1999, Parent and the Financial Advisor on behalf of the
Company executed a Confidentiality Agreement. On September 15, 1999, Parent
received from the Company an Information Memorandum describing the Company and
its business.
On September 27, 1999, a representative of the Financial Advisor met with
representatives of Parent to discuss general information concerning the Company
and the bidding process.
On October 7, 1999, Parent submitted a preliminary indication of interest
to the Financial Advisor. Shortly thereafter, the Financial Advisor notified
Parent that Parent was invited to participate in the second stage of the bidding
process.
On November 2, 1999, a representative of the Financial Advisor again met
with a representative of Parent to discuss general information concerning the
Company.
On November 8, 1999, management of the Company made a presentation to
representatives of Parent, and Parent, together with representatives of
PriceWaterhouseCoopers LLP, Parent's accountants, and other advisors of Parent,
began their due diligence review of the Company, which included meeting with
representatives of Ernst & Young, the Company's independent auditors.
Between November 8 and November 20, 1999, representatives of
PriceWaterhouseCoopers had several telephone discussions with a representative
of the Company concerning PriceWaterhouseCoopers' due diligence review on behalf
of Parent.
On November 16, 1999, representatives of PriceWaterhouseCoopers visited the
Company's offices to conduct due diligence of the Company and representatives of
Parent, PriceWaterhouseCoopers, the Financial Advisor and the Company discussed
due diligence matters by telephone conference.
On November 29, 1999, Charles M. Brennan III, Chairman and Chief Executive
Officer of the Company, met with Fred D. Hafer, Chairman, President and Chief
Executive Officer of Parent, to discuss terms of the potential transaction.
14
<PAGE> 17
On December 1, 1999, the Financial Advisor provided the proposed form of
merger agreement (followed on December 3, 1999 by requests for final firm
offers) and set December 7, 1999 as the date for submission of definitive
proposals (which date was subsequently extended to December 10, 1999).
On December 2, 1999, Parent's Board of Directors approved Parent's proposal
for the acquisition of the Company.
On December 10, 1999, Parent delivered to the Company a letter indicating,
among other things, its interest in acquiring the Company, subject to
negotiation of definitive documentation. Parent also delivered to the Company a
revision of the draft merger agreement that had been proposed by the Company.
On December 13, 1999, a representative of the Financial Adviser negotiated
with a representative of Parent concerning price. On December 14, 1999, the
Company informed Parent that, subject to the negotiation and execution of a
final merger agreement, Parent would be the successful bidder.
On December 14, 1999, counsel for the Company and counsel for Parent began
negotiating the terms of the Merger Agreement. On December 16, 1999, Mr. Brennan
and William S. Skibitsky, President and Chief Operating Officer of the Company,
met with Mr. Hafer and negotiated certain provisions of the Merger Agreement.
Negotiations concerning those and other provisions continued among counsel and
other representatives of both parties through December 21, when the terms of the
Merger Agreement were finalized.
After the market closed on December 21, 1999, the Merger Agreement was
executed and delivered, and on December 22, 1999, Parent and the Company issued
a joint press release announcing the execution of the Merger Agreement.
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY; THE TRANSACTION
DOCUMENTS.
Purpose of the Offer and the Merger
The purpose of the Offer is to enable Parent to acquire control of, and the
entire equity interest in, the Company. The purpose of the Merger is to acquire
all outstanding Shares not purchased pursuant to the Offer. Following the
completion of the Offer, Parent intends to acquire any remaining Shares not then
owned, by consummating the Merger. In the Merger, each outstanding Share (other
than Shares held by stockholders who properly exercise their appraisal rights)
will be converted into the right to receive the Merger Consideration, without
interest, and the Company will become a wholly owned subsidiary of Parent.
The acquisition of the entire interest in the Company is structured as a
cash tender offer followed by a merger in order to expedite the opportunity for
Parent to obtain a controlling interest in the Company. Under the Delaware Law
and the Company's certificate of incorporation, the affirmative vote of the
holders of a majority of the outstanding Shares is required to approve the
Merger. If the Minimum Condition is satisfied, Parent would have sufficient
voting power to approve the Merger without the affirmative vote of any other
stockholder of the Company.
Plans for the Company
Following the Offer and the Merger, Parent intends to operate the Company
on a basis generally consistent with the Company's existing plans and programs.
If and to the extent that Parent acquires control of the Company, Parent intends
to conduct a detailed review of the Company and its assets, corporate structure,
capitalization, operations, properties, policies, management and personnel and
consider and determine what, if any, changes would be desirable in light of the
circumstances which then exist. Such strategies could include, among other
things and subject to the terms of the Merger Agreement, changes in the
Company's business, corporate structure, certificate of incorporation, bylaws,
capitalization, management or dividend policy.
Except as noted in this Offer to Purchase, Parent and Offeror have no
present plans or proposals that would result in an extraordinary corporate
transaction, such as a merger, reorganization, liquidation, or sale or transfer
of a material amount of assets, involving the Company or any subsidiary of the
Company or any other material changes in the Company's capitalization, dividend
policy, corporate structure, business or composition of its management or Board
of Directors.
15
<PAGE> 18
The Merger Agreement
The following is a summary of the material terms of the Merger Agreement.
This summary is not a complete description of the terms and conditions thereof
and is qualified in its entirety by reference to the full text thereof, which is
incorporated herein by reference and a copy of which has been filed with the
Commission as an exhibit to the Schedule 14D-1. The Merger Agreement may be
examined, and copies thereof may be obtained, as set forth in Section 8.
The Offer. The Merger Agreement provides for the commencement of the
Offer. Parent and Offeror have expressly reserved the right to waive certain
conditions to the Offer, but without the prior consent of the Company, Offeror
has agreed not to (i) waive the Minimum Condition, (ii) reduce the number of
Shares to be purchased in the Offer, (iii) reduce the Offer Price, (iv) modify
or add to the conditions to the Offer set forth in Section 14, (v) change the
form of consideration payable in the Offer, or (vi) amend any other term of the
Offer in a manner adverse to the holders of Shares. Notwithstanding the
foregoing, Offeror may, without the consent of the Company, (i) extend the Offer
from time to time, beyond any scheduled expiration date for a period not to
exceed 20 business days, if at any scheduled expiration date any of the
conditions to Offeror's obligation to accept for payment, and pay for, the
Shares is not satisfied or waived, until such time within such 20 business day
period as Offeror reasonably concludes is necessary after all such conditions
are satisfied or waived, (ii) extend the Offer for any period required by any
rule, regulation, interpretation or position of the Commission or the staff
thereof applicable to the Offer, and (iii) extend the Offer for an aggregate
period of not more than 15 business days beyond the latest expiration date that
would otherwise be permitted under clause (i) or (ii) of this sentence if there
have not been tendered sufficient Shares so that the Merger can be effected in
accordance with Section 253 of the Delaware Law.
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 the applicable provisions of the Delaware Law, Offeror shall be merged with
and into the Company and the separate existence of Offeror shall cease, and the
Company shall be the Surviving Corporation and shall be a wholly owned
subsidiary of Parent. In the Merger, each share of common stock of Offeror
issued and outstanding immediately prior to the Effective Time shall continue to
remain outstanding and shall constitute one share of common stock of the
Surviving Corporation. The Merger shall become effective at the time set forth
in the certificate of merger (the "Certificate of Merger") relating to the
Merger (the "Effective Time"), in accordance with the provisions of the Delaware
Law, which time shall be on the date (which shall not be earlier than March 23,
2000) but after the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware. At the Effective Time, each outstanding Share
(other than Shares held by stockholders who properly exercise their appraisal
rights) shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into the right to receive the Merger Consideration,
without interest. The Merger Agreement provides that the closing of the Merger
shall take place as soon as practicable after the approval and adoption of the
Merger Agreement by the stockholders of the Company as contemplated in Section
6.1 of the Merger Agreement (if required by law) and the satisfaction or waiver
of the other conditions of the parties to the Merger Agreement set forth in
Articles 7 and 8 thereof.
Treatment of Stock Options. The Merger Agreement provides that, as of the
Effective Time, each Stock Option outstanding immediately prior to the Effective
Time shall, by virtue of the Merger and without any action on the part of the
holder thereof, entitle the holder thereof to receive in settlement of the
exercisable portion thereof the Option Cash-Out Amount. Each Stock Option, or
portion thereof, that is not exercisable at the Effective Time, shall be
canceled as of such time and the holder thereof shall become entitled to receive
on the date such Stock Option, or portion thereof, otherwise would have become
exercisable a cash payment from the Company in an amount equal to the Option
Cash-Out Amount. Notwithstanding the foregoing, subject to the receipt of any
required regulatory approvals, within 20 business days after the Effective Time
each holder of a Stock Option may elect in writing, in lieu of the cash
settlement set forth in the two immediately preceding sentences, to have any of
such outstanding Stock Options assumed by Parent,
16
<PAGE> 19
which assumed Stock Options shall continue to have, and be subject to, the same
terms and conditions set forth in the stock option plans and agreement pursuant
to which the Stock Options were issued as in effect immediately prior to the
Effective Time, except that (a) such assumed Stock Options shall be exercisable
for that number of whole shares of common stock of Parent, par value $2.50 per
share ("Parent Common Stock"), equal to the product of the number of Shares
covered by the assumed Stock Option immediately prior to the Effective Time
multiplied by the number (the "Exchange Ratio") determined by dividing the
Merger Consideration by the average closing price of Parent Common Stock for the
five Trading Days immediately preceding the Effective Time, rounded up to the
nearest whole number of shares of Parent Common Stock, (b) the per share
exercise price for the Parent Common Stock issuable upon the exercise of such
assumed Stock Option shall be equal to the quotient determined by dividing the
exercise price per share specified for such Stock Option under the applicable
Stock Option plan or agreement immediately prior to the Effective Time by the
Exchange Ratio, rounding the resulting exercise price down to the nearest whole
cent, and (c) such assumed Stock Options shall not be entitled to receive any
amounts with respect to dividends paid on the Shares covered by such Stock
Options. Except as set forth in the Disclosure Schedule to the Merger Agreement
(the "Disclosure Schedule"), none of the provisions described in this paragraph
shall affect the schedule of vesting (or the acceleration thereof) of the Stock
Options, assumed or not assumed by Parent pursuant to the terms of the
provisions described in this paragraph. The date of grant of any Stock Option so
assumed shall be the date on which the Stock Option was originally granted. As
soon as practicable after the Effective Time, Parent shall file with the
Commission a registration statement on Form S-8 (or any successor form), or
another appropriate form, with respect to the shares of Parent Common Stock
subject to such assumed Stock Options and shall use its best efforts to maintain
the effectiveness of such registration statement or registration statements (and
maintain the current status of the prospectus or prospectuses contained therein)
for so long as such Stock Options remain outstanding.
Treatment of Restricted Stock. The Merger Agreement provides that, as of
the Effective Time, each outstanding award of Restricted Stock shall, by virtue
of the Merger and without any action on the part of the holder thereof, entitle
the holder thereof to receive in settlement of the vested portion thereof the
Restricted Stock Cash-Out Amount. With respect to any shares of Restricted Stock
that are not vested and are subject to forfeiture at the Effective Time, each
holder thereof shall become entitled to receive on the date such shares of
Restricted Stock become vested a cash payment from the Company in an amount
equal to the Restricted Stock Cash-Out Amount. Notwithstanding the foregoing, if
the approval of Parent's Board of Directors and any required regulatory
approvals are obtained, within 20 business days after the Effective Time each
holder of Restricted Stock, whether or not vested, may elect in writing, in lieu
of the cash settlement set forth in the preceding two sentences, to have all or
any part of such outstanding Restricted Stock converted into Parent Restricted
Stock, subject to the same terms and conditions set forth in the plans and
agreements pursuant to which the Restricted Stock was issued as in effect
immediately prior to the Effective Time, except that the number of shares of
such Parent Restricted Stock shall be that number of whole shares of Parent
Common Stock equal to the product of the number of shares of converted
Restricted Stock multiplied by the number determined by dividing the Merger
Consideration by the average closing price of Parent Common Stock for the five
Trading Days immediately preceding the Effective Time, rounded up to the nearest
whole number of shares of Parent Common Stock. None of the foregoing provisions
will affect the schedule of vesting (or the acceleration thereof) of the
Restricted Stock, converted or not converted by Parent pursuant to the terms
described above. As soon as practicable after the Effective Time, Parent shall
file with the Commission a registration statement on Form S-8 (or any successor
form), or another appropriate form, with respect to the shares of Parent
Restricted Stock issued as described above and shall use its best efforts to
maintain the effectiveness of such registration statement or registration
statements (and maintain the current status of the prospectus or prospectuses
contained therein) for so long as such shares of restricted stock remain
outstanding.
Board Representation. The Merger Agreement provides that, promptly upon
the purchase by Parent or Offeror of at least a majority of the outstanding
Shares, and from time to time thereafter, Parent and Offeror shall be entitled
to designate such number of directors, rounded up to the next whole number but
in no event more than one less than the total number of directors of the Board
of Directors of the Company, as shall give Parent and Offeror, subject to
compliance with Section 14(f) of the Exchange Act, representation on the
17
<PAGE> 20
Board of Directors of the Company equal to the product of (i) the number of
directors on the Board of Directors of the Company and (ii) the percentage that
such number of Shares purchased by Offeror or Parent bears to the number of
Shares outstanding, and the Company shall, upon request by Parent or Offeror,
promptly increase the size of the Board of Directors or exercise all reasonable
efforts to secure the resignations of such number of directors as is necessary
to enable Parent's and Offeror's designees to be so elected. At the request of
Parent and Offeror, the Company shall take, at its expense, all action necessary
to effect any such election, including mailing to its stockholders the
information required by Section 14(f) of the Exchange Act and Rule 14f-1
thereunder. From and after the date that such designees to the Board of
Directors of the Company constitute a majority of the Board of Directors of the
Company, any action taken by the Company under the Merger Agreement shall
require the approval of a majority of the members of the Board of Directors, if
any, who are not designees or affiliates of Parent or Offeror; provided,
however, that if there shall be no such directors, the Merger Agreement shall
not be amended to reduce the Merger Consideration to be less than the Offer
Price or otherwise amended in a manner materially adverse to the holders of
Shares other than Parent and Offeror or amended to permit the Merger to occur
prior to March 23, 2000.
Stockholder Meeting. The Merger Agreement provides that, if required by
applicable law, the Company shall duly call and promptly hold a meeting of its
stockholders as soon as practicable following the expiration of the Offer for
the purpose of approving the Merger on the terms and conditions set forth in the
Merger Agreement and in connection therewith shall comply with the applicable
provisions of the Delaware Law relating to the calling and holding of a meeting
of stockholders for such purpose. Subject to the provisions of the Merger
Agreement relating to third party acquisition proposals, the Board of Directors
of the Company shall recommend the approval and adoption of the Merger Agreement
by the stockholders of the Company, and the Company shall use its reasonable
best efforts to obtain such adoption and approval. The Merger Agreement provides
that, notwithstanding the foregoing, if Offeror or any other subsidiary of
Parent shall acquire at least 90% of the outstanding shares of each class of
capital stock of the Company, at the request of Parent or Offeror, the parties
thereto shall take all necessary and appropriate action to cause the Merger to
become effective as soon as practicable after the expiration of the Offer,
without a stockholders' meeting, in accordance with Section 253 of the Delaware
Law.
Representations and Warranties. The Merger Agreement contains various
representations and warranties of the parties thereto. These include
representations and warranties by the Company with respect to (i) the due
organization, existence, qualification, good standing, corporate power and
authority of the Company and its subsidiaries; (ii) the capital stock of the
Company; (iii) the due authorization, execution, delivery and performance of the
Merger Agreement and the consummation of the transactions contemplated thereby,
and the validity and enforceability thereof; (iv) required filings, consents and
approvals and the absence of any violations, breaches or defaults which would
result from performance by the Company of the Merger Agreement and the
consummation of the transactions contemplated thereby; (v) the accuracy of
reports filed by the Company with the Commission (the "SEC Reports") since
January 1, 1996; (vi) the financial statements included in the SEC Reports;
(vii) the absence of any undisclosed material liabilities; (viii) certain tax
matters; (ix) certain real estate matters; (x) the title to and condition of the
assets of the Company and its subsidiaries; (xi) the possession by the Company
and its subsidiaries of all necessary licenses and permits; (xii) certain
proprietary rights and intellectual property matters; (xiii) the adequacy of the
Company's assets, the Company's relationships with its customers and suppliers
and the existence of agreements that restrict the Company from carrying on its
business anywhere in the world; (xiv) the accuracy of certain documents and
information supplied by the Company to Parent; (xv) certain insurance matters;
(xvi) the absence of any material litigation; (xvii) the accuracy and
completeness of the records of the Company; (xviii) the absence of any material
adverse change; (xix) the absence of certain acts or events; (xx) compliance
with applicable laws; (xxi) certain environmental matters; (xxii) labor
relations;
(xxiii) certain employee benefits matters; (xxiv) estimated costs and profits
for uncompleted contracts of the Company and its subsidiaries as of September
30, 1999; (xxv) the accuracy of the Schedule 14D-9 filed by the Company; (xxvi)
the absence of brokers or finders except for the Financial Advisor; (xxvii)
antitakeover statutes; (xxviii) the fairness opinion rendered by the Financial
Advisor; (xxix) year 2000 compliance; and (xxx) stockholder approvals.
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<PAGE> 21
Parent and Offeror have also made certain representations and warranties,
including with respect to (i) the due organization, existence, good standing and
corporate power and authority of Parent and Offeror; (ii) the due authorization,
execution, delivery and performance of the Merger Agreement and the consummation
of the transactions contemplated thereby, and the validity and enforceability
thereof; (iii) required filings, consents and approvals and the absence of any
violations, breaches or defaults which would result from performance by Parent
and Offeror of the Merger Agreement and the consummation of the transactions
contemplated thereby; (iv) the absence of prior activities and the assets of
Offeror; (v) the absence of investment bankers' and brokers' fees; (vi) the
accuracy of information provided by Parent or Offeror in the Schedule 14D-1 and
the other documents pursuant to which the Offer is being made; and (vii) the
sufficiency of funds available to Parent and Offeror for the consummation of the
Offer and the Merger.
Maintenance of the Company as Going Concern. The Merger Agreement provides
that, except as expressly contemplated or permitted by the Merger Agreement, or
to the extent Parent shall consent in writing, during the period from the date
of the Merger Agreement to the Effective Time, the Company shall conduct (and
shall cause its subsidiaries to conduct) its operations according to its
ordinary and usual course of business, and shall use its reasonable best efforts
to preserve intact its business organization, keep available the services of its
officers and employees and maintain satisfactory relations with licensors,
suppliers, distributors, customers and others having business relationships with
it. In addition, during the period from the date of the Merger Agreement to the
Effective Time, the Merger Agreement provides that representatives of each of
Parent and the Company shall confer on a regular and frequent basis with one or
more designated representatives of the other to report on operational matters
and to report the general status of ongoing operations. The Merger Agreement
also provides that the Company shall provide Offeror promptly with all documents
filed by the Company with the Commission.
Absence of Material Changes. The Merger Agreement provides that, prior to
the Effective Time, the Company and its subsidiaries shall not, other than in
the normal course of business and in conformity with past practices, or as
contemplated by the Merger Agreement or the Disclosure Schedule, without the
consent of Parent (which consent will not be unreasonably withheld), (i) make
any material change in its business or operations; (ii) make any material change
in its accounting policies applied in the preparation of the financial
statements; (iii) declare any dividends in cash on the issued and outstanding
shares of its common stock, or make any other distribution of any kind in
respect thereof, other than regular quarterly dividends consistent with past
practices; (iv) issue, sell or otherwise distribute any authorized but unissued
shares of its capital stock (other than upon exercise of options outstanding on
the date of the Merger Agreement or permitted to be granted thereby or upon
conversion of outstanding convertible notes) or effect any stock split, stock
dividend or combination or reclassification of any such shares or grant or
commit to grant or amend or modify any option, warrant or other right to
subscribe for or purchase or otherwise acquire any shares of its capital stock
or any security convertible into or exchangeable for any such shares (other than
grants of options under stock option plans); (v) purchase or redeem any of its
capital stock (or permit any of its subsidiaries to purchase any of its capital
stock); (vi) adopt any amendment to its charter or bylaws; or (vii) dispose, or
permit any of its subsidiaries to dispose, of any of its assets outside the
ordinary course of business. In addition, from and after the date of the Merger
Agreement and prior to the Effective Time, except as contemplated by the
Disclosure Schedule, neither the Company nor any of its subsidiaries shall,
without the consent of Parent (which consent may be granted or withheld in
Parent's sole discretion): (i) pay any bonus or increase the rate of
compensation of any of their employees, except for (A) payment of bonus
compensation for the year ending December 31, 1999 in an aggregate amount not to
exceed the amount set forth in the Disclosure Schedule, (B) salary increases for
officers of the Company or any of its subsidiaries approved by Parent (which
approval shall not be unreasonably withheld), and (C) regular annual salary
increases for other salaried employees consistent with past practice which do
not exceed 5% in the aggregate of all employees' existing salary rates; (ii)
make or obligate itself to make capital expenditures in excess of $500,000,
provided that each individual expenditure in excess of $100,000 shall be made
only with Parent's approval (which approval shall not be unreasonably withheld);
(iii) voluntarily incur any material obligations or liabilities (including any
indebtedness) other than in the ordinary course of business; (iv) make any
change in the plans described in the Disclosure Schedule or adopt new employee
benefit plans or enter into any employment or other similar agreement; or (v)
amend or waive any provision of, or grant any approval under, any standstill
agreement.
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<PAGE> 22
Access to Information. Under the Merger Agreement, the Company and its
subsidiaries have agreed to afford to the officers, directors, employees and
authorized representatives of Parent access, during normal business hours during
the period prior to the Effective Time, to all their properties, books,
contracts, commitments and records and, during such period, the Company shall
and (shall cause its subsidiaries to) furnish promptly to Parent all information
concerning its business, properties and personnel as Parent may reasonably
request. However, any furnishing of such information and any such investigation
may not affect the right of Parent to rely on the representations and warranties
made in or pursuant to the Merger Agreement. Parent has agreed that all
information and material received by it will be treated as confidential, and
that it will not disclose, divulge or communicate such information to any other
person, except to its directors, officers, employees, attorneys, accountants,
representatives and consultants, and then only to the extent as may be necessary
to evaluate the information and any negotiations relating to the transactions
contemplated by the Merger Agreement and provided that Parent first advises such
person of the confidential nature of the information and the confidentiality and
publicity provisions of the Merger Agreement. Pursuant to the Merger Agreement,
Parent has further agreed that all such information will be used solely for the
purpose of evaluating the transactions contemplated by the Merger Agreement and
that it will not use or exploit any such information for any other purpose
whatsoever. If the Merger is not concluded for any reason, such information will
be returned to the Company. The foregoing provisions also apply to any
information previously furnished by the Company to Parent, but do not apply to
any information which Parent is required by law to disclose to a third party or
is generally known to the public other than as a result of a breach of the
foregoing provisions.
No Solicitation. The Company has agreed in the Merger Agreement that the
Company shall immediately cease and cause to be terminated any activities,
discussions or negotiations conducted prior to the date of the Merger Agreement
with any parties other than Parent with respect to any Acquisition Proposal (as
defined below). The Company shall not, and shall cause its subsidiaries and the
officers, directors, agents, employees and advisors of the Company and its
subsidiaries not to, initiate, solicit or encourage inquiries or proposals with
respect to, or engage in any negotiations concerning, or provide any
confidential information to, or have any discussions with, any person relating
to, any Acquisition Proposal. Notwithstanding the foregoing, the Company shall
be permitted to engage in any discussions or negotiations with, or provide any
information to, any person in response to a bona fide written Acquisition
Proposal by any such person, if and only to the extent that in each such case
such proposal was not solicited in violation of the Merger Agreement and (A)
Shares shall not have been accepted for payment under the Offer; (B) the Board
of Directors of the Company determines in good faith that such Acquisition
Proposal would, if consummated, constitute a Superior Proposal (as defined
below); (C) the Board of Directors of the Company determines, in good faith
after consultation with outside counsel, that such action is legally advisable
for it to act in a manner consistent with its fiduciary duties under applicable
law; and (D) prior to providing any information or data to any person or
entering into discussions or negotiations with any person, the Company receives
from such person an executed confidentiality agreement containing terms no less
restrictive with respect to such person than the terms of the Confidentiality
Agreement with respect to Parent. The Company shall notify Parent promptly, but
in any event within 24 hours, of such inquiries, proposals, or offers received
by, any such information requested from, or any such discussions or negotiations
sought to be initiated or continued with, any of its representatives indicating,
in connection with such notice, the name of such person and the material terms
and conditions of any proposals or offers.
For the purposes of the Merger Agreement, "Acquisition Proposal" means (a)
a merger or consolidation, or any similar transaction, involving the Company
(other than mergers, consolidations or similar transactions involving solely the
Company and/or one or more wholly owned subsidiaries of the Company), (b) a
purchase or other acquisition of greater than 10% of the consolidated assets of
the Company and its subsidiaries, (c) a purchase or other acquisition (including
by way of merger, consolidation, share exchange, tender or exchange offer or
otherwise) of beneficial ownership of securities of the Company other than (1)
as a result of the exercise or conversion of securities of the Company
outstanding on the date of the Merger Agreement, or (2) in connection with any
transaction described in the Disclosure Schedule, (d) any substantially similar
transaction, or (e) any inquiry or indication of interest with respect to any of
the foregoing; in each case other than the transactions contemplated by the
Merger Agreement.
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For purposes of the Merger Agreement, "Superior Proposal" means any bona
fide written proposal (a) made by a third party to acquire, directly or
indirectly, for consideration consisting of cash and/or securities, all of the
Common Stock then outstanding or all or substantially all of the consolidated
assets of the Company and otherwise on terms which the Board of Directors of the
Company determines in its good faith judgment (based on the advice of the
Financial Advisor or another financial advisor of nationally recognized
reputation) to be more favorable to the stockholders of the Company than the
transactions contemplated by the Merger Agreement and (b) which the Board
determines in good faith is reasonably likely to be consummated on the terms set
forth in the proposal taking into account all legal, financial, regulatory and
other aspects of the proposal, including, without limitation, the nature and
sufficiency of financing for the proposal and the person making the proposal.
The Company shall advise Parent of any material developments with respect to any
such proposal as to which the Company is exercising its rights.
The Merger Agreement also provides that, with certain exceptions, neither
the Board of Directors of the Company nor any committee thereof shall (i)
withdraw or modify, or propose to withdraw or modify, in a manner adverse to
Parent, the approval or recommendation by the Board of Directors of the Offer
and the "agreement of merger" (as such term is used in Section 251 of the
Delaware Law) contained in the Merger Agreement, (ii) approve or recommend, or
propose to approve or recommend, any Acquisition Proposal, or (iii) cause the
Company or any of its subsidiaries to enter into any letter of intent, agreement
in principle, acquisition agreement, merger agreement or other similar agreement
with respect to any Acquisition Proposal. Notwithstanding the foregoing, in the
event that the Board of Directors of the Company determines in good faith, after
consultation with outside counsel, that it is legally advisable to do so in
order to act in a manner consistent with its fiduciary duties under applicable
law, the Board of Directors may withdraw or modify its approval or
recommendation of the Offer and the "agreement of merger" contained in the
Merger Agreement, the Merger and the Merger Agreement (or not recommend it
before a proxy statement relating to the Merger is sent to stockholders) or
approve or recommend a Superior Proposal, but in each case only at a time that
is after the third business day following Parent's receipt of a written notice
advising Parent that the Board of Directors of the Company has received a
proposal which is a Superior Proposal, specifying the material terms and
conditions of such proposal and identifying the person making such proposal.
HSR Filing. The Merger Agreement provides that Parent and the Company
shall each prepare and file with the Federal Trade Commission and the United
States Department of Justice any notification required to be filed with respect
to the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), or any rules or regulations promulgated thereunder.
Each of Parent and the Company shall cause any such filing it makes to be true
and accurate in all material respects and responsive to the requirements of the
HSR Act and any such rules and regulations. Each of Parent and the Company
agrees to make available to the other such information relative to its business,
assets and property as may be required for the preparation for such
notifications.
1935 Act Compliance. As promptly as practicable after the execution of the
Merger Agreement, Parent shall prepare and file with the Commission an
Application on Form U-1 seeking authorization under the 1935 Act for the
acquisition by Offeror of the Shares, the Merger and the transactions
contemplated thereby.
Reasonable Best Efforts. Subject to the terms and conditions provided in
the Merger Agreement, each of the parties has agreed to use its reasonable best
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
the Merger Agreement, including using its reasonable best efforts to satisfy the
conditions precedent to the obligations of any of the parties hereto, to obtain
all necessary waivers, consents and approvals, to effect all necessary
registrations and filings and to lift any injunction or other legal bar to the
transactions contemplated thereby (and, in such case, to proceed with the
transactions contemplated thereby as expeditiously as possible).
Other Agreements. The Merger Agreement also contains agreements on (i) the
provision by the Company to Parent of notices of material developments and other
information; (ii) publicity; and (iii) the nonsolicitation for employment of
persons employed by a party to the Merger Agreement.
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<PAGE> 24
Fees and Expenses. Except as otherwise provided in the Merger Agreement,
the parties agree that whether or not the Merger is consummated, Parent will pay
and bear all of the expenses incurred by it and the Company will bear all of the
expenses incurred by the Company in connection with the Merger and the Merger
Agreement.
The parties also agree that (i) if the Company terminates the Merger
Agreement pursuant to clause (g) of the "Termination" section of this Section
12; (ii) if Parent terminates the Merger Agreement pursuant to clause (d) of the
"Termination" section of this Section 12 due to the failure to satisfy the
condition set forth in clause (g) of Section 14; (iii) if (a) the Company or
Parent terminates the Merger Agreement pursuant to clause (d) of the
"Termination" section of this Section 12 due to the failure to satisfy the
Minimum Condition, (b) at any time after the date of the Merger Agreement and at
or before the time of the event giving rise to such termination there shall
exist an Acquisition Proposal, and (c) within 12 months of the termination of
the Merger Agreement, the Company enters into a definitive agreement with any
third party with respect to an Acquisition Proposal or an Acquisition Proposal
is consummated; or (iv) if Parent terminates the Merger Agreement pursuant to
clause (f) of the "Termination" section of this Section 12, then the Company
shall, concurrently with such termination in the case of a termination as set
forth in clause (i), (ii) and (iv) and concurrently with the occurrence of an
event set forth in clause (iii)(c), pay to Parent $7 million. The payment
described above will be Parent's exclusive remedy in the event of the
termination of the Merger Agreement under circumstances where such payment is or
becomes payable.
The liability of any party to the Merger Agreement for any breach or
violation of the Merger Agreement will not be limited except as described in
this "Fees and Expenses" section.
Conditions to the Merger. The Merger Agreement provides that the
obligations of Parent and Offeror to consummate the Merger shall be subject to
the fulfillment (or waiver by Parent and Offeror) at or prior to the Effective
Time of each of the following conditions: (a) all necessary consents or
approvals of any governmental body or agency or third parties necessary for the
consummation by the Company and Parent of the transactions contemplated thereby
including, without limitation, authorization under the 1935 Act (the "1935 Act
Order") shall have been obtained and shall be in full force and effect, (b) the
waiting period imposed by the HSR Act with respect to the transactions
contemplated by the Merger Agreement shall have expired or been terminated, (c)
no court or governmental regulatory authority of competent jurisdiction shall
have enacted, issued, promulgated, enforced or entered any statute, rule,
regulation, judgment, decree, injunction or other order (whether temporary,
preliminary or permanent) or taken any action which prohibits the consummation
of the transactions contemplated by the Merger Agreement, and each party agrees
to use all reasonable efforts to remove any such prohibition on the consummation
of the transactions contemplated thereby, (d) the stockholders of the Company
shall have taken all corporate action (if required under applicable law)
necessary to effect the Merger, and the Company shall have furnished Parent with
certified copies of resolutions duly adopted by its directors and stockholders
in connection with the Merger, and (e) Offeror shall have accepted for payment
and paid for Shares tendered pursuant to the Offer.
The obligations of the Company to consummate the Merger shall be subject to
the fulfillment (or waiver by the Company) at or prior to the Effective Time of
each of the following conditions: (a) all necessary consents or approvals of any
governmental body or agency or third parties necessary for the consummation by
Parent and Offeror of the transactions contemplated thereby including, without
limitation, the 1935 Act Order, shall have been obtained and shall be in full
force and effect, (b) the waiting period imposed by the HSR Act with respect to
the transactions contemplated by the Merger Agreement shall have expired or been
terminated, (c) no court or governmental regulatory authority of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, judgment, decree, injunction or other order (whether
temporary, preliminary or permanent) or taken any action which prohibits the
consummation of the transactions contemplated by the Merger Agreement, and each
party agrees to use all reasonable efforts to remove any such prohibition on the
consummation of the transactions contemplated thereby, (d) the stockholders of
the Company shall have taken all corporate action (if required under applicable
law) necessary to effect the Merger, and Parent and Offeror shall have furnished
the Company with certified copies of resolutions duly adopted by their directors
and Offeror's stockholder in connection with the Merger, and (e) Offeror shall
have accepted for payment and paid for Shares tendered pursuant to the Offer;
however, this
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<PAGE> 25
condition shall be deemed satisfied if Offeror fails to accept for payment and
pay for Shares pursuant to the Offer in violation of the terms of the Offer.
Termination. Notwithstanding anything to the contrary therein, the Merger
Agreement may be terminated and the Merger may be abandoned, whether before or
after approval of the stockholders of the Company and Parent:
(a) by the mutual written consent of all of the parties thereto at any
time prior to the Effective Time;
(b) by Parent and Offeror (i) if due to an occurrence that would
result in a failure to satisfy any of the conditions to the Offer described
in Section 14, Offeror shall have (A) failed to commence the Offer within
five business days following the date of the Merger Agreement, or (B)
terminated the Offer; or (ii) if the Company deliberately fails to perform
in any material respect any of its obligations under the Merger Agreement,
and, at the time of such failure, Parent's and Offeror's designees on the
Board of Directors of the Company do not constitute a majority of the
members of the Board of Directors of the Company;
(c) by the Company if Offeror shall have (A) failed to commence the
Offer within five business days following the date of the Merger Agreement,
(B) terminated the Offer, or (C) failed to pay (by deposit with the
Depositary) for Shares pursuant to the Offer within five business days
following the expiration of the Offer;
(d) by any party giving written notice to the other parties at any
time after the expiration or termination of the Offer without Parent or
Offeror purchasing any Shares pursuant thereto, provided that a party may
not terminate pursuant to this clause (d) if it is in material breach of
the terms of the Merger Agreement;
(e) by any party thereto if the purchase of Shares pursuant to the
Offer shall not have taken place by June 30, 2000, provided that a party
may not terminate pursuant to this clause (e) if it is in material breach
of the terms of the Merger Agreement;
(f) by Parent if the Board of Directors of the Company, prior to the
purchase of Shares pursuant to the Offer (i) shall withdraw or modify in
any adverse manner its approval or recommendation of the Merger Agreement
pursuant to the provisions of the Merger Agreement relating to third party
acquisition proposals; (ii) shall approve or recommend any Acquisition
Proposal or Superior Proposal; or (iii) shall resolve to take any of the
actions specified in clauses (i) or (ii) above; or
(g) by the Company at any time prior to the purchase of Shares
pursuant to the Offer, upon three business days' prior notice to Parent, if
the Board of Directors of the Company shall approve a Superior Proposal;
provided, however, that (i) the Company shall have complied with the
provisions of the Merger Agreement relating to third party acquisition
proposals, (ii) the Board of Directors of the Company shall have concluded
in good faith, after giving effect to all concessions which may be offered
by Parent pursuant to clause (iii) below, after consultation with its
financial advisors and outside counsel, that such proposal continues to be
a Superior Proposal, and (iii) prior to any such termination, the Company
shall, and shall cause its financial and legal advisors to, negotiate with
Parent to make such adjustments in the terms and conditions of the Merger
Agreement as would enable Parent to proceed with the transactions
contemplated thereby; provided, however, that it shall be a condition to
termination by the Company pursuant to this clause (g) that the Company
shall have made the payment to Parent referred to in "Fees and Expenses"
above.
Indemnification; Directors' and Officers' Insurance. The Merger Agreement
provides that Parent shall indemnify and provide advancement of expenses to all
present and former directors and officers of the Company and its subsidiaries
for acts or omissions occurring prior to the Effective Time to the fullest
extent now provided or made available to them by the Company and its
subsidiaries under applicable law, under their respective certificates or
articles of incorporation or bylaws and under existing indemnification
agreements (which Parent agrees shall continue in full force and effect after
the Effective Time).
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<PAGE> 26
For a period of six years after the Effective Time, Parent shall, or shall
cause the Surviving Corporation to, maintain in effect, if available, directors'
and officers' liability insurance covering those persons who are covered as of
the date of the Merger Agreement by the Company's directors' and officers'
liability insurance policy to the extent that it provides coverage for events
occurring on or prior to the Effective Time, on terms that are no less favorable
to such persons than the terms now applicable to them under the Company's
current policies; provided, however, that in no event shall Parent or the
Surviving Corporation be required to expend more than 200% of the annual premium
currently paid by the Company for such coverage; and provided, further, that if
the premium for such coverage exceeds such amount, Parent or the Surviving
Corporation shall purchase a policy with the greatest coverage available for
such annual premium.
Certain Employee Matters. The Merger Agreement provides that each benefit
plan of the Company described in the Disclosure Schedule (a "Plan") with respect
to which any current or former employee of the Company or any of its
subsidiaries (each, an "Employee") participates immediately prior to the
Effective Time shall become obligations of the Surviving Corporation at the
Effective Time and, for at least one year thereafter, Parent shall, or shall
cause the Surviving Corporation to, either maintain the Plans or provide
benefits that are comparable, in the aggregate, to the benefits provided to the
Employees, considered as a group, under such Plans as in effect immediately
prior to the Effective Time.
With respect to any employee benefit plans covering employees of Parent and
its subsidiaries ("Parent Plans"), Parent shall, or shall cause the Surviving
Corporation to: (i) with respect to any medical or health plan, waive any
pre-existing condition or exclusion in any Parent Plans in which any Employee
may be entitled to participate that would result in a lack of coverage for any
condition for which an Employee would have been entitled to coverage under the
corresponding Plan; (ii) provide each Employee with credit for any co-payments
and deductibles paid prior to the Effective Time (to the same extent such credit
was given under the analogous Plan prior to the Effective Time) in satisfying
any applicable deductible or out-of-pocket requirements under any Parent Plans
in which such employees may be eligible to participate after the Effective Time;
and (iii) recognize all service of the Employees with the Company or any of its
subsidiaries for purposes of eligibility to participate and vesting credit in
any Parent Plan in which the Employees may be eligible to participate after the
Effective Time; provided that the foregoing shall not apply to the extent it
would result in duplication of benefits. In addition, Parent represents that
there are no waiting periods under any of its current medical or health plans.
Amendment. The parties to the Merger Agreement may amend, modify and
supplement the Merger Agreement in such manner as may be agreed upon by them in
writing, whether before or after approval of the stockholders of the Company,
except that after such approval is obtained, any amendment, modification or
supplement which requires stockholder approval under applicable law shall not be
made without such required approval.
Timing. The exact timing and details of the Merger will depend upon legal
requirements and a variety of other factors, including the number of Shares
acquired by Offeror pursuant to the Offer. Although Parent has agreed to cause
the Merger to be consummated on the terms contained in the Merger Agreement,
there can be no assurance as to the timing of the Merger.
Letter Agreement with Charles M. Brennan III and Byron D. Nelson
In connection with the execution and delivery of the Merger Agreement,
Parent and Offeror entered into a Letter Agreement with Charles M. Brennan III
and Byron D. Nelson (collectively, the "Executives"), dated as of December 21,
1999 (the "Letter Agreement"). The following is a summary of the material terms
of the Letter Agreement. This summary is not a complete description of the terms
and conditions of the Letter Agreement and is qualified in its entirety by
reference to the full text of the Letter Agreement, which is incorporated herein
by reference and a copy of which has been filed with the Commission, as an
exhibit to the Schedule 14D-1.
The Letter Agreement provides that the Executives, in order to avoid
substantial adverse income tax consequences if they were to sell prior to March
23, 2000, 319,446 Shares in the case of Mr. Brennan, and
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<PAGE> 27
27,779 Shares in the case of Mr. Nelson (collectively, the "Withheld Shares"),
will not tender any of their Withheld Shares in response to the Offer if the
Offer is consummated by its terms prior to March 23, 2000.
In the Letter Agreement, the Executives, severally and not jointly, have
agreed that (a) if the Offer is consummated prior to March 23, 2000, (i) they
will tender to Offeror, and not withdraw, all of their Shares, other than the
Withheld Shares, pursuant to the Offer and (ii) promptly after March 22, 2000,
they will, upon Offeror's written request, sell to Offeror all of the Withheld
Shares for a price equal to the Offer Price and (b) if the Offer is consummated
on or after March 23, 2000, they will tender to Offeror, and not withdraw, all
of their Shares, including the Withheld Shares, pursuant to the Offer. The
Letter Agreement also provides that neither of the Executives may transfer his
Shares except as set forth in the Letter Agreement.
13. DIVIDENDS AND DISTRIBUTIONS.
Pursuant to the terms of the Merger Agreement, prior to the Effective Time,
each of the Company and its subsidiaries shall not, other than in the normal
course of business and in conformity with past practices, or as contemplated by
the Merger Agreement or the Disclosure Schedule, without the consent of Parent
(which consent shall not be unreasonably withheld), (i) declare any dividends in
cash on the issued and outstanding shares of its common stock, or make any other
distribution of any kind in respect thereof, other than regular quarterly
dividends consistent with past practices; (ii) purchase or redeem any of its
capital stock (or permit any of its subsidiaries to purchase any of its capital
stock); or (iii) issue, sell or otherwise distribute any authorized but unissued
shares of its capital stock (with certain exceptions) or effect any stock split,
stock dividend or combination or reclassification of any such shares or grant or
commit to grant or amend or modify any option, warrant or other right to
subscribe for or purchase or otherwise acquire any shares of its capital stock
or any security convertible into or exchangeable for any such shares (with
certain exceptions).
14. CERTAIN CONDITIONS TO THE OFFER.
Notwithstanding any other provisions of the Offer, and in addition to (and
not in limitation of) Offeror's right to amend the Offer at any time in its sole
discretion, but nevertheless subject to the provisions of the Merger Agreement,
Offeror shall not be required to accept for payment, or pay for, and may delay
the acceptance for payment, or the payment, of, any tendered Shares, if (i) the
Minimum Condition shall not have been satisfied, (ii) all waiting periods under
the HSR Act applicable to the purchase of Shares pursuant to the Offer shall not
have expired or been terminated, (iii) the 1935 Act Condition shall not have
been satisfied, or (iv) at any time on or after the date of the Merger Agreement
and at or before the time of payment for any such Shares (whether or not any
Shares have theretofore been accepted for payment or paid for pursuant to the
Offer), any of the following events shall occur:
(a) any change or development that either individually or in the
aggregate with all other such changes or developments are materially
adverse to the business, assets, properties, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries
taken as a whole shall have occurred or be threatened (a "Material Adverse
Effect"); or
(b) there shall have occurred (1) any general suspension of trading
in, or limitation on prices for, securities on the New York Stock Exchange
or the American Stock Exchange (excluding any coordinated trading halt
triggered solely as a result of a specified decrease in a market index),
(2) a declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States (whether or not mandatory), (3) any
material limitation (whether or not mandatory) imposed by any governmental
authority on the extension of credit by banks or other lending institutions
in the United States that materially and adversely affects the ability of
Parent and Offeror to obtain extensions of credit, or (4) from the date of
the Merger Agreement through the date of termination or expiration of the
Offer, a decline of at least 33% in either the Dow Jones Average of
Industrial Stocks or the Standard & Poor's 500 Index; or
(c) any of the representations and warranties made by the Company in
the Merger Agreement that are qualified by materiality or Material Adverse
Effect shall not be true and correct in all respects, or any other
representation or warranty made by the Company in the Merger Agreement
shall not be true and
25
<PAGE> 28
correct in any material respect, or the Company shall have breached any
covenant contained in the Merger Agreement or the Merger Agreement shall
have been terminated in accordance with its terms; or
(d) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction promulgated, enacted, entered or
enforced, by any state, federal or foreign government or governmental
authority or by any court, domestic or foreign (a "Governmental Entity"),
that could reasonably be expected to, or any Governmental Entity shall have
instituted or threatened litigation that seeks to, (i) make the acceptance
for payment of, or the payment for, some or all of the Shares or
consummation of the Merger illegal or otherwise prohibited or impose any
damages or fines in connection therewith that are material in amount in
relation to the transactions contemplated by the Merger Agreement, (ii)
impose material limitations on the ability of Parent or Offeror to acquire
or hold or to exercise effectively all rights of ownership of Common Stock,
including, without limitation, the right to vote any Shares purchased by
either of them on all matters properly presented to the stockholders of the
Company, (iii) require Parent or the Company or any of their respective
affiliates or subsidiaries to dispose or hold separate any material portion
of their assets or business of any of them, or (iv) prohibit or impose any
material limitation of Parent's or Offeror's ownership or operation of all
or a material portion of the assets or business of the Company or any of
its subsidiaries or affiliates; or
(e) the Company, Parent or Offeror shall have failed to receive any or
all governmental consents and approvals to consummation of the Offer,
which, if not received, could reasonably be expected to have a Material
Adverse Effect; or
(f) the Board of Directors of the Company shall have publicly
(including by amendment of its Schedule 14D-9) withdrawn or amended in any
respect its recommendation of the Offer or shall have resolved to do so,
unless such withdrawal or amendment results from a material breach by
Parent or Offeror of any representations or warranties in the Merger
Agreement or a failure by Parent or Offeror to fulfill any material
covenant therein; or
(g) any corporation, entity, "group" or "person" (as defined in the
Exchange Act), other than Parent or any of its affiliates, shall have
acquired beneficial ownership of a majority of the outstanding Shares.
The foregoing conditions are for the sole benefit of Parent and Offeror and
may be asserted by Parent or Offeror regardless of the circumstance giving rise
to such condition and, subject to the terms of the Merger Agreement, may be
waived by Parent and Offeror, in whole or in part, at any time and from time to
time, in their sole discretion (except that the Minimum Condition may not be
waived by Parent without the consent of the Company). The failure by Parent and
Offeror at any time to exercise any of the foregoing rights will not be deemed a
waiver of any such right, and each right will be deemed an ongoing right which
may be asserted at any time. Any determination by Parent and Offeror shall be
final and binding upon all parties, including tendering stockholders.
The Offer will be further subject to all of the applicable terms and
conditions of Rule 51 under the 1935 Act.
Should the Offer be terminated pursuant to the foregoing provisions, all
tendered Shares not theretofore accepted for payment shall forthwith be returned
by the Depositary to the tendering stockholders.
15. CERTAIN REGULATORY AND LEGAL MATTERS.
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company, as well as certain representations
made to Parent and Offeror in the Merger Agreement by the Company, neither
Parent nor Offeror is aware of any license or regulatory permit that appears to
be material to the business of the Company and its subsidiaries, taken as a
whole, that might be adversely affected by Offeror's acquisition of Shares as
contemplated herein or of any approval or other action by any governmental
entity that would be required for the acquisition or ownership of Shares by
Offeror as contemplated herein. Should any such approval or other action be
required, Parent and Offeror currently contemplate that such approval or other
26
<PAGE> 29
action will be sought, except as described below under "State Takeover Laws".
While, except as otherwise expressly described in this Section 15, Offeror does
not presently intend to delay the acceptance for payment of, or payment for,
Shares tendered pursuant to the Offer, pending the outcome of any such matter,
there can be no assurance that any such approval or other action, if needed,
would be obtained or would be obtained without substantial conditions or that
failure to obtain any such approval or other action might not result in
consequences adverse to the Company's business, or that certain parts of the
Company's business might not have to be disposed of if such approvals were not
obtained or such other actions were not taken or in order to obtain any such
approval or other action. If certain types of adverse action are taken with
respect to the matters discussed below (or if any governmental approval is not
obtained), Offeror could decline to accept for payment or pay for any Shares
tendered. See Section 14 for certain conditions to the Offer.
State Takeover Laws. 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 such states. In
Edgar v. MITE Corp., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS Corp.
v. Dynamics Corp. of America, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining stockholders, provided that such laws were applicable
only under certain conditions.
Neither Parent nor Offeror has currently complied with any state takeover
statute or regulation. Offeror reserves the right to challenge the applicability
or validity of any state law purportedly applicable to the Offer or the Merger
and nothing in this Offer to Purchase or any action taken in connection with the
Offer or the Merger is intended as a waiver of such right. If it is asserted
that any state takeover statute is applicable to the Offer or the Merger and an
appropriate court does not determine that it is inapplicable or invalid as
applied to the Offer or the Merger, Offeror might be required to file certain
information with, or to receive approvals from, the relevant state authorities,
and Offeror might be unable to accept for payment or pay for Shares tendered
pursuant to the Offer or might be delayed in consummating the Offer or the
Merger. In such case, Offeror may not be obliged to accept for payment or pay
for any Shares tendered pursuant to the Offer.
The Company is incorporated under the laws of Delaware. Section 203 of the
Delaware Law prevents an "Interested Stockholder" (defined generally as a person
owning 15% or more of the corporation's outstanding voting stock) from engaging
in a "Business Combination" (defined to include a variety of transactions,
including mergers) with a Delaware corporation for three years following the
date such person becomes an Interested Stockholder, unless (i) before such
person became an Interested Stockholder, the board of directors of the
corporation approved the transaction in which the Interested Stockholder became
an Interested Stockholder or approved the Business Combination, or (ii) upon
consummation of the transaction which resulted in the Interested Stockholder
becoming an Interested Stockholder, the Interested Stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced (excluding stock held by directors who are also officers
of the corporation and by certain employee stock ownership plans), or (iii)
following the transaction in which such person became an Interested Stockholder,
the Business Combination is approved by the board of directors of the
corporation and authorized at a meeting of stockholders by the affirmative vote
of the holders of at least two-thirds of the outstanding voting stock of the
corporation not owned by the Interested Stockholder. The Board of Directors has
unanimously approved the Merger Agreement and the transactions contemplated
thereby, including the Offer and the Merger, for purposes of Section 203 of the
Delaware Law, and the restrictions of such Section 203 are, accordingly, not
applicable to Parent, Offeror or their affiliates or associates as a result of
the consummation of the transactions contemplated by this Offer to Purchase.
Company's Certificate of Incorporation. Article Tenth of the Company's
certificate of incorporation ("Article Tenth") provides that the affirmative
vote of the holders of at least 80% of all the securities of the Company
entitled to vote will be necessary for the authorization of certain business
combinations with any person who, as of the record date for the determination of
holders entitled to vote, is the beneficial owner,
27
<PAGE> 30
directly or indirectly, of more than 10% of the outstanding securities of the
Company then entitled to vote. However, this provision is not applicable to,
among other things, any business combination on terms substantially consistent
with those set forth in a memorandum of understanding with such person approved
by the Board of Directors of the Company prior to the time such person shall
have become a holder of more than 10% of the outstanding securities of the
Company then entitled to vote. The Merger Agreement constitutes a memorandum of
understanding under Article Tenth and, therefore, the provisions of Article
Tenth are inapplicable to the Offer, the Merger and the Merger Agreement and the
transactions contemplated thereby.
Article Eleventh of the Company's certificate of incorporation ("Article
Eleventh") provides that the affirmative vote of the holders of at least 95% of
all of the securities of the Company then entitled to vote will be necessary for
the adoption or authorization of any business combination with any person who,
as of the record date for the determination of holders entitled to vote, is the
beneficial owner, directly or indirectly, of more than 30% of the outstanding
securities of the Company then entitled to vote. However, this provision is not
applicable to, among other things, any business combination on terms
substantially consistent with those set forth in a memorandum of understanding
with a person approved by the Board of Directors of the Company prior to the
time such person shall have become a holder of more than 10% of the outstanding
securities of the Company entitled to vote. The Merger Agreement constitutes a
memorandum of understanding under Article Eleventh and, therefore, the
provisions of Article Eleventh are inapplicable to the Offer, the Merger and the
Merger Agreement and the transactions contemplated thereby.
Appraisal Rights. Stockholders do not have dissenters' rights as a result
of the Offer. However, if the Merger is consummated, stockholders of the Company
at the time of the Merger who do not vote in favor of or consent in writing to
the Merger will have the right under the Delaware Law to dissent and demand
appraisal of their Shares in accordance with Section 262 of the Delaware Law.
Under said Section 262, dissenting stockholders who comply with the statutory
procedures will be entitled to receive a judicial determination of the fair
value of their Shares (exclusive of any element of value arising from the
accomplishment or expectation of the Merger) and to receive payment of such fair
value in cash, together with a fair rate of interest, if any. Any such judicial
determination of the fair value of the Shares could be based upon considerations
other than or in addition to the price paid in the Offer (or the Merger) and the
market value of the Shares. Stockholders should recognize that the value so
determined could be higher or lower than the price per Share paid pursuant to
the Offer or the Merger. Moreover, Parent or Offeror may argue in an appraisal
proceeding that, for purposes of such a proceeding, the fair value of the Shares
is less than the price paid in the Offer (or the Merger).
If any holders of Shares who demand appraisal under Section 262 of the
Delaware Law fail to perfect, or effectively withdraw or lose their right to
appraisal, as provided in the Delaware Law, the Shares of such holders will be
converted into the Merger Consideration in accordance with the Merger Agreement.
Stockholders may withdraw their demand for appraisal by delivery to Parent of a
written withdrawal of demand for appraisal and acceptance of the Merger.
Failure to follow the steps required by Section 262 of the Delaware Law for
perfecting appraisal rights may result in the loss of such rights.
Rule 13e-3: The Commission has adopted Rule 13e-3 under the Exchange Act
("Rule 13e-3"), which is applicable to certain "going private" transactions.
Rule 13e-3 requires, among other things, that certain financial information
concerning the subject company and certain information relating to the fairness
of the proposed transaction and the consideration offered to minority
stockholders in such transaction be filed with the Commission and disclosed to
stockholders prior to consummation of the transaction.
Parent believes that Rule 13e-3 will not be applicable to the Merger
because of the exemption afforded by Rule 13e-3(g)(1), among other reasons.
However, under certain circumstances, Rule 13e-3 could be applicable to the
Merger or other business combination in which Parent seeks to acquire the
remaining Shares it does not beneficially own following the purchase of Shares
pursuant to the Offer. For example, if the Merger as consummated is not
substantially similar to the Merger as described in this Offer to Purchase and
the Merger Agreement, Rule 13e-3 could apply. However, the terms and conditions
of the Merger are governed by the Merger Agreement, and any amendment to the
Merger Agreement must be approved by each party thereto. If Parent has exercised
its right to appoint directors to the Board of Directors following its purchase
of
28
<PAGE> 31
Shares pursuant to the Offer, any such amendment must be approved on behalf of
the Company by the directors of the Company who are not designees or affiliates
of Parent or Offeror.
There can be no assurance that the Merger will take place, even though each
party has agreed in the Merger Agreement to use its reasonable best efforts to
cause the Merger to occur, because the Merger is subject to certain conditions,
some of which are beyond the control of either Parent or the Company. Since
Parent's ultimate objective is to acquire ownership of all the Shares, if the
Merger does not take place, Parent would consider the acquisition, whether
directly or through an affiliate, of Shares through private or open market
purchases, or subsequent tender offers or a different type of merger or other
combination of the Company with Offeror or an affiliate or subsidiary thereof,
or by any other permissible means deemed advisable by it. Except as described in
the section captioned "The Merger Agreement", any of these possible transactions
might be on terms the same as, or more or less favorable than, those of the
Offer or the Merger.
Antitrust. Under the HSR Act and the rules that have been promulgated
thereunder by the Federal Trade Commission ("FTC"), certain acquisition
transactions may not be consummated unless certain information has been
furnished to the Antitrust Division of the Department of Justice (the "Antitrust
Division") and the FTC and certain waiting period requirements have been
satisfied. The acquisition of Shares pursuant to the Offer is subject to these
requirements.
A Notification and Report Form with respect to the Offer is expected to be
filed under the HSR Act as soon as practicable following commencement of the
Offer by each of the Company and Parent. Under the provisions of the HSR Act
applicable to the Offer, the purchase of Shares pursuant to the Offer may not be
consummated until the expiration of a 15-calendar-day waiting period following
the filing by Parent, unless the Antitrust Division and the FTC terminate the
waiting period prior thereto. In addition, the Antitrust Division or the FTC may
extend such waiting period by requesting additional information or documentary
material from Parent. If such a request is made with respect to the Offer, the
waiting period related to the Offer will expire at 11:59 p.m., Washington, D.C.
time, on the tenth day after substantial compliance by Parent with such request.
With respect to each acquisition, the Antitrust Division or the FTC may issue
only one request for additional information. In practice, complying with a
request for additional information or material can take a significant amount of
time. Expiration or termination of applicable waiting periods under the HSR Act
is a condition to Offeror's obligation to accept for payment and pay for Shares
tendered pursuant to the Offer.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as Offeror's proposed acquisition of the
Company. At any time before or after Offeror's purchase of Shares pursuant to
the Offer, the Antitrust Division or the FTC could take such action under the
antitrust laws as it deems necessary or desirable in the public interest,
including seeking to enjoin the purchase of Shares pursuant to the Offer or the
consummation of the Merger or seeking the divestiture of Shares acquired by
Offeror or the divestiture of substantial assets of Parent or its subsidiaries,
or the Company or its subsidiaries. Private parties may also bring legal action
under the antitrust laws under certain circumstances. There can be no assurance
that a challenge to the Offer on antitrust grounds will not be made or, if such
a challenge is made, of the results thereof.
Public Utility Holding Company Act of 1935. The Commission must approve
the acquisition of the Shares pursuant to the Offer and the consummation of the
Merger under the 1935 Act. Parent and Offeror expect to file an application for
approval with the Commission as soon as practicable following commencement of
the Offer.
The 1935 Act directs the Commission to approve any proposed acquisition
unless it finds that (1) the proposed acquisition would tend to create
detrimental interlocking relations or detrimental concentration of control, (2)
the consideration to be paid in connection with the acquisition is not
reasonable, or (3) the proposed acquisition would unduly complicate the capital
structure of the holding company system after the acquisition or would be
detrimental to the proper functioning of that holding company system. The
Commission must also find that the proposed acquisition complies with applicable
state law, tends toward the development of an integrated public utility system
and otherwise conforms to the 1935 Act's integration and corporate
simplification standards. Under these statutory standards, the Commission has in
the past permitted registered holding companies to acquire interests in other
businesses which are reasonably incidental and
29
<PAGE> 32
functionally related to the holding company's public utility business. There can
be no assurance that the Commission will approve the acquisition of Shares
pursuant to the Offer and the Merger.
16. FEES AND EXPENSES.
Parent has retained Georgeson & Co. to act as the Information Agent and
ChaseMellon Shareholder Services, L.L.C. to serve as the Depositary in
connection with the Offer. The Information Agent and the Depositary each will
receive reasonable and customary compensation for their services, be reimbursed
for certain reasonable out-of-pocket expenses and be indemnified against certain
liabilities and expenses in connection therewith, including certain liabilities
under the federal securities laws.
Except as described herein, neither Parent nor Offeror will pay any fees or
commissions to any broker or dealer or other person in connection with the
solicitation of tenders of Shares pursuant to the Offer. Brokers, dealers, banks
and trust companies will be reimbursed by Offeror upon request for customary
mailing and handling expenses incurred by them in forwarding material to their
customers.
17. MISCELLANEOUS.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Neither Parent nor Offeror is aware of any jurisdiction in which
the making of the Offer or the tender of Shares in connection therewith would
not be in compliance with the laws of such jurisdiction. If Parent or Offeror
becomes aware of any state statute prohibiting the making of the Offer or the
acceptance of Shares pursuant thereto in such state, Offeror will make a good
faith effort to comply with any such state statute or seek to have such state
statute declared inapplicable to the Offer. If, after such good faith effort,
Offeror cannot comply with such state statute, the Offer will not be made to
(nor will tenders be accepted from or on behalf of) the holders of Shares in
such jurisdiction. In any jurisdiction, the securities, blue sky or other laws
of which require the Offer to be made by a licensed broker or dealer, the Offer
will be made on behalf of Offeror by one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
No person has been authorized to give any information or to make any
representation on behalf of Parent or Offeror not contained herein or in the
Letter of Transmittal and, if given or made, such information or representation
must not be relied upon as having been authorized. Neither the delivery of this
Offer to Purchase nor any purchase pursuant to the Offer shall, under any
circumstances, create any implication that there has been no change in the
affairs of Parent or the Company since the date as of which information is
furnished or the date of this Offer to Purchase.
Parent and Offeror have filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional
information with respect to the Offer. In addition, the Company has filed with
the Commission the Schedule 14D-9 pursuant to Rule 14d-9 under the Exchange Act,
setting forth its recommendation with respect to the Offer and the reasons for
such recommendation and furnishing certain additional related information. Such
schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the manner set forth in
Sections 8 and 9.
GPX ACQUISITION CORP.
December 29, 1999
30
<PAGE> 33
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS
OF PARENT AND OFFEROR
The names and ages of the directors and executive officers of Parent and of
Offeror, and their present principal occupations or employment and five-year
employment history, are set forth below. Unless otherwise indicated, each
individual is a citizen of the United States, has a business address at 300
Madison Avenue, Morristown, New Jersey 07962 and has been employed by Parent for
the last five years.
PARENT
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE GPU, INC.; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ -------------------------------------------------------------
<S> <C>
Theodore H. Black (71)............................. Director of Parent since 1988. Chairman, President and Chief
Executive Officer of Ingersoll-Rand Company from 1988 until
his retirement in 1993 and as a director until 1997. Director
of Best Foods and McDermott International.
Thomas B. Hagen (64)............................... Director of Parent since 1988. Chairman of the Board of
Custom Engineering Co., a custom manufacturer of large metal
fabrications and heated platens. Chairman of the Board of the
Team Pennsylvania Foundation. Secretary of Commerce and then
Secretary of Community & Economic Development of the
Commonwealth of Pennsylvania from January 1995 to March 1997.
First elected as a director of Parent in 1988, resigned upon
his appointment as Secretary of Commerce in 1995 and returned
to the Board in April 1997. Director of ANI-Motion, Inc., St.
Raymond Wood Products Holdings, Ltd., Bliley Electric Company
and the Pennsylvania Housing Finance Agency. Member and past
chairman of the Council of Fellows of Penn State -- Erie, the
Behrend College, the immediate past President and a councilor
of The Pennsylvania Society, a director of the Athenaeum of
Philadelphia and Preservation Pennsylvania, and a trustee of
the Northwest Pennsylvania Technical Institute.
Kenneth L. Wolfe (60).............................. Director of Parent since 1999. Chairman and Chief Executive
Officer of Hershey Foods Corporation since 1994. Director of
Hershey Trust Company and member of the Board of Managers of
the Milton S. Hershey School and the M.S. Hershey Foundation.
Director of Bausch & Lomb Incorporated and Carpenter
Technology Corporation. Board member of the Pennsylvania
Chamber of Business and Industry, member of Penn State's
Hershey Medical Center Board of Visitors and vice chairman
for the Grocery Manufacturers of America, Inc. and the
Pennsylvania Business Roundtable.
</TABLE>
I-1
<PAGE> 34
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE GPU, INC.; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ -------------------------------------------------------------
<S> <C>
Bryan S. Townsend (69)............................. Director of Parent since 1996. Retired as Chairman of
Midlands Electricity plc ("Midlands"), a British regional
electric company, in August 1996 following its acquisition by
Avon Energy Partners Holdings ("Avon"), a wholly owned
subsidiary of Parent. Served as Chairman of Midlands since
1986, becoming Chairman and Chief Executive upon Midlands'
privatization in 1990. Past director of JBA International
Ltd. (a supplier of computer software business systems), a
past chairman of the British National Committee and a member
of the Scientific Directing and Organizing Committee of CIRED
(International Conference on Electricity Distribution). Past
chairman of the Birmingham Repertory Theatre and the West
Midlands Confederation of British Industry. Mr. Townsend is a
citizen of the United Kingdom.
Fred D. Hafer (58)................................. Chairman, Chief Executive Officer, President and a Director
of Parent and GPU Service, Inc. ("GPUS"). Became President,
Chief Operating Officer and a Director of Parent and GPUS in
July 1996 and was elected to the additional positions of
Chairman and Chief Executive Officer in May 1997. Chairman
and a Director of Offeror. Also Chairman, Chief Executive
Officer and a Director of Jersey Central Power & Light
Company ("JCP&L"), Metropolitan Edison Company ("Met-Ed") and
Pennsylvania Electric Company ("Penelec"); Chairman and a
Director of GPU Nuclear, Inc. ("GPUN"); Chairman, Chief
Executive Officer and a Director of GPU Advanced Resources,
Inc. ("GPU AR"); Chairman and a Director of GPU Capital, Inc.
("GPU Capital"); and a Director of GPU Telcom Services, Inc.
("GPU Telcom"), GPU Electric, Inc. ("GPU Electric"), GPU
International, Inc. ("GPUI"), GPU Power, Inc. ("GPU Power"),
Saxton Nuclear Experimental Corporation ("Saxton"), Avon,
Midlands and GPU PowerNet PTY Ltd. ("GPU PowerNet"), all
subsidiaries of Parent. Served as President of Met-Ed from
1986 to 1996, and as President of Penelec from 1994 to 1996.
Director of the U.S. Chamber of Commerce and Utilities Mutual
Insurance Company, a director and past president of the
Manufacturers Association of Berks County and a past Chairman
of the Board of the Pennsylvania Electric Association.
Director of the Reading Hospital and Medical Center, a
trustee of the Caron Foundation, and immediate past chairman
and a member of the Board of Trustees of Drug-Free
Pennsylvania.
</TABLE>
I-2
<PAGE> 35
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE GPU, INC.; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ -------------------------------------------------------------
<S> <C>
Carlisle A. H. Trost (69).......................... Director of Parent since 1990. Member of the Board of
Directors of GPUN and Chairman of that Board's Nuclear Safety
and Compliance Committee. Served in the United States Navy
from 1953 until his retirement in 1990 from his post as Chief
of Naval Operations. Chairman of the Board of Directors of
Bird-Johnson Co. and a Director of General Dynamics
Corporation, Lockheed Martin Corporation and Precision
Components Corporation.
Patricia K. Woolf, Ph.D. (65)...................... Director of Parent since 1983. Consultant, author, and
Lecturer in the Department of Molecular Biology at Princeton
University. Director of CK Witco and the National Life
Holding Company. Trustee of the New Economy Fund and a
director of the American Balanced Fund, the Income Fund of
America, the Growth Fund of America, the Small Cap World Fund
and Fundamental Investors, all of The Capital Group of Los
Angeles.
Henry F. Henderson, Jr. (71)....................... Director of Parent since 1989. President, Chief Executive
Officer and a director of H. F. Henderson Industries,
designers and manufacturers of process control and engineered
systems for government and industry, including industrial
process controls and defense electronics. Director of the
Partnership for New Jersey, the Defense Orientation
Conference Association and Delta Dental Plan. Chairman of the
World Trade Center Club Board of Advisors, a trustee of
Stevens Institute of Technology, New York Theological
Seminary, New Jersey State Employment and Training Commission
and Paterson Economic Development Corporation, and a member
of the Business Executives for National Security.
John M. Pietruski (66)............................. Director of Parent since 1989. Chairman of the Board of Texas
Biotechnology Corporation, a pharmaceutical research and
development company. President of Dansara Company, a
management consulting firm. Director of Hershey Foods
Corporation, Lincoln National Corporation and Professional
Detailing, Inc. Regent of Concordia College
Catherine A. Rein (56)............................. Director of Parent since 1989. President and Chief Executive
Officer of Metropolitan Property and Casualty Insurance
Company. Director of The Bank of New York, Inc., Corning
Inc., New England Financial, Inc., and INROADS, New York,
Inc., a trustee emeritus of the National Urban League and a
trustee of the New York University Law Center Foundation.
</TABLE>
I-3
<PAGE> 36
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE GPU, INC.; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ -------------------------------------------------------------
<S> <C>
I.H. Jolles (61)................................... Senior Vice President and General Counsel of Parent since
1990. Executive Vice President, General Counsel and a
director of GPUS since 1990, Vice President and General
Counsel of JCP&L, Met-Ed, Penelec and GPUN. Director of GPUI,
GPU Power, GPU Capital, GPU Electric, Avon, Midlands, GPU
PowerNet, GPU GasNet Pty Ltd. ("GPU GasNet") and Parent's
South American subsidiaries, Empresa Distribuidora Electrica
Regional S.A., Empresa Distribuidora San Luis S.A., Empresa
Distribuidora del Electricidad de la Rioja S.A. and Empresa
Distribuidora de Electricidad de Salta S.A. (collectively,
"Emdersa"). Director of Utilities Mutual Insurance Company.
Bruce L. Levy (44)................................. Senior Vice President and Chief Financial Officer of Parent
since 1998. President and Director of Offeror. President and
Director of GPU Capital. Executive Vice President and a
Director of GPUS and Vice President of JCP&L, Met-Ed and
Penelec since 1998. Director of GPUI, GPU Power, GPU
Electric, Avon, Midlands, GPU PowerNet, GPU GasNet and
Emdersa. President and Chief Executive Officer of GPUI from
1991 to 1998.
P.E. Maricondo (53)................................ Vice President, Comptroller and Chief Accounting Officer of
Parent since 1998. Vice President -- Internal Auditing of
GPUS from 1997-1998. Vice President and Comptroller of GPUN
from 1993-1997.
T.G. Howson (51)................................... Vice President and Treasurer of Parent since 1994. Vice
President and Treasurer of JCP&L, Met-Ed, Penelec, GPUN and
Saxton since 1994, Vice President and Treasurer of GPU AR and
GPU Telcom since 1997. Treasurer of Offeror.
S.L. Guibord (50).................................. Secretary of Parent since 1999. Secretary of JCP&L, Met-Ed,
and Penelec since 1996. Secretary of GPUS since 1999.
Secretary of GPU Telcom and GPU AR since 1997. Secretary of
GPUN since 1996. Division Counsel of GPUS from 1996 until
1999. Corporate compliance auditing director of GPUS from
1993 until 1996.
T.G. Broughton (52)................................ President and Director of GPUN since 1996. Executive Vice
President of GPUN since 1995. Vice President -- TMI of GPUN
from 1991-1995.
Robert L. Wise (56)................................ President and Director of JCP&L, Met-Ed and Penelec, and
President, Chief Executive Officer and a Director of GPU
Telcom since 1999. A Director of GPUS since 1999. President,
Chief Operating Officer and Director of GPU Generation, Inc.
from 1996 to 1999. Director of US Bancorp Trust Company, US
Bancorp, Inc., U.S. National Bank of Johnstown, PA., and
Utilities Mutual Insurance Company.
</TABLE>
I-4
<PAGE> 37
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH
NAME AND AGE GPU, INC.; MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ -------------------------------------------------------------
<S> <C>
C.B. Snyder (54)................................... Executive Vice President -- Corporate Affairs of GPUS since
1998. Director of GPUS, GPU AR, GPU PowerNet and GPU GasNet.
Previously served as Senior Vice President -- Corporate
Affairs of GPUS since 1997, Vice President -- Public Affairs
of JCP&L since 1996, and Vice President -- Public Affairs of
Met-Ed and Penelec since 1994.
</TABLE>
OFFEROR
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT WITH GPX ACQUISITION CORP.;
NAME AND AGE MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ --------------------------------------------------
<S> <C>
Fred D. Hafer (58)................................. Chairman and Director of Offeror. Chairman, Chief
Executive Officer, President and Director of
Parent and GPUS. Became President and Chief
Operating Officer and a Director of Parent and
GPUS in July 1996 and was elected to the
additional positions of Chairman and Chief
Executive Officer in May 1997. Also Chairman,
Chief Executive Officer and a Director of JCP&L,
Met-Ed and Penelec; Chairman and a Director of
GPUN; Chairman, Chief Executive Officer and a
Director of GPU AR; Chairman and Director of GPU
Capital; and a Director of GPU Telcom, GPU
Electric, GPUI, GPU Power, Saxton, Avon, Midlands
and GPU PowerNet, all subsidiaries of Parent.
Served as President of Met-Ed from 1986 to 1996,
and as President of Penelec from 1994 to 1996.
Director of the U.S. Chamber of Commerce,
Utilities Mutual Insurance Company, a director and
past president of the Manufacturers Association of
Berks County and past Chairman of the Board of the
Pennsylvania Electric Association. Director of the
Reading Hospital and Medical Center, a trustee of
the Caron Foundation, and immediate past chairman
and a member of the Board of Trustees of Drug-Free
Pennsylvania.
Bruce L. Levy (44)................................. President and Director of Offeror. Senior Vice
President and Chief Financial Officer of Parent
since 1998; President and Director of GPU Capital.
Executive Vice President and a Director of GPUS
and Vice President of JCP&L, Met-Ed and Penelec
since 1998. Director of GPUI, GPU Power, GPU
Electric, Avon, Midlands and GPU PowerNet, GPU
GasNet and Emdersa. President and Chief Executive
Officer of GPUI from 1991 to 1998.
</TABLE>
I-5
<PAGE> 38
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT WITH GPX ACQUISITION CORP.;
NAME AND AGE MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------ --------------------------------------------------
<S> <C>
D.C. Brauer (46)................................... Vice President and Director of Offeror. Vice
President of GPUS since 1997. Director of GPU
PowerNet and GPU GasNet. Vice President -- Finance
and Treasurer of GPUI from 1993 to 1997, of GPU
Power from 1994 to 1997 and of GPU Electric from
1995 to 1997.
T.G. Howson (51)................................... Treasurer of Offeror. Vice President and Treasurer
of Parent since 1994. Vice President and Treasurer
of JCP&L, Met-Ed, Penelec, GPUN and Saxton since
1994, Vice President and Treasurer of GPU AR and
GPU Telcom since 1997.
S.L. Guibord (50).................................. Secretary of Offeror. Secretary of Parent since
1999. Secretary of JCP&L, Met-Ed, and Penelec
since 1996. Secretary of GPUS since 1999.
Secretary of GPU Telcom and GPU AR since 1997.
Secretary of GPUN since 1996. Division Counsel of
GPUS from 1996 until 1999. Corporate compliance
auditing director of GPUS from 1993 until 1996.
</TABLE>
I-6
<PAGE> 39
MANUALLY SIGNED FACSIMILE COPIES OF THE LETTER OF TRANSMITTAL WILL BE ACCEPTED.
THE LETTER OF TRANSMITTAL AND CERTIFICATES FOR SHARES AND ANY OTHER REQUIRED
DOCUMENTS SHOULD BE SENT OR DELIVERED BY EACH STOCKHOLDER OF THE COMPANY OR HIS
BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE TO THE
DEPOSITARY AT ONE OF THE ADDRESSES SET FORTH BELOW:
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND IN NEW YORK: BY HAND/OVERNIGHT COURIER:
Reorganization Department Reorganization Department Reorganization Department
P.O. Box 3301 120 Broadway 85 Challenger Road
South Hackensack, NJ 07606 13th Floor Mail Stop-Reorg
New York, NY 10271 Ridgefield Park, NJ 07660
</TABLE>
FACSIMILE COPY NUMBER
(FOR ELIGIBLE INSTITUTIONS ONLY):
(201) 296-4293
TO CONFIRM RECEIPT OF NOTICE OF GUARANTEED DELIVERY:
(201) 296-4860
Any questions or requests for assistance or additional copies of the Offer to
Purchase and the Letter of Transmittal and Notice of Guaranteed Delivery may be
directed to the Information Agent at its telephone number and location listed
below. Stockholders may also contact their broker, dealer, commercial bank,
trust company or other nominee for assistance concerning the Offer.
[GEORGESON SHAREHOLDER COMMUNICATIONS INC. LOGO]
17 STATE STREET
10TH FLOOR
NEW YORK, NEW YORK 10004
BANKS AND BROKERAGE FIRMS CALL COLLECT:
(212) 440-9800
ALL OTHERS CALL TOLL FREE:
(800) 223-2064
<PAGE> 1
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
MYR GROUP INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED DECEMBER 29, 1999
BY
GPX ACQUISITION CORP.
A DIRECT WHOLLY OWNED SUBSIDIARY OF
GPU, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, FEBRUARY 29, 2000, UNLESS THE OFFER IS EXTENDED.
THE DEPOSITARY IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND IN NEW YORK: BY HAND/OVERNIGHT COURIER:
Reorganization Department Reorganization Department Reorganization Department
P.O. Box 3301 120 Broadway 85 Challenger Road
South Hackensack, NJ 07606 13th Floor Mail Stop-Reorg
New York, NY 10271 Ridgefield Park, NJ 07660
</TABLE>
BY FACSIMILE TRANSMISSION
(FOR ELIGIBLE INSTITUTIONS ONLY):
(201) 296-4293
TO CONFIRM RECEIPT OF NOTICE OF GUARANTEED DELIVERY:
(201) 296-4860
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- --------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S) CERTIFICATE(S) ENCLOSED
APPEAR(S) ON THE CERTIFICATE(S)) (ATTACH ADDITIONAL SIGNED LIST, IF NECESSARY)
- --------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER OF
CERTIFICATE SHARES REPRESENTED NUMBER OF
NUMBER(S)* BY CERTIFICATE(S)* SHARES TENDERED**
<S> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES
- --------------------------------------------------------------------------------------------------------------------------
* Need not be completed by stockholders delivering Shares by book-entry transfer through the Depositary.
** Unless otherwise indicated, it will be assumed that all Shares represented by any Certificates delivered to the
Depositary are being tendered. See Instruction 4.
[ ] CHECK HERE IF CERTIFICATES HAVE BEEN LOST OR MUTILATED. SEE INSTRUCTION 12.
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
FOR OFFICE USE ONLY
DEBIT SHARES ---- PARTIAL ---- SBL/LT ---- ALT PAYEE ---- SPEC. DEL ----
----- APPROVED ----- INPUT ----- AUDIT ----- MAILED -----
<PAGE> 2
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE
DEPOSITARY. YOU MUST SIGN THIS LETTER OF TRANSMITTAL IN THE APPROPRIATE SPACE
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 stockholders of MYR Group
Inc. if (i) certificates evidencing Shares ("Certificates") are to be forwarded
with this Letter of Transmittal or (ii) unless an Agent's Message (as defined in
the Offer to Purchase) is utilized, if delivery of Shares (as defined below) is
to be made by book-entry transfer to an account maintained by ChaseMellon
Shareholder Services, L.L.C. at The Depository Trust Company or the Philadelphia
Depository Trust Company (each a "Book-Entry Transfer Facility" and,
collectively, the "Book-Entry Transfer Facilities") pursuant to the procedures
set forth in Section 3 of the Offer to Purchase. DELIVERY OF DOCUMENTS TO A
BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Stockholders whose Certificates are not immediately available or who cannot
deliver their Certificates and all other required documents to the Depositary
prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase),
or who cannot complete the procedures for book-entry transfer on a timely basis,
must tender their Shares according to the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase. See Instruction 2.
[ ]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER 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:
-----------------------------------------------------------------------------
Account Number:
-----------------------------------------------------------------------------
Transaction Code Number:
-----------------------------------------------------------------------------
[ ]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING. PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY.
Name(s) of Registered Stockholder(s):
-----------------------------------------------------------------------------
Window Ticket Number (if any):
-----------------------------------------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
-------------------------------------------------------------------
Name of Institution which Guaranteed Delivery:
------------------------------------------------------------------------
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
2
<PAGE> 3
------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
accepted for payment and/or Certificates for Shares not tendered or not
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 the account
indicated above.
Issue check and/or Certificate(s) to:
Name
----------------------------------------------------
(PLEASE TYPE OR PRINT)
------------------------------------------------------------
Address
--------------------------------------------------
------------------------------------------------------------
(INCLUDE A ZIP CODE)
------------------------------------------------------------
(RECIPIENT'S TAXPAYER IDENTIFICATION
OR SOCIAL SECURITY NUMBER)
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
------------------------------------------------------------
------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
accepted for payment and/or Certificates for Shares not tendered or not
accepted for payment are to be mailed to someone other than the
undersigned or to the undersigned at an address other than that shown
above.
Mail check and/or Certificate(s) to:
Name
----------------------------------------------------
(PLEASE TYPE OR PRINT)
------------------------------------------------------------
Address
--------------------------------------------------
------------------------------------------------------------
(INCLUDE A ZIP CODE)
------------------------------------------------------------
(RECIPIENT'S TAXPAYER IDENTIFICATION
OR SOCIAL SECURITY NUMBER)
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
------------------------------------------------------------
3
<PAGE> 4
IMPORTANT:
STOCKHOLDER: SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SIGNATURE(S) OF STOCKHOLDER(S)
Dated:
- --------------------------- , 2000
(MUST BE SIGNED BY REGISTERED HOLDER(S) EXACTLY AS NAME(S) APPEAR(S) ON
CERTIFICATE(S) OR ON A SECURITY POSITION LISTING OR BY THE PERSON(S) AUTHORIZED
TO BECOME REGISTERED HOLDER(S) BY CERTIFICATES AND DOCUMENTS TRANSMITTED
HEREWITH. IF SIGNATURE IS BY A TRUSTEE, EXECUTOR, ADMINISTRATOR, GUARDIAN,
ATTORNEY-IN-FACT, AGENT, OFFICER OF A CORPORATION OR OTHER PERSON ACTING IN A
FIDUCIARY OR REPRESENTATIVE CAPACITY, PLEASE SET FORTH FULL TITLE AND SEE
INSTRUCTION 5.)
Name(s):------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Capacity (full title):
----------------------------------------------------------------
Address:
-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(INCLUDE A ZIP CODE)
- --------------------------------------------------------------------------------
Area Code and Telephone Number:
-----------------------------------------------------
(HOME)
- --------------------------------------------------------------------------------
(BUSINESS)
Taxpayer Identification Number or Social Security Number:
--------------------------------------
(SEE SUBSTITUTE FORM W-9 BELOW)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY, PLACE MEDALLION GUARANTEE IN SPACE
BELOW.
Authorized Signature(s):
-------------------------------------------------------------
Name: --------------------------------------------------------------------------
(PLEASE TYPE OR PRINT)
Title:
---------------------------------------------------------------------------
Name of Firm:
---------------------------------------------------------------------
Address:
-------------------------------------------------------------------------
(INCLUDE A ZIP CODE)
Area Code and Telephone Number:
-----------------------------------------------------
Dated:
- --------------------------- , 2000
4
<PAGE> 5
TO BE COMPLETED BY ALL TENDERING STOCKHOLDERS
- --------------------------------------------------------------------------------
<TABLE>
<S> <C> <C>
PAYER'S NAME:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
- ---------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TIN IN THE BOX AT THE TIN: -------------------------
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. (Social Security Number or
Taxpayer Identification Number)
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C>
PAYER'S REQUEST FOR TAXPAYER
IDENTIFICATION NUMBER PART 2 -- FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING
("TIN") AND CERTIFICATION (See Instructions).
---------------------------------------------------------------------------------------
PART 3 -- CERTIFICATION -- UNDER PENALTIES OF PERJURY, I CERTIFY THAT:
(1) The number shown on this form is my correct TIN (or I am waiting for a number to
be issued to me); and
(2) I am not subject to backup withholding because (a) I am exempt from backup
withholding, or (b) I have not been notified by the Internal Revenue Service ("IRS")
that I am subject to backup withholding as a result of a failure to report all
interest or dividends, or (c) the IRS has notified me that I am no longer subject
to backup withholding.
---------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C> <C>
SIGNATURE DATE-------------------
--------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) of Part 3 above if you
have been notified by the IRS that you are subject to backup withholding because
of underreporting interest or dividends on your tax return. However, if after
being notified by the IRS that you were subject to backup withholding, you
received another notification from the IRS that you were no longer subject to
backup withholding, do not cross out item (2) of Part 3.
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING YOUR TIN.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a TIN has not been issued to me,
and either (1) I have mailed or delivered an application to receive a TIN to the
appropriate IRS Center or Social Security Administration Office or (2) I intend
to mail or deliver an application in the near future. I understand that if I do
not provide a TIN by the time of payment, 31% of all payments pursuant to the
Offer made to me will be withheld, but such amounts will be refunded to me if I
then provide a TIN within sixty (60) days.
Signature:
- -----------------------------------------------------------------------------
Date:
- -------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR INSTRUCTIONS.
5
<PAGE> 6
Ladies and Gentlemen:
The undersigned hereby tenders to GPX Acquisition Corp. ("Offeror"), a
Delaware corporation and a direct wholly owned subsidiary of GPU, Inc.
("Parent"), a Pennsylvania corporation, the above-described shares of common
stock, par value $0.01 per share (the "Shares"), of MYR Group Inc., a Delaware
corporation (the "Company"), pursuant to Offeror's offer to purchase all of the
outstanding Shares at a purchase price of $30.10 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated December 29, 1999 (the "Offer to
Purchase"), receipt of which is hereby acknowledged, and in this Letter of
Transmittal (which, together with any amendments and supplements to each
document, collectively constitute the "Offer"). The Offer is being made pursuant
to an Agreement and Plan of Merger, dated as of December 21, 1999 (the "Merger
Agreement"), by and among Parent, Offeror and the Company.
Subject to, and effective upon, acceptance for payment of, or payment for,
the Shares tendered herewith, the undersigned hereby sells, assigns and
transfers to, or upon the order of, Offeror all right, title and interest in and
to all the Shares that are being tendered hereby (and any and all other shares
or other securities issued or issuable in respect of such Shares on or after
December 29, 1999) and appoints ChaseMellon Shareholder Services, L.L.C. (the
"Depositary") the true and lawful agent and attorney-in-fact of the undersigned
with respect to such Shares (and such other shares or securities), with full
power of substitution (such power of attorney being deemed to be an irrevocable
power coupled with an interest), to (a) deliver Certificates for such Shares
(and such other shares or securities), or transfer ownership of such Shares (and
such other Shares or securities) on the account books maintained by a Book-Entry
Transfer Facility, together, in any such case, with all accompanying evidences
of transfer and authenticity, to or upon the order of Offeror, (b) present such
Shares (and such other shares or securities) for transfer on the books of the
Company, and (c) receive all benefits and otherwise exercise all rights of
beneficial ownership of such Shares (and such other shares or securities), all
in accordance with the terms and subject to the conditions of the Offer.
The undersigned hereby irrevocably appoints each designee of Offeror as the
attorney-in-fact and proxy of the undersigned, each with full power of
substitution, to the full extent of the rights of the undersigned with respect
to the Shares tendered herewith and accepted for payment by Offeror prior to the
time of any vote or other action (and any and all other shares or other
securities issued or issuable in respect of such Shares on or after the date of
the Offer to Purchase). All such powers of attorney and proxies shall be
considered irrevocable and coupled with an interest. Such appointment will be
effective when, and only to the extent that, Offeror accepts such Shares for
payment. Upon such acceptance for payment, all prior powers of attorney and
proxies given by the stockholder with respect to such Shares (and such other
shares and securities) will, without further action, be revoked and no
subsequent powers of attorney and proxies may be given nor any subsequent
written consents executed (and, if given or executed, will not be deemed
effective). The designees of Offeror will, with respect to the Shares (and such
other shares and securities) for which such appointment is effective, be
empowered to exercise all voting and other rights of such stockholder as they in
their sole discretion may deem proper at any annual or special meeting of the
Company's stockholders, or any adjournment or postponement thereof, by written
consent in lieu of any such meeting or otherwise. Offeror reserves the right to
require that, in order for Shares to be deemed validly tendered, immediately
upon Offeror's payment for such Shares, Offeror must be able to exercise full
voting and other rights with respect to such Shares (and such other shares and
securities), including voting at any meeting of stockholders then scheduled.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby (and any and all other shares or other securities issued or
issuable in respect of such Shares on or after the date of the Offer to
Purchase) and that when the same are accepted for payment by Offeror, Offeror
will acquire good and unencumbered title thereto, free and clear of all liens,
restrictions, charges and encumbrances and not subject to any adverse claim. The
undersigned, upon request, will execute and deliver any additional documents
deemed by the Depositary or Offeror to be necessary or desirable to complete the
sale, assignment and transfer of the Shares tendered hereby (and such other
shares or securities).
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned. Except as stated in the Offer, this tender is
irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute a binding agreement between the undersigned
and Offeror 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, Offeror may not be required to accept for payment any of
the Shares tendered hereby.
6
<PAGE> 7
Unless otherwise indicated in this Letter of Transmittal under "Special
Payment Instructions," please issue the check for the purchase price and return
any Shares not tendered or not purchased in the name(s) of the undersigned.
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail the check for the purchase price and return any Certificates not
tendered or not purchased (and accompanying documents, as appropriate) to the
undersigned at the address shown below the undersigned's signature(s). In the
event that both "Special Payment Instructions" and "Special Delivery
Instructions" are completed, please issue the check for the purchase price and
return any Shares not tendered or not purchased in the name(s) of, and mail such
check and any Certificates to, the person(s) so indicated. Unless otherwise
indicated under "Special Payment Instructions," in the case of book-entry
delivery of Shares, please credit the account maintained at a Book-Entry
Transfer Facility with respect to any Shares not accepted for payment. The
undersigned recognizes that Offeror has no obligation, pursuant to the "Special
Payment Instructions," to transfer any Shares from the name of the registered
holder(s) thereof if Offeror does not accept for payment any of the Shares so
tendered.
7
<PAGE> 8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below,
signatures on Letters of Transmittal must be guaranteed by a bank, broker,
dealer, credit union or savings association or other entity that is a member in
good standing of a recognized Medallion Program approved by the Securities
Transfer Association, Inc., (each of the foregoing being referred to as an
"Eligible Institution" and, collectively, as "Eligible Institutions"), except in
cases where Shares are tendered (i) by a registered holder of Shares who has not
completed either the box labeled "Special Delivery Instructions" or the box
labeled "Special Payment Instructions" on the Letter of Transmittal or (ii) for
the account of any Eligible Institution. See Instruction 5. If the 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 Certificates not accepted for
payment or not tendered are to be returned, to a person other than the
registered holder, then the Certificates must be endorsed or accompanied by duly
executed stock powers, in either case, signed exactly as the name of the
registered holder appears on such Certificates, with the signatures on such
Certificates or stock powers guaranteed by an Eligible Institution as provided
herein. See Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be used if
(i) Certificates are to be forwarded herewith or (ii) unless an Agent's Message
is utilized, if delivery of Shares is to be made by book-entry transfer pursuant
to the procedures set forth in Section 3 of the Offer to Purchase. Certificates
for all physically delivered Shares, or a confirmation of a book-entry transfer
into the Depositary's account at one of the Book-Entry Transfer Facilities of
all Shares delivered electronically, as well as a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof) and any
other documents required by this Letter of Transmittal or an Agent's Message in
the case of a book-entry delivery, must be received by the Depositary at one of
its addresses set forth on the front page of this Letter of Transmittal by the
Expiration Date. Stockholders who cannot deliver their Shares and all other
required documents to the Depositary by the Expiration Date must tender their
Shares pursuant to the guaranteed delivery procedures set forth in Section 3 of
the Offer to Purchase. Pursuant to such procedures: (a) such tender must be made
by or through an Eligible Institution; (b) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form provided by
Offeror, must be received by the Depositary prior to the Expiration Date; and
(c) the Certificates for all tendered Shares, in proper form for transfer (or a
Book-Entry Confirmation (as defined in the Offer to Purchase)), together with a
properly completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof), and any required signature guarantees, or, in the case of a
book-entry transfer, an Agent's Message, and any other documents required by
this Letter of Transmittal must be received by the Depositary within three
trading days after the date of such Notice of Guaranteed Delivery, all as
provided in Section 3 of the Offer to Purchase. The term "trading day" means any
day on which the New York Stock Exchange is open for business.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH A BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS BY
MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. By executing this Letter of Transmittal (or
a manually signed facsimile thereof), the tendering stockholder waives any right
to receive any notice of the acceptance for payment of the Shares.
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 schedule attached hereto.
4. PARTIAL TENDERS (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER BY
BOOK-ENTRY TRANSFER). If fewer than all the Shares represented by any
Certificate delivered to the Depositary are to be tendered, fill in the number
of Shares which are to be tendered in the box entitled "Number of Shares
Tendered." In such case, a new Certificate for the remainder of the Shares
represented by the old Certificate(s) will be sent to the person(s) signing this
Letter of Transmittal unless otherwise provided in the appropriate box on this
Letter of Transmittal, as promptly as practicable 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 with
the name(s) as written on the face of the Certificates without alteration,
enlargement or any change whatsoever.
If any of the Shares tendered hereby are held of record by two or more
persons, all such persons must sign this Letter of Transmittal.
8
<PAGE> 9
If any of the Shares tendered hereby are registered in different names on
different 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 is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of Certificates or separate stock powers
are required unless payment of the purchase price is to be made, or Shares not
tendered or not purchased are to be returned, in the name of any person other
than the registered holder(s), in which case, the Certificate(s) for such Shares
tendered hereby must be endorsed, or accompanied by appropriate stock powers, in
either case, signed exactly as the name(s) of the registered holder(s)
appears(s) on the Certificate(s) for such Shares. Signatures on any such
Certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the related Certificates
must be endorsed or accompanied by appropriate stock powers, in either case,
signed exactly as the name(s) of the registered holder(s) appear(s) on the
Certificates for such Shares. Signature(s) on any such Certificates or stock
powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal or any Certificate or stock power is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
Offeror of the authority of such person so to act must be submitted.
6. STOCK TRANSFER TAXES. Except as set forth in this Instruction 6,
Offeror will pay any stock transfer taxes with respect to the sale and transfer
of any Shares to it or its order pursuant to the Offer. If, however, payment of
the purchase price is to be made to, or Shares not tendered or not purchased are
to be returned in the name of, any person other than the registered holder(s),
then the amount of any stock transfer taxes (whether imposed on the registered
holder(s), such other person or otherwise) payable on account of the transfer to
such person will be deducted from the purchase price unless satisfactory
evidence of the payment of such taxes, or exemption therefrom, is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If the check for the
purchase price of any Shares purchased is to be issued, or any Shares not
tendered or not purchased are to be returned, in the name of a person other than
the person(s) signing this Letter of Transmittal or if the check or any Shares
not tendered or not purchased are to be mailed to someone other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal at an address other than that shown above, the appropriate
boxes on this Letter of Transmittal should be completed. Stockholders tendering
Shares by book-entry transfer may request that Shares not purchased be credited
to an account maintained at a Book-Entry Transfer Facility as such stockholder
may designate under "Special Payment Instructions". If no such instructions are
given, any such Shares not purchased will be credited to an account maintained
at a Book-Entry Transfer Facility.
8. SUBSTITUTE FORM W-9. 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% federal income tax backup 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 follow the
instructions set forth in Part 3 of the Substitute Form W-9 and sign and date
both the Substitute Form W-9 and the "Certificate of Awaiting Taxpayer
Identification Number." If the stockholder has indicated in Part 3 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. Such amounts, however, will be refunded if a TIN is provided to the
Depositary within 60 days.
9. FOREIGN HOLDERS. Foreign holders must submit a completed IRS Form W-8
to avoid 31% backup withholding. IRS Form W-8 may be obtained by contacting the
Depositary at one of the addresses on the front page of this Letter of
Transmittal.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
or additional copies of the Offer to Purchase and this Letter of Transmittal may
be obtained from the Information Agent at the address or telephone number set
forth below.
11. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by
Offeror (subject to certain limitations in the Merger Agreement), in whole or in
part, at any time or from time to time, in Offeror's sole discretion.
9
<PAGE> 10
12. LOST OR DESTROYED CERTIFICATES. If any Certificate representing
Shares has been lost or destroyed, the holder thereof should promptly notify the
Transfer Agent, Harris Trust and Savings Bank at 311 West Monroe, 14th Floor,
P.O. Box A-3504, Chicago, Illinois 60690-3504, Attention: Shareholder Services,
telephone number (312) 360-5100. The holder will then be instructed as to the
procedure to be followed in order to replace the Certificate. 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
HEREOF), TOGETHER WITH CERTIFICATES OR CONFIRMATIONS OF A BOOK-ENTRY TRANSFER
AND ALL OTHER REQUIRED DOCUMENTS, OR A NOTICE OF GUARANTEED DELIVERY, MUST BE
RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE.
10
<PAGE> 11
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required to provide the Depositary (as payor) with such
stockholder's correct TIN on the Substitute Form W-9. If such stockholder is an
individual, the TIN is such stockholder's social security number. If the
Depositary is not provided with the correct TIN, the stockholder may be subject
to a $50 penalty imposed by the Internal Revenue Service. In addition, payments
that are made to such stockholder with respect to Shares purchased pursuant to
the Offer may be subject to backup withholding.
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. Such statements may be obtained from the Depositary.
All exempt recipients (including foreign persons wishing to qualify as exempt
recipients) should see the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional instructions.
If backup withholding applies, the Depositary is required to withhold 31%
of any payments made to the stockholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If backup withholding results in an
overpayment of taxes, a refund may be obtained from the IRS.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup federal income tax withholding on payments that are made
to a stockholder with respect to Shares purchased pursuant to the Offer, the
stockholder is required to notify the Depositary of such stockholder's correct
TIN by completing the form certifying that the TIN provided on the Substitute
Form W-9 is correct.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record owner of the Shares. If
the Shares are 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 guidelines on which
number to report.
MANUALLY SIGNED FACSIMILE COPIES OF THE LETTER OF TRANSMITTAL, PROPERLY
COMPLETED AND DULY EXECUTED, WILL BE ACCEPTED. THE LETTER OF TRANSMITTAL,
CERTIFICATES FOR SHARES AND ANY OTHER REQUIRED DOCUMENTS SHOULD BE SENT OR
DELIVERED BY EACH STOCKHOLDER OR SUCH STOCKHOLDER'S BROKER, DEALER, COMMERCIAL
BANK, TRUST COMPANY OR OTHER NOMINEE TO THE DEPOSITARY AT ONE OF ITS ADDRESSES
SET FORTH ON THE FRONT PAGE OF THIS LETTER OF TRANSMITTAL.
Questions and requests for assistance may be directed to the Information
Agent at the address and telephone numbers listed below. Additional copies of
the 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 promptly furnished at the Offeror's expense. You may also contact your
broker, dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer.
[GEORGESON SHAREHOLDER COMMUNICATIONS INC. LOGO]
17 STATE STREET
10TH FLOOR
NEW YORK, NEW YORK 10004
BANKS AND BROKERAGE FIRMS CALL COLLECT:
(212) 440-9800
ALL OTHERS CALL TOLL FREE:
(800) 223-2064
11
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
MYR GROUP INC.
AT
$30.10 NET PER SHARE
BY
GPX ACQUISITION CORP.
A DIRECT WHOLLY OWNED SUBSIDIARY OF
GPU, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, FEBRUARY 29, 2000,
UNLESS THE OFFER IS EXTENDED.
December 29, 1999
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We are writing to you in connection with the offer by GPX Acquisition
Corp., a Delaware corporation ("Offeror") and a direct wholly owned subsidiary
of GPU, Inc., a Pennsylvania corporation ("Parent"), to purchase all outstanding
shares of Common Stock, par value $0.01 per share (the "Shares"), of MYR Group
Inc., a Delaware corporation (the "Company"), at a purchase price of $30.10 per
Share, net to the seller in cash, without interest, upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated December 29, 1999
(the "Offer to Purchase") and in the related Letter of Transmittal (which,
together with any amendments and supplements to each document, collectively
constitute the "Offer"), enclosed herewith. Offeror is a corporation that does
not have any operations. The Offer is being made in connection with the
Agreement and Plan of Merger, dated as of December 21, 1999, by and among
Parent, Offeror and the Company (the "Merger Agreement"). Holders of Shares
whose certificates for such Shares (the "Certificates") are not immediately
available or who cannot deliver their Certificates and all other required
documents to ChaseMellon Shareholder Services, L.L.C. (the "Depositary") or
complete the procedures for book-entry transfer prior to the Expiration Date (as
defined in Section 1 of the Offer to Purchase) must tender their Shares
according to the guaranteed delivery procedures set forth in Section 3 of the
Offer to Purchase.
Please furnish copies of the enclosed materials to those of your clients
for whose accounts you hold Shares in your name or in the name of your nominee.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated December 29, 1999.
2. The Letter of Transmittal to tender Shares for your use and for
the information of your clients. Facsimile copies of the Letter of
Transmittal may be used to tender Shares.
3. A letter to stockholders of the Company from Charles M. Brennan
III, Chairman of the Board, together with a Solicitation/Recommendation
Statement on Schedule 14D-9 filed with the Securities and Exchange
Commission by the Company and mailed to the stockholders of the Company.
4. The Notice of Guaranteed Delivery for Tender of Shares to be used
to accept the Offer if following the guaranteed delivery procedures set
forth in Section 3 of the Offer to Purchase.
<PAGE> 2
5. A printed form of letter which may be sent to your clients for
whose accounts you hold Shares registered in your name, with space provided
for obtaining such clients' instructions with regard to the Offer.
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
7. A return envelope addressed to the Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FEBRUARY 29, 2000, UNLESS THE
OFFER IS EXTENDED.
Please note the following:
1. The tender price is $30.10 per Share, net to the seller in cash,
without interest.
2. The Offer is conditioned upon, among other things, (A) such number
of Shares of the Company having been validly tendered and not withdrawn
prior to the Expiration Date (as defined in the Offer to Purchase) that,
together with Shares beneficially owned by Parent and any of its affiliates
on that date, constitute more than 50.1% of the Shares, assuming exercise
and conversion of all outstanding options and convertible securities of the
Company and (B) the Securities and Exchange Commission having issued an
order under the Public Utility Holding Company Act of 1935, as amended,
reasonably acceptable to Parent and Offeror authorizing the acquisition of
Shares, the Merger (as defined in the Merger Agreement) and the other
transactions contemplated by the Merger Agreement.
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 set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of Shares pursuant to the
Offer. However, federal income tax backup withholding at a rate of 31% may
be required, unless an exemption is available or unless the required
taxpayer identification information is provided. See "Important Tax
Information" in the Letter of Transmittal.
5. The Board of Directors of the Company has unanimously approved the
Merger Agreement, determined that the Offer and the Merger are fair to and
in the best interests of the stockholders of the Company (other than Parent
and its subsidiaries) and recommends that all stockholders of the Company
accept the Offer and tender all their Shares pursuant to the Offer.
6. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) Certificates pursuant to
the procedures set forth in Section 3 of the Offer to Purchase or a timely
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect
to such Shares, (b) a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof) with any required
signature guarantees or an Agent's Message (as defined in the Offer to
Purchase) in connection with a book-entry delivery of Shares, and (c) any
other documents required by the Letter of Transmittal. Accordingly,
tendering stockholders may be paid at different times depending upon when
Certificates for Shares or Book-Entry Confirmations are actually received
by the Depositary.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Certificates or other required documents or complete the
procedures for book-entry transfer prior to the Expiration Date, a tender may be
effected by following the guaranteed delivery procedures specified in Section 3
of the Offer to Purchase.
None of Offeror, Parent, or any officer, director, stockholder, agent or
other representative of Offeror or Parent, will pay any fees or commissions to
any broker, dealer or other person (other than the Depositary and the
Information Agent as described in the Offer to Purchase) for soliciting tenders
of Shares pursuant to the
2
<PAGE> 3
Offer. Offeror will, however, upon request, reimburse you for customary mailing
and handling expenses incurred by you in forwarding any of the enclosed
materials to your clients. Offeror will pay or cause to be paid any transfer
taxes payable on the transfer of Shares to it, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to
Georgeson & Co., the Information Agent for the Offer, at its address and
telephone number set forth on the back cover of the Offer to Purchase.
Additional copies of the enclosed materials may be obtained from the
Information Agent or from brokers, dealers, commercial banks or trust companies.
Very truly yours,
GPU, INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF PARENT, OFFEROR, THE DEPOSITARY, THE
INFORMATION AGENT, OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF THEM
IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE
STATEMENTS CONTAINED THEREIN.
3
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
MYR GROUP INC.
AT
$30.10 NET PER SHARE
BY
GPX ACQUISITION CORP.
A DIRECT WHOLLY OWNED SUBSIDIARY OF
GPU, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, FEBRUARY 29, 2000,
UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated December
29, 1999 (the "Offer to Purchase"), and the related Letter of Transmittal
(which, together with any amendments and supplements to each document,
collectively constitute the "Offer"), relating to an offer by GPX Acquisition
Corp., a Delaware corporation ("Offeror") and a direct wholly owned subsidiary
of GPU, Inc., a Pennsylvania corporation ("Parent"), to purchase all outstanding
shares of Common Stock, par value $0.01 per share (the "Shares"), of MYR Group
Inc., a Delaware corporation (the "Company"), at a purchase price of $30.10 per
Share, net to the seller in cash, without interest, upon the terms and subject
to the conditions set forth in the Offer. The Offer is being made in connection
with the Agreement and Plan of Merger, dated as of December 21, 1999, by and
among Parent, Offeror and the Company (the "Merger Agreement"). Offeror is a
corporation that does not have any operations. This material is being forwarded
to you as the beneficial owner of Shares carried by us in your account but not
registered in your name.
WE ARE (OR OUR NOMINEE IS) THE HOLDER OF RECORD OF SHARES HELD BY US FOR
YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF
RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED
TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD
BY US FOR YOUR ACCOUNT.
Accordingly, we request instructions as to whether you wish to have us
tender any or all of the Shares held by us for your account pursuant to the
terms and conditions set forth in the Offer.
Please note the following:
1. The tender price is $30.10 per Share, net to the seller in cash,
without interest.
2. The Offer is conditioned upon, among other things, (A) such number
of Shares of the Company having been validly tendered and not withdrawn
prior to the Expiration Date (as defined in the Offer to Purchase) that,
together with Shares beneficially owned by Parent and any of its affiliates
on that date, constitute more than 50.1% of the Shares, assuming exercise
and conversion of all outstanding options and convertible securities of the
Company and (B) the Securities and Exchange Commission having issued an
order under the Public Utility Holding Company Act of 1935, as amended,
reasonably acceptable to Parent and Offeror authorizing the acquisition of
Shares, the Merger (as defined in the Merger Agreement) and the other
transactions contemplated by the Merger Agreement.
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 set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of Shares
<PAGE> 2
pursuant to the Offer. However, federal income tax backup withholding at a
rate of 31% may be required, unless an exemption is available or unless the
required taxpayer identification information is provided. See "Important
Tax Information" in the Letter of Transmittal.
5. The Board of Directors of the Company has unanimously approved the
Merger Agreement, determined that the Offer and the Merger are fair to and
in the best interests of the stockholders of the Company (other than Parent
and its subsidiaries) and recommends that all stockholders of the Company
accept the Offer and tender all their Shares pursuant to the Offer.
6. Notwithstanding any other provision of the Offer, payment for
Shares accepted for payment pursuant to the Offer will in all cases be made
only after timely receipt by the Depositary of (a) certificates for Shares
pursuant to the procedures set forth in Section 3 of the Offer to Purchase
or a timely Book-Entry Confirmation (as defined in the Offer to Purchase)
with respect to such Shares, (b) a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof) with any
required signature guarantees or an Agent's Message (as defined in the
Offer to Purchase) in connection with a book-entry delivery of Shares, and
(c) any other documents required by the Letter of Transmittal. Accordingly,
tendering stockholders may be paid at different times depending upon when
Certificates for Shares or Book-Entry Confirmations are actually received
by the Depositary.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON TUESDAY, FEBRUARY 29, 2000, UNLESS THE OFFER IS EXTENDED.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form set forth below. If you authorize the tender of your
Shares, all such Shares will be tendered unless otherwise indicated in such
instruction form. An envelope to return your instructions is enclosed. PLEASE
FORWARD YOUR INSTRUCTIONS AS SOON AS POSSIBLE TO ALLOW US AMPLE TIME TO TENDER
YOUR SHARES ON YOUR BEHALF PRIOR TO THE EXPIRATION OF THE OFFER.
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of Shares residing in any jurisdiction in which the making of
the Offer or acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, Offeror may, in its discretion, take such action as it
may deem necessary to make the Offer in any such jurisdiction and extend the
Offer to holders of Shares in such jurisdiction.
If the securities laws of any jurisdiction require the Offer to be made by
a licensed broker or dealer, the Offer will be deemed to be made on behalf of
Offeror by one or more registered brokers or dealers licensed under the laws of
such jurisdiction.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO
THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
MYR GROUP INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase, dated December 29, 1999 (as amended, the "Offer to
Purchase"), and the related Letter of Transmittal (which, together with any
amendments or supplements thereto, collectively constitute the "Offer") in
connection with the offer by GPX Acquisition Corp., a Delaware corporation
("Offeror") and a direct wholly owned subsidiary of GPU, Inc., a Pennsylvania
corporation ("Parent"), to purchase all outstanding shares of Common Stock, par
value $0.01 per share (the "Shares"), of MYR Group Inc., a Delaware corporation
(the "Company"), at a purchase price of $30.10 per Share, net to the seller in
cash, without interest, upon the terms and subject to the conditions set forth
in the Offer. Offeror is a corporation that does not have any operations. The
Offer is being made in connection with the Agreement and Plan of Merger, dated
as of December 21, 1999, by and among Parent, Offeror and the Company.
This will instruct you to tender to the 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.
<TABLE>
<S> <C>
Number of Shares to be Tendered:* -------------
SIGN HERE
Account Number: ---------------------------------- -----------------------------------------------------
Date: ---------- , 2000 -----------------------------------------------------
Signature(s)
-----------------------------------------------------
-----------------------------------------------------
(Print Name(s))
-----------------------------------------------------
-----------------------------------------------------
(Print Address(es))
-----------------------------------------------------
(Area Code and Telephone Number(s))
-----------------------------------------------------
(Taxpayer Identification or
Social Security Number(s))
</TABLE>
- ---------------
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
3
<PAGE> 1
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF SHARES OF COMMON STOCK
OF
MYR GROUP INC.
This form, or one substantially equivalent hereto, must be used to accept
the Offer (as defined below) if certificates for shares of Common Stock, par
value $0.01 per share (the "Shares"), of MYR Group Inc., a Delaware corporation
(the "Company"), are not immediately available or the procedure for book-entry
transfer cannot be completed on a timely basis or time will not permit all
required documents to reach the Depositary prior to the Expiration Date (as
defined in the Offer to Purchase). This Notice of Guaranteed Delivery may be
delivered by hand or facsimile transmission or mailed to the Depositary. See
Section 3 of the Offer to Purchase, dated December 29, 1999 (the "Offer to
Purchase").
THE DEPOSITARY FOR THE OFFER IS:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND IN NEW YORK: BY HAND/OVERNIGHT COURIER:
Reorganization Department Reorganization Department Reorganization Department
P.O. Box 3301 120 Broadway 85 Challenger Road
South Hackensack, NJ 07606 13th Floor Mail Stop-Reorg
New York, NY 10271 Ridgefield Park, NJ 07660
</TABLE>
FACSIMILE COPY NUMBER
(FOR ELIGIBLE INSTITUTIONS ONLY):
(201) 296-4293
FOR CONFIRMATION TELEPHONE:
(201) 296-4860
THE INFORMATION AGENT FOR THE OFFER IS:
[GEORGESON SHAREHOLDER COMMUNICATIONS INC. LOGO]
17 STATE STREET
10TH FLOOR
NEW YORK, NEW YORK 10004
BANKS AND BROKERAGE FIRMS CALL COLLECT:
(212) 440-9800
ALL OTHERS CALL TOLL FREE:
(800) 223-2064
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR
TRANSMISSION OF INSTRUMENTS VIA FACSIMILE TRANSMISSION, OTHER THAN AS SET FORTH
ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal or an
Agent's Message (as defined in the Offer to Purchase) and certificates for
Shares to the Depositary within the time period shown herein. Failure to do so
could result in a financial loss to such Eligible Institution.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to GPX Acquisition Corp. ("Offeror"), a
Delaware corporation, and a direct wholly owned subsidiary of GPU, Inc.
("Parent"), a Pennsylvania corporation, upon the terms and subject to the
conditions set forth in the Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"), receipt of each of which is hereby
acknowledged, the number of Shares indicated below, pursuant to the guaranteed
delivery procedure set forth in Section 3 of the Offer to Purchase. Offeror is a
corporation that does not have any operations.
<TABLE>
<S> <C>
Number of Shares: --------------- SIGN HERE
Certificate No(s). (if available): Name(s) of Record Holder(s):
- ----------------------------------------------------- --------------------------------------------
- ----------------------------------------------------- --------------------------------------------
(Please Type or Print)
If Shares will be tendered by book-entry transfer: Addresses:
------------------------------------------
(Include a Zip Code)
Name of Tendering Institutions: Area Code and Telephone No.:
- ----------------------------------------------------- --------------------------------------------
Account No.: --------------------------------------- Signature(s):
---------------------------------------
Dated: --------------------, 2000
</TABLE>
2
<PAGE> 3
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 transfer of such Shares into the Depositary's
account at The Depository Trust Company or the Philadelphia Depository Trust
Company, in each case together with a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof) with any required
signature guarantees or an Agent's Message (as defined in the Offer to Purchase)
in the case of a book-entry delivery of Shares, and any other documents required
by the Letter of Transmittal, all within three New York Stock Exchange trading
days after the date hereof.
<TABLE>
<S> <C>
Name of Firm: ------------------------------------- --------------------------------------------
(Authorized Signature)
Name:
Address: -------------------------------------------- --------------------------------------------
- ----------------------------------------------------- Title:
- ----------------------------------------------------- --------------------------------------------
(Include a Zip Code) Date:
--------------------------------------------
Area Code and Tel. No.: --------------------------
</TABLE>
DO NOT SEND CERTIFICATES FOR SHARES AND/OR RIGHTS WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES SHOULD BE SENT TOGETHER WITH A LETTER OF TRANSMITTAL.
3
<PAGE> 1
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER -- Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e., 00-0000000. The table below will help determine the
number to give the payer.
<TABLE>
<C> <S> <C>
- ------------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF --
- ------------------------------------------------------------
1. An individual's account The individual
2. TWO or more individuals (Joint The actual owner of
account) the account or, if
combined funds, any
one of the
individuals(1)
3. Husband and wife (joint account) The actual owner of
the account or, if
joint funds, either
person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. a. The usual revocable savings The grantor-
trust account (grantor is also trustee(1)
trustee)
b. So-called trust account that is The actual owner(1)
not a legal or valid trust
under state law
6. Sole proprietorship account The Owner(4)
- ------------------------------------------------------------
- ------------------------------------------------------------
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF--
- ------------------------------------------------------------
7. A valid trust, estate, or pension Legal entity (Do
trust not furnish the
identifying number
of the personal
representative or
trustee unless the
legal entity itself
is not designated
in the account
title.)(5)
8. Corporate The corporation
9. Partnership The partnership
10. Association, club, religious, The organization
charitable, or educational, or
other tax-exempt organization
11. A broker or registered nominee The broker or
nominee
12. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a state or
local government, school district,
or prison) that receives
agricultural program payments
- ------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Show the name of the owner.
(4) List first and circle the name of the legal trust, estate, or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, Form
W-7, Application for IRS Individual Taxpayer Identification Number or Form SS-4,
Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEE EXEMPT FROM BACKUP WITHHOLDING
Payees that may be exempt from backup withholding include the following:
- A corporation.
- A financial institution.
PAYEES THAT ARE EXEMPT FROM BACKUP WITHHOLDING INCLUDE THE FOLLOWING:
- An organization exempt from tax under Section 501(a) or an individual
retirement plan.
- --The United States or any agency or instrumentality thereof.
- A state, the District of Columbia, a possession of the United States or any
subdivision or instrumentality thereof.
- --A foreign government, a political subdivision of a foreign government or
any agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S., the
District of Columbia, or a possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under Section 584(a).
- A trust exempt from tax under Section 664 or described in Section 4947.
- An entity registered at all times under the Investment Company Act of 1940.
- --A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident alien partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. NOTE: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt interest dividends under
section 852).
- Payments described in section 6049(b)(5) to non-resident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
JOINT FOREIGN PAYEES
Backup withholding applies unless:
1. Every joint payee provides the statement regarding foreign status; or
2. Anyone of the joint payees who has not established foreign status
supplies a TIN.
If anyone of the joint payees who has not established foreign status supplies
a TIN, that number is the TIN that must be used for purposes of backup
withholding and information reporting.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, ENTER YOUR CORRECT TAXPAYER
IDENTIFICATION NUMBER IN PART I, WRITE "EXEMPT" IN PART II AND SIGN AND DATE THE
FORM.
Certain payments other than interest, dividends and patronage dividends that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041(a), 6045
and 6050A.
PRIVACY ACT NOTICE.--Section 6109 of the Internal Revenue Code requires most
recipients of dividend, interest or other payments to give taxpayer
identification numbers to payers who must report the payments to the IRS. The
IRS uses the numbers for identification purposes. Payers must be given the
numbers whether or not recipients are required to file tax returns. Payers must
generally withhold 31% of taxable interest, dividend and certain other payments
to a payee who does not furnish a taxpayer identification number to a payer.
Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
<PAGE> 1
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase, dated
December 29, 1999, and the related Letter of Transmittal, and is not being made
to, and tenders will not 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. If the securities
laws of any jurisdiction require the Offer to be made by a licensed broker or
dealer, the Offer shall be deemed to be made on behalf of Offeror by one or
more registered brokers or dealers licensed under the laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
MYR GROUP INC.
AT
$30.10 NET PER SHARE IN CASH
BY
GPX ACQUISITION CORP.
A DIRECT WHOLLY OWNED SUBSIDIARY OF
GPU, INC.
GPX Acquisition Corp., a Delaware corporation ("Offeror") and a direct
wholly owned subsidiary of GPU, Inc., a Pennsylvania corporation ("Parent"), is
offering to purchase all outstanding shares of Common Stock, par value $0.01 per
share ("Common Stock" or the "Shares"), of MYR Group Inc., a Delaware
corporation (the "Company"), at a purchase price of $30.10 per share, net to the
seller in cash, without interest (the "Offer Price"), upon the terms and subject
to the conditions set forth in the Offer to Purchase, dated December 29,
1999, and in the related Letter of Transmittal (which, together with any
amendments or supplements to each document, collectively constitute the
"Offer"). See the Offer to Purchase for capitalized terms used but not defined
herein.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, FEBRUARY 29, 2000, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, (a) such number of
Shares having been validly tendered and not withdrawn prior to the expiration
date of the Offer that, together with Shares beneficially owned by Parent and
any of its affiliates on that date, constitute more than 50.1% of the Shares,
assuming exercise and conversion of all outstanding options and convertible
securities of the Company, (b) the expiration or termination of any applicable
waiting periods imposed by the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended and (c) the Securities and Exchange Commission (the
"Commission") having issued an order under the Public Utility Holding Company
Act of 1935, as amended, reasonably acceptable to Parent and Offeror authorizing
the acquisition of Shares, the Merger and the other transactions contemplated by
the Merger Agreement. See Sections 12 and 14 of the Offer to Purchase.
The Offer is not conditioned on obtaining financing.
The Offer is being made pursuant to the Agreement and Plan of Merger,
dated as of December 21, 1999 (the "Merger Agreement"), by and among Parent,
Offeror and the Company. The Merger Agreement provides, among other things, for
the commencement of the Offer by Offeror and further provides that, after the
purchase of the Shares pursuant to the Offer and subject to the satisfaction or
waiver of certain conditions set forth therein, Offeror will be merged with and
into the Company (the "Merger"), with the Company surviving the Merger as a
direct wholly owned subsidiary of Parent. Pursuant to the Merger, each
outstanding Share (other than Shares held by stockholders, if any, who have
properly exercised their appraisal rights under the General Corporation Law of
the State of Delaware (the "Delaware Law")), will be converted into the right to
receive the Offer Price, in cash, without interest thereon, subject to
applicable withholding and backup withholding taxes, upon the surrender of
certificates formerly representing such Shares.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE
MERGER AGREEMENT, DETERMINED THAT THE OFFER AND THE MERGER ARE FAIR TO AND IN
THE BEST INTERESTS OF THE STOCKHOLDERS OF THE COMPANY (OTHER THAN PARENT AND ITS
SUBSIDIARIES) AND RECOMMENDS THAT ALL STOCKHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER ALL THEIR SHARES PURSUANT TO THE OFFER.
For purposes of the Offer, Offeror will be deemed to have accepted for
payment (and thereby purchased) Shares validly tendered to Offeror and not
withdrawn on or prior to the Expiration Date if, as and when Offeror gives oral
or written notice to ChaseMellon Shareholder Services, L.L.C. (the "Depositary")
of Offeror's acceptance for payment of such Shares pursuant to the Offer. Upon
the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from Offeror and
transmitting payments to tendering stockholders.
The term "Expiration Date" means 12:00 midnight, New York City time, on
Tuesday, February 29, 2000, unless and until Offeror (subject to the terms of
the Merger Agreement) shall have extended the period of time during which the
Offer is open, in which event the term "Expiration Date" shall mean the latest
time and date at which the Offer, as so extended by Offeror, shall expire. In
the Merger Agreement, Offeror has agreed that it will not, without the prior
consent of the Company, extend the Offer, except that Offeror may, without the
consent of the Company, (i) extend the Offer, from time to time beyond any
scheduled expiration date, for a period not to exceed 20 business days, if at
any scheduled expiration date, any of the conditions to Offeror's obligation to
accept for payment, and pay for, the Shares is not satisfied or waived, until
such time within such 20 business day period as Offeror reasonably concludes is
necessary after all such conditions are satisfied or waived, (ii) extend the
Offer for any period required by any rule, regulation, interpretation or
position of the Commission or the staff thereof applicable to the Offer, and
(iii) extend the Offer for an aggregate period of not more than 15 business days
beyond the latest expiration date that would otherwise be permitted under clause
(i) or (ii) of this sentence if there have not been tendered sufficient Shares
so that the Merger can be effected in accordance with Section 253 of the
Delaware Law.
If by 12:00 midnight, New York City time, on Tuesday, February 29, 2000
(or any other date or time then set as the Expiration Date), any or all
conditions to the Offer have not been satisfied or waived, Offeror reserves the
right (but shall not be obligated), subject to the terms and conditions
contained in the Merger Agreement and to the applicable rules and regulations of
the Commission, to (i) terminate the Offer and not accept for payment any Shares
and return all tendered Shares to tendering stockholders, (ii) waive all the
unsatisfied conditions and, subject to complying with the terms of the Merger
Agreement and the applicable rules and regulations of the Commission, accept for
payment and pay for all Shares validly tendered prior to the Expiration Date and
not theretofore withdrawn, (iii) extend the Offer and, subject to the right of
stockholders to withdraw Shares until the Expiration Date, retain the Shares
that have been tendered during the period or periods for which the Offer is
extended, or (iv) amend the Offer.
There can be no assurance that Offeror will exercise its right to
extend the Offer. Any extension, waiver, amendment or termination will be
followed, as promptly as practicable, by public announcement thereof. In the
case of an extension, Rule 14e-1(d) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), requires that the announcement be issued no
later than 9:00 a.m. eastern time, on the next business day after the previously
scheduled Expiration Date in accordance with the public announcement
requirements of Rule 14d-4(c) under the Exchange Act, subject to applicable law.
The reservation by Offeror of the right to delay acceptance for payment of, or
payment for, Shares is subject to the provisions of Rule 14e-l(c) under the
Exchange Act, which requires that Offeror pay the consideration offered or
return the Shares deposited by or on behalf of stockholders promptly after the
termination or withdrawal of the Offer. Under no circumstances will Offeror pay
interest on the purchase price for tendered Shares whether or not Offeror
exercises its right to extend the Offer.
Tenders of Shares made pursuant to the Offer are irrevocable, except as
otherwise provided in Section 4 of the Offer to Purchase. Shares tendered
pursuant to the Offer may be withdrawn pursuant to the procedures set forth in
Section 4 of the Offer to Purchase at any time prior to the Expiration Date and,
unless accepted for payment and paid for by Offeror pursuant to the Offer, may
also be withdrawn at any time after February 26, 2000. For a withdrawal to be
effective, a written, telegraphic or facsimile transmission notice of withdrawal
must be timely received by the Depositary at one of its addresses set forth on
the back cover of the Offer to Purchase and must specify the name of the person
who tendered the Shares to be withdrawn, the number of Shares to be withdrawn
and the name of the registered holder of the Shares to be withdrawn, if
different from the name of the person who tendered the Shares. If certificates
for Shares have been delivered or otherwise identified to the Depositary, then,
prior to the physical release of such certificates, the serial numbers shown on
such certificates must be submitted to the Depositary and, unless such Shares
have been tendered by an Eligible Institution, the signatures on the notice of
withdrawal must be guaranteed by an Eligible Institution (as defined below). If
Shares have been tendered pursuant to the procedures 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 appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares. Withdrawals of
tenders of Shares may not be rescinded, and any Shares properly withdrawn will
thereafter be deemed not validly tendered for any purposes of the Offer.
However, withdrawn Shares may be retendered by following one of the procedures
described in Section 3 of the Offer to Purchase at any time prior to the
Expiration Date. An "Eligible Institution" is a bank, broker, dealer, credit
union, savings association or other entity that is a member in good standing of
a recognized Medallion Program approved by The Securities Transfer Association,
Inc.
THE INFORMATION REQUIRED TO BE DISCLOSED BY RULE 14D-6(E)(1)(VII) OF
THE GENERAL RULES AND REGULATIONS UNDER THE EXCHANGE ACT IS CONTAINED IN THE
OFFER TO PURCHASE AND IS INCORPORATED HEREIN BY REFERENCE.
The Company is providing Offeror with its list of stockholders and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Offer to Purchase, the related Letter of Transmittal and other
relevant materials will be mailed by Offeror to record holders of Shares and
will be furnished by Offeror to brokers, dealers, commercial banks, trust
companies and similar persons whose names, or the names of whose nominees,
appear on the stockholder list, or, if applicable, who are listed as
participants in a clearing agency's security position listing, for subsequent
transmittal to beneficial owners of Shares.
STOCKHOLDERS ARE URGED TO READ THE OFFER TO PURCHASE AND THE RELATED LETTER OF
TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO TENDER THEIR SHARES PURSUANT TO
THE OFFER.
Any questions and requests for assistance or for copies of the Offer to
Purchase, the related Letter of Transmittal, the Notice of Guaranteed Delivery
or other related materials may be directed to the Information Agent at its
telephone number and location set forth below, and copies will be furnished
promptly at Offeror's expense. Holders of Shares may also contact their broker,
dealer, commercial bank and trust company, or other nominee for additional
copies of the Offer to Purchase, the related Letter of Transmittal, the Notice
of Guaranteed Delivery or other related materials.
The Information Agent for the Offer is:
[GEORGESON SHAREHOLDER COMMUNICATIONS INC. LOGO]
17 State Street, 10th Floor
New York, New York 10004
Bankers and Brokers Call Collect (212) 440-9800
ALL OTHERS CALL TOLL-FREE (800) 223-2064
December 29, 1999
<PAGE> 1
NEWS RELEASE
[GRAPHIC OMITTED]
[GPU LOGO] GPU, INC.
300 MADISON AVENUE
MORRISTOWN, NJ 07962
TEL 973-455-8200
DATE: DECEMBER 22, 1999
CONTACT: JEFF DENNARD-973-455-8333
INVESTOR CONTACT: JOANNE BARBIERI-973-455.8720
FOR RELEASE: IMMEDIATELY
RELEASE NUMBER: 99-46
GPU TO ACQUIRE MYR GROUP INC., A UTILITY INFRASTRUCTURE CONSTRUCTION COMPANY
NEW UTILITY SERVICES ORGANIZATION COMPLEMENTS CORE BUSINESS
Morristown, NJ and Rolling Meadows, IL -- GPU, Inc. (NYSE: GPU) and MYR Group
Inc. (NYSE: MYR) today announced that the two companies have reached an
agreement under which GPU will acquire the suburban Chicago-headquartered
utility infrastructure construction firm for $215 million cash or $30.10 per
share. The transaction will make MYR Group Inc. a wholly owned subsidiary of
GPU, Inc. The purchase is expected to be completed in the first quarter of
2000.
Under the terms of the merger agreement between GPU and MYR, which was approved
unanimously by MYR's Board of Directors, a subsidiary of GPU is expected to
start a tender offer for all of the outstanding shares of MYR no later than
December 29, 1999.
The offer is subject to the conditions that a majority of the shares are
tendered, approval by the Securities Exchange Commission under the Public
Utility Holding Company Act of 1935 and other customary conditions. If the
tender offer is successful, it will be followed as promptly as possible by a
merger in which any remaining shares of MYR stock will be converted into the
right to receive $30.10 per share in cash.
<PAGE> 2
"This is a major step in building a platform for the non-regulated portion of
our business," said GPU, Inc. Chairman, President and Chief Executive Officer
Fred D. Hafer. "This acquisition advances our infrastructure and utility
services business strategy by building an organization that operates in both
the regulated and non-regulated sectors. It will also assist us in achieving
our earning per share growth rate goal of five percent per year."
MYR was founded in 1891, with its principal business consisting of utility
infrastructure and commercial and industrial contracting services. MYR is the
fifth largest specialty contractor in the U.S., comprised of eight operating
subsidiaries with offices spanning the country. MYR had 1998 revenues and net
income of $459 million and $8 million, respectively. The labor force consists
of 355 salaried employees and, depending on the level of contract activity,
about 4,000 hourly paid employees. Hafer noted that most of MYR's
non-management workforce is represented by the IBEW, the same union that
represents most of the bargaining unit employees of GPU's transmission and
distribution subsidiary, GPU Energy. Hafer further noted that a key to future
success for both MYR and GPU would be continued strong working relationships
with organized labor.
"We have been very selective in seeking a partner," said Charles M. Brennan
III, chairman and CEO of MYR. "We were committed to securing the best deal
for our shareholders and have succeeded. We also were determined to become
part of a growing energy services company and one that fully appreciates the
unique value we could add to its existing capabilities. It is clear that GPU
has a well-defined vision of how it will build a highly profitable
non-regulated business segment and sees us as a key element of that effort.
Our board and management team took great comfort in this being a good business
fit of companies with shared common values."
Under the acquisition agreement, Brennan will stay on as a senior consultant to
MYR. William (Bill) S. Skibitsky, currently president and chief operating
officer of MYR, will assume the role of CEO in addition to his current roles.
Initially, Skibitsky will report
<PAGE> 3
directly to Hafer. Berenson Minella & Company acted as financial advisor to MYR
in this transaction and provided a fairness opinion to the MYR Board of
Directors.
"MYR, with its demonstrated ability to succeed in the highly competitive
utility infrastructure construction business, is an important addition to GPU
and one from which we can learn. This allows us to compete in a new area of
utility services without straying from our core business," said Hafer. "It is
our intent to have MYR continue to operate with the same entrepreneurial
culture that brought them their present success."
GPU, Inc. (NYSE: GPU), headquartered in Morristown, NJ, is a registered public
utility holding company providing utility and utility related services to
customers throughout the world. GPU serves 4.6 million customers directly
through its electric distribution subsidiaries -- GPU Energy in the United
States, Midlands Electricity plc. in the United Kingdom and GPU Emdersa in
Argentina. It serves another 1.4 million customers indirectly through its
electric and gas transmission subsidiaries, GPU GasNet and GPU PowerNet in
Australia. GPU's revenues were $ 4.3 billion and its total assets were $16.3
billion in 1998. Other GPU subsidiaries include GPU Advanced Resources, Inc.,
GPU International, Inc., GPU Nuclear, Inc., GPU Service, Inc. and GPU Telcom
Services, Inc. (http://www.gpu.com)
# # #
MEDIA ADVISORY:
Interested members of the media are invited to participate in a noon media
call-in with Fred D. Hafer, chairman, president and chief executive officer of
GPU and Charles M. Brennan III, chairman and chief executive officer of MYR
Group. Please call 800 865-4435 at 11:55 a.m. EST, December 22, 1999.
(MYR FACT SHEET ATTACHED)
<PAGE> 4
FACTS ABOUT: MYR GROUP, INC.
FOUNDED: In 1982 as a holding company whose main subsidiary was
established in 1891 by Lewis E. Myers.
1998 REVENUES: $459 million
LISTED: New York Stock Exchange: MYR
BUSINESS: Through its subsidiaries, MYR Group provides a complete range
of power line and commercial/industrial electrical
construction services for electric utilities,
telecommunications providers, commercial/ industrial
facilities, and government agencies across the U.S. It also
offers mechanical construction and maintenance services for
steel, industrial and power generation clients.
Specific services include: constructing and maintaining power
lines of up to 765kV; offering complete electrical systems
wiring for high-tech manufacturing, clean rooms, power
plants, airports, petrochemical facilities and
healthcare/hospital facilities; providing gas installations,
construction and maintenance services; constructing PCS and
cellular towers for the wireless communications market;
offering all phases of electrical construction in traffic and
light rail signalization.
MAJOR
SUBSIDIARIES: -The L.E. Myers Co. - serving the Southeast, Midwest and
Northeast
-Harlan Electric Company - Michigan and Ohio Valley
-Sturgeon Electric Company, Inc. - Western U.S.
-Hawkeye Construction, Inc. - Northwestern U.S.
-D.W. Close Company, Inc. - Washington and Northwest
FINANCIAL: -5-year revenue growth thru '98: 52%
-5-year diluted EPS growth: 30%
-1998 earnings: $7.9 million or $1.20
per share diluted, up 38%
-1999/9 mos. earnings: $9.3 million or $1.38
diluted, up 68%
-Backlog at 9/30/99: $178 million (normally
completed within 12
months)
<PAGE> 5
MANAGEMENT TEAM: Charles M. Brennan III, Chairman and Chief Executive Officer
William S. Skibitsky, President and Chief Operating Officer
William A. Koertner, Chief Financial Officer and Treasurer
Byron D. Nelson, Senior Vice President, General Counsel and
Secretary
GROWTH STRATEGY: Actively pursue new alliances with utility clients and expand
telecommunications work. In the commercial/industrial
business, grow its design/build capabilities and integrate
electrical and mechanical service offerings to better meet
client needs. Concentrate on internal growth, cost control,
safety, training and productivity improvements to increase
profit margins.
12/22/99
<PAGE> 1
Exhibit 99(C)(1)
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
GPU, INC.,
MYR GROUP INC. AND
GPX ACQUISITION CORP.
DATED AS OF DECEMBER 21, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. The Offer and the Merger 1
1.1 The Offer 1
1.2 MYR Actions 3
1.3 Directors; Section 14(f) 4
1.4 The Merger 5
1.5 Certificate of Incorporation 5
1.3 Bylaws 5
1.7 Directors and Officers 5
1.8 Effective Time 5
1.9 Effects of the Merger 6
2. Effect of the Merger on the Capital Stock of the Constituent Corporations 6
2.1 Effect on Capital Stock 6
2.2 Payment of Merger Consideration and Exchange of Certificates 8
2.3 Dissenting Shares 9
3. Closing 10
3.1 Closing 10
4. Representations and Warranties of MYR 10
4.1 Organization, Power and Authority of MYR and its Subsidiaries 10
4.2 Capital Stock of MYR 11
4.3 Due Authorization; Binding Obligation; Noncontravention 12
4.4 SEC Reports 12
4.5 Financial Statements 12
4.6 Liabilities 13
4.7 Tax Matters 13
4.8 Real Estate 14
4.9 Title to and Condition of Assets 16
4.10 Licenses and Permits 16
4.11 Proprietary Rights 16
4.12 Adequacy of Assets; Relationships with its Customers and Suppliers;
Related Party Transactions; Restrictive Covenants 16
4.13 Certain Documents and Information 17
4.14 Insurance 17
4.15 Litigation 18
4.16 Records 18
4.17 No Material Adverse Change 18
4.18 Absence of Certain Acts or Events 18
4.19 Compliance with Laws 19
4.20 Environmental Matters 19
4.21 Labor Relations 20
</TABLE>
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4.22 Employee Benefits 21
4.23 Contract Revenue 22
4.24 Accuracy of Schedule 14D-9, Proxy Statement 23
4.25 Investment Bankers' and Brokers' Fees 23
4.26 Takeover Laws 23
4.27 Fairness Opinion 23
4.28 Year 2000 23
4.29 Vote Required 24
5. Representations and Warranties of GPU and Merger Subsidiary 24
5.1 Organization, Power and Authority of GPU and Merger Subsidiary 24
5.2 Due Authorization; Binding Obligation; Noncontravention 24
5.3 No Prior Activities; Assets of Merger Subsidiary 25
5.4 Accuracy of Offer Documents, Proxy Statement 25
5.5 Investment Bankers' and Brokers' Fees 25
5.6 Availability of Funds 25
6. Actions Prior to the Effective Time 25
6.1 Approval of MYR Stockholders; Securities Law Matters; Merger
Without Meeting of Stockholders; Acquisition Proposals 25
6.2 Access to Information; Due Diligence Investigations 28
6.3 Disclosure Schedule Supplement;Notice of Material Developments;
Furnishing of Certain Information 28
6.4 Maintenance of MYR as Going Concern 29
6.5 Absence of Material Changes 29
6.6 Reasonable Best Efforts 30
6.7 Publicity 30
6.8 Nonsolicitation 30
6.9 HSR Act Compliance 31
6.10 PUHCA Compliance 31
7. Conditions to the Obligations of GPU and Merger Subsidiary 31
7.1 Receipt of Necessary Consents 31
7.2 HSR Act Waiting Period 31
7.3 No Restraint 31
7.4 Corporate Action 31
7.5 Purchase of Shares in Offer 32
8. Conditions to Obligation of MYR 32
8.1 Receipt of Necessary Consents 32
8.2 HSR Act Waiting Period 32
8.3 No Restraint 32
8.4 Corporate Action 32
8.5 Purchase of Shares in Offer 32
9. Certain Additional Agreements 33
</TABLE>
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9.1 Indemnification of Directors and Officers 33
9.2 Benefit Plans 33
10. Miscellaneous 34
10.1 Amendment and Modification 34
10.2 Expenses 34
10.3 Certain Definitions 35
10.4 Termination 35
10.5 Binding Effect; Third Party Beneficiaries 36
10.6 Entire Agreement 37
10.7 Headings 37
10.8 Execution in Counterpart 37
10.9 Notices 37
10.10 Governing Law 38
10.11 Further Assurances 38
10.12 No Individual Liability 38
10.13 Nonsurvival of Representations and Warranties 39
</TABLE>
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Agreement") is made and entered
into as of this 21st day of December, 1999, by and among GPU, Inc., a
Pennsylvania corporation ("GPU"), MYR Group Inc., a Delaware corporation
("MYR"), and GPX Acquisition Corp., a Delaware corporation ("Merger
Subsidiary").
RECITALS
This Agreement provides for the acquisition of MYR by GPU pursuant to
the Offer (as defined in Section 1.1) by GPU to acquire for cash all the
outstanding shares of common stock of MYR and the subsequent merger of Merger
Subsidiary, a newly-created wholly-owned subsidiary of GPU, with and into MYR,
with MYR being the surviving corporation in the merger. In the merger the
outstanding shares of common stock of MYR will be converted into cash on the
basis provided for herein.
This Agreement sets forth the representations and warranties made by
GPU, MYR and Merger Subsidiary, sets forth certain covenants and agreements of
the parties, provides conditions to the obligations of the parties and sets
forth other provisions relating to the Offer and the merger.
The Board of Directors of each of GPU, MYR and Merger Subsidiary have
approved and adopted the merger upon the terms and subject to the conditions set
forth in this Agreement.
COVENANTS
In consideration of the mutual representations, warranties and
covenants and subject to the conditions contained herein, the parties hereto
agree as follows:
1. THE OFFER AND THE MERGER
1.1 THE OFFER.
1.1.1 As promptly as practicable (but in no event later than
five business days after the date of this Agreement), GPU shall cause
Merger Subsidiary to commence (within the meaning of Rule 14d-2 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
an offer (the "Offer") to purchase all the outstanding shares of common
stock, par value $.01 per share (the "MYR Common Stock"), of MYR at a
price of $30.10 per share, net to the seller in cash (the "Offer
Price"), and, subject to the conditions of the Offer, shall use all
reasonable efforts to consummate the Offer as promptly as permitted by
law. The obligation of GPU and Merger Subsidiary to consummate the
Offer and to accept for payment and to pay for any shares of MYR Common
Stock tendered pursuant to the Offer (i) shall be subject to the
condition that such number of shares of MYR Common Stock shall have
been validly tendered and not withdrawn prior to the expiration date of
the Offer that, together with the shares of MYR Common Stock
beneficially owned by GPU and any affiliate of GPU on that date,
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<PAGE> 6
constitute more than 50.1% of the MYR Common Stock, assuming exercise
and conversion of all outstanding options and convertible securities of
MYR (the "Minimum Condition") and (ii) shall be subject to the other
conditions set forth in Annex A to this Agreement. The Offer shall be
further subject to all of the applicable terms and conditions of Rule
51 under the Public Utility Holding Company Act of 1935, as amended
("PUHCA").
1.1.2 Neither GPU nor Merger Subsidiary shall, without the
consent of MYR, waive the Minimum Condition. Otherwise, the conditions
of the Offer are for the sole benefit of Merger Subsidiary and GPU
regardless of the circumstances giving rise to the non-fulfillment of
any such conditions and may be waived by Merger Subsidiary and GPU in
whole or in part. MYR agrees that no shares of the MYR Common Stock
held by MYR shall be tendered pursuant to the Offer. GPU and Merger
Subsidiary may modify the terms of the Offer, except that, without the
consent of MYR, they shall not (i) reduce the number of shares of MYR
Common Stock to be purchased in the Offer, (ii) reduce the Offer Price,
(iii) modify or add to the conditions set forth in Annex A, (iv) except
as provided in the next sentence, extend the Offer, (v) change the form
of consideration payable in the Offer, or (vi) amend any other term of
the Offer in a manner adverse to the holders of MYR Common Stock.
Notwithstanding the foregoing, GPU and Merger Subsidiary may, without
the consent of MYR, (i) extend the Offer, from time to time, beyond any
scheduled expiration date (the initial scheduled expiration date being
February 29, 2000) for a period not to exceed 20 business days, if at
any scheduled expiration date of the Offer, any of the conditions to
Merger Subsidiary's obligation to accept for payment, and pay for,
shares of MYR Common Stock shall not be satisfied or waived, until such
time within such 20 business day period as Merger Subsidiary shall
reasonably conclude is necessary after all such conditions are
satisfied or waived, (ii) extend the Offer for any period required by
any rule, regulation, interpretation or position of the Securities and
Exchange Commission (the "SEC") or the staff thereof applicable to the
Offer, and (iii) extend the Offer for an aggregate period of not more
than 15 business days beyond the latest expiration date that would
otherwise be permitted under clause (i) or (ii) of this sentence if
there shall not have been tendered sufficient shares of MYR Common
Stock so that the Merger could be effected as provided in Section
6.1.2(b). In addition to the foregoing, GPU may provide for a
"subsequent offering period," to the extent provided in Rule 14d-11
under the Exchange Act, as in effect as of January 24, 2000, after the
purchase of shares of MYR Common Stock pursuant to the Offer. Subject
to the terms and conditions of the Offer and this Agreement, Merger
Subsidiary shall, and GPU shall cause Merger Subsidiary to accept for
payment, and pay for, all shares of MYR Common Stock validly tendered
and not withdrawn pursuant to the Offer that Merger Subsidiary becomes
obligated to accept for payment, and pay for, pursuant to the Offer as
required by Regulation 14D under the Exchange Act.
1.1.3 As soon as practicable on the date of commencement of
the Offer, Merger Subsidiary shall file with the SEC a Tender Offer
Statement on Schedule 14D-1 with respect to the Offer, which will
contain the offer to purchase and form of the related letter of
transmittal (which, together with any supplements or amendments to
those documents, are collectively referred to as the "Offer
Documents"). The Merger Subsidiary and GPU
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shall cause the Offer Documents to comply in all material respects with
the provisions of applicable federal securities laws and, on the date
filed with the SEC and on the date first published, sent or given to
MYR's stockholders, not to contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading (except that
neither GPU nor Merger Subsidiary shall be responsible with respect to
information supplied by MYR in writing for inclusion in the Offer
Documents). Each of GPU, Merger Subsidiary and MYR shall promptly
correct any information provided by it for use or used in the Offer
Documents, if and to the extent such information shall have become
false or misleading in any material respect, and Merger Subsidiary and
GPU shall take all steps necessary to cause the Offer Documents as so
corrected to be filed with the SEC and to be disseminated to holders of
shares of MYR Common Stock, in each case as and to the extent required
by applicable federal securities laws. MYR and its counsel shall be
given a reasonable opportunity to review and comment upon the Offer
Documents and all amendments and supplements thereto prior to their
filing with the SEC or dissemination to stockholders of MYR. GPU and
Merger Subsidiary agree to provide MYR and its counsel any comments
GPU, Merger Subsidiary or their counsel may receive from the SEC or its
staff with respect to the Offer Documents promptly after the receipt of
such comments and copies of any written responses and telephone
notification of any verbal responses by GPU, Merger Subsidiary and
their counsel.
1.1.4 As soon as practicable following the execution of this
Agreement, GPU and Merger Subsidiary shall file with the SEC an
Application on Form U-1 under PUHCA, seeking authorization thereunder
to acquire the MYR Common Stock and to consummate the Merger and the
other transactions contemplated hereby (the "1935 Act Order").
1.1.5 GPU shall provide or cause to be provided to Merger
Subsidiary on a timely basis the funds necessary to accept for payment,
and pay for, any shares of MYR Common Stock that Merger Subsidiary
accepts for payment, and becomes obligated to pay for, pursuant to the
Offer.
1.2 MYR ACTIONS. MYR hereby consents to the Offer and represents and
warrants to GPU and Merger Subsidiary that its board of directors (at a meeting
duly called and held) has unanimously (i) determined that as of the date of such
meeting the Offer and the Merger (as defined in Section 1.4) are fair to, and in
the best interests of, MYR's stockholders, (ii) approved this Agreement and the
transactions contemplated by this Agreement, including the Offer, and the
Merger, and (iii) resolved, subject to Section 6.1.3 and its fiduciary duties
under applicable law, to recommend acceptance of the Offer and approval and
adoption of this Agreement and the Merger by the stockholders of MYR. MYR shall
file with the SEC contemporaneously with the commencement of the Offer a
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9")
containing that recommendation in favor of the Offer and the Merger. MYR shall
cause the Schedule 14D-9 to comply in all material respects with the provisions
of applicable federal securities laws. MYR shall cause the Schedule 14D-9, on
the date filed with the SEC and on the date first published, sent or given to
MYR's stockholders, not to contain any untrue statement of a material fact or to
omit to state any material fact required to be stated therein or
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<PAGE> 8
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading (except that MYR shall not be
responsible with respect to information supplied by GPU or Merger Subsidiary in
writing for inclusion in the Schedule 14D-9). MYR shall take all steps necessary
to cause the Schedule 14D-9 to be filed with the SEC and mailed to MYR's
stockholders to the extent required by applicable federal securities laws. MYR
shall include in the Schedule 14D-9, on the date first published, sent or given
to MYR's stockholders, such information with respect to MYR's officers and
directors as is required under Section 14(f) of the Exchange Act and Rule 14f-1
thereunder in order to fulfill its obligations under Section 1.3. GPU and Merger
Subsidiary shall supply MYR with, and be solely responsible for, any information
with respect to themselves and their nominees, officers, directors and
affiliates required by Section 14(f) and Rule 14f-1. Each of MYR, GPU and Merger
Subsidiary agrees promptly to correct any information provided by it for use in
the Schedule 14D-9 if and to the extent that such information shall have become
false or misleading in any material respect, and MYR further agrees to take all
steps necessary to amend or supplement the Schedule 14D-9 and to cause the
Schedule 14D-9 as so amended or supplemented to be filed with the SEC and
disseminated to MYR's stockholders, in each case as and to the extent required
by applicable federal securities laws. GPU and its counsel shall be given a
reasonable opportunity to review and comment upon the Schedule 14D-9 and all
amendments and supplements thereto prior to their filing with the SEC or
dissemination to stockholders of MYR. MYR agrees to provide GPU and its counsel
with any comments MYR or its counsel may receive from the SEC or its staff with
respect to the Schedule 14D-9 promptly after the receipt of such comments with
copies of any written response and telephone notification of any verbal
responses by MYR and its counsel. In connection with the Offer, MYR shall
promptly furnish Merger Subsidiary with mailing labels, security position
listings and any available listing or computer file containing the names and
addresses of the record holders of the MYR Common Stock as of a recent date, and
shall furnish Merger Subsidiary with such information and assistance as Merger
Subsidiary or its agents may reasonably request in communicating the Offer to
the stockholders of MYR. Subject to the requirements of law, and except for such
steps as are necessary to disseminate the documents constituting the Offer and
any other documents necessary to consummate the Merger, GPU and Merger
Subsidiary shall, and shall cause each of their affiliates and associates to,
hold in confidence the information contained in any such labels, lists and other
documents, to use such information only in connection with the Offer and the
Merger, and, if this Agreement is terminated, to deliver to MYR all copies of
such information then in their possession.
1.3 DIRECTORS; SECTION 14(f). Promptly upon the purchase by GPU or
Merger Subsidiary of at least a majority of the outstanding shares of MYR Common
Stock and from time to time thereafter, GPU and Merger Subsidiary shall be
entitled to designate such number of directors, rounded up to the next whole
number but in no event more than one less than the total number of directors of
the board of directors of MYR, as will give GPU and Merger Subsidiary, subject
to compliance with Section 14(f) of the Exchange Act, representation on the
board of directors of MYR equal to the product of the number of directors on the
board of directors of MYR and the percentage that such number of shares of MYR
Common Stock so purchased bears to the number of shares of MYR Common Stock
outstanding, and MYR shall, upon request by GPU and Merger Subsidiary, promptly
increase the size of the board of directors of MYR or exercise all reasonable
efforts to secure the resignations of such number of directors as is
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necessary to enable GPU's and Merger Subsidiary's designees to be elected to the
board of directors of MYR and shall cause such designees to be so elected. At
the request of GPU and Merger Subsidiary, MYR shall take, at its expense, all
action necessary to effect any such election, including mailing to its
stockholders the information required by Section 14(f) of the Exchange Act and
Rule 14f-1 thereunder. From and after the date that such designees to the board
of directors of MYR constitute a majority of the board of directors of MYR, any
action taken by MYR under this Agreement shall require the approval of a
majority of the members of the board of directors, if any, who are not designees
or affiliates of GPU and Merger Subsidiary provided, that if there shall be no
such directors, this Agreement shall not be amended to reduce the Merger
Consideration to be less than the Offer Price or otherwise amended in a manner
materially adverse to the holders of shares of MYR Common Stock other than GPU
and Merger Subsidiary or amended to permit the Merger to occur prior to March
23, 2000.
1.4 THE MERGER. Upon the terms and subject to the conditions hereof,
and in accordance with the Delaware General Corporation Law (the "DGCL"), Merger
Subsidiary shall be merged with and into MYR (the "Merger"), at the Effective
Time (as hereinafter defined). Following the Merger, MYR shall continue as the
surviving corporation and the separate existence of Merger Subsidiary shall
cease.
1.5 CERTIFICATE OF INCORPORATION. The certificate of incorporation of
MYR shall be the certificate of incorporation of the surviving corporation of
the Merger, except that it shall be amended effective at the Effective Time as
provided in Exhibit 1.5 hereto.
1.6 BYLAWS. The bylaws of Merger Subsidiary shall be the bylaws of the
surviving corporation of the Merger.
1.7 DIRECTORS AND OFFICERS. The directors and officers of the surviving
corporation shall be as determined by GPU, and they shall hold office from the
Effective Time until their respective successors are duly elected or appointed
in the manner provided in the bylaws of the surviving corporation or as
otherwise provided by law and GPU as the sole stockholder of the surviving
corporation at and after the Effective Time shall take such action and shall
cause the Board of Directors of the surviving corporation to take such action as
may be necessary or appropriate to elect such persons as directors and officers
of the surviving corporation at the Effective Time.
1.8 EFFECTIVE TIME. The Merger shall become effective at the time set
forth in the certificate of merger, substantially in the form set forth in
Exhibit 1.8, in accordance with the provisions of the DGCL (the "Certificate of
Merger"), which time shall be on the date (which shall not be earlier than March
23, 2000) but after the filing of the Certificate of Merger. The time when the
Merger shall become effective is herein referred to as the "Effective Time." The
Effective Time shall occur on the Closing Date (as defined in Section 3.1).
1.9 EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in the DGCL.
2. EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
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2.1 EFFECT ON CAPITAL STOCK. As of the Effective Time, by virtue of the
Merger and without any action on the part of any holder of shares of MYR Common
Stock or shares of common stock of Merger Subsidiary (the "Merger Subsidiary
Stock"):
2.1.1 Each share of Merger Subsidiary Stock issued and
outstanding immediately prior to the Effective Time shall be converted
into one share of common stock, $0.01 par value, of MYR.
2.1.2 Each issued and outstanding share of MYR Common Stock
immediately before the Effective Time shall be converted into the right
to receive, and shall be exchangeable for, the highest price paid
pursuant to the Offer, subject to applicable withholding or back-up
withholding taxes, if any, payable to the holder thereof, without any
interest thereon (the "Merger Consideration"), upon surrender of the
certificates representing such shares of MYR Common Stock.
2.1.3 STOCK OPTIONS. As of the Effective Time, each
outstanding stock option to purchase shares of MYR Common Stock (each,
an "MYR Stock Option") shall, by virtue of the Merger and without any
action on the part of the holder thereof, entitle the holder thereof to
receive in settlement of the exercisable portion thereof a cash payment
from MYR in an amount (the "Option Cash-Out Amount"), if any, equal to
the product of (i) the excess of the Merger Consideration over the per
share exercise price of such MYR Stock Option, and (ii) the total
number of shares of MYR Common Stock which the holder of such MYR Stock
Option is entitled to purchase under such portion of the MYR Stock
Option (whereupon such portion of the MYR Stock Option shall be
canceled). Each MYR Stock Option, or portion thereof, that is not
exercisable at the Effective Time, shall be canceled as of such time
and the holder thereof shall become entitled to receive on the date
such MYR Stock Option, or portion thereof, otherwise would have become
exercisable a cash payment from MYR in an amount equal to the Option
Cash-Out Amount. GPU agrees to make cash in an amount equal to the
aggregate Option Cash-Out Amount available to MYR as required to enable
MYR to honor its obligations under this Section 2.1.3. Notwithstanding
the foregoing, subject to the receipt of any required regulatory
approvals, within 20 business days after the Effective Time each holder
of an MYR Stock Option may elect in writing, in lieu of the cash
settlement set forth in the first two sentences of this Section 2.1.3,
to have any of such outstanding MYR Stock Options assumed by GPU, which
assumed MYR Stock Options shall continue to have, and be subject to,
the same terms and conditions set forth in the stock option plans and
agreements pursuant to which the MYR Stock Options were issued as in
effect immediately prior to the Effective Time, except that (a) such
assumed MYR Stock Options shall be exercisable for that number of whole
shares of GPU Common Stock equal to the product of the number of shares
of MYR Common Stock covered by the assumed MYR Stock Option immediately
prior to the Effective Time multiplied by the number (the "Exchange
Ratio") determined by dividing the Merger Consideration by the average
closing price of GPU Common Stock for the five (5) trading days
immediately preceding the Effective Time, rounded up to the nearest
whole number of shares of GPU Common Stock, (b) the per share exercise
price for the GPU Common Stock issuable upon the exercise of such
assumed MYR Stock Option shall be equal to the quotient
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determined by dividing the exercise price per share specified for such
MYR Stock Option under the applicable MYR Stock Option plan or
agreement immediately prior to the Effective time by the Exchange
Ratio, rounding the resulting exercise price down to the nearest whole
cent, and (c) such assumed MYR Stock Options shall not be entitled to
receive any amounts with respect to dividends paid on the shares of GPU
Common Stock covered by such Stock Options. The date of grant of any
MYR option so assumed shall be the date on which the MYR Stock Option
was originally granted. GPU shall (i) reserve for issuance the number
of shares of GPU Common Stock that will become issuable upon the
exercise of such assumed MYR Stock Options pursuant to this Section
2.1.3 and (ii) at the Effective Time, execute a document evidencing the
assumption by GPU of MYR's obligations with respect thereto under this
Section 2.1.3. Except as set forth in the Disclosure Schedule, nothing
in this Section 2.1.3 shall affect the schedule of vesting (or the
acceleration thereof) of the MYR Stock Options, assumed or not assumed
by GPU pursuant to the terms of this Section 2.1.3 in accordance with
the terms thereof. As soon as practicable after the Effective Time, GPU
shall file a registration statement on Form S-8 (or any successor
form), or another appropriate form, with respect to the shares of GPU
Common Stock subject to such assumed MYR Stock Options and shall use
its best efforts to maintain the effectiveness of such registration
statement or registration statements (and maintain the current status
of the prospectus or prospectuses contained therein) for so long as
such options remain outstanding.
SECTION 2.1.4 RESTRICTED STOCK. As of the Effective Time, each
outstanding award of MYR restricted stock ("MYR Restricted Stock")
shall, by virtue of the Merger and without any action on the part of
the holder thereof, entitle the holder thereof to receive in settlement
of the vested portion thereof a cash payment from MYR in an amount, if
any (the "Restricted Stock Cash-Out Amount"), equal to the product of
(i) the Merger Consideration and (ii) the total number of vested shares
of MYR Restricted Stock to which the holder is entitled, upon the
surrender of the certificates representing such shares of MYR
Restricted Stock. With respect to any shares of MYR Restricted Stock
that are not vested at the Effective Time, each holder thereof shall
become entitled to receive on the date such shares of MYR Restricted
Stock become vested a cash payment from MYR in an amount equal to the
Restricted Stock Cash-Out Amount, upon the surrender of the certificate
representing such shares of MYR Restricted Stock. GPU agrees to make
cash in an amount equal to the aggregate Restricted Stock Cash-Out
Amount available to MYR as required to enable MYR to honor its
obligations under this Section 2.1.4. Notwithstanding the foregoing, if
the approval of GPU's board of directors and any required regulatory
approvals are obtained, within 20 business days after the Effective
Time each holder of MYR Restricted Stock, whether or not vested, may
elect in writing, in lieu of the cash settlement set forth in the first
two sentences of this Section 2.1.4, to have all or any part of such
outstanding MYR Restricted Stock converted into GPU Restricted Stock,
subject to the same terms and conditions set forth in the plans and
agreements pursuant to which the MYR Restricted Stock was issued as in
effect immediately prior to the Effective Time, except that the number
of shares of such GPU Restricted Stock shall be that number of whole
shares of GPU Common Stock equal to the product of the number of shares
of converted MYR Restricted Stock multiplied by the
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number (the "Conversion Ratio") determined by dividing the Merger
Consideration by the average closing price of GPU Common Stock for the
five (5) trading days immediately preceding the Effective Time, rounded
up to the nearest whole number of shares of GPU Common Stock. GPU
shall, promptly after the Effective Time, issue stock certificates
evidencing such GPU Restricted Stock. Nothing in this Section 2.1.4
shall affect the schedule of vesting (or the acceleration thereof) of
the MYR Restricted Stock, converted or not converted by GPU pursuant to
the terms of this Section 2.1.4 in accordance with the terms thereof.
As soon as practicable after the Effective Time, GPU shall file a
registration statement on Form S-8 (or any successor form), or another
appropriate form, with respect to the shares of GPU Restricted Stock
issued pursuant to this Section 2.1.4 and shall use its best efforts to
maintain the effectiveness of such registration statement or
registration statements (and maintain the current status of the
prospectus or prospectuses contained therein) for so long as such
shares of restricted stock remain outstanding.
2.2 PAYMENT OF MERGER CONSIDERATION AND EXCHANGE OF CERTIFICATES.
2.2.1 Prior to the Effective Time, GPU shall appoint a bank or
trust company designated by GPU and reasonably acceptable to MYR to act
as exchange agent (the "Exchange Agent") for the payment of the Merger
Consideration.
2.2.2 At or as soon as practicable after the Effective Time,
GPU shall deposit the Merger Consideration with respect to all shares
of MYR Common Stock submitted by holders thereof for exchange in
accordance with this Section 2.2, with the Exchange Agent, for the
benefit of such holders.
2.2.3 At the Effective Time, each holder of an outstanding
certificate or certificates which prior thereto represented shares of
MYR Common Stock shall, upon surrender to the Exchange Agent of such
certificate or certificates and acceptance thereof by the Exchange
Agent, be entitled to the Merger Consideration into which such holder's
shares of MYR Common Stock have been converted pursuant to Section
2.1.2. If any Merger Consideration is to be remitted to a name other
than that in which the certificate for MYR Common Stock surrendered for
exchange is registered, it shall be a condition of such exchange that
the certificate so surrendered shall be properly endorsed or
accompanied by a properly executed assignment with signature guaranteed
by a qualified member in a Medallion Guarantee Program approved by the
Securities Transfer Association, Inc., and that the person requesting
such exchange shall pay to GPU or the Exchange Agent any transfer or
other taxes required by reason of the payment of Merger Consideration
to a name other than that of the registered holder of the certificate
surrendered. Until surrendered as contemplated by this Section 2.2.3,
each certificate for shares of MYR Common Stock shall be deemed at any
time after the Effective Time to represent the right to receive upon
such surrender the Merger Consideration contemplated by this Agreement.
No interest will be paid or will accrue on any Merger Consideration.
2.2.4 The Merger Consideration shall be deemed to have been
issued (and paid) in full satisfaction of all rights pertaining to the
shares of MYR Common Stock theretofore represented by such
certificates.
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2.2.5 Any portion of the Merger Consideration deposited with
the Exchange Agent pursuant to this Section 2.2 (the "Exchange Fund")
which remains undistributed nine months after the Effective Time shall
be delivered to GPU, upon demand, and any holders of shares of MYR
Common Stock who have not theretofore complied with this Section 2.2
shall thereafter look only to GPU and only as general creditors thereof
for payment of their claim for the Merger Consideration.
2.2.6 None of GPU, Merger Subsidiary, MYR or the Exchange
Agent shall be liable to any person in respect of any of the Merger
Consideration delivered from the Exchange Fund to a public official
pursuant to any applicable abandoned property, escheat or similar law.
2.2.7 The Exchange Agent shall invest any cash included in the
Exchange Fund, as directed by GPU. Any interest and other income
resulting from such investments shall be paid to GPU.
2.2.8 In the event any certificate representing shares of MYR
Common Stock shall have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming such certificate to
be lost, stolen or destroyed and, if required by GPU, the provision of
reasonable indemnity against any claim that may be made against it with
respect to such certificate, the Exchange Agent shall issue in exchange
for such lost, stolen or destroyed certificate the Merger Consideration
payable in respect thereof pursuant to this Agreement.
2.3 DISSENTING SHARES. Notwithstanding anything in this Agreement to
the contrary, none of the shares of MYR Common Stock that are outstanding
immediately prior to the Effective Time and that are held by stockholders (other
than GPU or the Merger Subsidiary or any corporate affiliate of either of them)
who shall not have voted those shares of MYR Common Stock in favor of the Merger
and who are entitled by applicable Delaware law to appraisal rights, and who
shall have delivered a written demand for appraisal of those shares of MYR
Common Stock in the manner provided in Section 262 of the DGCL ("Dissenting
Shares") shall be converted into the right to receive, or be exchangeable for,
the Merger Consideration; however, (a) if any holder of Dissenting Shares shall
subsequently deliver a written withdrawal of his demand for appraisal of those
shares of MYR Common Stock (with the written approval of MYR, if such withdrawal
is not tendered within 60 days after the Effective Time), or (b) if any holder
fails to establish his entitlement to appraisal rights as provided in Section
262 of the DGCL or (c) if neither any holder of Dissenting Shares nor the
surviving corporation has filed a petition demanding a determination of the
value of all Dissenting Shares within the time provided in Section 262 of the
DGCL, such holder or holders shall forfeit the right to appraisal of those
shares of MYR Common Stock and each such share shall thereupon be deemed to have
been converted into the right to receive, and to have become exchangeable for,
as of the Effective Time, the Merger Consideration.
3. CLOSING
3.1 CLOSING. The closing of the transactions contemplated by this
Agreement (the
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"Closing") shall take place at the offices of Berlack, Israels & Liberman LLP,
120 West 45th Street, New York, New York 10036 as soon as practicable after the
approval and adoption of this Agreement by the MYR stockholders as contemplated
in Section 6.1 (if required by law) and the satisfaction or waiver of the other
conditions of the parties set forth in Articles 7 and 8 hereof. At the Closing
the parties shall cause the Certificate of Merger to be filed in accordance with
the applicable provisions of the DGCL. The date on which the Closing occurs is
sometimes referred to herein as the "Closing Date."
4. REPRESENTATIONS AND WARRANTIES OF MYR
In order to induce GPU and Merger Subsidiary to enter into this
Agreement and to consummate the transactions contemplated hereunder, MYR makes
the following representations and warranties:
4.1 ORGANIZATION, POWER AND AUTHORITY OF MYR AND ITS SUBSIDIARIES.
4.1.1 MYR is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware and has full
corporate power and authority and all licenses and permits necessary to
own or lease its properties and to carry on its business as it is now
being conducted. MYR is duly qualified to transact business as a
foreign corporation, and is in good standing, in the State of Illinois,
that being the only jurisdiction in which its business or property is
such as to require that it be thus qualified except for jurisdictions
where the failure to be so qualified would not have a Material Adverse
Effect.
4.1.2 The Disclosure Schedule sets forth, with respect to each
subsidiary of MYR: (i) its name; (ii) its state of incorporation; (iii)
the states in which it is legally qualified to transact business as a
foreign corporation; (iv) a brief description of its business and
properties; (v) the number of authorized shares of its capital stock;
(vi) the number of shares of its capital stock which are issued and
outstanding and the number of such shares which are issued and held in
its treasury; and (vii) the number of shares of its capital stock which
are owned by MYR or any of its subsidiaries, all of which are owned by
MYR (or such subsidiaries, as shown) free and clear of all liens,
pledges, encumbrances, claims and equities of every kind, except as
disclosed in the Disclosure Schedule.
4.1.3 Each of the active subsidiaries of MYR is a corporation
duly organized and validly existing in good standing under the laws of
its state of incorporation and has full corporate power and authority
and all licenses and permits necessary to own or lease its properties
and to carry on its business as it is now being conducted. Each of such
subsidiaries is duly qualified to transact business as a foreign
corporation, and is in good standing, in each of the jurisdictions in
which its business or property is such as to require that it be thus
qualified, except for jurisdictions where the failure to be so
qualified would not have a Material Adverse Effect.
4.1.4 All voting rights in each of the subsidiaries of MYR are
vested exclusively in its shares of common stock. All of the issued and
outstanding shares of common stock of each of such subsidiaries are
validly authorized and issued and are fully paid and non-
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assessable. There are no outstanding warrants, options or rights of any
kind to acquire from any of such subsidiaries any shares of its common
stock or securities of any kind, except as set forth in the Disclosure
Schedule. None of such subsidiaries has any obligation to acquire any
of its issued and outstanding shares of common stock or any other
security issued by it from any holder thereof.
4.1.5 Except as set forth in the Disclosure Schedule, MYR does
not have any direct or indirect equity interest in any other person or
entity.
4.2 CAPITAL STOCK OF MYR. The authorized capital stock of MYR consists
solely of 25,000,000 shares of MYR Common Stock, of which 6,429,135 shares are
issued and outstanding on the date hereof (including 335,927 shares of
restricted stock issued under MYR's stock option and restricted stock plans
which are subject to forfeiture) and none are held in treasury, and 1,000,000
shares of preferred stock, none of which are issued. All voting rights in MYR
are vested exclusively in the issued and outstanding shares of MYR Common Stock,
and there are no voting trusts, proxies or other agreements or understandings
with respect to the voting of the capital stock of MYR to which MYR is a party.
All of the issued and outstanding shares of MYR Common Stock are validly
authorized and issued, fully paid and non-assessable. Except for the right to
acquire up to 756,650 shares of common stock upon exercise of stock options
granted under MYR's stock option plans, and the right to acquire up to 882,086
shares of common stock upon conversion of outstanding convertible notes of MYR
(with MYR having the right to repurchase 600,183 of such shares at $5.67954 per
share if issued upon conversion), there are no outstanding warrants, options or
rights of any kind to acquire from MYR any shares of MYR Common Stock or
securities of any kind, except as set forth in the Disclosure Schedule, and
there are no pre-emptive rights with respect to the issuance or sale of shares
of capital stock of MYR. MYR has no obligation to acquire any of the issued and
outstanding shares of MYR Common Stock or any other security issued by it from
any holder thereof.
4.3 DUE AUTHORIZATION; BINDING OBLIGATION; NONCONTRAVENTION. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action of MYR, except that this Agreement has not been approved by the
stockholders of MYR. This Agreement has been duly executed and delivered by MYR
and is a legal, valid and binding obligation of MYR, enforceable in accordance
with its terms except as enforceability may be affected by bankruptcy,
insolvency, moratorium and similar laws affecting creditors' rights generally
and by general principles of equity (whether brought in an action at law or in
equity). Except as disclosed in the Disclosure Schedule, neither the execution
and delivery of this Agreement by MYR nor the consummation of the transactions
contemplated hereby will: (i) conflict with or violate any provision of (a) the
certificate of incorporation or bylaws of MYR or (b) any decree or order of any
court or administrative or other governmental body which is either applicable
to, binding upon or enforceable against MYR; or (ii) result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify or cancel, or require any notice
under, any mortgage, contract, agreement, indenture or other instrument which is
either binding upon or enforceable against MYR, except in each case set forth in
(i)(b) and (ii) above, as would not, individually or in the aggregate, have a
Material Adverse Effect. No permit, consent, approval or authorization of, or
declaration to or filing with, any regulatory or other
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government authority is required in connection with the execution and delivery
of this Agreement by MYR and the consummation of the transactions contemplated
hereby, except for the filing of the Certificate of Merger, the filing required
by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act") and any filings required by federal and state securities laws.
4.4 SEC REPORTS. Since January 1, 1996, MYR has filed all forms,
reports and documents with the SEC required to be filed by it pursuant to the
Federal securities laws and the rules and regulations of the SEC thereunder, all
of which complied in all material respects with all applicable requirements of
the Securities Act of 1933, as amended (the "Securities Act") and the Exchange
Act and the rules and regulations of the SEC thereunder. The above referenced
forms, reports and documents of MYR are sometimes collectively referred to
herein as the "MYR SEC Reports." None of the MYR SEC Reports, including without
limitation any financial statements or schedules included therein, at the time
filed contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
4.5 FINANCIAL STATEMENTS. The consolidated balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
(including the related notes thereto) of MYR and its subsidiaries included in
the MYR SEC Reports complied as to form in all material respects with the
applicable accounting requirements and published rules and regulations of the
SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles ("GAAP") applied on a basis consistent with prior
periods except as otherwise noted therein, present fairly the consolidated
financial position of MYR and its subsidiaries as of their respective dates, and
the consolidated results of their operations and their cash flows for the
periods presented therein, and reflect all adjustments necessary for the fair
presentation of results for the periods presented. The balance sheet of MYR as
of September 30, 1999 and the related notes thereto included in the MYR SEC
Reports is herein sometimes referred to as the "MYR Balance Sheet."
4.6 LIABILITIES. MYR and its subsidiaries have no material liabilities
or obligations, either accrued, absolute, contingent or otherwise, except: (i)
to the extent reflected or taken into account in determining stockholders'
equity on the MYR Balance Sheet; (ii) to the extent disclosed in the MYR SEC
Reports or the Disclosure Schedule; and (iii) normal liabilities incurred in the
ordinary course of business, consistent with prior practice, since the date of
the MYR Balance Sheet.
4.7 TAX MATTERS.
4.7.1 All federal, state, local and foreign Tax Returns (as
hereinafter defined) required to be filed by or on behalf of MYR, each
of its subsidiaries, and each affiliated, combined, consolidated or
unitary group of which MYR or any of its subsidiaries (i) is a member
(a "Current MYR Group") or (ii) was a member during any years not
closed with the Internal Revenue Service for U.S. federal income tax
purposes but is not currently a member, but only insofar as any such
Tax Return relates to a taxable period or portion thereof ending on a
date within the last six years during which MYR or such subsidiary
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was a member of such affiliated, combined, consolidated or unitary
group for purposes of the relevant Tax (a "Past MYR Group," and
together with Current MYR Groups, an "MYR Affiliated Group") have been
timely filed or requests for extensions have been timely filed and any
such extension has been granted and has not expired, and all such filed
Tax Returns are complete and accurate except to the extent any failure
to file or any inaccuracies in filed Tax Returns would not have a
Material Adverse Effect on MYR (it being understood that the
representations made in this Section 4.7. to the extent that they
relate to Past MYR Groups, are made to the best knowledge of MYR and
only with respect to taxable periods or portions thereof ending on a
date within the last six years during which MYR or any of its
subsidiaries was a member of such affiliated, combined, consolidated or
unitary group for purposes of the relevant Tax). All Taxes due and
owing by MYR, any subsidiary of MYR or any MYR Affiliated Group) have
been paid, or adequately reserved for, except to the extent any failure
to pay or reserve would not have a Material Adverse Effect on MYR.
There is no audit, examination, deficiency, refund litigation, proposed
adjustment or matter in controversy with respect to any Taxes due and
owing by MYR, any subsidiary of MYR or any MYR Affiliated Group which
if determined adversely would have a Material Adverse Effect on MYR.
All assessments for Taxes due and owing by MYR, any subsidiary of MYR
or any MYR Affiliated Group with respect to completed and settled
examinations or concluded litigation have been paid. The Disclosure
Schedule sets forth (i) the taxable years of MYR for which the statutes
of limitations with respect to U.S. federal income Taxes have not
expired and (ii) with respect to federal income Taxes for such years,
those years for which examinations have been completed, those years for
which examinations are presently being conducted, and those years for
which examinations have not yet been initiated. Neither MYR nor any of
its subsidiaries has any liability under Treasury Regulation Section
1.1502-6 for U.S. federal income Taxes of any person other than MYR and
its subsidiaries. MYR and each of its subsidiaries have complied in all
material respects with all rules and regulations relating to the
withholding of Taxes, except to the extent any such failure to comply
would not have a Material Adverse Effect on MYR.
4.7.2 Except as set forth in the Disclosure Schedule, neither
MYR nor any subsidiary of MYR has (i) entered into a closing agreement
or other similar agreement with a taxing authority relating to Taxes of
MYR or any subsidiary of MYR with respect to a taxable period for which
the statute of limitations is still open, or (ii) with respect to U.S.
federal income Taxes, granted any waiver of any statute of limitations
with respect to, or any extension of a period for the assessment of,
any income Tax, in either case, that is still outstanding. There are no
liens relating to Taxes upon the assets of MYR or any subsidiary other
than liens relating to Taxes not yet due. Neither MYR nor any
subsidiary is a party to any agreement relating to allocating or
sharing of Taxes which has not been disclosed in its Tax Returns.
Except as set forth in the Disclosure Schedule, neither MYR nor any
subsidiary will be required, as a result of (A) a change in method of
accounting for a period beginning on or before the Closing Date, to
include any adjustment under Section 481(c) of the Internal Revenue
Code of 1986, as amended (the "Code") (or any corresponding provision
of state, local or foreign Tax law), or (B) any "closing agreement," as
that term is used in Section 7121 of the Code or any corresponding
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provision of state, local or foreign Tax law, to include any item of
income in, or to exclude any item of deduction from, Taxable income for
any Taxable period ending on or after the Closing Date except in each
case to the extent that such inclusion or exclusion will not have a
Material Adverse Effect on MYR. MYR has not been a United States real
property holding corporation within the meaning of Section 897(c)(2) of
the Code (or any corresponding provision of state, local or foreign Tax
law) during the applicable period specified in Section 897(c)(1)(A)(ii)
of the Code (or any corresponding provision of state, local or foreign
Tax law). No consent under Section 341(f) of the Code has been filed
with respect to MYR or any subsidiary.
4.7.3 For purposes of this Agreement: (i) "Taxes" means any
and all federal, state, local, foreign or other taxes of any kind
(together with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any taxing
authority, including, without limitation, taxes or other charges on or
with respect to income, franchises, windfall or other profits, gross
receipts, property, sales, use, capital stock, payroll, employment,
social security, workers' compensation, unemployment compensation or
net worth, and taxes or other charges in the nature of excise,
withholding, ad valorem or value added, and (ii) "Tax Return" means any
return, report or similar statement (including the attached schedules)
required to be filed with respect to any Tax, including, without
limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
4.8 REAL ESTATE.
4.8.1 The Disclosure Schedule accurately and completely sets
forth, with respect to every parcel of real estate owned by MYR or any
of its subsidiaries other than rental sites for periods less than one
year: (i) the owner; (ii) the location, including address, thereof;
(iii) the legal description and approximate size thereof; (iv) a brief
description of the principal improvements and buildings thereon, all of
which are within the property, set-back and building lines; (v) the
approximate year acquired; and (vi) the nature and amount of any
mortgages, tax liens or other liens thereon (including without
limitation any environmental liens).
4.8.2 The Disclosure Schedule accurately and completely sets
forth, with respect to every parcel of real estate leased by MYR or any
of its subsidiaries other than rental sites for periods less than one
year: (i) the lessor and lessee thereof and the date and term of the
lease governing such property; (ii) the location, including address,
thereof; (iii) a brief description of the principal improvements and
buildings thereon, all of which are within the property, set-back and
building lines thereof; and (iv) the nature and amount of any
mortgages, tax liens or other liens thereon (including without
limitation any environmental liens). MYR has previously delivered to
GPU accurate and complete copies of each of the leases covering real
estate leased by MYR and its subsidiaries, and none of such leases has
been amended or modified except to the extent that such amendments or
modifications are disclosed in such copies or in the Disclosure
Schedule. All of the leases covering the real estate leased by MYR and
its subsidiaries are in full force and effect. Neither MYR nor any of
its subsidiaries is in material default or material
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breach under any such lease. No event has occurred which with the
passage of time or the giving of notice or both would cause a material
breach of or default under any such lease. MYR has no knowledge of any
breach by the other parties to such lease.
4.8.3 Except as otherwise disclosed in the MYR SEC Reports or
the Disclosure Schedule, MYR and its subsidiaries have good and
marketable title to each parcel of the real estate owned by them and a
valid leasehold interest in each parcel of real estate leased by them,
in each case other than rental sites for periods less than one year,
free and clear of all liens, mortgages, pledges, charges, encumbrances,
assessments, restrictions, covenants and easements or title defects of
any nature whatsoever, except for liens for real estate taxes not yet
due and payable, and such imperfections of title and encumbrances, if
any, as are not substantial in character, amount or extent and do not
materially detract from the value, or materially interfere with the
present use, of such properties or otherwise impair business operations
in any material respect.
4.8.4 All of the leases covering real estate leased by MYR and
its subsidiaries, other than rental sites for periods less than one
year, are in full force and effect. Neither MYR nor any of its
subsidiaries is in material default or material breach under any such
lease. No event has occurred which with the passage of time or the
giving of notice or both would cause a material breach of or default
under any such lease. MYR has no knowledge of any breach by the other
parties to such lease.
4.8.5 Neither MYR nor any of its subsidiaries has received any
notice of (i) any condemnation proceeding with respect to any portion
of real estate owned or leased by them, and, to MYR's knowledge, no
proceeding is contemplated by any governmental authority; or (ii) any
special assessment which may affect the real estate owned or leased by
them, and, to MYR's knowledge, no such special assessment is
contemplated by any governmental authority.
4.9 TITLE TO AND CONDITION OF ASSETS. MYR and its subsidiaries have
good title to all of their respective assets and properties other than real
estate owned or leased by them, free and clear of all liens, mortgages, pledges,
encumbrances or charges of every kind, nature, and description whatsoever,
except (i) any assets or properties that have been disposed of since the date of
the most recent MYR SEC Report, (ii) as disclosed in the MYR SEC Reports or the
Disclosure Schedule, (iii) as provided in agreements of indemnity with the
sureties that issue bonds on behalf of MYR, and (iv) such imperfections of title
and encumbrances, if any, as are not substantial in character, amount or extent
and do not materially detract from the value, or materially interfere with MYR's
present or intended use, of such assets or properties or otherwise impair
business operations in any material respect. To the best of MYR's knowledge, the
fixed assets of MYR and its subsidiaries are in operating condition consistent
with industry practice.
4.10 LICENSES AND PERMITS. MYR and its subsidiaries possess all
required governmental or official approvals, permits, licenses or
authorizations, the failure to possess any of which would have a Material
Adverse Effect ("Material MYR Licenses"). All Material MYR Licenses are in full
force and effect, MYR and its subsidiaries are in compliance with their
requirements in all material respects, and no proceeding is pending or, to the
best of MYR's
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knowledge, threatened to revoke or amend or impose any fines or penalties under
any of them. None of the Material MYR Licenses is or will be impaired or in any
way affected by the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
4.11 PROPRIETARY RIGHTS. MYR or its subsidiaries possess (either
through license, ownership or otherwise) all proprietary rights including,
without limitation, with respect to intellectual property, computer software,
patents, trademarks, copyrights and the like, the failure to possess which would
have a Material Adverse Effect. Neither MYR nor any of its subsidiaries has
received a notice of the conflict of their respective businesses with
proprietary rights of others within the last five years, and, to MYR's
knowledge, the conduct of business of MYR and its subsidiaries has not infringed
any such rights of others.
4.12 ADEQUACY OF ASSETS; RELATIONSHIPS WITH ITS CUSTOMERS AND
SUPPLIERS; RELATED PARTY TRANSACTIONS; RESTRICTIVE COVENANTS. The assets and
properties of MYR and its subsidiaries (including their leased assets and
properties) constitute, in the aggregate, all of the property necessary for the
conduct of their business in the manner in which and to the extent to which it
is currently being conducted or is contemplated to be conducted by MYR. Except
for and subject to terms and conditions contained in MYR's contracts, and the
rights of any customer or supplier thereunder, MYR knows of no written or oral
communication, fact, event or action which exists or has occurred within 90 days
prior to the date of this Agreement, which indicates that: any current customer
of MYR or its subsidiaries which accounted for over 5% of the total consolidated
net sales of MYR and its subsidiaries for the year ended December 31, 1998, or
any current supplier to MYR or any of its subsidiaries of items material to the
conduct of their business, which items cannot be replaced by them at comparable
cost to them and the loss of which would have a Material Adverse Effect, will
seek to terminate its business relationship with any of them. Set forth in the
Disclosure Schedule is a list of the twenty largest customers of MYR for each of
the two consecutive years ended December 31, 1998. The MYR SEC Reports set forth
any transactions required to be set forth therein under Item 404 of Regulation
S-K under the 1933 Act. Except as set forth in the MYR SEC Reports, neither MYR
nor any of its subsidiaries is restricted by agreement from carrying on its
business anywhere in the world. There is not any default outstanding in any
material obligation to be performed by MYR or any of its subsidiaries under any
material contract or agreement by which any of them is bound or, to the
knowledge of MYR, any other party thereto.
4.13 CERTAIN DOCUMENTS AND INFORMATION. The Disclosure Schedule
accurately and completely lists the following: (i) each loan, credit agreement,
security agreement or other agreement or instrument with respect to indebtedness
(other than guarantees not related to the borrowing of money) to which MYR or
any of its subsidiaries is a party or by which it is bound; (ii) each material
lease of personal property to which MYR or any of its subsidiaries is a party or
by which it is bound; (iii) the name and annual salary rates, from January 1,
1996 to the present, of each salaried employee of MYR or any of its subsidiaries
whose current annual salary is in excess of $100,000, the aggregate estimated
bonus compensation that will be payable by MYR or any of its subsidiaries to or
for the benefit of their employees for the year ending December 31, 1999, and
any employment or other agreement, arrangement or understanding (whether oral or
written) of MYR or any of its subsidiaries with any of their respective officers
or employees; and (iv) the name of each of the officers and directors of MYR and
each of its subsidiaries. MYR has
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previously furnished GPU with an accurate and complete copy of each such
agreement, contract or commitment described in clause (i) of this Section 4.13
and listed in the Disclosure Schedule. There is not any default outstanding in
any material obligation to be performed by MYR or any of its subsidiaries under
any such instrument.
4.14 INSURANCE. All premiums and other payments which have become due
under the policies of insurance of MYR have been paid in full, all of such
policies are now in full force and effect and neither MYR nor any of its
subsidiaries has received notice from any insurer, agent or broker of the
cancellation of, or any material increase in premium with respect to, any of
such policies or bonds. Except as set forth in the MYR SEC Reports or the
Disclosure Schedule, neither MYR nor any of its subsidiaries has received any
notification from any insurer, agent or broker denying or disputing any material
claim made by any of them or denying or disputing any coverage for any such
material claim or the amount of any such claim or right with respect to the
foregoing. Except as set forth in the MYR SEC Reports or the Disclosure
Schedule, neither MYR nor any of its subsidiaries has any claim against any of
its insurers under any of such policies pending or anticipated and, to the best
of MYR's knowledge, there has been no occurrence of any kind which would give
rise to any such claim. The Disclosure Schedule includes a list of MYR's
material insurance policies.
4.15 LITIGATION. Except as set forth in the MYR SEC Reports, the
Disclosure Schedule, or in insurance loss runs previously provided to GPU by
MYR, there are no actions, suits, claims, governmental investigations or
arbitration proceedings pending or, to the best of the MYR's knowledge,
threatened against or affecting MYR or any of its subsidiaries or any of their
assets or properties which could have a Material Adverse Effect. Except as set
forth in the MYR SEC Reports or the Disclosure Schedule, there are no
outstanding orders, decrees or stipulations issued by any federal, state, local
or foreign judicial or administrative authority in any proceeding to which MYR
or any of its subsidiaries is or was a party.
4.16 RECORDS. MYR has previously furnished GPU with copies of the
certificate of incorporation and bylaws and all amendments thereto to date of
MYR and each of its active subsidiaries (certified in each case by the secretary
of such company), and such copies are correct and complete in all respects. To
the best of MYR's knowledge, all of the operating data and records of MYR and
its subsidiaries, including without limitation customer lists and financial,
accounting and credit records, are accurate and complete in all material
respects and there are no material matters as to which appropriate entries have
not been made therein. A record of all action taken by the stockholders and the
board of directors of MYR and each of its active subsidiaries all minutes of
their meetings are contained in the minute books of MYR and are accurate and
complete in all material respects. The record books and stock ledgers of MYR and
each of its active subsidiaries contain an accurate and complete record of all
issuances and cancellations of shares of their capital stock.
4.17 NO MATERIAL ADVERSE CHANGE. Since the date of the MYR Balance
Sheet, except as set forth in the Disclosure Schedule, there have not been any
changes in the business, assets, properties, condition (financial or otherwise)
or results of operations, of MYR or any of its subsidiaries, other than changes
occurring in the ordinary course of business which in the aggregate have not had
a Material Adverse Effect. There is not, to the best of MYR's
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knowledge, any threatened or prospective event or condition of any character
whatsoever which could reasonably be expected to have a Material Adverse Effect.
4.18 ABSENCE OF CERTAIN ACTS OR EVENTS. Except as disclosed in the
Disclosure Schedule, from the date of the MYR Balance Sheet through the date
hereof, neither MYR nor any of its subsidiaries has: (i) authorized or issued
any of its shares of capital stock (including any held in its treasury) or any
other securities other than issuances of MYR Common Stock upon exercise of
outstanding stock options or conversion of outstanding convertible notes; (ii)
declared or paid any dividend or made any other distribution of or with respect
to its shares of capital stock or other securities or purchased or redeemed any
shares of its capital stock or other securities or authorized the same; (iii)
sold, leased, transferred or assigned any of its assets other than in the
ordinary course of business; (iv) incurred any material obligations or
liabilities (including any indebtedness) or entered into any material
transaction, except for this Agreement and the transactions contemplated hereby,
or in the ordinary course of business; (v) suffered any uninsured theft, damage,
destruction or casualty loss in excess of $250,000; or (vi) taken any action
which if taken after the date hereof would constitute a breach of Section 6.5.
4.19 COMPLIANCE WITH LAWS. Except as set forth in the MYR SEC Reports
or the Disclosure Schedule, MYR and its subsidiaries are in compliance with all
laws, regulations and orders applicable to them or their assets, properties and
business, except where the failure so to comply would not have a Material
Adverse Effect. Neither MYR nor any of its subsidiaries has received
notification of any failure to comply with any laws, and, to the best of MYR's
knowledge, no proceeding with respect to any such violation is contemplated.
Neither MYR nor any of its subsidiaries nor, to the best of MYR's knowledge, any
employee of any of them, has knowingly made any payment of funds in connection
with their business prohibited by law, and no funds have been knowingly set
aside to be used in connection with their business for any payment prohibited by
law.
4.20 ENVIRONMENTAL MATTERS. Except as disclosed in the MYR SEC Reports
or in the Disclosure Schedule, and except for matters which are not, or would
not be, required to be disclosed in the MYR SEC Reports:
4.20.1 Neither MYR nor any of its subsidiaries (or, to the
knowledge of MYR, any predecessor or any of its subsidiaries) has
transported, stored, treated or disposed, nor has any of them allowed
or arranged for any third parties to transport, store, treat or dispose
of Hazardous Substances (as hereinafter defined) to or at any location
other than a site lawfully permitted to receive such Hazardous
Substances for such purposes, nor has it performed, arranged for or
allowed by any method or procedure such transportation, storage,
treatment or disposal in contravention of any laws or regulations,
except for any of the foregoing which would not have a Material Adverse
Effect. Neither MYR nor any of its subsidiaries (or, to the knowledge
of MYR, any predecessor or any of its subsidiaries) has disposed, or
allowed or arranged for any third parties to dispose, of material
amounts of Hazardous Substances upon property currently or, to the
knowledge of MYR, formerly owned, leased or operated by them, except as
permitted by law. For purposes of this Section 4.20, the term
"Hazardous Substances" means any pollutants, contaminants, toxic or
hazardous or extremely hazardous substances, wastes (including,
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without limitation, petroleum or any by-products or fractions thereof,
any form of natural gas, Bevill Amendment materials, lead, asbestos and
asbestos-containing materials ("ACM"), building construction materials
and debris, polychlorinated biphenyls ("PCBs") and PCB-containing
equipment, radon and other radioactive elements, ionizing radiation,
electromagnetic field radiation and other non-ionizing radiation,
infectious, carcinogenic, mutagenic, or etiologic agents, pesticides,
defoliants, explosives, flammables, corrosives and urea formaldehyde
foam insulation) that are regulated by any law, statute, ordinance,
rule or regulation governing pollution, contamination, protection of
the environment, human health or safety, health or safety of employees,
or sanitation.
4.20.2 There has not occurred, nor is there presently
occurring, a Release of a material amount of any Hazardous Substance
on, into or beneath the surface of any parcel of the real estate
currently or, to the knowledge of MYR, formerly owned, leased or
operated by MYR or any of its subsidiaries (or, to the knowledge of
MYR, any predecessor or any of its subsidiaries). For purposes of this
Section 4.20, the term "Release" shall mean releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping in violation of law or
regulation.
4.20.3 Neither MYR nor any of its subsidiaries (or, to the
knowledge of MYR, any predecessor or any of its subsidiaries) has
transported or disposed, nor has any of them allowed or arranged for
any third parties to transport or dispose, any Hazardous Substance to
or at a site which, pursuant to CERCLA or any similar state law, (i)
has been placed on the National Priorities List or its state
equivalent, or (ii) the Environmental Protection Agency or the relevant
state agency has proposed or is proposing to place on the National
Priorities List or its state equivalent. Neither MYR nor any of its
subsidiaries has received any notice, and MYR has no knowledge of any
facts which could give rise to any notice, that MYR or any of its
subsidiaries is a potentially responsible party for a federal or state
environmental cleanup site or for corrective action under CERCLA or any
other applicable law or regulation. Neither MYR nor any of its
subsidiaries has submitted nor was it required to submit any notice
pursuant to Section 103(c) of CERCLA with respect to the real estate
currently or, to the knowledge of MYR, formerly owned, leased or
operated by MYR or any of its subsidiaries (or, to the knowledge of
MYR, any predecessor or any of its subsidiaries). Neither MYR nor any
of its subsidiaries (or, to the knowledge of MYR, any predecessor or
any of its subsidiaries) has received any written or oral request for
information in connection with any federal or state environmental
cleanup site. Neither MYR nor any of its subsidiaries (or, to the
knowledge of MYR, any predecessor or any of its subsidiaries) has
undertaken (or been requested to undertake) any response or remedial
actions or clean-up actions of any kind at the request of any federal,
state or local governmental entity, or at the request of any other
person or entity.
4.20.4 There are no laws, regulations, ordinances, licenses,
permits or orders relating to environmental or worker safety matters
requiring any work, repairs, construction or capital expenditures with
respect to the assets or properties of MYR or any of its subsidiaries.
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4.20.5 MYR has delivered or made available to GPU true and
complete copies of any material reports, studies, analyses, tests, or
monitoring possessed by MYR or any of its subsidiaries relating to
material compliance with any environmental law and Hazardous Substances
at, on, under, within or migrating to or from any facility or real
property currently owned by MYR or any of its subsidiaries.
4.21 LABOR RELATIONS. Except as set forth in the Disclosure Schedule,
neither MYR nor any of its subsidiaries is a party to or bound by any collective
bargaining agreement or any other agreement with a labor union, and to the best
of MYR's knowledge, there has been no effort by any labor union to organize any
employees of MYR or any of its subsidiaries into one or more collective
bargaining units during the last two fiscal years. There are no pending or, to
the best of MYR's knowledge, threatened labor disputes, strikes or work
stoppages which could have a Material Adverse Effect. Except as disclosed in the
MYR SEC Reports or the Disclosure Schedule, and except for matters which are
not, or would not be, required to be disclosed in the MYR SEC Reports, there is
not now pending or, to the best of MYR's knowledge, threatened any charge or
complaint against MYR or any of its subsidiaries by or with the National Labor
Relations Board or any representative thereof.
4.22 EMPLOYEE BENEFITS.
4.22.1 Neither MYR nor any of its subsidiaries, nor any
corporation or business which is now or at the relevant time was a
member of a controlled group of corporations or trades or businesses
including MYR or any of its subsidiaries, within the meaning of Section
414 of the Code, maintains or contributes to, or is required to
contribute to, or at any time since January 1, 1997 maintained,
contributed to or was required to contribute to, or otherwise has any
liability with respect to: (i) any non-qualified deferred compensation
or retirement plans or arrangements; (ii) any qualified defined
contribution retirement plans or arrangements; (iii) any qualified
defined benefit pension plan; (iv) any other plan, program, agreement
or arrangement under which former employees of MYR or any of its
subsidiaries or their beneficiaries are entitled, or current employees
of MYR or any of its subsidiaries will be entitled following
termination of employment, to medical, health, life insurance or other
benefits other than pursuant to benefit continuation rights granted by
state or federal law; or (v) any other health, welfare, medical,
disability, life insurance, stock, stock purchase or stock option plan,
or any other program, agreement, arrangement or policy providing
employee benefits, except in each case as described in the Disclosure
Schedule and except for any benefits provided under collective
bargaining agreements. The plans described in the Disclosure Schedule
are referred to herein as the "Plans."
4.22.2 The administration of the Plans complies in all
material respects with the requirements of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and all other
applicable laws, and the Plans meet any applicable requirements for
favorable tax treatment under the Code in both form and operation. To
the knowledge of MYR, there have been no prohibited transactions as
defined in Section 406 of ERISA or Section 4975 of the Code with
respect to any of the Plans or any parties in interest or disqualified
persons with respect to the Plans or any reduction or curtailment of
accrued
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benefits with respect to any of the Plans. There are no pending or, to
the best knowledge of MYR, threatened, claims, lawsuits, or
arbitrations which have been asserted or instituted against the Plans,
any fiduciaries thereof with respect to their duties to the Plans or
the assets of any of the trusts under any of the Plans. No Plan is
under audit or investigation by the IRS, the Department of Labor or the
PBGC, and to the best knowledge of MYR and its subsidiaries no such
audit or investigation is threatened.
Except for any failure to comply or liability which
would not have a Material Adverse Effect, MYR and each of its
subsidiaries (i) is in compliance with all applicable laws respecting
employment, employment practices, labor, terms and conditions of
employment, wages and hours and withholding requirements, (ii) is not
liable for any arrears of wages or any taxes or any penalty for failure
to comply with any of the foregoing; and (iii) is not liable for any
payment to any trust or other fund or to any governmental or
administrative authority, with respect to unemployment compensation
benefits, social security or other benefits.
4.22.3 All required contributions for all completed Plan years
have been made or properly accrued and adequate accruals for
contributions with respect to all current Plan years are reflected in
the MYR Balance Sheet to the extent required under GAAP. The cost of
providing all retirement and post-termination benefits has been
properly accrued and is reflected in the MYR Balance Sheet in
accordance with GAAP, including Statements of Financial Accounting
Standards 87, 106 and 112. If any of the Plans is a multi-employer plan
as defined in Section 3(37) of ERISA, neither MYR nor any of its
subsidiaries would be liable for any withdrawal liability under
Subtitle E of Title IV of ERISA if a complete withdrawal occurred
immediately prior to the Effective Time.
4.22.4 MYR has furnished GPU with true and complete copies of:
(i) the Plans and any related trusts or funding vehicles, policies or
contracts and the related summary plan descriptions with respect to
each Plan; (ii) the most recent determination letters received from the
Internal Revenue Service regarding the tax qualified plans and copies
of any pending applications, filings or notices with respect to any of
the Plans with the Internal Revenue Service, the Pension Benefit
Guaranty Corporation, the Department of Labor or any other governmental
agency; and (iii) the latest financial statements and annual reports
for each of the Plans and related trusts or funding vehicles, policies
or contracts as of the end of the most recent plan year with respect to
which the filing date for such information has passed.
4.22.5 Except pursuant to agreements set forth in the
Disclosure Schedule, the execution of, and performance of the
transactions contemplated in, this Agreement will not (either alone or
upon the occurrence of any additional or subsequent events) constitute
an event under any Plan, trust or loan that will or may result in any
payment (whether severance pay or otherwise), acceleration, forgiveness
of indebtedness, vesting, increase in benefits or obligation to fund
benefits with respect to any employee of MYR or any of its
subsidiaries.
4.22.6 Except as provided on the Disclosure Schedule or
pursuant to collective
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bargaining agreements, (i) neither MYR nor any entity controlled by or
under common control with MYR within the meaning of Section 4001 of
ERISA maintains or has maintained a defined benefit plan within the
five (5) years preceding the date of this Agreement; and (ii) no
employer securities, employer real property or other employer property
is included in the assets of any Plan.
4.23 CONTRACT REVENUE. On or prior to the date of this Agreement, MYR
has provided to GPU, with respect to each uncompleted contract of MYR and its
subsidiaries having a total contract price in excess of $100,000, in each case
as of September 30, 1999, each of the following: (i) the current cumulative
contract amount (consisting of the original price and the price for all
owner-approved change orders), (ii) estimated contract profit, (iii) costs
incurred to date, (iv) estimated cost to complete, (v) revenue recognized to
date, (vi) profit recognized to date, (vii) billings to date, (viii) cost and
estimated earnings in excess of billings, (ix) billings in excess of costs and
estimated earnings, (x) retainage and (xi) backlog. To the best of MYR's
knowledge, as of such date the estimated contract profit and estimated cost to
complete for each such contract accurately reflected the actual contract profit
that was expected to be realized and the actual cost to complete that was
expected to be incurred, respectively, for such contract. As described in the
Disclosure Schedule, MYR and its subsidiaries have used the same methods for
determining the percentage of contract work completed at September 30, 1999 as
they used in determining such amounts at the date of each of the balance sheets
included in the MYR SEC Reports, for purposes of preparing their financial
statements included therein.
4.24 ACCURACY OF SCHEDULE 14D-9, PROXY STATEMENT. None of the Schedule
14D-9, any other document required to be filed by MYR with the SEC in connection
with the Offer, or the proxy statement to be submitted to the stockholders of
MYR in connection with the meeting at which the Merger is to be voted on, if
required by law (the "Proxy Statement"), will, when mailed to the stockholders
of MYR, at the time of the meeting of stockholders of MYR, if any, or at the
Effective Time include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading
in light of the circumstances under which they were made, except that MYR makes
no representations as to statements or omissions made therein concerning any
matter other than the information with respect to MYR.
4.25 INVESTMENT BANKERS' AND BROKERS' FEES. MYR has no obligation to
pay any fees or commissions to any investment banker, broker, finder or agent
with respect to the transactions contemplated by this Agreement except for the
fees of Berenson Minella & Company (the "MYR Financial Advisor") as set forth in
the agreement between MYR and MYR Financial Advisor previously delivered to GPU.
4.26 TAKEOVER LAWS. The approval of this Agreement and the Merger by
the MYR Board of Directors (i) constitutes approval of this Agreement, the
Merger, and the transactions contemplated hereby for purposes of Section 203 of
the DGCL and (ii) renders inapplicable Article Tenth and Article Eleventh of the
MYR Certificate of Incorporation to this Agreement, the Merger and the
transactions contemplated hereby. To the knowledge of MYR, except for Section
203 of the DGCL (which has been rendered inapplicable), no "moratorium,"
"control share," "fair price" or other antitakeover laws and regulations of any
state (collectively, "Takeover Laws") are applicable to the Merger or the other
transactions contemplated by this
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Agreement.
4.27 FAIRNESS OPINION. On or before the date hereof, the MYR Financial
Advisor has delivered its opinion to the MYR Board of Directors that the Merger
Consideration is fair, from a financial point of view, to the holders of MYR
Common Stock.
4.28 YEAR 2000. All internal computer systems that are material to the
business, finances or operations of MYR and its subsidiaries ("Material
Systems") are (i) able to receive, record, store, process, calculate, manipulate
and output dates prior to, on and after January 1, 2000, time periods that
include January 1, 2000 and information that is dependent on or relates to such
dates or time periods, in a manner necessary to determine the accuracy,
functionality, data integrity and performance expected when utilizing properly
performing data and (ii) able to store and output information in a manner that
is unambiguous as to century ("Year 2000 Compliant") or have been modified to be
made Year 2000 Compliant without breaching any third party license agreements or
otherwise infringing any intellectual property rights of any third party.
4.29 VOTE REQUIRED. The affirmative vote of the holders of a majority
of the shares of MYR Common Stock outstanding on the record date set for the MYR
Stockholders Meeting is the only vote of the holders of any of MYR's capital
stock necessary to approve this Agreement and the transactions contemplated
hereby.
5. REPRESENTATIONS AND WARRANTIES OF GPU AND MERGER SUBSIDIARY
In order to induce MYR to enter into this Agreement and to consummate
the transactions contemplated hereunder, GPU and Merger Subsidiary make the
following representations and warranties:
5.1 ORGANIZATION, POWER AND AUTHORITY OF GPU AND MERGER SUBSIDIARY.
Each of GPU and Merger Subsidiary is a corporation duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation with full
corporate power and authority to enter into this Agreement and to carry out the
transactions and agreements contemplated hereby. GPU is duly qualified to
transact business as a foreign corporation, and is in good standing, in each
jurisdiction in which its business or property is such as to require that it be
thus qualified except for jurisdictions where the failure to be so qualified
would not have a Material Adverse Effect.
5.2 DUE AUTHORIZATION; BINDING OBLIGATION; NONCONTRAVENTION. The
execution, delivery and performance of this Agreement, and the consummation of
the other transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action of GPU and Merger Subsidiary. This Agreement
has been duly executed and delivered by GPU and Merger Subsidiary and subject to
receipt of the 1935 Act Order, is a legal, valid and binding obligation of each
of them, enforceable in accordance with its terms except as enforceability may
be affected by bankruptcy, insolvency, moratorium and similar laws and by
general principles of equity (whether brought in an action at law or in equity).
Neither the execution and delivery of this Agreement by GPU and Merger
Subsidiary nor the consummation of the other transactions contemplated hereby or
thereby will: (i) conflict with or violate any provision of (a) the certificate
of incorporation or bylaws of GPU or Merger Subsidiary or (b) any decree or
order of any court
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or administrative or other governmental body which is either applicable to,
binding upon or enforceable against either of them; or (ii) result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify or cancel, or require any
notice under, any mortgage, contract, agreement, indenture or other instrument
which is either binding upon or enforceable against either of them except in
each case set forth in (i)(b) and (ii) above, as would not have a Material
Adverse Effect on the ability of GPU and Merger Subsidiary to consummate the
transactions contemplated hereby. No permit, consent, approval or authorization
of, or declaration to or filing with, any regulatory or other governmental
authority is required in connection with the execution and delivery of this
Agreement by GPU and Merger Subsidiary or the consummation of the other
transactions contemplated hereby or thereby except for the filing of the
Certificate of Merger, the filings required by the HSR Act, the 1935 Act Order
and any filings required by federal and state securities laws.
5.3 NO PRIOR ACTIVITIES; ASSETS OF MERGER SUBSIDIARY. Merger Subsidiary
is being utilized solely for the purpose of the Merger and engaging in the
transactions contemplated hereby. Merger Subsidiary has neither incurred any
obligations or liabilities nor engaged in any business or activities of any type
or kind whatsoever or entered into any agreement or arrangements with any person
or entity except in connection with its organization and this Agreement.
5.4 ACCURACY OF OFFER DOCUMENTS, PROXY STATEMENT. None of the Offer
Documents or the Proxy Statement, if any, will, when mailed to stockholders of
MYR, at the time of the meeting of stockholders of MYR, if any, or at the
Effective Time, include any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading in the light of the circumstances under which
they were made, except that GPU makes no representations as to statements or
omissions made therein concerning any matter with respect to MYR.
5.5 INVESTMENT BANKERS' AND BROKERS' FEES. GPU has no obligation to pay
any fees or commissions to any investment banker, broker, finder or agent with
respect to the transactions contemplated by this Agreement.
5.6 AVAILABILITY OF FUNDS. GPU currently has and will continue to have
through the Effective Time sufficient funds (or access thereto) to pay all
amounts which may be payable to stockholders of MYR pursuant to the Offer and
the Merger and to pay all fees and expenses in connection therewith.
6. ACTIONS PRIOR TO THE EFFECTIVE TIME
The parties covenant to take the following actions between the date
hereof and the Effective Time:
6.1 APPROVAL OF MYR STOCKHOLDERS; SECURITIES LAW MATTERS; MERGER
WITHOUT MEETING OF STOCKHOLDERS; ACQUISITION PROPOSALS.
6.1.1 If required by applicable law in order to consummate the
Merger, MYR
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shall duly call and promptly hold a meeting of its stockholders as soon
as practicable following the expiration of the Offer for the purpose of
approving the Merger on the terms and conditions set forth in this
Agreement and in connection therewith will comply with the applicable
provisions of the DGCL relating to the calling and holding of a meeting
of stockholders for such purpose. Subject to Section 6.1.3, the Board
of Directors of MYR shall recommend the approval and adoption of this
Agreement by the stockholders of MYR, and MYR shall use its reasonable
best efforts to obtain such adoption and approval.
6.1.2 (a) If a meeting of stockholders is required, each of
GPU and MYR agrees to cooperate in the preparation of the Proxy
Statement and other proxy solicitation materials of MYR constituting a
part thereof and all related documents. The Proxy Statement shall
comply as to form in all materials respects with the applicable
provisions of the 1934 Act and the rules and regulations thereunder.
Provided the other party has cooperated as required above, MYR agrees
to file the Proxy Statement in preliminary form with the SEC as
promptly as reasonably practicable after the expiration of the Offer.
MYR shall, as promptly as practicable after receipt thereof, provide
copies of any written comments received from the SEC with respect to
the Proxy Statement to GPU, and advise GPU of any oral comments with
respect to the Proxy Statement received from the SEC. MYR shall use its
reasonable best efforts to respond promptly to any SEC comments and to
mail the Proxy Statement to stockholders as soon as practicable after
such comments are resolved. GPU and Merger Subsidiary shall cause all
the shares of MYR Common Stock acquired pursuant to the Offer or
otherwise by GPU, Merger Subsidiary or any other subsidiary of GPU to
be voted in favor of the Merger.
(b) Notwithstanding anything to the contrary in this
Agreement, in the event that the Merger Subsidiary, or any other direct
or indirect subsidiary of GPU, acquires at least 90% of the outstanding
shares of each class of capital stock of MYR, at the request of GPU or
the Merger Subsidiary, the parties shall take all necessary and
appropriate action to cause the Merger to become effective, as soon as
practicable after the expiration of the Offer, without a meeting of
stockholders of MYR in accordance with Section 253 of the DGCL.
6.1.3 (a) MYR shall immediately cease and cause to be
terminated any activities, discussions or negotiations conducted prior
to the date of this Agreement with any parties other than GPU with
respect to any Acquisition Proposal. MYR shall not, and shall cause its
subsidiaries and the officers, directors, agents, employees, and
advisors of MYR and its subsidiaries not to, initiate, solicit or
encourage inquiries or proposals with respect to, or engage in any
negotiations concerning, or provide any confidential information to, or
have any discussions with, any person relating to, any Acquisition
Proposal. Notwithstanding the foregoing, MYR shall be permitted to
engage in any discussions or negotiations with, or provide any
information to, any person in response to a bona fide written
Acquisition Proposal by any such person, if and only to the extent that
in each such case such proposal was not solicited in violation of this
Agreement and (A) shares of MYR Common Stock shall not have been
accepted for payment under the Offer; (B) the MYR Board of Directors
determines in good faith that such Acquisition Proposal would, if
consummated, constitute a Superior Proposal; (C) the MYR Board of
Directors determines, in good faith
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after consultation with outside counsel, that such action is legally
advisable for it to act in a manner consistent with its fiduciary
duties under applicable law; and (D) prior to providing any information
or data to any person or entering into discussions or negotiations with
any person, MYR receives from such person an executed confidentiality
agreement containing terms no less restrictive with respect to such
person than the terms of the Confidentiality Agreement with respect to
GPU. MYR shall notify GPU promptly, but in any event within 24 hours,
of such inquiries, proposals, or offers received by, any such
information requested from, or any such discussions or negotiations
sought to be initiated or continued with, any of its representatives
indicating, in connection with such notice, the name of such person and
the material terms and conditions of any proposals or offers. For the
purposes of this Agreement: (i) "Acquisition Proposal" shall mean (a) a
merger or consolidation, or any similar transaction, involving MYR
(other than mergers, consolidations or similar transactions involving
solely MYR and/or one or more wholly-owned subsidiaries of MYR), (b) a
purchase or other acquisition of greater than 10% of the consolidated
assets of MYR and its subsidiaries, (c) a purchase or other acquisition
(including by way of merger, consolidation, share exchange, tender or
exchange offer or otherwise) of beneficial ownership of securities of
MYR (other than (1) as a result of the exercise or conversion of
securities of MYR outstanding on the date hereof, or (2) in connection
with any transaction described in the Disclosure Schedule), (d) any
substantially similar transaction, or (e) any inquiry or indication of
interest with respect to any of the foregoing; in each case other than
the transactions contemplated by this Agreement; and (ii) "Superior
Proposal" shall mean any bona fide written proposal (a) made by a third
party to acquire, directly or indirectly, for consideration consisting
of cash and/or securities, all of the MYR Common Stock then outstanding
or all or substantially all of the consolidated assets of MYR and
otherwise on terms which the MYR Board of Directors determines in its
good faith judgment (based on the advice of the MYR Financial Advisor
or another financial advisor of nationally recognized reputation) to be
more favorable to the stockholders of MYR than the transactions
contemplated by this Agreement and (b) which the Board determines in
good faith is reasonably likely to be consummated on the terms set
forth in the proposal taking into account all legal, financial,
regulatory and other aspects of the proposal, including, without
limitation, the nature and sufficiency of financing for the proposal
and the person making the proposal. MYR shall advise GPU of any
material developments with respect to any proposal as to which MYR is
exercising its rights pursuant to the third sentence of this Section
6.1.3(a) promptly upon the occurrence thereof. Nothing in this Section
6.1.3(a) shall (w) permit MYR to terminate this Agreement (except as
specifically provided in Section 10.4 hereof), (x) permit MYR to enter
into any agreement with respect to an Acquisition Proposal during the
term of this Agreement, (y) affect any other obligation of MYR under
this Agreement, or (z) prohibit consultation by management of MYR with
employees of MYR in connection with the purchase or sale of MYR Common
Stock by employees in the open market.
(b) Except as set forth in this Section 6.1.3(b), neither the
MYR Board of Directors nor any committee thereof shall (i) withdraw or
modify, or propose to withdraw or modify, in a manner adverse to GPU,
the approval or recommendation by the MYR
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Board of Directors of the Offer and the "agreement of merger" (as such
term is used in Section 251 of the DGCL) contained in this Agreement,
(ii) approve or recommend, or propose to approve or recommend, any
Acquisition Proposal or (iii) cause MYR or any of its subsidiaries to
enter into any letter of intent, agreement in principle, acquisition
agreement, merger agreement or other similar agreement with respect to
any Acquisition Proposal. Notwithstanding the foregoing, in the event
that the MYR Board of Directors determines in good faith, after
consultation with outside counsel, that it is legally advisable to do
so in order to act in a manner consistent with its fiduciary duties
under applicable law, the MYR Board of Directors may withdraw or modify
its approval or recommendation of the Offer and the "agreement of
merger" contained in this Agreement, the Merger and this Agreement (or
not recommend it before the Proxy Statement is sent to stockholders) or
approve or recommend a Superior Proposal, but in each case only at a
time that is after the third business day following GPU's receipt of
written notice advising GPU that the MYR Board of Directors has
received a proposal which is a Superior Proposal, specifying the
material terms and conditions of such proposal and identifying the
Person making such proposal. Nothing in this Section 6.1.3 shall
prohibit MYR from complying, to the extent applicable, with Rules 14d-9
and 14e-2(a) promulgated under the 1934 Act with respect to an
Acquisition Proposal.
6.2 ACCESS TO INFORMATION; DUE DILIGENCE INVESTIGATIONS. Upon
reasonable notice, MYR shall afford to the officers, directors, employees and
authorized representatives (including without limitation accountants and
lawyers) of GPU access, during normal business hours during the period prior to
the Effective Time, to all its properties, books, contracts, commitments and
records (including without limitation work papers of independent public
accountants) and, during such period, MYR shall (and shall cause its
subsidiaries to) furnish promptly to GPU all information concerning its
business, properties and personnel as GPU may reasonably request, provided,
however, that any furnishing of such information and any such investigation
shall not affect the right of GPU to rely on the representations and warranties
made in or pursuant to this Agreement. GPU agrees that all information and
material received by it will be treated as confidential, and that it will not
disclose, divulge or communicate such information to any other person, except to
its directors, officers, employees, attorneys, accountants, representatives and
consultants and then only to the extent as may be necessary to evaluate the
information and any negotiations relating to the transactions contemplated
hereby and provided that GPU first advises such person of the confidential
nature of the information and the requirements of this Section 6.2 and Section
6.7. GPU further agrees that all such information will be used solely for the
purpose of evaluating the transactions contemplated hereby and that it will not
use or exploit any such information for any other purpose whatsoever. If the
Merger is not concluded for any reason such information will be returned to MYR.
The foregoing provisions shall also apply to any information previously
furnished by MYR to GPU. The foregoing provisions shall not apply to any
information which GPU is required by law to disclose to a third party or is
generally known to the public other than as a result of the breach of this
Section 6.2.
6.3 DISCLOSURE SCHEDULE SUPPLEMENT; NOTICE OF MATERIAL DEVELOPMENTS;
FURNISHING OF CERTAIN INFORMATION. GPU and MYR will each give prompt written
notice to the other of (i) any action, suit, claim or governmental investigation
that may be brought, asserted, commenced or threatened against the notifying
party or any of its officers, directors or
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stockholders, and that could affect any of the transactions contemplated hereby,
and (ii) any other material development affecting the assets, properties,
financial condition, results of operations or business prospects of the
notifying party, or (iii) any breach of any representation or warranty of such
party, or the occurrence of any event that could reasonably be expected to
result in any representation or warranty no longer being accurate, except that
neither party shall be obligated to notify the other of any development
affecting the line transmission and public utility industries generally.
6.4 MAINTENANCE OF MYR AS GOING CONCERN. Except as expressly
contemplated or permitted by this Agreement, or to the extent GPU shall consent
in writing, during the period from the date of this Merger Agreement to the
Effective Time, MYR shall conduct (and shall cause its subsidiaries to conduct)
its operations according to its ordinary and usual course of business, and shall
use its reasonable best efforts to preserve intact its business organization,
keep available the services of its officers and employees and maintain
satisfactory relationships with licensors, suppliers, distributors, customers
and others having business relationships with it. During the period from the
date of this Agreement to the Effective Time, representatives of each of GPU and
MYR shall confer on a regular and frequent basis with one or more designated
representatives of the other to report on operational matters and to report the
general status of ongoing operations. MYR shall provide GPU promptly with all
documents filed by it with the SEC.
6.5 ABSENCE OF MATERIAL CHANGES. Prior to the Effective Time, MYR and
each of its subsidiaries shall not, other than in the normal course of business
and in conformity with past practices, or as contemplated by this Agreement or
the Disclosure Schedule, without the consent of GPU (which consent will not be
unreasonably withheld), (i) make any material change in its business or
operations; (ii) make any material change in its accounting policies applied in
the preparation of the financial statements referred to in Section 4.5; (iii)
declare any dividends in cash on the issued and outstanding shares of its common
stock, or make any other distribution of any kind in respect thereof other than
regular quarterly dividends consistent with past practices; (iv) issue, sell or
otherwise distribute any authorized but unissued shares of its capital stock
(other than upon exercise of options outstanding on the date of this Agreement
or permitted to be granted hereby or upon conversion of outstanding convertible
notes) or effect any stock split, stock dividend or combination or
reclassification of any such shares or grant or commit to grant or amend or
modify any option, warrant or other right to subscribe for or purchase or
otherwise acquire any shares of its capital stock or any security convertible
into or exchangeable for any such shares (other than grants of options under
stock option plans); (v) purchase or redeem any of its capital stock (or permit
any of its subsidiaries to purchase any of its capital stock); (vi) adopt any
amendment to its charter or bylaws; or (vii) dispose, or permit any of its
subsidiaries to dispose, of any of its assets outside the ordinary course of
business. In addition, from and after the date of this Agreement and prior to
the Effective Time, except as contemplated by the Disclosure Schedule, neither
MYR nor any of its subsidiaries shall, without the consent of GPU (which consent
may be granted or withheld in GPU's sole discretion): (i) pay any bonus or
increase the rate of compensation of any of their employees, except for (A)
payment of bonus compensation for the year ending December 31, 1999 in an
aggregate amount not to exceed the amount set forth in the Disclosure Schedule,
(B) salary increases for officers of MYR or any of its subsidiaries approved by
GPU (which approval shall not be unreasonably withheld), and (C)
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<PAGE> 33
regular annual salary increases for other salaried employees consistent with
past practice which do not exceed 5% in the aggregate of all employees' existing
salary rates, (ii) make or obligate itself to make capital expenditures in
excess of $500,000, provided that each individual expenditure in excess of
$100,000 shall be made only with GPU's approval (which approval shall not be
unreasonably withheld), (iii) voluntarily incur any material obligations or
liabilities (including any indebtedness) other than in the ordinary course of
business, (iv) make any change in the Plans described in the Disclosure Schedule
or adopt new employee benefit plans or enter into any employment or other
similar agreement, or (v) amend or waive any provision of, or grant any approval
under, any standstill agreement.
6.6 REASONABLE BEST EFFORTS. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable best 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,
including using its reasonable best efforts to satisfy the conditions precedent
to the obligations of any of the parties hereto, to obtain all necessary
waivers, consents and approvals, to effect all necessary registrations and
filings and to lift any injunction or other legal bar to the transactions
contemplated hereby (and, in such case, to proceed with the transactions
contemplated hereby as expeditiously as possible).
6.7 PUBLICITY. GPU and MYR agree that they will consult with each other
concerning any proposed press release or public announcement pertaining to the
transactions contemplated hereby and shall use all reasonable efforts to agree
upon the text of any such press release or public announcement prior to the
publication of such press release or the making of such public announcement.
Except for any such mutually agreed press release or public announcement, and
except as and to the extent required by law or as contemplated in the following
sentence, neither GPU, without the prior written consent of MYR, nor MYR,
without the prior written consent of GPU, shall, and each shall direct its
representatives not to, directly or indirectly, make any public comment,
statement or communication with respect to the Merger or the terms of this
Agreement. The parties agree that each of them may make disclosures to any
lender to or other person in a business relationship with such party, including
employees of that company, to whom such disclosure is necessary or appropriate
in order to satisfy any of the conditions to the consummation of the Merger or
to assist in effectuating the Merger or to whom such disclosure otherwise is
determined in good faith by such party to be appropriate under the
circumstances, provided that the person or persons to whom such disclosure is
made has agreed, where appropriate, to restrictions on disclosure consistent
with those set forth herein.
6.8 NONSOLICITATION. Each of GPU and MYR agrees that, without the prior
consent of the other party, it will not, for a period commencing on the date
hereof and continuing until the earlier of (i) the Effective Time, or (ii)
December 31, 2001, directly or indirectly solicit for employment any person who
is now employed by the other party or any of its subsidiaries provided that any
advertisement in a newspaper or other media or general solicitation shall not
constitute a solicitation as used herein.
6.9 HSR ACT COMPLIANCE. GPU and MYR shall each prepare and file with
the Federal Trade Commission and the United States Department of Justice any
notification required
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<PAGE> 34
to be filed with respect to the Merger under the HSR Act or any rules or
regulations promulgated thereunder. Each of GPU and MYR shall cause any such
filing it makes to be true and accurate in all material respects and responsive
to the requirements of the HSR Act and any such rules and regulations. Each of
GPU and MYR agrees to make available to the other such information relative to
its business, assets and property as may be required for the preparation of such
notifications.
6.10 PUHCA COMPLIANCE. As promptly as practicable after the execution
of this Agreement, GPU shall prepare and file with the SEC an Application on
Form U-1 seeking authorization under PUHCA for the acquisition by Merger
Subsidiary of the MYR Common Stock, the Merger and the transactions contemplated
hereby.
7. CONDITIONS TO THE OBLIGATIONS OF GPU AND MERGER SUBSIDIARY
The obligations of GPU and Merger Subsidiary to consummate the Merger
shall be subject to the fulfillment (or waiver by GPU and Merger Subsidiary) at
or prior to the Effective Time of each of the following conditions:
7.1 RECEIPT OF NECESSARY CONSENTS. All necessary consents or approvals
of any governmental body or agency or third parties necessary for the
consummation by GPU and MYR of the transactions contemplated hereby including,
without limitation, the 1935 Act Order, shall have been obtained and shall be in
full force and effect.
7.2 HSR ACT WAITING PERIOD. The waiting period imposed by the HSR Act
with respect to the transactions contemplated by this Agreement shall have
expired or been terminated.
7.3 NO RESTRAINT. No court or governmental regulatory authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, judgment, decree, injunction or other
order (whether temporary, preliminary or permanent) or taken any action which
prohibits the consummation of the transactions contemplated by this Agreement,
and each party agrees to use all reasonable efforts to remove any such
prohibition on the consummation of the transactions contemplated by this
Agreement.
7.4 CORPORATE ACTION. The stockholders of MYR shall have taken all
corporate action (if required under applicable law) necessary to effect the
Merger. MYR shall have furnished GPU with certified copies of resolutions duly
adopted by its directors and stockholders in connection with the Merger.
7.5 PURCHASE OF SHARES IN OFFER. The Merger Subsidiary shall have
accepted for payment and paid for shares of MYR Common Stock tendered pursuant
to the Offer.
8. CONDITIONS TO OBLIGATION OF MYR
The obligation of MYR to consummate the Merger shall be subject to the
fulfillment (or waiver by MYR) at or prior to the Effective Time of each of the
following conditions:
8.1 RECEIPT OF NECESSARY CONSENTS. All consents or approvals of any
governmental
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<PAGE> 35
body or agency or third parties necessary for the consummation by GPU and Merger
Subsidiary of the transactions contemplated hereby including, without
limitation, the 1935 Act Order , shall have been obtained and shall be in full
force and effect.
8.2 HSR ACT WAITING PERIOD. The waiting period imposed by the HSR Act
with respect to the transactions contemplated by this Agreement shall have
expired or been terminated.
8.3 NO RESTRAINT. No court or governmental or regulatory authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, judgment, decree, injunction or other
order (whether temporary, preliminary or permanent) or taken any action which
prohibits the consummation of the transactions contemplated by this Merger
Agreement, and each party agrees to use all reasonable efforts to remove any
such prohibition on the consummation of the transactions contemplated by this
Agreement.
8.4 CORPORATE ACTION. The stockholders of MYR shall have taken all
corporate action (if required under applicable law) necessary to effect the
Merger. GPU and Merger Subsidiary shall have furnished MYR with certified copies
of resolutions duly adopted by the directors of GPU and Merger Subsidiary and
the stockholder of Merger Subsidiary in connection with the Merger.
8.5 PURCHASE OF SHARES IN OFFER. The Merger Subsidiary shall have
accepted for payment and paid for shares of MYR Common Stock tendered pursuant
to the Offer; however, this condition shall be deemed satisfied if the Merger
Subsidiary fails to accept for payment and pay for shares of MYR Common Stock
pursuant to the Offer in violation of the terms of the Offer.
9. CERTAIN ADDITIONAL AGREEMENTS
9.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
9.1.1 GPU shall indemnify and provide advancement of expenses
to all present and former directors and officers of MYR and its
subsidiaries for acts or omissions occurring prior to the Effective
Time to the fullest extent now provided or made available to them by
MYR and its subsidiaries under applicable law, under their respective
articles of incorporation or bylaws and under existing indemnification
agreements (which GPU agrees shall continue in full force and effect
after the Effective Time). The provisions of this Section 9.1 shall be
in addition to the rights any officer or director may have under
applicable law, the articles of incorporation or bylaws of MYR or any
subsidiary, existing indemnification agreements, or otherwise.
9.1.2 For a period of six years after the Effective Time, GPU,
shall, or shall cause the surviving corporation to, maintain in effect,
if available, directors' and officers' liability insurance covering
those persons who are currently covered by MYR's directors' and
officers' liability insurance policy (a copy of which has been made
available to GPU) to the extent that it provides coverage for events
occurring on or prior to the Effective Time, on
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<PAGE> 36
terms (including the amounts of coverage and the amounts of
deductibles, if any) that are no less favorable to such persons than
the terms now applicable to them under MYR's current policies;
provided, however, that in no event shall GPU or the surviving
corporation be required to expend more than 200% of the annual premium
currently paid by MYR for such coverage; and provided, further, that,
if the premium for such coverage exceeds such amount, GPU or the
surviving corporation shall purchase a policy with the greatest
coverage available for such annual premium.
9.1.3 This Section 9.1 shall survive the consummation of the
Merger at the Effective Time, and shall be binding on all successors
and assigns of the surviving corporation.
9.2 BENEFIT PLANS.
9.2.1 Each Plan with respect to which any current or former
employee of MYR or any of its subsidiaries (each, an "MYR Employee")
participates immediately prior to the Effective Time shall become
obligations of the surviving corporation at the Effective Time and, for
at least one year thereafter, GPU shall, or shall cause the surviving
corporation to either maintain the Plans (including incentive
compensation arrangements) or provide benefits that are comparable, in
the aggregate, to the benefits provided to the MYR Employees,
considered as a group, under such Plans as in effect immediately prior
to the Effective Time. Nothing in this Section 9.2.1 shall require the
surviving corporation or GPU to continue the employment of any MYR
Employee.
9.2.2 With respect to any employee benefit plans covering
employees of GPU and its subsidiaries ("GPU Plans"), GPU shall, or
shall cause the surviving corporation to: (i) with respect to any
medical or health plan, waive any pre-existing condition or exclusion
in any GPU Plans in which any MYR Employee may be entitled to
participate that would result in a lack of coverage for any condition
for which an MYR Employee would have been entitled to coverage under
the corresponding Plan; (ii) provide each MYR Employee with credit for
any co-payments and deductibles paid prior to the Effective Time (to
the same extent such credit was given under the analogous Plan prior to
the Effective Time) in satisfying any applicable deductible or
out-of-pocket requirements under any GPU Plans in which such employees
may be eligible to participate after the Effective Time, and (iii)
recognize all service of the MYR Employees with MYR or any of its
subsidiaries for purposes of eligibility to participate and vesting
credit in any GPU Plan in which the MYR Employees may be eligible to
participate after the Effective Time; provided that the foregoing shall
not apply to the extent it would result in duplication of benefits. GPU
represents that there are no waiting periods under any of its current
medical or health plans.
10. MISCELLANEOUS
10.1 AMENDMENT AND MODIFICATION. The parties hereto may amend, modify
and supplement this Agreement in such manner as may be agreed upon by them in
writing, whether before or after approval of the stockholders of MYR, except
that after such approval is obtained,
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<PAGE> 37
any amendment, modification or supplement which requires stockholder approval
under applicable law shall not be made without such required approval.
10.2 EXPENSES.
10.2.1 Except as otherwise provided in this Section 10.2, the
parties agree that whether or not the Merger is consummated, GPU will
pay and bear all of the expenses incurred by it and MYR will bear all
of the expenses incurred by MYR in connection with the Merger and this
Agreement.
10.2.2 The parties agree that: (i) if MYR shall terminate this
Agreement pursuant to Section 10.4.7, (ii) if GPU shall terminate this
Agreement pursuant to Section 10.4.4 due to the failure to satisfy the
condition set forth in paragraph (g) of Annex A hereto, (iii) if (a)
MYR or GPU shall terminate this Agreement pursuant to Section 10.4.4
due to the failure to satisfy the Minimum Condition, (b) at any time
after the date of this Agreement and at or before the time of the event
giving rise to such termination there shall exist an Acquisition
Proposal and (c) within 12 months of the termination of this Agreement,
MYR enters into a definitive agreement with any third party with
respect to an Acquisition Proposal or an Acquisition Proposal is
consummated, or (iv) if GPU shall terminate this Agreement pursuant to
Section 10.4.6, then MYR concurrent with such termination in the case
of a termination as set forth in clause (i), (ii) and (iv) and
concurrent with the occurrence of an event set forth in clause
(iii)(c), shall pay to GPU $7 million. The payment provided by this
Section 10.2.2 shall be GPU's exclusive remedy in the event of the
termination of this Agreement under circumstances where such payment is
or becomes payable.
10.3 CERTAIN DEFINITIONS. For purposes of this Agreement:
10.3.1 The "actual knowledge" or "knowledge" of a person shall
include anything which any of the executive officers or directors of
such person or directors of any of its subsidiaries actually knows and
"best of knowledge" of a person shall include anything which any of the
executive officers or directors of such person or directors of any of
its subsidiaries knows after reasonable inquiry.
10.3.2 "Disclosure Schedule" shall refer to the disclosure
schedule delivered by MYR to GPU concurrently with the execution and
delivery of this Agreement, which disclosure schedule shall form a part
of this Agreement.
10.3.3 "Material Adverse Effect" means, when used in
connection with GPU or MYR, any change or development that either
individually or in the aggregate with all other such changes or
developments is materially adverse to the business, assets, properties,
condition (financial or otherwise), or results of operations of such
party and its subsidiaries taken as a whole.
10.3.4 "Material" means, when used in connection with GPU or
MYR, material to the business, assets, properties, condition (financial
or otherwise), or results of
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operations of such party and its subsidiaries taken as a whole.
10.3.5 A "person" shall include an individual, corporation,
partnership, limited liability company, association, trust,
unincorporated organization or other entity.
10.3.6 A "subsidiary" of any person means another person, an
amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a
majority of its board of directors or other governing body (or, if
there are no such voting interests, 50% or more of the equity interests
of which) is owned directly or indirectly by such first person.
10.4 TERMINATION. Anything to the contrary herein notwithstanding, this
Agreement may be terminated and the Merger may be abandoned, whether before or
after approval of the stockholders of GPU and MYR:
10.4.1 by the mutual written consent of all of the parties
hereto at any time prior to the Effective Time;
10.4.2 by GPU and Merger Subsidiary (i) if due to an
occurrence that would result in a failure to satisfy any of the
conditions set forth in Annex A, the Merger Subsidiary shall have (A)
failed to commence the Offer within five business days following the
date of this Agreement, or (B) terminated the Offer; or (ii) if MYR
deliberately fails to perform in any material respect any of its
obligations under this Agreement, and, at the time of such failure,
GPU's and the Merger Subsidiary's designees on the board of directors
of MYR do not constitute a majority of the members of the board of
directors of MYR;
10.4.3 by MYR if the Merger Subsidiary shall have (A) failed
to commence the Offer within five business days following the date of
this Agreement, (B) terminated the Offer or (C) failed to pay (by
deposit with the depository for the Offer) for shares of MYR Common
Stock pursuant to the Offer within five business days following the
expiration of the Offer;
10.4.4 by any party giving written notice to the other parties
at any time after the expiration or termination of the Offer without
GPU or Merger Subsidiary purchasing any shares of MYR Common Stock
pursuant thereto, provided that a party may not terminate pursuant to
this Section 10.4.4 if it is in material breach of the terms of this
Agreement;
10.4.5 by any party hereto if the purchase of shares of MYR
Common Stock pursuant to the Offer shall not have taken place by June
30, 2000, provided that a party may not terminate pursuant to this
Section 10.4.5 if such party is in material breach of any of its
obligations specified herein;
10.4.6 by GPU if the Board of Directors of MYR, prior to the
purchase of shares of MYR Common Stock pursuant to the Offer (i) shall
withdraw or modify in any adverse manner its approval or recommendation
of this Agreement pursuant to Section 6.1.3, (ii)
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<PAGE> 39
shall approve or recommend any Acquisition Proposal or Superior
Proposal or (iii) shall resolve to take any of the actions specified in
clauses (i) or (ii) above; or
10.4.7 by MYR at any time prior to the purchase of shares of
MYR Common Stock pursuant to the Offer, upon three business days' prior
notice to GPU, if the Board of Directors of MYR shall approve a
Superior Proposal; provided, however, that (i) MYR shall have complied
with Section 6.1.3, (ii) the Board of Directors of MYR shall have
concluded in good faith, after giving effect to all concessions which
may be offered by GPU pursuant to clause (iii) below, after
consultation with its financial advisors and outside counsel, that such
proposal continues to be a Superior Proposal and (iii) prior to any
such termination, MYR shall, and shall cause its financial and legal
advisors to, negotiate with GPU to make such adjustments in the terms
and conditions of this Agreement as would enable GPU to proceed with
the transactions contemplated hereby; provided, however, that it shall
be a condition to termination by MYR pursuant to this Section 10.4.7
that MYR shall have made the payment to GPU required by Section 10.2.2.
The liability of any party to this Agreement for any breach or
violation of this Agreement shall not be limited except as specifically set
forth in Section 10.2.2.
10.5 BINDING EFFECT; THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement shall not confer any rights or
remedies upon any person other than the parties hereto and their respective
successors and permitted assigns; provided, however, that the provisions of
Section 9.1 are intended for the benefit of the persons identified therein. No
person who is a party to this Agreement shall be permitted to assign this
Agreement or any of its rights hereunder without the consent of the other
parties hereto. No person for whose benefit this Agreement or any of its
provisions are intended shall be permitted to assign any of such party's rights
without the consent of GPU.
10.6 ENTIRE AGREEMENT. This instrument, the exhibits attached hereto
and the Disclosure Schedule contain the entire agreement of the parties hereto
with respect to the Merger and the other transactions contemplated herein, and
supersede all prior understandings and agreements of the parties with respect to
the subject matter hereof. Any reference herein to this Agreement shall be
deemed to include the exhibits attached hereto and the Disclosure Schedule.
10.7 HEADINGS. The descriptive headings in this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
10.8 EXECUTION IN COUNTERPART. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original.
10.9 NOTICES. Any notice, request, information or other document to be
given hereunder shall be in writing. Any notice, request, information or other
document shall be deemed duly given upon receipt after it is sent by registered
or certified mail, postage prepaid, to the intended recipient, addressed as
follows:
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<PAGE> 40
If to MYR prior to the Closing Date, addressed to such party as
follows:
MYR Group, Inc.
Three Continental Towers
1701 West Golf Road, Suite 1012
Rolling Meadows, IL 60008
Attention: Chairman and Chief Executive Officer
Fax: (847) 290-8046
with a copy to:
Bell, Boyd & Lloyd
70 West Madison Street, Suite 3300
Chicago, IL 60602
Attention: William G. Brown
Fax: (312) 372-2098
If to GPU or Merger Subsidiary:
GPU, Inc.
c/o GPU Service, Inc.
300 Madison Avenue
Morristown, NJ 07962
Attention: David C. Brauer
Vice President - Strategic Initiatives
Fax: (973) 455-8532
with copies to:
Berlack, Israels & Liberman LLP
120 West 45th Street
New York, NY 10036
Attention: Douglas E. Davidson
Fax: (212) 704-0196
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, NY 10004
Attention: Paul M. Reinstein
Fax: (212) 859-8586
Any party may send any notice, request, information or other document to be
given hereunder using any other means (including personal delivery, courier,
messenger service, facsimile transmission or ordinary mail), but no such notice,
request, information or other document shall be deemed duly given unless and
until it is actually received by the party for whom it is intended.
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<PAGE> 41
Any party may change the address to which notices hereunder are to be sent to it
by giving written notice of such change of address in the manner herein provided
for giving notice.
10.10 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware (without reference to its
conflicts of laws rules).
10.11 FURTHER ASSURANCES. In the event that at any time after the
Effective Time further action is necessary to carry out the purposes of this
Agreement, the parties shall take all such necessary action.
10.12 NO INDIVIDUAL LIABILITY. Whether or not the Effective Time shall
occur, no incorporator, director, officer, employee, or stockholder of MYR or
GPU shall have any liability under the terms of this Agreement or as a result of
the transactions contemplated hereby, and, no recourse shall be had against any
such incorporator, director, officer, employee, or stockholder of GPU or MYR,
whether by virtue of any constitutional provision or statute or rule of law, or
by enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the parties hereto as part of
the consideration in entering into this Agreement, in each case to the fullest
extent permitted by law.
10.13 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties of this Agreement or in any schedule, instrument
or other document delivered pursuant to this Agreement shall survive the
Effective Time. This Section 10.13 shall not limit any covenant or agreement of
the parties hereto which by its terms contemplates performance after the
Effective Time.
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<PAGE> 42
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GPU, INC.
By /s/ Fred D. Hafer
----------------------------------------
Fred D. Hafer
Chairman and Chief Executive Officer
MYR GROUP INC.
By /s/ Charles M. Brennan III
----------------------------------------
Charles M. Brennan III
Chairman and Chief Executive Officer
GPX ACQUISITION CORP.
By /s/ David C. Brauer
----------------------------------------
David C. Brauer
<PAGE> 43
MYR DISCLOSURE SCHEDULES
<TABLE>
<CAPTION>
<S> <C>
Schedule 2.1.3 Option Disclosure
Schedule 4.1 Subsidiaries
Schedule 4.2 Capital Stock
Schedule 4.3 Consents
Schedule 4.6 Liabilities
Schedule 4.7 Taxes
Schedule 4.8 Real Estate
Schedule 4.9 Liens and Encumbrances
Schedule 4.12 Customers
Schedule 4.13 Certain Documents and Information
Schedule 4.14 Insurance
Schedule 4.15 Litigation
Schedule 4.17 Material Adverse Change
Schedule 4.18 Absence of Certain Acts or Events
Schedule 4.19 Compliance with Laws
Schedule 4.20 Environmental Matters
Schedule 4.21 Labor Relations
Schedule 4.22 Employee Benefits
Schedule 4.23 Contract Revenue
Schedule 6.5 Conduct of Business
</TABLE>
<PAGE> 44
EXHIBITS
<TABLE>
<CAPTION>
<S> <C>
Exhibit 1.5 Amended and Restated Certificate of Incorporation of
Surviving Corporation
Exhibit 1.8 Certificate of Merger
</TABLE>
<PAGE> 45
ANNEX A
TO
AGREEMENT AND PLAN OF MERGER
Conditions of the Offer. Notwithstanding any other provisions of the
Offer, and in addition to (and not in limitation of) the Merger Subsidiary's
right to amend the Offer at any time in its sole discretion, but nevertheless
subject to the provisions of the Agreement (capitalized terms used herein and
not otherwise defined herein having the meanings ascribed to such terms in the
Agreement) the Merger Subsidiary shall not be required to accept for payment, or
pay for, and may delay the acceptance for payment, or the payment, of, any
tendered shares of MYR Common Stock, if (i) the Minimum Condition shall not have
been satisfied, (ii) all waiting periods under the Hart-Scott-Rodino Antitrust
Improvement Act of 1976, as amended, applicable to the purchase of shares of MYR
Common Stock pursuant to the Offer shall not have expired or been terminated,
(iii) the SEC shall not have issued an order reasonably acceptable to GPU and
the Merger Subsidiary authorizing the acquisition of the MYR Common Stock, the
Merger and the other transactions contemplated by this Agreement under the
Public Utility Holding Company Act of 1935, as amended or (iv) at any time on or
after the date of the Agreement and at or before the time of payment for any
such shares of MYR Common Stock (whether or not any shares of MYR Common Stock
have theretofore been accepted for payment or paid for pursuant to the Offer),
any of the following events shall occur:
(a) any Material Adverse Effect with respect to MYR shall have occurred
or be threatened; or
(b) there shall have occurred (1) any general suspension of trading in,
or limitation on prices for, securities on the New York Stock Exchange or the
American Stock Exchange (excluding any coordinated trading halt triggered solely
as a result of a specified decrease in a market index), (2) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States (whether or not mandatory), (3) any material limitation (whether
or not mandatory) imposed by any governmental authority on the extension of
credit by banks or other lending institutions in the United States that
materially and adversely affects the ability of GPU and the Merger Subsidiary to
obtain extensions of credit, or (4) from the date of the Agreement through the
date of termination or expiration of the Offer, a decline of at least 33% in
either the Dow Jones Average of Industrial Stocks or the Standard & Poor's 500
Index; or
(c) any of the representations and warranties made by MYR in the
Agreement that are qualified by materiality or Material Adverse Effect shall not
be true and correct in all respects, or any other representation or warranty
made by MYR in the Agreement shall not be true and correct in any material
respect, or MYR shall have breached any covenant contained in the Agreement or
the Agreement shall have been terminated in accordance with its terms; or
(d) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction promulgated, enacted, entered or
enforced, by any state, federal or foreign
<PAGE> 46
government or governmental authority or by any court, domestic or foreign (a
"Governmental Entity), that could reasonably be expected to, or any Governmental
Entity shall have instituted or threatened litigation that seeks to, (i) make
the acceptance for payment of, or the payment for, some or all of the shares of
MYR Common Stock or consummation of the Merger illegal or otherwise prohibited
or impose any damages or fines in connection therewith that are material in
amount in relation to the transactions contemplated by the Agreement, (ii)
impose material limitations on the ability of GPU or the Merger Subsidiary to
acquire or hold or to exercise effectively all rights of ownership of MYR Common
Stock, including, without limitation, the right to vote any shares of MYR Common
Stock purchased by either of them on all matters properly presented to the
stockholders of MYR, (iii) require GPU and MYR or any of their respective
affiliates or subsidiaries to dispose or hold separate any material portion of
their assets or business of any of them, or (iv) prohibit or impose any material
limitation on GPU's or the Merger Subsidiary's ownership or operation of all or
a material portion of the assets or business of MYR or any of its subsidiaries
or affiliates; or
(e) MYR, GPU or the Merger Subsidiary shall have failed to receive any
or all governmental consents and approvals to consummation of the Offer, which,
if not received, could reasonably be expected to have a Material Adverse Effect;
or
(f) the board of directors of MYR shall have publicly (including by
amendment of its Schedule 14D-9) withdrawn or amended in any respect its
recommendation of the Offer or shall have resolved to do so, unless such
withdrawal or amendment results from a material breach by GPU or Merger
Subsidiary of any representations or warranties herein or a failure by GPU or
Merger Subsidiary to fulfill any material covenant herein; or
(g) any corporation, entity, "group" or "person" (as defined in the
Securities Exchange Act of 1934, as amended), other than GPU or any of its
affiliates, shall have acquired beneficial ownership of a majority of the
outstanding shares of MYR Common Stock.
The foregoing conditions are for the sole benefit of GPU and Merger
Subsidiary and may be asserted by GPU or Merger Subsidiary regardless of the
circumstance giving rise to such condition and, subject to the terms of the
Agreement, may be waived by GPU and Merger Subsidiary, in whole or in part at
any time and from time to time, in their sole discretion (except that the
Minimum Condition may not be waived by GPU without the consent of MYR). The
failure by GPU and Merger Subsidiary at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right, which may be asserted at any time and
from time to time. Any determination by GPU and Merger Subsidiary shall be final
and binding upon all parties, including tendering stockholders.
<PAGE> 47
EXHIBIT 1.5
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MYR GROUP INC.
-----------------
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is MYR GROUP INC.
SECOND: The address, including street, number, city and county, of the
registered office of the corporation in the State of Delaware is 1013 Centre
Road, City of Wilmington, County of New Castle; and the name of the registered
agent of the corporation in the State of Delaware at such address is Corporation
Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is one hundred (100) shares, all of which are without
par value. All such shares are of one class and are shares of Common Stock.
FIFTH: The corporation is to have perpetual existence.
SIXTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented from time to time.
SEVENTH: The board of directors of the corporation is expressly
authorized to adopt, amend or repeal bylaws of the corporation.
EIGHTH: Elections of directors need not be by written ballot except and
to the extent provided in the by-laws of the corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this __th day of
December, 1999.
-------------------------
<PAGE> 48
EXHIBIT 1.8
CERTIFICATE OF MERGER
OF
MYR GROUP INC.
AND
GPX ACQUISITION CORP.
It is hereby certified that:
1. The constituent business corporations participating in the
merger herein certified are:
(i) MYR GROUP INC., which is incorporated under the
laws of the State of Delaware; and
(ii) GPX ACQUISITION CORP., which is incorporated
under the laws of the State of Delaware.
2. An Agreement and Plan of Merger has been approved, adopted,
certified, executed, and acknowledged by each of the aforesaid constituent
corporations in accordance with the provisions of subsection (c) of Section 251
of the General Corporation Law of the State of Delaware.
3. The name of the surviving corporation in the merger herein
certified is MYR Group Inc., which will continue its existence as said surviving
corporation under its present name upon the effective date of said merger
pursuant to the provisions of the General Corporation law of the State of
Delaware.
4. The Amended and Restated Certificate of Incorporation of
MYR Group Inc. attached hereto shall be the Certificate of Incorporation of said
surviving corporation until amended and changed pursuant to the provisions of
the General Corporation Law of the State of Delaware.
5. The executed Agreement of Merger between the aforesaid
constituent corporations is on file at an office of the aforesaid surviving
corporation, the address of which is as follows:
[address]
6. A copy of the aforesaid Agreement and Plan of Merger will
be furnished by the aforesaid surviving corporation, on request, and without
cost, to any stockholder of each of
<PAGE> 49
the aforesaid constituent corporations.
Dated: December ___, 1999 MYR GROUP INC.
By:
Name:
Title:
Dated: December ___, 1999 GPX ACQUISITION CORP.
By:
Name:
Title:
<PAGE> 1
December 21, 1999
GPU, Inc.
GPX Acquisition Corp.
300 Madison Avenue
Morristown, NJ 07962
Re: Agreement and Plan of Merger, dated as of December 21, 1999 by and among
GPU, Inc., GPX Acquisition Corp. and MYR Group Inc. ("Merger Agreement")
Dear Sirs:
Reference is made to the above-captioned Merger Agreement executed
today by GPU, Inc. ("GPU"), GPX Acquisition Corp. ("Merger Subsidiary") and MYR
Group Inc. ("MYR"). Capitalized terms in this Letter Agreement shall have the
meaning given to them in the Merger Agreement unless otherwise defined herein.
Pursuant to the Merger Agreement, GPU has agreed to cause Merger
Subsidiary to commence an offer to purchase all of MYR's issued and outstanding
shares of Common Stock for $30.10 per share ("Offer Price"). In the event the
Minimum Condition and other conditions to the offer are satisfied, Merger
Subsidiary will accept and pay for all MYR Common Stock tendered pursuant to the
Offer. The Merger Agreement provides that, on or after March 23, 2000, Merger
Subsidiary will, subject to the terms and conditions of the Merger Agreement,
merge with and into MYR, with MYR as the surviving corporation. If Merger
Subsidiary is successful in acquiring at least
<PAGE> 2
GPU, Inc.
GPX Acquisition Corp.
December 21, 1999
Page 2
90% of MYR's Common Stock through the Offer, the Merger may be consummated under
applicable Delaware law without a meeting of MYR's shareholders.
Each of the undersigned (the "Executives") has previously advised GPU
and Merger Subsidiary and hereby confirms that, in order to avoid substantial
adverse income tax consequences if they were to sell 319,446 shares of MYR
Common Stock in the case of Mr. Brennan and 27,779 such shares in the case of
Mr. Nelson (collectively, the "Withheld Shares") prior to March 23, 2000, they
would not tender any of their Withheld Shares in response to the Offer if the
Offer is consummated by its terms prior to March 23, 2000.
By this Letter Agreement, each of the Executives, severally and not
jointly, hereby undertakes and agrees that (a) if the Offer is consummated prior
to March 23, 2000, they will tender to Merger Subsidiary and not withdraw all of
their shares of MYR Common Stock, other than the Withheld Shares, pursuant to
the Offer and (b) if the Offer is consummated on or after March 23, 2000, they
will tender to Merger Subsidiary and not withdraw all of their shares of MYR
Common Stock, including the Withheld Shares, pursuant to the Offer. Each of the
Executives, severally and not jointly, further undertakes and agrees that if the
Offer is consummated prior to March 23, 2000, as promptly as possible following
March 22, 2000 and their receipt of a written request from Merger Subsidiary to
do so, they will, and each Executive hereby, severally and not jointly, agrees
to, sell to Merger Subsidiary all of their Withheld Shares for a price
<PAGE> 3
GPU, Inc.
GPX Acquisition Corp.
December 21, 1999
Page 3
equal to the Offer Price, it being agreed and understood that any such sale by
the Executives and purchase by Merger Subsidiary shall be subject to the
Executives' delivery of such instruments of transfer and other terms as are
contained in the Offer. Neither of the Executives shall transfer any of his
shares of MYR Common Stock except as set forth herein.
This Letter Agreement is intended to be a legally binding and
enforceable several obligation of each of the Executives, shall be governed and
construed in accordance with New York law (without giving effect to conflict of
law principles) and may be executed in several counterparts.
Very truly yours,
/s/ Charles M. Brennan III
-------------------------------
Charles M. Brennan III
/s/ Byron D. Nelson
-------------------------------
Byron D. Nelson
Acknowledged, agreed and accepted as of December 21, 1999.
GPU, Inc.
GPX Acquisition Corp.
By: /s/ Fred D. Hafer
----------------------------------------
Fred D. Hafer
Chairman
<PAGE> 1
September 13, 1999
GPU Service Inc.
300 Madison Avenue
P.O. Box 1911
Morristown, NJ 07962
Attention: Mr. David Brauer
Dear Sirs:
You have requested information from MYR Group Inc. (the "Company") in
connection with the consideration of a possible negotiated transaction between
the Company and you. We are willing to furnish such information to you on
behalf of the Company only for the purpose of evaluating such transaction and
pursuant to the terms of this Agreement. You agree that such information and
any other information the Company or its Representatives (as hereinafter
defined) furnish to you or your Representatives, whether before or after the
date of this letter, together with any reports, analyses, compilations,
memoranda, notes and any other writings prepared by you or your Representatives
which contain, reflect or are based upon such information (collectively, the
"Evaluation Material"), will be treated confidentially and will not be used by
you in any way detrimental to the Company; provided, however, that (i) any of
such information may be disclosed to officers, directors, general partners,
employees, counsel, investment bankers and other representatives (such persons
being generally referred to herein as "GPU Service Inc.") of yours who need to
know such information for the purpose of evaluating a possible negotiated
transaction between the Company and you (it being understood that you will
cause your Representatives to treat such information confidentially and in
accordance with the terms hereof), and (ii) any disclosure of such information
may be made to which the Company consents in writing.
You agree that neither you nor any of your Representatives will discuss a
transaction involving the Company with any other person, or disclose to any
other person either the fact that discussions or negotiations are taking place
concerning a possible transaction or any of the terms, conditions or other
facts with respect to any such possible transaction, including the status
thereof. The term "person" as used in this letter shall be broadly interpreted
to include, without limitation, the media and any corporation, company, group,
partnership or individual.
In the event that you or any of your Representatives are required to
disclose any Evaluation Material (i) in connection with any judicial or
administrative proceedings (by oral questions, interrogatories, requests for
information or documents, subpoena, Civil Investigation Demand or similar
process) or (ii) in order, in the opinion of your outside counsel, to avoid
violating the federal securities laws or applicable stock exchange regulations,
you will in advance of such disclosure provide the Company with prompt notice
of such requirement(s). You also agree, to the extent legally permissible, to
provide the Company, in advance of any
<PAGE> 2
GPU Service Inc.
Page 2
September 13, 1999
such disclosures, with copies of any Evaluation Material you intend to disclose
(and, if applicable, to the extent practicable, the text of the disclosure
language itself) and to cooperate with the Company to the extent it may seek to
limit such disclosure. If, in the absence of a protective order or the receipt
of a waiver from the Company after a request in writing threrefor is made by you
(such request to be made as soon as practicable to allow the Company a
reasonable amount of time to respond thereto), you or your Representatives are
legally required to disclose Evaluation Material to any tribunal or in order to
comply with the federal securities laws, you may disclose such information
without liability hereunder.
In consideration for being furnished with the Evaluation Material you agree
that for a period of three (3) years from the date of this Agreement, unless the
Company's Board of Directors shall otherwise request in writing in advance, you
will not, and shall cause your affiliates not to (and you and they will not
assist, form a group, act in concert or participate with or encourage other
persons to), directly or indirectly, (i) acquire or offer to acquire, seek,
propose or agree to acquire, by means of a purchase, agreement, business
combination or in any other manner, beneficial ownership of any securities or
assets of the Company or its subsidiaries, including rights or options to
acquire such ownership, (ii) seek or propose to influence, advice, change or
control the management, Board of Directors, governing instruments or policies or
affairs of the Company, including, without limitation, by means of a
solicitation of proxies (as such terms are defined in Rule 14a-1 of Regulation
14A promulgated pursuant to Section 14 of the Securities Exchange Act of 1934,
disregarding clause (iv) of Rule14a-1(1)(2) and including any exempt
solicitation pursuant to Rule 14a-2(b)(1)), contacting any person relating to
any of the matters set forth in this agreement or seeking to influence, advise
or direct the vote of any holder of voting securities of the Company or making a
request to amend or waive any provision of this paragraph or the second
paragraph of this letter, or (iii) make any public disclosure, or take any
action which could require the Company to make any public disclosure, with
respect to any of the matters set forth in this agreement.
In the event that no transaction is effected involving you and the Company
after you have been furnished with Evaluation Material, you will (and you will
cause your Representatives to) promptly, upon the request of the Company,
deliver to the Company the Evaluation Material, including any notes relating
thereto, without retaining any copy thereof. If requested by the Company, an
appropriate officer of yours will certify to the Company that all such material
has been so delivered.
For a period of two years from the date hereof, you agree that you and your
affiliates will not, directly or indirectly, hire or seek to hire any
individuals who at the time are employees of the Company, except that the
foregoing shall not prohibit you from hiring or seeking to hire such employees
through a general solicitation made through advertisement or a professional
search firm.
The term "Evaluation Material" does not include information which was or
becomes generally available to you on a non-confidential basis, provided that
the source of such information was not the Company or its Representatives or
reasonable believed by you to be
<PAGE> 3
GPU Service Inc.
Page 3
September 13, 1999
bound by a confidentiality agreement. The term "affiliate" as used in this
letter shall have the meaning ascribed to such term in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended.
Although the Company has endeavored to include in the Evaluation Material
information known to them which they believe to be relevant for the purpose of
your investigation, you understand that neither the Company nor any of its
Representatives makes any representation or warranty as to the accuracy or
completeness of the Evaluation Material. You agree that neither the Company nor
its Representatives shall have any liability to you or any of your
Representatives resulting from the use of the Evaluation Material supplied by
the Company or its Representatives except to the extent provided in any
definitive agreement between you and the Company.
It is agreed that no failure or delay by us or the Company in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege.
You agree that the Company, without prejudice to any rights to judicial
relief it may otherwise have, shall be entitled to seek equitable relief,
including injunction, in the event of any breach of the provisions of this
letter agreement and that you shall not oppose the granting of such relief on
the basis that the Company has an adequate remedy at law. You also agree that
you will not seek and agree to waive any requirement for the securing or
posting of a bond in connection with the Company's seeking or obtaining such
relief.
It is further understood and agreed that unless and until the execution
and delivery of a definitive agreement with respect to any transaction referred
to in the first paragraph of this letter, neither the Company nor you intends
to be, nor shall either of you be, under any legal obligation of any kind
whatsoever with respect to such a transaction or otherwise, by virtue of any
written or oral expressions by your or the Company's respective Representatives
with respect to such a transaction, except for the matters specifically agreed
to in this letter. This provision may only be modified or waived by a separate
writing signed by the Company and you expressly so modifying or waiving this
provision.
You hereby confirm that you are aware and that your Representatives have
been advised that the United States securities laws prohibit any person who has
material non-public information about a company from purchasing or selling
securities of such company.
This letter agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
<PAGE> 4
GPU Service, Inc.
Page 4
September 13, 1999
If you are in agreement with the foregoing, please so indicate by signing
and returning one copy of this letter, whereupon this letter will constitute
our agreement with respect to the subject matter hereof.
Very truly yours,
BERENSON MINELLA & COMPANY
ON BEHALF OF MYR GROUP INC.
By: /s/ Christopher J. Picotte
Name: Christopher J. Picotte
Title: Vice President
CONFIRMED AND AGREED TO:
GPU SERVICE INC.
By: /s/ David C. Brauer
Name: David C. Brauer
Title: Vice President
Dated: 9/14/99
