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Securities and Exchange Commission
Washington, D.C. 20549
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Amendment No. 1
to
SCHEDULE 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
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AMERICAN BUSINESS PRODUCTS, INC.
(Name of Subject Company)
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SHERMAN ACQUISITION CORPORATION,
and
MAIL-WELL, INC.
(Bidders)
COMMON STOCK, PAR VALUE $2.00 PER SHARE
(Title Of Class of Securities)
024763104
(Cusip Number of Class of Securities)
ROGER WERTHEIMER, ESQ. Copy to
MAIL-WELL, INC. HERBERT H. DAVIS III, ESQ.
23 INVERNESS WAY EAST ROTHGERBER JOHNSON & LYONS LLP
ENGLEWOOD, COLORADO 80112 1200 SEVENTEENTH STREET, SUITE 3000
(303) 790-8023 DENVER, COLORADO 80202
(Name, Address and Telephone Number of TELEPHONE: (303) 623-9000
Persons Authorized to Receive Notices and
Communications on Behalf of Bidders)
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[X] Check box if any part of the fee is offset as provided by Rule 0-
11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its
filing.
Amount Previously Paid: $59,435 Filing Party: Sherman Acquisition
Corporation and
Mail-Well, Inc.
Form or Registration No.: 5-30506 Date Filed: January 21, 2000
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This Amendment No. 1 amends and supplements the Tender Offer Statement
on Schedule 14D-1 filed with the Securities and Exchange Commission on
January 21, 2000 (as amended and supplemented, the "Schedule 14D-1")
relating to the offer by Sherman Acquisition Corporation, a Georgia
corporation ("Offeror") and an indirect wholly owned subsidiary of
Mail-Well, Inc., a Colorado corporation ("Parent"), to purchase all
outstanding shares of common stock, par value $2.00 per share (the
"Shares"), of American Business Products, Inc., a Georgia corporation
(the "Company"), at a purchase price of $20.00 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 January 21, 2000
(the "Offer to Purchase"), and in the related Letter of Transmittal
(which together constitute the "Offer"), copies of which are filed as
Exhibits (a)(1) and (a)(2) hereof, respectively, and which are
incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 of Schedule 14D-1 is hereby amended and supplemented as
follows:
(a)(1) Offer to Purchase, dated January 21, 2000.
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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.
Dated: February 10, 2000
Mail-Well, Inc.
By: /s/ Gary Ritondaro
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Name: Gary Ritondaro
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Title: Chief Financial Officer
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Sherman Acquisition Corporation
By: /s/ Gary Ritondaro
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Name: Gary Ritondaro
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Title: Chief Financial Officer
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Exhibit (a)(1)
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OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
AMERICAN BUSINESS PRODUCTS, INC.
AT
$20.00 NET PER SHARE
BY
SHERMAN ACQUISITION CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
MAIL-WELL, INC.
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THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, FEBRUARY 18, 2000,
UNLESS THE OFFER IS EXTENDED.
- ---------------------------------------------------------------------
THIS OFFER (THE "OFFER") IS BEING MADE IN CONNECTION WITH THE
AGREEMENT AND PLAN OF MERGER, DATED AS OF JANUARY 13, 2000 (THE
"MERGER AGREEMENT"), AMONG MAIL-WELL, INC. ("PARENT"), SHERMAN
ACQUISITION CORPORATION (THE "OFFEROR") AND AMERICAN BUSINESS
PRODUCTS, INC. (THE "COMPANY"). THE BOARD OF DIRECTORS OF THE
COMPANY HAS UNANIMOUSLY APPROVED AND ADOPTED THE MERGER AGREEMENT,
APPROVED THE OFFER AND THE MERGER (AS DEFINED HEREIN), HAS
DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO,
AND IN THE BEST INTERESTS OF, THE COMPANY'S STOCKHOLDERS AND
RECOMMENDS THAT HOLDERS OF THE SHARES (AS DEFINED HEREIN) ACCEPT THE
OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
IN CONNECTION WITH THE MERGER AGREEMENT, PARENT AND THE OFFEROR
ENTERED INTO A SHAREHOLDERS' STOCK TENDER AGREEMENT DATED JANUARY
13, 2000 (THE "TENDER AGREEMENT") WITH CERTAIN STOCKHOLDERS OF THE
COMPANY WHO OWN APPROXIMATELY 2.8% OF THE SHARES THAT ARE
OUTSTANDING AND 2.7% ON A FULLY DILUTED BASIS (ASSUMING THE EXERCISE
OF ALL "IN-THE-MONEY" STOCK OPTIONS). PURSUANT TO THE TENDER
AGREEMENTS, SUCH STOCKHOLDERS HAVE AGREED TO TENDER SUCH SHARES
PURSUANT TO THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE
BEING VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF
THE OFFER SUCH NUMBER OF SHARES THAT WOULD CONSTITUTE MORE THAN
FIFTY PERCENT (50%) OF THE SHARES THAT ARE OUTSTANDING DETERMINED ON
A FULLY DILUTED BASIS, (II) ANY WAITING PERIOD UNDER THE HSR ACT (AS
DEFINED HEREIN) APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE
OFFER HAVING EXPIRED OR HAVING BEEN TERMINATED PRIOR TO THE
EXPIRATION OF THE OFFER AND (III) THE SATISFACTION OF CERTAIN OTHER
TERMS AND CONDITIONS. SEE SECTION 15.
IMPORTANT
Any stockholder desiring to tender Shares should either (i)
complete and sign the Letter of Transmittal or a facsimile thereof
in accordance with the instructions in the Letter of Transmittal and
deliver the Letter of Transmittal with the Shares and all other
required documents to the Depositary (as defined herein) or follow
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 the
stockholder. Stockholders having Shares registered in the name of a
broker, dealer, commercial bank, trust company or other nominee must
contact such person if they desire to tender their Shares.
Any 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 or who cannot deliver all required documents to the
Depositary, in each case prior to the expiration of the Offer, must
tender such Shares pursuant to the guaranteed delivery procedure set
forth in Section 3.
Questions and requests for assistance or additional copies of
this Offer to Purchase or the Letter of Transmittal may be directed
to the Information Agent at the address and telephone number set
forth on the back cover of this Offer to Purchase.
The Dealer Manager for the Offer is:
DONALDSON, LUFKIN & JENRETTE
January 21, 2000
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TABLE OF CONTENTS
PAGE
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INTRODUCTION................................................ 1
1. TERMS OF THE OFFER...................................... 2
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES........... 4
3. PROCEDURE FOR TENDERING SHARES.......................... 5
4. WITHDRAWAL RIGHTS....................................... 8
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES................. 9
6. PRICE RANGE OF SHARES; DIVIDENDS........................ 10
7. CERTAIN EFFECTS OF THE TRANSACTION...................... 10
8. CERTAIN INFORMATION CONCERNING THE COMPANY.............. 11
9. CERTAIN INFORMATION CONCERNING PARENT AND THE OFFEROR... 13
10. SOURCE AND AMOUNT OF FUNDS.............................. 14
11. BACKGROUND OF THE OFFER; PAST CONTACTS, TRANSACTIONS OR
NEGOTIATIONS WITH THE COMPANY.......................... 15
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE
COMPANY................................................ 16
13. THE MERGER AGREEMENT AND THE TENDER AGREEMENT........... 17
14. DIVIDENDS AND DISTRIBUTIONS............................. 23
15. CERTAIN CONDITIONS TO THE OFFEROR'S OBLIGATIONS......... 23
16. CERTAIN LEGAL MATTERS................................... 25
17. FEES AND EXPENSES....................................... 26
18. MISCELLANEOUS........................................... 27
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TO THE HOLDERS OF COMMON STOCK OF
AMERICAN BUSINESS PRODUCTS, INC.:
INTRODUCTION
Sherman Acquisition Corporation, a Georgia corporation (the
"Offeror") and an indirect wholly-owned subsidiary of Mail Well,
Inc., a Colorado corporation ("Parent"), hereby offers to purchase
all outstanding shares of Common Stock, $2.00 par value per share
(the "Shares"), of American Business Products, Inc., a Georgia
corporation (the "Company"), at a purchase price of $20.00 per
Share, net to the seller in cash, without interest, upon the terms
and subject to the conditions set forth in this Offer to Purchase
and in the related Letter of Transmittal (which, together with any
amendments or supplements hereto or thereto, collectively constitute
the "Offer"). Tendering holders of Shares will not be obligated to
pay brokerage fees or commissions or, except as set forth in the
Letter of Transmittal, stock transfer taxes on the purchase of
Shares by the Offeror pursuant to the Offer. The Offeror will pay
all charges and expenses of Donaldson, Lufkin & Jenrette Securities
Corporation (the "Dealer Manager" or "Donaldson, Lufkin &
Jenrette"), American Securities Transfer & Trust, Inc. (the "Depositary")
and Morrow & Co., Inc. (the "Information Agent") in connection with
the Offer.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED
AND ADOPTED THE MERGER AGREEMENT (AS DEFINED HEREIN), APPROVED THE
OFFER AND THE MERGER (AS DEFINED HEREIN), HAS DETERMINED THAT THE
TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST
INTERESTS OF, THE COMPANY'S STOCKHOLDERS AND RECOMMENDS THAT THE
HOLDERS OF THE SHARES ACCEPT THE OFFER AND TENDER THEIR SHARES
PURSUANT TO THE OFFER.
The Company has advised the Offeror that Goldman, Sachs & Co.,
the Company's financial advisor, has delivered to the Company's
Board of Directors its written opinion dated January 14, 2000 to
the effect that as of such date and based upon and subject to the
matters set forth therein, the $20.00 in cash per Share to be
received by the Company's stockholders pursuant to the Offer and
the Merger is fair, from a financial point of view, to such holders. A
copy of such opinion, which sets forth the assumptions made, procedures
followed, matters considered, and limits on the review undertaken, is
contained in the Company's Solicitation/ Recommendation Statement on
Schedule 14D-9 which is being distributed to the Company's stockholders.
The Company's stockholders are urged to read the full text of that opinion.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE
HAVING BEEN VALIDLY TENDERED AND NOT WITHDRAWN PRIOR TO THE
EXPIRATION OF THE OFFER SUCH NUMBER OF SHARES THAT WOULD CONSTITUTE
MORE THAN FIFTY PERCENT (50%) OF THE SHARES THAT ARE OUTSTANDING
DETERMINED ON A FULLY DILUTED BASIS (THE "MINIMUM CONDITION"), (II)
ANY WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS
ACT OF 1976, AS AMENDED (THE "HSR ACT"), APPLICABLE TO THE PURCHASE
OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR HAVING BEEN
TERMINATED PRIOR TO THE EXPIRATION OF THE OFFER AND (III) THE
SATISFACTION OF CERTAIN OTHER TERMS AND CONDITIONS. SEE SECTION 15.
The Offer is being made pursuant to the Agreement and Plan of
Merger, dated as of January 13, 2000 (the "Merger Agreement"), among
Parent, the Offeror and the Company. The Merger Agreement provides
that, among other things, after the purchase of Shares pursuant to
the Offer and the satisfaction of the other conditions set forth in
the Merger Agreement and in accordance with the relevant provisions
of the Georgia Business Corporation Code, as amended (the "GBCC"),
the Offeror will be merged with and into the Company (the "Merger").
Following consummation of the Merger, the Company will continue as
the surviving corporation (the "Surviving Corporation") and will be
an indirect wholly-owned subsidiary of Parent. At the effective time
of the Merger (the "Effective Time"), each Share (other than Shares
owned by the Company, any subsidiary of the Company, Parent, the
Offeror, any other subsidiary of Parent or by stockholders, if any,
who are entitled to and who properly exercise appraisal rights under
the GBCC ("Dissenting Shares")) will be converted into the right to
receive from the Surviving
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Corporation $20.00 in cash, without interest thereon (the "Offer
Price"). See Section 5 for a description of certain tax consequences
of the Offer and the Merger.
In connection with the Merger Agreement, the Offeror and Parent
entered into a Stockholders' Stock Tender Agreement dated as of
January 13, 2000 (the "Tender Agreement"), with each of the
following stockholders of the Company: Henry Curtis VII, Hollis L.
Harris, W. Stell Huie, Thomas F. Keller, James F. McDonald, Daniel
W. McLaughlin, C. Douglas Miller, G. Harold Northrop, Joe W. Rogers,
William B. Stokely, III, Richard B. Curtis, Jr. (the "Tendering
Stockholders"). Pursuant to the Tender Agreement, the Tendering
Stockholders have agreed to tender an aggregate of 415,306 Shares
owned by the Tendering Stockholders (the "Committed Shares") and
have agreed to vote the Committed Shares in favor of the Merger and
otherwise in the manner directed by the Offeror. The Tendering
Stockholders have also agreed that, among other things, unless the
Merger Agreement is terminated in accordance with its terms, such
Tendering Stockholders will not transfer the Committed Shares. The
Committed Shares represent approximately 2.7% of the Shares that,
as of January 20, 2000, were issued and outstanding on a fully
diluted basis (assuming the exercise of all "in-the-money" stock
options). The Merger Agreement and the Stockholder Agreement are
more fully described in Section 13.
The Company has advised the Offeror that as of January 20, 2000,
there were (a) 14,779,767 Shares issued and outstanding and (b)
1,695,927 reserved for issuance upon the exercise of employee and
director stock options of which 1,190,764 are outstanding and
708,334 are "in-the-money." Accordingly, on a fully diluted basis
the aggregate amount of Shares outstanding as of January 20, 2000
was 15,488,101. Based on the foregoing, the Minimum Condition will
be satisfied if at least 7,745,599 Shares, or approximately 52.41%
of the outstanding Shares as of January 20, 2000 (approximately
50.01% of the Shares on a fully diluted basis (assuming the exercise
of all "in-the-money" stock options)), are validly tendered and not
withdrawn prior to the Expiration Date (as defined below).
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL
CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE ANY
DECISION IS MADE WITH RESPECT TO THE OFFER.
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and
conditions of any extension or amendment), the Offeror will accept
for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with
Section 4. The term "Expiration Date" means 12:00 Midnight, New York
City time, on February 18, 2000, unless the Offeror shall have
extended the period of time for which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date
at which the Offer, as so extended by the Offeror, shall expire.
If the Offeror shall decide, in its sole discretion, to increase
the consideration offered in the Offer to holders of Shares and if,
at the time that notice of such increase is first published, sent or
given to holders of Shares in the manner specified below, the Offer
is scheduled to expire at any time earlier than the expiration of a
period ending on the tenth business day from, and including, the
date that such notice is first so published, sent or given, then the
Offer will be extended until the expiration of such period of 10
business days. For purposes of the Offer, a "business day" means any
day other than a Saturday, Sunday or a federal holiday and consists
of the time period from 12:01 a.m. through 12:00 Midnight, New York
City time.
THE OFFER IS CONDITIONED UPON SATISFACTION OF THE MINIMUM
CONDITION, THE EXPIRATION OR TERMINATION OF ANY WAITING PERIOD UNDER
THE HSR ACT APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE
OFFER AND CERTAIN OTHER TERMS AND CONDITIONS. SEE SECTION 15. THE
MERGER AGREEMENT AND THE OFFER MAY BE TERMINATED BY THE OFFEROR AND
PARENT IF CERTAIN EVENTS OCCUR. The Offeror reserves the right (but
shall not be obligated), in accordance with applicable rules and
regulations of the United States Securities and Exchange Commission
(the "Commission"), subject to the limitations set forth in the
Merger Agreement and described below, to waive or reduce the Minimum
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Condition or to waive any other condition to the Offer. If the
Minimum Condition or any condition set forth in Section 15 has not
been satisfied by 12:00 Midnight, New York City time, on Friday,
February 18, 2000 (or any other time then set as the Expiration Date),
the Offeror may, subject to the terms of the Merger Agreement as
described below, elect to (1) extend the Offer and, subject to
applicable withdrawal rights, retain all tendered Shares until the
expiration of the Offer, as extended, (2) subject to complying with
applicable rules and regulations of the Commission, accept for
payment all Shares so tendered and not extend the Offer or (3)
terminate the Offer and not accept for payment any Shares and return
all tendered Shares to tendering stockholders.
Under the terms of the Merger Agreement, the Offeror may not
(except as described in the next sentence), without the consent of
the Company, reduce the number of Shares subject to the Offer,
reduce the Offer Price, impose any other conditions to the Offer
other than the conditions set forth in Section 15 or modify such
conditions (other than to waive any such conditions to the extent
permitted by the Merger Agreement), extend the Offer or change the
form of consideration payable in the Offer. Notwithstanding the
foregoing, the Offeror may, without the consent of the Company, (i)
extend the Offer, if at the scheduled or extended expiration date of
the Offer any of the conditions shall not be satisfied, until such
time as such conditions are satisfied, (ii) extend the Offer for a
period of not more than 10 business days beyond the initial
expiration date if on the date of such extension less than 90% of
the outstanding Shares have been validly tendered and not withdrawn
pursuant to the Offer, notwithstanding that all conditions to the
Offer are satisfied on the date of such extension and (iii) extend
the Offer for any period required by any rule, regulation,
interpretation or position of the Commission or the Commission staff
applicable to the Offer. Notwithstanding the foregoing, the Offer
may not be extended beyond the date of termination of the Merger
Agreement set forth in Section 13.
Subject to the limitations set forth in this Offer and the
Merger Agreement, the Offeror reserves the right (but will not be
obligated), at any time or from time to time in its sole discretion,
to extend the period during which the Offer is open by giving oral
or written notice of such extension to the Depositary and by making
a public announcement of such extension. Except to the extent
required by the Merger Agreement, there can be no assurance that the
Offeror will exercise its right to extend the Offer.
Subject to the applicable rules and regulations of the
Commission and subject to the limitations set forth in the Merger
Agreement, the Offeror expressly reserves the right, at any time and
from time to time, in its sole discretion, (i) to delay payment for
any Shares regardless of whether such Shares were theretofore
accepted for payment, or to terminate the Offer and not to accept
for payment or pay for any Shares not theretofore accepted for
payment or paid for, upon the occurrence of any of the conditions
set forth in Section 15, by giving oral or written notice of such
delay or termination to the Depositary, and (ii) at any time or from
time to time, to amend the Offer in any respect. The Offeror's right
to delay payment for any Shares or not to pay for any Shares
theretofore accepted for payment is subject to the applicable rules
and regulations of the Commission, including Rule 14e-1(c) under the
Exchange Act, relating to the Offeror's obligation to pay for or
return tendered Shares promptly after the termination or withdrawal
of the Offer.
Any extension of the period during which the Offer is open,
delay in acceptance for payment or payment, termination or amendment
of the Offer will be followed, as promptly as practicable, by public
announcement thereof, such announcement in the case of an extension
to be issued not later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date in
accordance with the public announcement requirements of Rules
14d-4(c) and 14e-1(d) under the Exchange Act. Without limiting the
obligation of the Offeror under such rule or the manner in which the
Offeror may choose to make any public announcement, the Offeror
currently intends to make announcements by issuing a press release
to the Dow Jones News Service (or such other national media outlet
or outlets it deems prudent) and making any appropriate filing with
the Commission.
If, subject to the terms of the Merger Agreement, the Offeror
makes a material change in the terms of the Offer or the information
concerning the Offer, or if it waives a material condition of the
Offer (including, with the consent of the Company, a waiver of the
Minimum Condition), the Offeror will disseminate additional tender
offer materials and extend the Offer if and to the extent required
by Rules
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14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act or otherwise.
The minimum period during which a tender offer must remain open
following material changes in the terms of the offer or the information
concerning the Offer, other than a change in price or a change in
percentage of securities sought, will depend upon the facts and
circumstances, including the relative materiality of the terms or
information changes. With respect to a change in price or a change
in percentage of securities sought, a minimum 10 business day period
is generally required to allow for adequate dissemination to
stockholders and investor response.
Pursuant to Rule 14d-11 under the Exchange Act, scheduled to
become effective January 24, 2000, the Purchaser may, subject to
certain conditions, include a subsequent offering period following
the expiration of the Offer on the Expiration Date ("Subsequent
Offering Period"). Rule 14d-11 provides that the Purchaser may
include a Subsequent Offering Period so long as, among other things,
(i) the Offer remains open for a minimum of 20 business days and has
expired, (ii) all conditions to the Offer are deemed satisfied or
waived by the Purchaser on or before the Expiration Date, (iii) the
Purchaser accepts and promptly pays for all securities tendered
during the Offer prior to close of the Offer, (iv) the Purchaser
announces the results of the Offer, including the approximate number
and percentage of Shares deposited in the Offer, no later than 9:00
Eastern time on the next business day after the Expiration Date and
immediately begins the Subsequent Offering Period, and (v) the
Purchaser immediately accepts and promptly pays for Shares as they
are tendered during the Subsequent Offering Period. The Purchaser
will be able to include a Subsequent Offering Period, if it
satisfies the conditions above, after February 18, 2000. In a public
release, the Commission has expressed the view that the inclusion of
a Subsequent Offering Period would constitute a material change to
the terms of the Offer requiring the Purchaser to disseminate new
information to shareholders in a manner reasonably calculated to
inform them of such change sufficiently in advance of the Expiration
Date (generally five business days). In the event the Purchaser
elects to include a Subsequent Offering Period, it will notify
shareholders of the Company consistent with the requirements of the
Commission.
A Subsequent Offering Period, if one is included, is not an
extension of the Offer. A Subsequent Offering Period would be an
additional period of time, following the expiration of the Offer, in
which shareholders may tender Shares not tendered into the Offer.
THE PURCHASER DOES NOT CURRENTLY INTEND TO INCLUDE A SUBSEQUENT
OFFERING PERIOD IN THE OFFER, ALTHOUGH IT RESERVES THE RIGHT TO DO
SO IN ITS SOLE DISCRETION.
PURSUANT TO RULE 14d-7 UNDER THE EXCHANGE ACT, SCHEDULED TO
BECOME EFFECTIVE JANUARY 24, 2000, NO WITHDRAWAL RIGHTS APPLY TO
SHARES TENDERED INTO A SUBSEQUENT OFFERING PERIOD AND NO WITHDRAWAL
RIGHTS APPLY DURING THE SUBSEQUENT OFFERING PERIOD WITH RESPECT TO
SHARES TENDERED IN THE OFFER AND ACCEPTED FOR PAYMENT. THE SAME
CONSIDERATION, THE OFFER PRICE, WILL BE PAID TO SHAREHOLDERS
TENDERING SHARES IN THE OFFER OR IN A SUBSEQUENT OFFERING PERIOD, IF
ONE IS INCLUDED.
The Company has provided the Offeror with the Company's list of
stockholders and security position listings for the purpose of
disseminating the Offer to holders of Shares. This Offer to Purchase
and the related Letter of Transmittal will be mailed to record
holders of Shares whose names appear on the Company's stockholder
list and will be furnished to brokers, dealers, commercial banks,
trust companies and similar persons whose names, or the names of
whose nominees, appear on the stockholder list or, if applicable,
who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial owners of
Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and
conditions of any such extension or amendment), the Offeror will
accept for payment and will pay for all Shares validly tendered
prior to the Expiration Date and not theretofore withdrawn in
accordance with Section 4 promptly after the later to occur of (a)
the Expiration Date and (b) the satisfaction or waiver of the
conditions set forth in Section 15 related to regulatory matters.
Subject
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to compliance with Rule 14e-1(c) under the Exchange Act, the Offeror
expressly reserves the right to delay payment for Shares in order
to comply in whole or in part with any applicable law. See Sections 1
and 16. In all cases, payment for Shares tendered and 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 a book-entry transfer
of such Shares into the Depositary's account at The Depository Trust
Company or the Philadelphia Depository Trust Company (collectively,
the "Book-Entry Transfer Facilities"), pursuant to the procedures
set forth in Section 3, (ii) a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof) with
all required signature guarantees or, in the case of a book-entry
transfer, an Agent's Message (as defined below) and (iii) any other
documents required by the Letter of Transmittal.
The term "Agent's Message" means a message transmitted by a
Book-Entry Transfer Facility to, and received by, the Depositary and
forming a part of a Book-Entry Confirmation, which states that such
Book-Entry Transfer Facility has received an express acknowledgment
from the participant in such Book-Entry Transfer Facility tendering
the Shares that such participant has received and agrees to be bound
by the terms of the Letter of Transmittal and that the Offeror may
enforce such agreement against the participant.
For purposes of the Offer, the Offeror will be deemed to have
accepted for payment, and thereby purchased, Shares validly tendered
and not withdrawn as, if and when the Offeror gives oral or written
notice to the Depositary of the Offeror's acceptance of such Shares
for payment pursuant to the Offer. In all cases, payment for Shares
purchased 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 the
Offeror and transmitting such payment to tendering stockholders. If,
for any reason whatsoever, acceptance for payment of any Shares
tendered pursuant to the Offer is delayed, or the Offeror is unable
to accept for payment Shares tendered pursuant to the Offer, then,
without prejudice to the Offeror's rights under Section 1, the
Depositary may, nevertheless, on behalf of the Offeror, retain
tendered Shares, and such Shares may not be withdrawn, except to the
extent that the tendering stockholders are entitled to withdrawal
rights as described in Section 4 below and as otherwise required by
Rule 14e-1(c) under the Exchange Act. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID BY THE OFFEROR BECAUSE OF ANY DELAY IN MAKING ANY
PAYMENT.
If any tendered Shares are not accepted for payment pursuant to
the terms and conditions of the Offer for any reason, or if
certificates are submitted for more Shares than are tendered,
certificates for such unpurchased or untendered Shares will be
returned, without expense to the tendering stockholder (or, in the
case of Shares delivered by book-entry transfer to a Book-Entry
Transfer Facility, such Shares will be credited to an account
maintained within such Book-Entry Transfer Facility), as promptly as
practicable after the expiration, termination or withdrawal of the
Offer.
IF, PRIOR TO THE EXPIRATION DATE, THE OFFEROR INCREASES THE
PRICE BEING PAID FOR SHARES ACCEPTED FOR PAYMENT PURSUANT TO THE
OFFER, SUCH INCREASED CONSIDERATION WILL BE PAID TO ALL STOCKHOLDERS
WHOSE SHARES ARE PURCHASED PURSUANT TO THE OFFER, WHETHER OR NOT
SUCH SHARES WERE TENDERED PRIOR TO SUCH INCREASE IN CONSIDERATION.
The Offeror reserves the right to transfer or assign, in whole
or from time to time in part, to one or more of its affiliates, the
right to purchase Shares tendered pursuant to the Offer, but any
such transfer or assignment will not relieve the Offeror of its
obligations under the Offer or prejudice the rights of tendering
stockholders to receive payment for Shares validly tendered and
accepted for payment.
3. PROCEDURE FOR TENDERING SHARES.
Valid Tenders. For Shares to be validly tendered pursuant to the
Offer, either a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof), with any
required signature guarantees, or, in the case of a book-entry
transfer, an Agent's Message, and any other required documents, must
be received by the Depositary at one of its addresses set forth on
the back cover of this Offer to Purchase prior to the Expiration
Date or the tendering stockholder must comply with the
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<PAGE>
guaranteed delivery procedure set forth below. In addition, either
(i) certificates representing such Shares must be received by the
Depositary along with the Letter of Transmittal or such Shares must
be tendered pursuant to the procedure for book-entry transfer set
forth below, and a Book-Entry Confirmation must be received by the
Depositary, in each case prior to the Expiration Date, or (ii) the
guaranteed delivery procedures set forth below must be complied with.
No alternative, conditional or contingent tenders will be accepted.
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.
Book-Entry Transfer. The Depositary will make a request to
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 a Book-Entry Transfer Facility's system 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 transfer. Although delivery of
Shares may be effected through book-entry at a Book-Entry Transfer
Facility prior to the Expiration Date, (i) the Letter of Transmittal
(or a manually signed facsimile thereof), properly completed and
duly executed, with any required signature guarantees, or an Agent's
Message in connection with a book-entry transfer, and any other
required documents, must, in any case, be transmitted to and
received by the Depositary at one of its addresses set forth on the
back cover of this Offer to Purchase or (ii) the guaranteed delivery
procedures described below must be complied with.
Signature Guarantee. Signatures on the Letter of Transmittal
must be guaranteed by a member in good standing of the Securities
Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program, the Stock Exchange Medallion
Program, or by any other bank, broker, dealer, credit union, savings
association or other entity which is an "eligible guarantor
institution," as such term is defined in Rule 17Ad-15 under the
Exchange Act (each of the foregoing being referred to as an
"Eligible Institution" and, collectively, as "Eligible Institutions"),
unless the Shares tendered thereby 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. If the certificates evidencing Shares
are registered in the name of a person or persons other than the
signer of the Letter of Transmittal, or if payment is to be made,
or delivered to, or certificates for unpurchased Shares are to be
issued or returned to, a person other than the registered owner or
owners, then the tendered certificates must be endorsed or accompanied
by duly executed stock powers, in either case signed exactly as the
name or names of the registered owner or owners appear on the
certificates, with the signatures on the certificates or stock powers
guaranteed by an Eligible Institution as provided in the Letter of
Transmittal. See Instructions 1 and 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 time will not permit all required
documents to reach the Depositary prior to the Expiration Date or
the procedure for book-entry transfer cannot be completed on a
timely basis, such Shares may nevertheless be tendered if all of the
following guaranteed delivery procedures are duly complied with:
i. the tender is made by or through an Eligible Institution;
ii. a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the
Offeror, is received by the Depositary, as provided below,
prior to the Expiration Date; and
iii. the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation), 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 the Letter of
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Transmittal are received by the Depositary within three
trading days after the date of such Notice of Guaranteed
Delivery. The term "trading day" is any day on which the
New York Stock Exchange ("NYSE") is open for business.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution in the form set
forth in the Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY
BOOK-ENTRY TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE
TENDERING STOCKHOLDER. SHARES WILL BE DEEMED DELIVERED ONLY WHEN
ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A
BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY
MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ENSURE TIMELY DELIVERY.
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
such Shares or a Book-Entry Confirmation, (ii) a properly completed
and duly executed Letter of Transmittal (or a manually signed
facsimile thereof), with all required signature guarantees or, in
the case of a book-entry transfer, an Agent's Message, and (iii) any
other documents required by the Letter of Transmittal. Accordingly,
tendering stockholders may be paid at different times depending upon
when certificates for Shares or Book-Entry Confirmations with
respect to Shares are actually received by the Depositary. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE
SHARES TO BE PAID BY THE OFFEROR, REGARDLESS OF ANY EXTENSION OF THE
OFFER OR ANY DELAY IN MAKING ANY PAYMENT.
Backup Federal Income Tax Withholding. To prevent "backup"
federal income tax withholding with respect to payment of the
purchase price of shares purchased pursuant to the offer, each
stockholder must, subject to certain exceptions, provide the
Depositary with such stockholder's correct taxpayer identification
number ("TIN") and certify that such stockholder is not subject to
backup federal income tax withholding by completing the substitute
form W-9 included in the letter of transmittal. Foreign holders must
generally submit a completed form W-8 to avoid 31% backup
withholding. This form may be obtained from the Depositary. See
instruction 9 set forth in the Letter of Transmittal.
Determination of Validity. All questions as to the form of
documents and the validity, eligibility (including time of receipt)
and acceptance for payment of any tender of Shares will be
determined by the Offeror, in its sole discretion, and its
determination will be final and binding on all parties. The Offeror
reserves the absolute right to reject any or all tenders of any
Shares that are determined by it not to be in proper form or the
acceptance of or payment for which may, in the opinion of the
Offeror, be unlawful. The Offeror also reserves the absolute right
to waive any of the conditions of the Offer, subject to the
limitations set forth in the Merger Agreement, or any defect or
irregularity in the tender of any Shares. The Offeror's
interpretation of the terms and conditions of the Offer (including
the Letter of Transmittal and the Instructions to the Letter of
Transmittal) will be final and binding on all parties. No tender of
Shares will be deemed to have been validly made until all defects
and irregularities have been cured or waived. None of the Offeror,
Parent, the Dealer Manager, the Depositary, the Information Agent or
any other person will be under any duty to give notification of any
defects or irregularities in tenders or incur any liability for
failure to give any such notification.
Other Requirements. By executing the Letter of Transmittal as
set forth above (including through delivery of an Agent's Message),
a tendering stockholder irrevocably appoints designees of the
Offeror as such stockholder's attorneys-in-fact and proxies, each
with full power of substitution, in the manner set forth in the
Letter of Transmittal, to the full extent of such stockholder's
right with respect to the Shares tendered by such stockholder and
accepted for payment by the Offeror (and any and all other Shares or
7
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other securities issued or issuable in respect of such Shares).
All such powers of attorney and proxies shall be considered coupled
with an interest in the tendered Shares. This appointment is effective
when, and only to the extent that, the Offeror accepts for payment
the Shares deposited with the Depositary. Upon acceptance for payment,
all prior powers of attorney and proxies given by the stockholder with
respect to such Shares or other securities or rights will, without
further action, be revoked and no subsequent proxies may be given or
written consent executed (and, if given or executed, will not be deemed
effective). The designees of the Offeror will, with respect to the Shares
and other securities or rights, be empowered to exercise all voting and
other rights of such stockholder as they in their sole judgment deem
proper in respect of any annual or special meeting of the Company's
stockholders, or any adjournment or postponement thereof, any
actions by written consent in lieu of any such meeting or otherwise.
The Offeror reserves the right to require that, in order for Shares
to be deemed validly tendered, immediately upon the Offeror's
payment for such Shares, the Offeror must be able to exercise full
voting and other rights with respect to such Shares and the other
securities or rights issued or issuable in respect of such Shares,
including voting at any meeting of stockholders (whether annual or
special or whether or not adjourned) in respect of such Shares.
A tender of Shares pursuant to any one of the procedures
described above will constitute the tendering stockholder's
acceptance of the terms and conditions of the Offer, as well as the
tendering stockholder's representation and warranty that (i) such
stockholder has the full power and authority to tender, sell, assign
and transfer the tendered Shares (and any and all other Shares or
other securities issued or issuable in respect of such Shares), and
(ii) when the same are accepted for payment by the Offeror, the
Offeror will acquire good and unencumbered title thereto, free and
clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claims. The Offeror's acceptance for payment
of Shares tendered pursuant to the Offer will constitute a binding
agreement between the tendering stockholder and the Offeror upon the
terms and subject to the conditions of the Offer.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4, tenders of
Shares made pursuant to the Offer are irrevocable. Shares tendered
pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date and, unless theretofore accepted for payment
pursuant to the Offer, may also be withdrawn at any time after
February 18, 2000. If purchase of or payment for Shares is delayed
for any reason or if the Offeror is unable to purchase or pay for
Shares for any reason, then, without prejudice to the Offeror's
rights under the Offer, tendered Shares may be retained by the
Depositary on behalf of the Offeror and may not be withdrawn except
to the extent that tendering stockholders are entitled to withdrawal
rights as set forth in this Section 4, subject to Rule 14e-1(c)
under the Exchange Act, which provides that no person who makes a
tender offer shall fail to pay the consideration offered or return
the securities deposited by or on behalf of security holders
promptly after the termination or withdrawal of the Offer.
For a withdrawal of Shares tendered pursuant to the Offer to be
effective, a written, telegraphic, telex or facsimile transmission
notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to
Purchase. Any notice of withdrawal must specify the name of the
person who tendered the Shares to be withdrawn, the number of Shares
to be withdrawn and the name in which the certificates representing
such Shares are registered, if different from that of the person who
tendered the Shares. If certificates for Shares to be withdrawn 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, any notice of withdrawal must also specify the name and
number of the account at the Book-Entry Transfer Facility to be
credited with the withdrawn Shares and must otherwise comply with
such Book-Entry Transfer Facility's procedures.
All questions as to the form and validity (including time of
receipt) of notices of withdrawal will be determined by the Offeror,
in its sole discretion, and its determination will be final and
binding on all parties. None of the Offeror, Parent, the Dealer
Manager, the Depositary, the Information Agent or any
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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.
Any Shares properly withdrawn will be deemed not validly
tendered for purposes of the Offer, but may be retendered at any
subsequent time prior to the Expiration Date by following any of the
procedures described in Section 3.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The following is a summary of certain United States federal
income tax consequences of the Offer and the Merger to beneficial
owners of Shares whose Shares are purchased pursuant to the Offer or
whose Shares are converted to cash in the Merger. The discussion is
for general information only and does not purport to consider all
aspects of federal income taxation that may be relevant to
beneficial owners of Shares. The discussion is based on current
provisions of the Internal Revenue Code of 1986, as amended (the
"Code"), existing, proposed and temporary regulations promulgated
thereunder and administrative and judicial interpretations thereof,
all of which are subject to change. The discussion applies only to
beneficial owners of Shares in whose hands Shares are capital assets
within the meaning of Section 1221 of the Code, and may not apply to
Shares received pursuant to the exercise of employee stock options
or otherwise as compensation, or to certain types of beneficial
owners of Shares (such as insurance companies, tax-exempt
organizations and broker-dealers) who may be subject to special
rules. This discussion does not discuss the federal income tax
consequences to a beneficial owner of Shares who, for United States
federal income tax purposes, is a non-resident alien individual, a
foreign corporation, a foreign partnership or a foreign estate or
trust, nor does it consider the effect of any foreign, state or
local tax laws.
BECAUSE INDIVIDUAL CIRCUMSTANCES MAY DIFFER, EACH BENEFICIAL
OWNER OF SHARES SHOULD CONSULT SUCH BENEFICIAL OWNER'S OWN TAX
ADVISOR TO DETERMINE THE APPLICABILITY OF THE RULES DISCUSSED BELOW
TO SUCH BENEFICIAL OWNER AND THE PARTICULAR TAX EFFECTS TO SUCH
BENEFICIAL OWNER OF THE OFFER AND THE MERGER, INCLUDING THE
APPLICATION AND EFFECT OF STATE, LOCAL AND OTHER 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. In general, for federal income tax purposes, a beneficial
owner of Shares will recognize gain or loss equal to the difference
between the beneficial owner's adjusted tax basis in the Shares sold
pursuant to the Offer or converted to cash in the Merger and the
amount of cash received therefor. Gain or loss must be determined
separately for each block of Shares (i.e., Shares acquired at the
same cost in a single transaction) sold pursuant to the Offer or
converted to cash in the Merger. Such gain or loss will be capital
gain or loss and will be long-term capital gain or loss if the
beneficial owner held the Shares for more than one year as of the
date of sale (in the case of the Offer) or the Effective Time (in
the case of the Merger). Long-term capital gain of individuals
currently is taxed at a maximum rate of 20% for capital assets held
more than eighteen months, and at a maximum rate of 28% for capital
assets held for eighteen months or less but for more than twelve
months. For capital assets held twelve months or less, capital gain
is taxed at the same rates as ordinary income.
Payments in connection with the Offer or the Merger may be
subject to "backup withholding" at a rate of 31%, unless a
beneficial owner of Shares (a) is a corporation or comes within
certain exempt categories and, when required, demonstrates this fact
or (b) provides a correct TIN to the payor, certifies as to no loss
of exemption from backup withholding and otherwise complies with
applicable requirements of the backup withholding rules. A
beneficial owner who does not provide a correct TIN may be subject
to penalties imposed by the Internal Revenue Service. Any amount
paid as backup withholding does not constitute an additional tax and
will be creditable against the beneficial owner's federal income tax
liability. Each beneficial owner of Shares should consult with his
or her own tax advisor as to his or her qualification for exemption
from backup withholding and the procedure for obtaining such
exemption. Those tendering their Shares in the Offer may prevent
backup withholding by completing the Substitute Form W-9 included in
the Letter of Transmittal. See Section 3. Similarly, those who
convert their Shares
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into cash in the Merger may prevent backup withholding by completing
a Substitute Form W-9 and submitting it to the paying agent for the
Merger.
In general, cash received in respect of Dissenting Shares will
result in the recognition of capital gain or loss to the beneficial
owner of such Shares. Any such beneficial owner should consult such
owner's tax advisor in that regard.
Parent and the Offeror will be entitled to deduct and withhold
from the consideration otherwise payable pursuant to the Merger
Agreement to any holder of Shares such amounts as Parent or the
Offeror is required to deduct and withhold with respect to the
making of such payment. To the extent that amounts are so withheld
by Parent or the Offeror, such withheld amounts shall be treated for
all purposes of the Merger Agreement as having been paid to the
holder of the Shares in respect of which such deduction and
withholding was made by Parent or the Offeror.
6. PRICE RANGE OF SHARES; DIVIDENDS.
The Shares are traded on the NYSE under the symbol "ABP". The
following table sets forth for the periods indicated the high and
low sales prices per Share on the NYSE as reported by the Company in
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (the "1998 10-K") with respect to the years ended
December 31, 1998 and December 31, 1997, and as reported by
published financial sources with respect to periods after December
31, 1998.
<TABLE>
<CAPTION>
HIGH LOW
---- ---
<S> <C> <C>
Year Ended December 31, 1997:
First Quarter.................................. $25.25 $22.00
Second Quarter................................. 25.00 22.50
Third Quarter.................................. 25.38 21.88
Fourth Quarter................................. 25.87 19.06
Year Ended December 31, 1998:
First Quarter.................................. $24.13 $19.63
Second Quarter................................. 23.44 19.50
Third Quarter.................................. 21.69 16.50
Fourth Quarter................................. 24.00 16.06
Year Ended December 31, 1999:
First Quarter.................................. $23.44 $14.00
Second Quarter................................. 16.50 14.50
Third Quarter.................................. 15.75 14.63
Fourth Quarter................................. 15.88 10.25
</TABLE>
On January 13, 2000, the last full day of trading prior to the
public announcement of the execution of the Merger Agreement,
according to publicly available sources, the closing price per Share
as reported on the NYSE was $12.00. On January 20, 2000, the last
full day of trading prior to the commencement of the Offer,
according to publicly available sources, the closing price per Share
as reported on the NYSE was $19.69. STOCKHOLDERS ARE URGED TO OBTAIN
CURRENT MARKET QUOTATIONS FOR THE SHARES.
On October 20, 1999 the Board of Directors of the Company
declared a regular quarterly cash dividend of $0.165 per share
payable on December 15, 1999, to shareholders of record on December
1, 1999.
7. CERTAIN EFFECTS OF THE TRANSACTION.
The purchase of the Shares by the Offeror pursuant to the Offer
will reduce the number of Shares that might otherwise trade publicly
and will reduce the number of holders of Shares, which will
adversely
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affect the liquidity and market value of the remaining Shares held
by stockholders other than the Offeror. The Company has advised the
Offeror that, as of January 20, 2000, there were approximately 4,250
holders of record and approximately 2,700 beneficial owners of the
Shares.
Market for Shares. Depending upon the number of Shares purchased
pursuant to the Offer, the Shares may no longer meet the
requirements of the NYSE for continued listing on the NYSE.
According to NYSE's published guidelines, NYSE would consider
delisting the Shares if, among other things, the number of record
holders of at least 100 Shares were to fall below 1,200, the number
of publicly held Shares (exclusive of holdings of officers,
directors, their immediate families and other concentrated holdings
of 10% or more ("NYSE Excluded Holdings")) should fall below 600,000
or the aggregate market value of publicly held Shares (exclusive of
NYSE Excluded Holdings) should fall below $5,000,000. If as a result
of the purchase of the Shares pursuant to the Offer or otherwise,
the Shares no longer meet the requirements of the NYSE for continued
listing and the Shares are no longer listed, the market for the
Shares would be adversely affected.
In the event that the Shares should no longer be listed or
traded on the NYSE, it is possible that such Shares would continue
to trade in the over-the-counter market and that price quotations
would be reported by other sources. The extent of the public market
for such Shares and the availability of such quotations would,
however, depend upon the number of holders of such Shares remaining
at such time, the interest in maintaining a market in Shares on the
part of securities firms, the possible termination of registration
of such Shares under the Exchange Act, as described below, and other
factors.
Exchange Act Registration. The Shares are currently registered
under the Exchange Act. Such registration may be terminated upon
application by the Company to the Commission if there are fewer than
300 record holders of such Shares. It is the intention of the
Offeror to seek to cause an application for such termination to be
made as soon after consummation of the Offer as the requirements for
termination of registration of such Shares are met. If such
registration were terminated, the Company would no longer legally be
required to disclose publicly in proxy materials distributed to
stockholders the information which it now must provide under the
Exchange Act or to make public disclosure of financial and other
information in annual, quarterly and other reports required to be
filed with the Commission under the Exchange Act; the Company would
no longer be subject to Rule 13e-3 under the Exchange Act relating
to "going private" transactions; and the officers, directors and 10%
stockholders of the Company would no longer be subject to the
"short-swing" insider trading reporting and profit recovery
provisions of the Exchange Act. Furthermore, if such registration
were terminated, persons holding "restricted securities" of the
Company may be deprived of their ability to dispose of such
securities under Rule 144 or Rule 144A promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
If registration of the Shares is not terminated prior to the
Merger, then the Shares will be delisted from all stock exchanges
and the registration of the Shares under the Exchange Act will be
terminated following the consummation of the Merger.
Margin Regulations. The Shares are currently "margin securities"
under the regulations of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), which has the effect,
among other things, of allowing brokers to extend credit on the
collateral of such Shares. Depending upon factors similar to those
described above regarding listing and market quotations, it is
possible that, following the Offer, the Shares would no longer
constitute "margin securities" for the purposes of the margin
regulations of the Federal Reserve Board and therefore could no
longer be used as collateral for loans made by brokers. If
registration of Shares under the Exchange Act were terminated, such
Shares would no longer be "margin securities."
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as otherwise set forth herein, the information concerning
the Company contained in this Offer to Purchase, including financial
information, has been furnished by the Company or has been taken
from or based upon publicly available documents and records on file
with the Commission and other public sources. Although neither the
Offeror nor Parent has any knowledge that would indicate that
statements contained herein based upon such documents are untrue,
neither the Offeror nor Parent assume any
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responsibility for the accuracy or completeness of the information
concerning the Company or for any failure by the Company to disclose
events which may have occurred or may affect the significance or
accuracy of any such information but which are unknown to the
Offeror or Parent.
The Company is a Georgia corporation with its principal
executive offices located at 2100 RiverEdge Parkway, Suite 1200,
Atlanta, Georgia 30328. The Company is engaged in the manufacture
and sale of specialty packaging and printed office products. The
markets for these products are located principally throughout the
continental United States.
Set forth below is certain summary consolidated financial data
with respect to the Company excerpted or derived from financial
information contained in the 1998 10-K and 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. Such reports and
other documents should be available for inspection and copies
thereof should be obtainable in the manner set forth below.
AMERICAN BUSINESS PRODUCTS, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30 YEAR ENDED DECEMBER 31
------------------- --------------------------------
1999 1998 1998 1997 1996
---- ---- ---- ---- ----
(UNAUDITED)
(IN MILLIONS OF DOLLARS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Income Statement Data
Net sales............................. $350,196 $346,757 $461,270 $453,315 $568,275
Net income (loss)..................... 12,395 13,487 11,787 19,242 21,054
Net income per share (diluted)........ 0.82 0.83 0.74 1.16 1.28
Net income per share (basic).......... 0.82 0.84 0.74 1.17 1.28
<CAPTION>
SEPTEMBER 30 DECEMBER 31
------------ ----------------------------------
1999 1998 1997 1996
---- ---- ---- ----
(UNAUDITED)
(IN MILLIONS OF DOLLARS)
<S> <C> <C> <C> <C>
Balance Sheet Data
Total current assets............................ $135,732 $166,211 $173,559 $190,835
Total assets.................................... 282,659 301,244 330,494 337,771
Total current liabilities....................... 59,067 67,629 69,129 74,143
Total shareholders' equity...................... 156,346 162,740 181,697 172,991
</TABLE>
The Company is subject to the informational requirements of the
Exchange Act and in accordance therewith files periodic reports,
proxy statements and other information with the Commission relating
to its business, financial condition and other matters. The Company
is required to disclose in such proxy statements certain
information, as of particular dates, concerning the Company's
directors and officers, their remuneration, stock options granted to
them, the principal holders of the Company's securities and any
material interests of such persons in transactions with the Company.
Such reports, proxy statements and other information may be
inspected at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material may also be obtained at
prescribed rates from the Public Reference Section of the
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission also maintains a World Wide Web site on the internet at
http://www.sec.gov that contains reports and other information
regarding registrants that file electronically with the Commission.
Such material may also be inspected at the offices of the NYSE, 20
Broad Street, New York, New York 10005.
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9. CERTAIN INFORMATION CONCERNING PARENT AND THE OFFEROR.
The Offeror is a newly incorporated Georgia corporation. To
date, the Offeror has not conducted any business other than that
incident to its formation, the execution and delivery of the Merger
Agreement, the Tender Agreement and the commencement of the Offer.
Accordingly, no meaningful financial information with respect to the
Offeror is available. The Offeror is an indirect wholly-owned
subsidiary of Parent. The principal executive office of the Offeror
is located at 23 Inverness Way East, Suite 160, Englewood, Colorado
80112.
Parent, a Colorado corporation, has its principal executive
office at 23 Inverness Way East, Suite 160, Englewood, Colorado
80112. Parent is a leading consolidator in the highly fragmented
printing industry, specializing in four fast-growing
multibillion-dollar market segments: commercial printing, envelopes,
labels and printing for distributors. Parent currently has more than
13,000 employees and 110 printing plants and numerous sales offices
throughout North America.
Set forth below is certain summary consolidated financial data
with respect to Parent excerpted or derived from financial
information contained in Parent's Annual Report on Form 10-K for the
year ended December 31, 1998 and Parent'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 Parent 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.
<TABLE>
MAIL WELL, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN MILLIONS OF DOLLARS, EXCEPT PER SHARE DATA)
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30
(000'S) YEAR ENDED DECEMBER 31
------------------- ---------------------------------
1999 1998 1998 1997 1996
---- ---- ---- ---- ----
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Income Statement Data
Net sales................................. $1,372.3 $1,072.9 $1,504.7 $1,073.9 $944.5
Income before extraordinary item.......... 47.3 33.6 25.8 35.0 21.2
Net income................................ 47.3 33.6 21.7 28.9 21.2
Earnings per basic share:
Net income per share before extraordinary
item.................................... $ 0.97 $ 0.73 $ 0.55 $ 0.86 $ 0.53
Extraordinary item........................ 0.00 0.00 (0.08) (0.15) --
-------- -------- -------- -------- ------
Net income per basic share................ $ 0.97 $ 0.73 $ 0.47 $ 0.71 $ 0.53
======== ======== ======== ======== ======
Earnings per diluted share:
Income per share before extraordinary
item.................................... $ 0.88 $ 0.88 $ 0.53<Fc> $ 0.82 $ 0.52
Extraordinary item........................ 0.00 0.00 (0.08) (0.14) --
-------- -------- -------- -------- ------
Net income per diluted share.............. $ 0.88 $ 0.88 $ 0.45 $ 0.68 $ 0.52
======== ======== ======== ======== ======
<CAPTION>
SEPTEMBER 30 DECEMBER 31
------------ -------------------------------
1999 1998 1997 1996
---- ---- ---- ----
(UNAUDITED)
(IN MILLIONS OF DOLLARS)
<S> <C> <C> <C> <C>
Balance Sheet Data
Total current assets................................ $ 367.7 $ 335.9 $234.9 $177.6
Total assets........................................ 1,360.3 1,128.0 671.4 552.0
Total current liabilities........................... 259.4 183.7 129.5 142.4
Total long term debt................................ 672.6 583.4 330.4 237.8
Total shareholders' equity.......................... 354.6 299.4 171.8 143.4
</TABLE>
Parent is subject to the informational requirements of the
Exchange Act and in accordance therewith files periodic reports and
other information with the Commission relating to its business,
financial
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condition and other matters. Such reports and other information are
available for inspection and copying at the offices of the
Commission in the same manner as set forth with respect to the
Company in Section 8. Such material may also be inspected at the
offices of the NYSE, 20 Broad Street, New York, New York 10005.
The name, citizenship, business address, present principal
occupation and material positions held during the past five years of
each of the directors and executive officers of Parent and the
Offeror are set forth in Annex I to this Offer to Purchase.
Except as set forth in this Offer to Purchase, none of the
Offeror, Parent or, to the best knowledge of the Offeror or Parent,
any of the persons listed in Annex I hereto, has any contract,
arrangement, understanding or relationship with any other person
with respect to any securities of the Company, including, but not
limited to, any contract, arrangement, understanding or relationship
concerning the transfer or the voting of any such securities, joint
ventures, loan or option arrangements, puts or calls, guaranties of
loans, guaranties against loss or the giving or withholding of
proxies. Except as set forth in this Offer to Purchase, there have
been no contacts, negotiations or transactions between the Offeror
or Parent, or, to the best of their knowledge, any of the persons
listed in Annex I hereto, on the one hand, and the Company or its
affiliates, on the other hand, concerning a merger, consolidation or
acquisition, a tender offer or other acquisition of securities, an
election of directors or a sale or other transfer of a material
amount of assets. Except as described in this Offer to Purchase,
none of the Offeror or Parent or, to the best knowledge of Parent or
the Offeror or, any of the persons listed in Annex I hereto, has had
any transaction with the Company or any of its executive officers,
directors or affiliates that would require disclosure under the
rules and regulations of the Commission applicable to the Offer.
10. SOURCE AND AMOUNT OF FUNDS.
The Offeror estimates that the total amount of funds required to
acquire the Shares pursuant to the Offer, the Merger Agreement and
the Tender Agreement (exclusive of related fees and expenses) will
be approximately $297,172,099 (assuming the exercise of all
outstanding options net of exercise price received).
Parent has received a written financing commitment (the
"Commitment Letter") from Bank of America, N.A. for a senior secured
financing in the aggregate principal amount of $800,000,000 (the
"Senior Secured Financing") to finance the transactions under the
Merger Agreement (estimated to be $334,000,000, including the
repayment of Company debt), to pay related costs and expenses
(estimated to be $15,000,000), to refinance certain indebtedness of
Parent and its subsidiaries (estimated to be approximately $340,000,000)
and the remainder to provide funds for ongoing general corporate purposes
of the Parent after the Merger. Although Bank of America has committed
to provide the entire Senior Secured Financing, Bank of America expects
to assemble a syndicate of financial institutions (the "Lenders") prior
to or promptly after the initial funding under the Senior Secured
Financing. The terms of the definitive agreement providing for the Senior
Secured Financing (the "Loan Agreement") have not yet been finalized. The
following is a summary of the anticipated principal terms of the Senior
Secured Financing based upon the Commitment Letter. This summary is subject
to finalizing of the Loan Agreement and is qualified in its entirety by
reference to the Commitment Letter, which is filed as an exhibit to the
Schedule 14D-1 of which this Offer to Purchase is an exhibit.
The Senior Secured Financing will be in the form of (i) a
Revolving Credit Facility in the aggregate amount of $150 million,
(ii) a Tranche A Term Loan Facility in the aggregate amount of $400
million, and (iii) a Tranche B Term Loan Facility in the aggregate
amount of $250 million. The Revolving Credit Facility will mature
upon the earlier to occur of the repayment in full of the Tranche A
Term Facility and 6 years from the date of closing of the Senior
Secured Financing. The Tranche A Term Loan Facility will mature 6
years from the closing date and the Tranche B Term Loan Facility
will mature 7 years from the closing date. Both Term Loan Facilities
will be subject to repayment according to a scheduled amortization
to be determined.
Borrowings under the Revolving Credit Facility and the Tranche A
Term Loan Facility will bear interest at a rate equal to (i) LIBOR
plus a margin rate to be determined and based upon Parents funded
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<PAGE>
debt to EBITDA ratio ("Applicable Margin"); or (ii) an alternate
base rate (determined by the higher of the Bank of America prime
rate or the Federal Funds rate plus .50%) ("Alternate Base Rate")
plus the Applicable Margin. Borrowings under the Tranche B Term Loan
Facility will bear interest at a rate equal to (i) LIBOR plus 300.0
basis points, or (ii) the Alternate Base Rate plus 175.0 basis
points. Parent will also pay Bank of America underwriting and
administration fees, reimburse certain expenses and provide certain
indemnities, all of which Parent believes to be customary for
borrowings of this type.
The security for the Senior Secured Financing will be a first
priority perfected security interest in (i) all of the capital stock
of the domestic subsidiaries of Parent and 65% of the capital stock
of each foreign subsidiary of the Parent; and (ii) all other present
and future material assets and properties of the subsidiaries of the
Parent including the Company following the Merger.
The definitive loan agreement will contain conditions precedent,
representations and warranties, covenants (including financial
covenants), events of default and other provisions customary for
such financings.
Bank of America's commitment to provide the Senior Secured
Financing is conditioned upon, among other things, the execution of
a definitive loan agreement on or before April 14, 2000; completion
and satisfaction with a due diligence analysis and review of the
acquisition of the Company by Parent and the financial condition,
business, operations, accounting treatment and prospects for Parent
and its subsidiaries after the acquisition of the Company; the
absence of a material change in the market for syndicated facilities
similar to the Senior Secured Financing and in financial, banking or
capital markets; and other conditions customary for such financings.
It is anticipated that the indebtedness incurred through
borrowings under the Senior Secured Financing will be repaid from
funds generated internally by Parent and its subsidiaries, including
the Company and its subsidiaries, and from other sources that may
include the proceeds of the private or public sale of debt or equity
securities. No final decisions have been made concerning the method
Parent will employ to repay such indebtedness. Such decisions when
made will be based on Parent's review from time to time of the
advisability of particular actions, as well as on prevailing
interest rates and financial and other economic conditions.
11. BACKGROUND OF THE OFFER; PAST CONTACTS, TRANSACTIONS OR
NEGOTIATIONS WITH THE COMPANY.
Parent was initially contacted by the Company's financial
advisor on or about October 22, 1999 and advised that the Company
had retained them to assist in examining strategic alternatives to
maximize shareholder value. On November 4, 1999 Parent entered into
a Confidentiality Agreement with respect to the Company. Parent
received the Confidential Offering Memorandum on November 5 and
subsequently commenced its valuation of the Company in the context
of the process outlined by the Company's advisor.
On November 18, 1999 Parent submitted its initial valuation
range for the shares of the Company. Shortly thereafter, Parent
was advised verbally that it was being invited to remain in the
process and to receive a presentation from the Company's management
as soon as schedules could be arranged. A presentation by the Company's
management to Parent's management took place in Atlanta, Georgia on
December 13, 1999 and was followed by tours of certain of the Company's
operating facilities on December 14. Parent conducted other due diligence
with respect to the Company concurrently with the presentation and
facilities tour, including examination by Parent and certain of its
professional advisors of various documents pertaining to the Company
which had been assembled at the offices of the Company's law firm in Atlanta.
Parent held a telephonic meeting of its Board of Directors on
December 17, 1999, during which the Board discussed a potential
transaction to acquire the Company. The Board authorized Parent's
management to pursue the acquisition of the Company. On December 20,
Parent was invited by the Company's advisor to submit a definitive
proposal to acquire the Company by January 6, 2000.
On January 4, 2000 Parent interviewed the President's of the
Company's business units as part of its due diligence. On January 6,
2000 Parent submitted a written offer to acquire the Company at a
price of
15
<PAGE>
<PAGE>
$19.25 per share. Parent was informed that the Company's Board of
Directors would meet on January 10, 2000 to consider offers made to
acquire the Company. Commencing on the afternoon of January 10,
2000, discussions were held among the Company, its advisor and
Parent. These discussions culminated in Parent submitting a revised
written offer on January 11, 2000 to acquire the Company at a price
of $20 per share, subject to approval of its Board of Directors. On
January 12, 2000 Parent advised the Company that Parent had been
authorized by its Board of Directors to pursue its $20 per share
offer, and a revised written offer was submitted to the Company.
Parent was subsequently advised later on January 12 that the
Company's Board of Directors had approved Parent's offer of $20 per
share subject to the negotiation, execution and delivery of a
definitive agreement and the receipt of an executed commitment
letter from a nationally recognized financial institution, in form
and content satisfactory to the Executive Committee of the Board of
Directors of the Company, agreeing to finance the transaction proposed by
Parent.
Negotiations of a definitive agreement commenced immediately and
were concluded on January 13 with the execution of the Merger
Agreement. Also on January 13, 2000, Parent received and
transmitted to the Company a commitment letter from Bank of America
agreeing to finance the transaction. The transaction was announced
on January 14, 2000 at 6:05 a.m. eastern standard time.
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY.
The purpose of the Offer, the Merger and the Merger Agreement
and the other transactions contemplated thereby is to enable Parent
to acquire control of, and the entire equity interest in, the
Company.
In order to effect the Merger, the GBCC and the Articles of
Incorporation of the Company (the "Charter") require the holders of
a majority of the Shares to approve the Merger Agreement. The Board
of Directors of the Company has unanimously approved and adopted the
Merger Agreement and the Tender Agreement and approved the terms of
the Offer and the Merger, and, unless the Merger is consummated
pursuant to the short form merger provisions under the GBCC as
described below, the only remaining required corporate action of the
Company is the approval of the Merger Agreement by the affirmative
vote of the holders of a majority of the outstanding Shares. If the
Offeror acquires, through the Offer or otherwise a majority of the
combined voting power of the outstanding Shares, it would have
sufficient voting power to effect the Merger without the vote of any
other stockholder of the Company.
Pursuant to the Merger Agreement, the Company has agreed that,
as soon as practicable following the expiration of the Offer, it
will duly call and hold a meeting of stockholders for the purpose of
obtaining the stockholder approval of the Merger Agreement. Parent
has agreed that all Shares owned by the Offeror or any other
subsidiary of Parent will be voted in favor of approval of the
Merger Agreement. The meeting of stockholders shall be held as soon
as practicable following the purchase of Shares pursuant to the
Offer. If the Offeror acquires a majority of the Shares through the
Offer or otherwise, approval of the Merger Agreement can be obtained
without the affirmative vote of any other stockholder of the
Company.
Appraisal Rights. No appraisal rights are available in
connection with the Offer. However, if the Merger is consummated,
stockholders of the Company will have certain rights under the GBCC
to dissent and demand appraisal of, and to receive payment in cash
for the fair value of, their Shares. Such rights to dissent, if the
statutory procedures are complied with, could lead to a judicial
determination of the fair value of the Shares (excluding any
appreciation or depreciation in anticipation of the merger) required
to be paid in cash to such dissenting holders of their Shares. In
addition, such dissenting stockholders may be entitled to receive
payment of a fair rate of interest from the date of consummation of
the merger on the amount determined to be the fair value of their
Shares. In determining the fair value of the Shares, a Georgia court
could take into account all relevant factors. Accordingly, such
determination could be based upon considerations other than, or in
addition to, the market value of the Shares, including, among other
things, asset values and earning capacity.
Rule 13e-3. The Commission has adopted Rule 13e-3 under the
Exchange Act which is applicable to certain "going private"
transactions and which may, under certain circumstances, be
applicable to the Merger or another business combination in which
the Offeror seeks to acquire the remaining Shares not
16
<PAGE>
<PAGE>
held by it following the purchase of Shares pursuant to the Offer.
The Offeror believes, however, that Rule 13e-3 will not be
applicable to the Merger if it is consummated within one year after
the termination of the Offer at the Offer Price. If applicable, Rule
13e-3 requires, among other things, that certain financial
information concerning the Company and certain information relating
to the fairness of the proposed transaction and the consideration
offered to minority stockholders in such transaction be filed with
the Commission and disclosed to stockholders prior to consummation
of the transaction.
Plans for the Company. Parent will continue to evaluate the
business and operations of the Company during the pendency of the
Offer and after the consummation of the Offer and the Merger. Parent
intends to seek additional information about the Company during this
period. Thereafter, Parent intends to review such information as
part of a comprehensive review of the Company's business,
operations, capitalization and management with a view to optimizing
the Company's potential contribution to Parent's business. So long
as there are holders of Shares other than Parent or any of its
subsidiaries, Parent expects that the Board of Directors of the
Company would not declare dividends on the Shares.
Except as indicated in this Offer to Purchase and the Merger
Agreement, Parent does not have any current plans or proposals which
relate to or would result in any of the following: an extraordinary
corporate transaction, such as a merger, reorganization or
liquidation involving the Company or any of its subsidiaries; a sale
or transfer of a material amount of assets of the Company or any of
its subsidiaries; any change in the present Board of Directors or
management of the Company; any material change in the Company's
present capitalization or dividend policy; or any other material
change in the Company's corporate structure or business.
13. THE MERGER AGREEMENT AND THE TENDER AGREEMENT.
The following is a summary of the material terms of the Merger
Agreement, which summary is qualified in its entirety by reference
to the Merger Agreement which is filed as an exhibit to the Tender
Offer Statement on Schedule 14D-1.
The Offer. The Merger Agreement provides for the commencement of
the Offer as promptly as practicable, but in no event later than
five (5) business days following the date of public announcement of
the execution thereof. The obligation of Offeror to accept for
payment the Shares tendered pursuant to the Offer is subject to (i)
the Minimum Condition and (ii) the satisfaction or waiver of certain
other conditions of the Offer. See Section 15. The Minimum Condition
of the Offer is that the Shares tendered pursuant to the Offer by
the expiration of the Offer and not withdrawn, together with the
Shares owned by the Offeror, represent, on a fully diluted basis, a
majority of the outstanding voting power of the Shares.
The Offeror expressly reserves the right to modify the terms of
the Offer, except that, without the consent of the Company, the
Offeror shall not (a) reduce the number of Shares subject to the
Offer, (b) reduce the price per Share to be paid pursuant to the
Offer, (c) modify or add to the conditions set forth in Section 15,
(d) except as provided below, extend the Offer, or (e) change the
form of consideration payable in the Offer.
Notwithstanding the foregoing, the Offeror may, without the
consent of the Company, (a) extend the Offer, if at the scheduled
Expiration Date any of the conditions to Offeror's obligations to
purchase Shares shall not be satisfied until such conditions have
been satisfied, (b) extend the Offer for a period of not more than
ten business days beyond the initial expiration date of the Offer,
if on the date of such extension less than 90% of the outstanding
Shares have been validly tendered and not properly withdrawn
pursuant to the Stock Offer, notwithstanding that all conditions to
the Offer are satisfied as of the date of such extension, and (c)
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. Notwithstanding the foregoing, the Offer
may not be extended beyond the date of termination of the Merger
Agreement set forth in Section 15.
The Merger. The Merger Agreement provides that, upon the terms
and subject to the conditions of the Merger Agreement, and in
accordance with the GBCC, Offeror shall be merged with and into the
Company at the Effective Time. Following the merger, the separate
corporate existence of Offeror shall
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cease and the Company shall continue as the Surviving Corporation
and shall succeed to and assume all the rights and obligations of
Offeror and the Company in accordance with the GBCC. At the
Effective Time, the Charter and the By-laws of the Company shall be
the Charter and By-Laws of the Surviving Corporation. The directors
of Offeror shall become the directors of the Surviving Corporation
and the officers of the Offeror shall become the officers of the
Surviving Corporation.
Conversion of Securities. As of the Effective Time, by virtue of
the Merger and without any action on the part of Offeror, the
Company or the holders of any securities of Offeror or the Company,
each Share (other than Shares owned by the Company, any subsidiary
of the Company, Parent, Offeror, any other subsidiary of Parent or
by stockholders, if any, who are entitled to and who properly
exercise appraisal rights under the GBCC) shall be converted into
the right to receive from the Surviving Corporation, in cash,
without interest, the price per Share paid pursuant to the Offer.
Each share of stock of Offeror issued and outstanding immediately
prior to the Effective Time shall, at the Effective Time, by virtue
of the merger and without any action on the part of the holder of
any shares of stock of Offeror, be converted into and become one
fully paid and nonassessable shares of common stock, $2.00 par
value, of the Surviving Corporation.
Representations and Warranties. In the Merger Agreement, the
Company has made customary representations and warranties to Parent
and Offeror. The representations and warranties of the Company
relate, among other things, to: its organization and qualification;
subsidiaries; capital structure; authority to enter into the Merger
Agreement and to consummate the transactions contemplated thereby;
required consents and approvals; filings made by the Company with
the Commission under the Securities Act or the Exchange Act
(including financial statements included in the documents filed by
the Company under these acts); absence of any material adverse
change; compliance with laws; tax matters; liabilities; benefit
plans and employees and employment practices; litigation;
environmental matters; and intellectual property related matters.
The Offeror and Parent have also made customary representations
and warranties to the Company. Representations and warranties of
Offeror and Parent relate, among other things, to their organization
and authority to enter into the Merger Agreement and to consummate
the transactions contemplated thereby, required consents and
approvals and financing matters.
Covenants Relating to the Conduct of Business. During the period
from the date of the Merger Agreement to the Effective Time, the
Company has agreed as to itself and its subsidiaries to carry on its
business in the ordinary course of its business as currently
conducted and that, except as otherwise expressly contemplated or
permitted by the Merger Agreement or except to the extent Parent
shall otherwise consent in writing, the Company shall not:
a. (i) Declare, set aside or pay any dividends on, or make any
other actual, constructive or deemed distributions in respect of,
any of its capital stock, or otherwise make any payments to its
shareholders in their capacity as such (other than dividends and
other distributions by the Company's subsidiaries), (ii) other than
in the case of any subsidiary, split, combine or reclassify any of
its capital stock or issue or authorize the issuance of any other
securities in respect of, in lieu of or in Substitution for shares
of its capital stock or (iii) purchase, redeem, or otherwise acquire
any shares of capital stock of the Company or any other securities
thereof or any rights, warrants or options to acquire any such
shares or other securities;
b. Issue, deliver, sell, pledge, dispose of or otherwise
encumber any shares of its capital stock, any other voting
securities or equity equivalent or any securities convertible into,
or any rights, warrants or options to acquire any such shares,
voting securities, equity equivalent or convertible securities,
other than (i) the issuance of Shares upon the exercise of Company
stock options outstanding on the date of the Merger Agreement in
accordance with their current terms, or (ii) the issuance by any
wholly-owned subsidiary of the Company of its capital stock to the
Company or another wholly-owned subsidiary of the Company;
c. Amend its Articles of Incorporation or Bylaws;
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d. Sell, lease or otherwise dispose of, or agree to sell, lease
or otherwise dispose of, any of its assets, other than transactions
that are in the ordinary course of business consistent with past
practice and not material to the Company and its subsidiaries taken
as a whole;
e. Incur any indebtedness for borrowed money, guarantee any such
indebtedness or make any loans, advances or capital contributions
to, or other investments in, any other person, other than (i) in the
ordinary course of business consistent with past practices and (ii)
indebtedness, loans, advances, capital contributions and investments
between the Company and any of its subsidiaries or between any of
such subsidiaries;
f. Alter (through merger, liquidation, reorganization,
restructuring or in any other fashion) the corporate structure or
ownership of the Company or enter into any binding commitment to do
so;
g. Except as set forth in the schedules to the Merger Agreement,
enter into or adopt, or amend any existing, severance plan,
agreement or arrangement or enter into or amend any employee benefit
plan or employment or consulting agreement, other than as required
by law or in the ordinary course of business;
h. Except as set forth in the schedules to the Merger Agreement
increase the compensation payable or to become payable to its
officers or employees, except for increases in the ordinary course
of business consistent with past practice in salaries or wages of
officers or employees of the Company or any of its subsidiaries, or
enter into any employment or severance agreement with any director
or officer of the Company or any of it subsidiaries, or establish,
adopt, enter into, or, except as may be required to comply with
applicable law, any new labor, collective bargaining, bonus, profit
sharing, thrift, compensation, stock option, restricted stock,
pension, retirement, deferred compensation, severance or other plan,
agreement, trust, fund, policy or arrangement for the benefit of any
director, officer or employees;
i. Knowingly violate or knowingly fail to perform any material
obligation or duty imposed upon it or any subsidiary by any
applicable material federal, state or local law, rule, regulation,
guideline or ordinance;
or
j. Authorize, recommend, propose or announce an intention to do
any of the foregoing, or enter into any contract, agreement,
commitment or arrangement to do any of the foregoing.
No Solicitation. The Merger Agreement provides that the Company
shall not, nor shall it permit any of its subsidiaries to, nor shall
it authorize or permit any of its officers, directors, agents,
attorneys, accountants, advisors, affiliates and other
representatives, or those of any of its subsidiaries to, solicit,
participate in, or encourage inquiries or proposals with respect to,
or engage in any negotiations concerning, or provide any
confidential information to, or have any discussions or negotiations
with, any person relating to, any Company Takeover Proposal;
provided, however, that if, at any time prior to the acceptance for
payment of Shares pursuant to the Offer, the Board of Directors of
the Company determines in good faith, after consultation with
outside counsel, that it is necessary to do so in order to comply
with its fiduciary duties to the Company's stockholders under
applicable law, the Company may, in response to a Company Takeover
Proposal which was not solicited subsequent to the date of the
Merger Agreement, and (a) to the extent applicable, to comply with
Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act, and
(b) subject to compliance with the notification provisions discussed
below, engage in discussions or negotiations with, or furnish
information concerning the Company and its subsidiaries, business,
properties or assets to, any third party which makes a Superior
Proposal.
The Merger Agreement defines "Company Takeover Proposal" as any
tender offer or exchange offer, proposal for a merger, consolidation
or other business combination involving the Company or any of its
subsidiaries or any proposal or offer to acquire in any manner a
substantial equity interest in, or a substantial portion of the
assets of, the Company or any of its subsidiaries, other than by the
transactions contemplated under, or otherwise permitted by, the
Merger Agreement. The Merger Agreement defines "Superior Proposal"
as any Company Takeover Proposal, the terms of which the Board of
Directors of the Company determines in its good faith judgment to be
a superior financial alternative to the Company's
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shareholders when compared as a whole with the transactions
contemplated by the Merger Agreement and for which financing, to the
extent required, is then committed or which, in the good faith
judgment of the Company's Board of Directors after consulting with
its financial advisor, is reasonably likely to be obtained.
In addition to the obligations of the Company described in the
preceding paragraphs, the Merger Agreement provides that the Company
shall promptly advise Parent of any request for information or of
any Company Takeover Proposal, the material terms and conditions of
such request or Company Takeover Proposal and the identity of the
person making any such request or Company Takeover Proposal. The
Company is further required under the terms of the Merger Agreement
to keep Parent fully informed of the status and details (including
amendments or proposed amendments) of any such request or Company
Takeover Proposal. Upon making the determination that the Board of
Directors and the Company must engage in discussions with a third
party to meet its fiduciary duty, and prior to engaging in
discussions or negotiations with, or furnishing information
concerning the Company and its subsidiaries, business, properties or
assets to, any third party in connection with a Superior Proposal,
the Board of Directors of the Company must provide not less than
five (5) days prior written notice to Parent of such determination,
including a description of the Superior Proposal in reasonable
detail to allow the Parent to evaluate such Superior Proposal.
Access. The Merger Agreement provides that Company must allow
Parent, Offeror, their lender, and their respective authorized
representatives, during ordinary business hours, access to examine
all documents, records, reports, books, or files maintained by
Company or its representatives, including but not limited to access
to Company's financial records, auditor's work papers, or other such
documents as may be reasonably requested by Parent. In addition,
Company shall promptly provide Parent with copies of all management
reports normally provided to the Company's Chief Executive Officer.
Shareholders Meeting. The Merger Agreement provides, if the
approval and adoption of the Merger Agreement by the Company's
stockholders is required by law, the Company will, as soon as
practicable following the consummation of Offer, duly call, give
notice of, convene and hold a stockholder meeting for the purpose of
considering the approval of the Merger Agreement and the
transactions contemplated thereby. The Board of Directors of the
Company will recommend to the stockholders the adoption or approval
of the Merger Agreement and the Merger, shall solicit proxies in
favor of the Merger Agreement and the Merger and shall take all
other lawful actions necessary, helpful to secure the vote or
consent of such holders required by law and the Company's Articles
of Incorporation. Notwithstanding the foregoing, if the Offeror
acquires at least 90% of the outstanding Shares, the parties shall,
at the request of Parent, 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 the Company's
stockholders in accordance with the GBCC.
Payment in Respect of Equity Rights. Pursuant to the Merger
Agreement, the Board of Directors of the Company agreed to adopt
such resolutions or take such other actions as are required to
adjust the terms of all outstanding employee stock options or other
rights to purchase Shares ("Company Options") to provide that each
Company Options outstanding immediately prior to the acceptance for
payment of Shares pursuant to the Offer are be canceled in exchange
for a cash payment from the Company. The amount of such cash payment
shall be equal to (a) the excess, if any, of (i) the price per Share
to be paid pursuant to the Offer over (ii) the exercise or
conversion price per Share of such Company Options, multiplied by
(b) the number of Shares for which such Company Options shall not
theretofore have been exercised (the "Option Consideration"). Under
the Merger Agreement, at the Effective Time, each holder of
then-outstanding Company Options, whether or not then exercisable,
shall receive for each Share subject to such Company Options an
amount (subject to any applicable withholding tax) in cash equal to
the difference between the Offer Price and the per share exercise
price of such Company Options to the extent such difference is a
positive number.
The Company has also agreed that prior to the Effective Time,
Company will use its best efforts to obtain all necessary consents
or releases from holders of Company Options, to the extent required
by the terms of the plans or agreements governing such Company
Options, or pursuant to the terms of any
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Company Options granted thereunder, and to take all such other
lawful action as may be necessary to give effect to the transactions
contemplated by the Merger Agreement. The Company further agreed that,
except as otherwise agreed to by Parent or Offeror, the Company shall
take all action necessary to ensure that (a) the provisions of any plan,
program or arrangement providing for the issuance or grant of any
interest in respect of the capital stock of Company or any Company
subsidiary, shall be canceled as of the Effective Time, and (b)
following the Effective Time, (i) no participant in any plans,
programs or arrangements shall have any right thereunder to acquire
equity securities of Company, the Surviving Corporation or any
subsidiary thereof and all such plans shall have been terminated,
and (ii) Company will not be bound by any Company Options which
would entitle any person to own any capital stock of Company, the
Surviving Corporation or any subsidiary thereof.
The Company has also agreed that it will take all action necessary
to approve the Offer, the Merger, and all other transactions
contemplated by the Merger Agreement under the American Business
Products Rights Agreement, by and between the Company and Equiserve
Trust Company, N.A., dated May 5, 1999, as the same may be amended
from time to time, and has represented and warranted that upon the
taking of such action none of the Offer, the Merger, or any other
transactions contemplated by the Merger Agreement will result in any
of the rights therein becoming exercisable.
Parent, the Company and their respective Boards of Directors have
agreed that if any "fair price," "business combination," "control
share acquisition," or "greenmail" statute or other similar statute
or regulation shall become applicable to the transactions contemplated
by the Merger Agreement, they shall use their reasonable best efforts
to obtain or grant such approvals and take such actions as are necessary
so that the transactions contemplated thereby may be consummated as
promptly as practicable and otherwise act to minimize the effects of
any such statute or regulation on such transactions.
Indemnification. Pursuant to the Merger Agreement, Parent and
Offeror have agreed that from and after the Effective Time, Parent
agrees not to, and agrees to cause the Surviving Corporation in the
Merger not to, take any action nor permit any action to be taken
which would have the effect of eliminating or impairing the rights
of current or former officers and the directors of the Company to be
indemnified for actions taken by such officers or directors in such
capacities prior to the Effective Time so long as such
indemnification would have been available to such parties at such
time in accordance with the respective Bylaws and Articles of
Incorporation of the Company and applicable law. Parent further
agreed to fund all such indemnification obligations of the Surviving
Corporation as they relate to such matters. For a period of six
years from the Effective Time, Parent further agreed to cause the
Surviving Corporation to provide the Company's current directors and
officers an insurance and indemnification policy that provides
coverage for events occurring prior to the Effective Time that is no
less favorable than the Company's existing policy or, if
substantially equivalent insurance coverage is unavailable, the best
available coverage.
Conditions Precedent. The respective obligations of each party
to effect the merger shall be subject to the fulfillment prior to
the Closing Date (as defined in the Merger Agreement) of the
following conditions: (a) all actions by or in respect of or filings
with any governmental entity required to permit the consummation of
the Merger shall have been obtained or made (including the
expiration or termination of any applicable waiting period under the
HSR Act); (b) no court or other governmental entity having
jurisdiction over the Company or Parent, or any of their respective
subsidiaries, shall have enacted, issued, promulgated, enforced or
entered any law, rule, regulation, executive order, decree,
injunction or other order (whether temporary, preliminary or
permanent) which is then in effect and has the effect of making the
Merger or any of the transactions contemplated hereby illegal; and
(c) Parent and Offeror shall have previously accepted for payment
and paid for not less than a majority of the fully diluted Shares
pursuant to the Offer.
The obligations of the Company to effect the Merger are further
subject to fulfillment prior to the Effective Time of the following
conditions: (a) (i) each of Parent and Offeror shall have performed
in all material respects each of its agreements contained in the
Merger Agreement required to be performed on or prior to the
Effective Time, (ii) each of the representations and warranties of
Parent and Offeror contained in the Merger Agreement shall be true
and correct on and as of the Effective Time, as if made
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on and as of such date, and (iii) the Company shall have received a
certificate signed on behalf of each of Parent and Offeror by its Chief
Executive Officer and its Chief Financial Officer to such effect;
and (b) the Exchange Agent shall have delivered to the Company a
certificate, dated as of the Effective Time, to the effect that
Parent has deposited with the Exchange Agent sufficient funds to pay
the aggregate cash payments required to be paid pursuant to the
Offer.
The obligations of Parent and the Offeror to effect the Merger
are further subject to fulfillment prior to the Effective Time of
the following conditions: (a) the Company shall have performed in
all material respects each of its agreements contained in the Merger
Agreement required to be performed on or prior to the Effective
Time, (b) each of the representations and warranties of the Company
contained in the Merger shall be true and correct on and as of the
Effective Time as if made on and as of such date, and (c) Parent shall
have received a certificate signed on behalf of the Company by its
Chief Executive Officer and its Chief Financial Officer to such effect.
Termination. The Merger Agreement provides that it may be
terminated at any time prior to the Effective Time, whether before
or after the approval of the terms of the Merger Agreement by the
stockholders of the Company:
a. By mutual written consent of Parent and the Company;
b. By either Parent or the Company, if the other party shall
have failed to comply in any material respect with any of its
covenants or agreements contained in the Merger Agreement required
to be complied with prior to the date of such termination, which
failure to comply has not been cured within five business days
following receipt by such other party of written notice of such
failure to comply; provided, however, that if any such breach is
curable by the breaching party through the exercise of the breaching
party's best efforts and for so long as the breaching party shall be
so using its best efforts to cure such breach, the non-breaching
party may not terminate the Merger Agreement pursuant to this
paragraph;
c. By either Parent or the Company, if there has been (i) a
breach by the other party (in the case of Parent, including any
material breach by Offeror) of any representation or warranty that
is not qualified as to materiality which has the effect of making
such representation or warranty not true and correct in all material
respects or (ii) a breach by the other party (in the case of Parent,
including any material breach by Offeror) of any representation or
warranty that is qualified as to materiality, in each case which
breach has not been cured within five business days following
receipt by the breaching party of written notice of the breach;
provided, however, that if any such breach is curable by the
breaching party through the exercise of the breaching party's best
efforts and for so long as the breaching party shall be so using its
best efforts to cure such breach, the nonbreaching party may not
terminate the Merger Agreement pursuant to this paragraph;
d. By Parent or the Company, if any court or other governmental
entity having jurisdiction over a party to the Merger Agreement
shall have issued an order, decree or ruling or taken any other
action permanently enjoining, restraining or otherwise prohibiting
the transactions contemplated by the Merger Agreement and such
order, decree, ruling or other action shall have become final and
nonappealable;
e. By Parent or the Company, if the shareholders of the Company
are required by law to but do not approve the Merger Agreement and
the transactions contemplated thereby at a shareholder meeting or
any adjournment or postponement thereof;
f. By the Company, if the Board of Directors of the Company
shall have determined, after conferring with its independent legal
counsel, that it is necessary to approve, endorse or recommend a
Superior Proposal to the Company's shareholders in order to meet its
fiduciary duties under applicable law;
g. By Parent or the Company, if: (i) the Offer shall have
expired without the Minimum Condition being met or (ii) Offeror
shall not have accepted for payment all Shares tendered pursuant to
the Offer by July 13, 2000; provided, however, that the right to
terminate the Merger Agreement under this section shall not be
available to any party whose failure to fulfill any obligation under
the Merger Agreement has been the cause of, or resulted in, the
failure of Parent or Offeror, as the case may be, to purchase the
Shares pursuant to the Offer on or prior to such date;
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h. By Parent if (i) the Board of Directors of Company or any
committee thereof shall have withdrawn or modified in a manner
adverse to Parent or Offeror the approval or recommendation of the
Offer, the Merger or the Merger Agreement, or approved or
recommended any Superior Proposal or any other acquisition of Shares
other than the Offer and the Merger, or (ii) the Board of Directors
of Company shall have determined to approve, endorse or recommend a
Superior Proposal to the Company's shareholders; or
i. By Parent, in the event that Company has notified Parent of
the existence of a Superior Proposal and Company has failed to
notify Parent that it has rejected such Superior Proposal within ten
days of the date of such notice.
Upon a termination of the Merger Agreement (i) by Parent or
Company pursuant to paragraphs (e), (f) or (h) of above, or (ii) by
Parent pursuant to paragraph (i) above, in the event that Company
determines to accept the Superior Proposal that was the subject of
the notice to Parent, Company shall pay to Parent, as liquidated
damages and not as a penalty, Eight Million Dollars ($8,000,000),
which amount has been reasonably calculated to approximate the
compensation due to Parent for its time, expense and lost
opportunity costs in connection herewith.
Fees and Expenses. Parent shall pay all HSR Act filing fees and
printing expenses of the parties. Except as otherwise provided in
the Merger Agreement, whether or not the Merger is consummated, all
costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby including, without limitation,
the fees and disbursements of counsel, financial advisors and
accountants, shall be paid by the party incurring such costs and
expenses.
Tender Agreements. Concurrently with the execution and delivery
of the Merger Agreement, Parent, the Offeror and each of the
Tendering Stockholders entered into the Tender Agreement. Pursuant
to the Tender Agreement, the Tendering Stockholders agreed to tender
into the Offer an aggregate of 415,306 Shares currently owned by the
Tendering Stockholders (the "Committed Shares"). The Tender
Agreement also provides that the Tendering Stockholders irrevocably
appoint certain officers of the Offeror as their proxy to vote their
portion of such Committed Shares (a) in favor of the Merger and the
transaction and (b) otherwise in the manner directed by Offeror.
14. DIVIDENDS AND DISTRIBUTIONS.
The Merger Agreement provides that neither the Company nor any
of its subsidiaries will, among other things, from the date of the
Merger Agreement through the Effective Time (a) declare, set aside
or pay any dividends on, or make any other actual, constructive or
deemed distributions in respect of, any of its capital stock, or
otherwise make any payments to its shareholders in their capacity as
such (other than dividends and other distributions by subsidiaries),
(b) other than in the case of any subsidiary, split, combine or
reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in
Substitution for shares of its capital stock or (c) purchase,
redeem, or otherwise acquire any shares of capital stock of the
Company or any other securities thereof or any rights, warrants or
options to acquire any such shares or other securities.
15. CERTAIN CONDITIONS TO THE OFFEROR'S OBLIGATIONS.
Notwithstanding any other provision of the Offer or the Merger
Agreement, Offeror shall not be required to accept for payment or,
subject to any applicable rules and regulations of the SEC,
including Rule 14e-1(c) under the Exchange Act (relating to
Offeror's obligation to pay for or return tendered Shares promptly
after termination or withdrawal of the Offer), pay for any Shares
tendered pursuant to the Offer, and may postpone the acceptance for
payment or, subject to the restriction referred to above, payment
for any Shares tendered pursuant to the Offer, and may amend or
terminate the Offer as to any Shares not then paid for unless (i)
there shall have been validly tendered and not withdrawn, prior to
the expiration of the Offer, that number of Shares which would
represent at least a majority of the Fully Diluted Shares (as
defined below) (the "Minimum Condition") and (ii) any waiting period
under the HSR Act applicable to the purchase of Shares pursuant to
the Offer shall have expired or been terminated. The term "Fully
Diluted Shares" means all outstanding securities entitled generally
to vote in the election of
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directors of Company on a fully diluted basis, after giving effect
to the exercise or conversion of all securities of the Company
(including Company Options) exercisable or convertible into such
voting securities.
Furthermore, notwithstanding any other term of the Offer or the
Agreement, Offeror shall not be required to accept for payment or,
subject as aforesaid, to pay for any Shares not theretofore accepted
for payment or paid for, and may terminate or amend the Offer, with
the consent of Company, if, at any time on or after the date of the
Agreement and prior to the expiration of the Offer, any of the following
conditions exists:
a. There shall have been instituted, threatened or pending any
litigation brought by any governmental authority or other person, or
before any court or governmental authority, agency or tribunal,
domestic or foreign, in each case that has a reasonable likelihood
of success, (i) challenging the acquisition by Parent or Offeror of
any Shares, directly or indirectly seeking to restrain or prohibit
or otherwise make substantially more costly the making or
consummation of the Offer or the Merger or the performance of any of
the other transactions contemplated by the Merger Agreement or
materially delaying the Merger, or seeking to obtain from Company,
Parent or Offeror any damages that are material in relation to
Company and its subsidiaries, taken as a whole, (ii) seeking to
prohibit or limit the ownership or operation by Company, Parent or
any of their respective subsidiaries of any material portion of the
business or assets of Company, Parent or any of their respective
subsidiaries, or to compel Company, Parent or any of their
respective subsidiaries to dispose of or hold separate any material
portion of the business or assets of Company, Parent or any of their
respective subsidiaries, as a result of the Offer, the Merger or any
of the other transactions contemplated by the Merger Agreement,
(iii) seeking to impose or to confirm limitations on the ability of
Parent or any of its subsidiaries effectively to acquire or hold or
to exercise full rights of ownership of Shares, including without
limitation the right to vote any Shares acquired or owned by Parent
or any of its subsidiaries on all matters properly presented to the
shareholders of Company, including without limitation the adoption
and approval of the Agreement and the Merger or the right to vote
any shares of capital stock of any subsidiary directly or indirectly
owned by Company, or (iv) seeking to prohibit Parent or any of its
subsidiaries from effectively controlling in any material respect
the business or operations of Company or any of its subsidiaries.
b. There shall be any law enacted, entered, enforced,
promulgated, amended or issued with respect to, or deemed applicable
to, or any consent, approval, authorization, clearance, exemption,
waiver or similar affirmation by any person pursuant to any
contract, law, order or permit withheld with respect to, (i) Parent,
Company or any of their respective subsidiaries or (ii) the Offer,
the Merger or any of the other transactions contemplated by the
Merger Agreement, by any governmental entity or before any court or
governmental authority, agency or tribunal, domestic or foreign,
that is reasonably likely to result, directly or indirectly, in any
of the consequences referred to in clauses (i) through (iv) of
paragraph (a) above;
c. (i) The Board of Directors of Company or any committee
thereof shall have withdrawn or modified in a manner adverse to
Parent or Offeror the approval or recommendation of the Offer, the
Merger or the Merger Agreement, or approved or recommended any
Superior Proposal or any other acquisition of Shares other than the
Offer and the Merger or (ii) the Board of Directors of Company shall
have determined to approve, endorse or recommend a Superior Proposal
to the Company's shareholders;
d. Any of the representations and warranties of Company set
forth in the Merger Agreement that are qualified as to materiality
shall not be true and correct, or any such representations and
warranties that are not so qualified shall not be true and correct
in any material respect, in each case as if such representations and
warranties were made at the time of such determination;
e. Company shall have failed to perform in any material respect
any obligation or to comply in any material respect with any
agreement or covenant of Company to be performed or complied with by
it under the Merger Agreement;
f. The Agreement shall have been terminated in accordance with
its terms or the Offer shall have been terminated with the consent
of Company; or
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g. All consents of and notices to or filings with governmental
authorities and third parties required in connection with the
transactions contemplated by the Merger Agreement shall not have
been obtained or made other than those the absence of which,
individually or in the aggregate, would not have a material adverse
effect on the Company or prevent or materially delay consummation of
any of the transactions contemplated by the Merger Agreement.
16. CERTAIN LEGAL MATTERS.
Except as set forth in this Section, the Offeror is not aware of
any approval or other action by any governmental or administrative
agency which would be required for the acquisition or ownership of
Shares by the Offeror as contemplated herein. Should any such
approval or other action be required, it will be sought, but the
Offeror has no current intention to delay the purchase of Shares
tendered pursuant to the Offer pending the outcome of any such
matter, subject, however, to the Offeror's right to decline to
purchase Shares if any of the conditions specified in Section 15
shall have occurred. 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 adverse
consequences might not result to the Company's business or that
certain parts of the Company's business might not have to be
disposed of if any such approvals were not obtained or other action
taken.
Antitrust. Under the provisions of the HSR Act applicable to the
Offer, the acquisition of Shares under the Offer may be consummated
following the expiration of a 15-day waiting period following the
filing by Parent of a Premerger Notification and Report Form with
respect to the Offer, unless Parent receives a request for
additional information or documentary material from the Department
of Justice, Antitrust Division (the "Antitrust Division") or the
Federal Trade Commission ("FTC") or unless early termination of the
waiting period is granted. Parent expects to make such a filing
within a few days after the date of this Offer. If, within the
initial 15-day waiting period, either the Antitrust Division or the
FTC requests additional information or documentary material
concerning the Offer, the waiting period will be extended through
the tenth day after the date of substantial compliance by all
parties receiving such requests. Complying with a request for
additional information or documentary material can take a
significant amount of time.
The Antitrust Division and the FTC frequently scrutinize the
legality under the antitrust laws of transactions such as the
Offeror's proposed acquisition of the Company. At any time before or
after the Offeror's acquisition of Shares pursuant to the Offer, the
Antitrust Division or the FTC could take such action under the
antitrust laws as either 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 the Offeror or the divestiture
of substantial assets of the Company or its subsidiaries or Parent
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, the Merger or the
consummation of the Merger on antitrust grounds will not be made,
or, if such a challenge is made, of the result thereof.
If any applicable waiting period under the HSR Act applicable to
the Offer has not expired or been terminated prior to the Expiration
Date, the Offeror will not be obligated to proceed with the Offer or
the purchase of any Shares not theretofore purchased pursuant to the
Offer. See Section 15.
State Takeover Laws. The Company is incorporated under the laws
of the State of Georgia. In general, Section 14-2-1132 of the GBCC
("Section 14-2-1132") prevents an "interested stockholder"
(including a person who owns or has the right to acquire 10% or more
of the voting power of the outstanding voting shares of a
corporation from engaging in a "business combination" (defined to
include mergers and certain other actions) with a Georgia
corporation for a period of five years following the date such
person became an interested stockholder unless (i) such interested
stockholder, prior to becoming an interested stockholder, obtained
the approval of the Board of Directors of either the business
combination or the transaction that resulted in such person becoming
an interested stockholder, (ii) such interested stockholder became
the beneficial owner of at least 90% of the outstanding shares of
voting stock of the corporation (excluding shares owned by persons
who are directors, officers, their affiliates or associates
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and by subsidiaries of the corporation and certain employee stock
plans) in the same transaction in which the interested stockholder
became an interested stockholder or (iii) on or subsequent to the
date the interested stockholder became an interested stockholder, the
interested stockholder becomes the beneficial owner of at least 90%
of the outstanding voting stock of the corporation (excluding shares
owned by persons who are directors or officers, their affiliates or
associates and by subsidiaries of the corporation and certain
employee stock plans) and the business combination is approved by
holders of a majority of the voting stock entitled to vote, excluding
voting stock beneficially owned by the interested stockholder or by
persons who are directors or officers and by subsidiaries of the
corporation and certain employee stock plans. The Offer, the Merger
and the Merger Agreement have been approved by the Company's Board of
Directors. Accordingly, Section 14-2-1132 will be inapplicable to
the Merger.
A number of other states have adopted laws and regulations
applicable to attempts to acquire securities of corporations which
are incorporated, or have substantial assets, stockholders,
principal executive offices or principal places of business or whose
business operations otherwise have substantial economic effects in
such states. In Edgar v. MITE Corp., in 1982, the Supreme Court of
the United States (the "U.S. Supreme Court") invalidated on
constitutional grounds the Illinois Business Takeover statute,
which, as a matter of state securities law, made takeovers of
corporations meeting certain requirements more difficult. However in
1987, in CTS Corp. v. Dynamics Corp. of America, the U.S. Supreme
Court held that the State of Indiana may, as a matter of corporate
law and, in particular, with respect to those aspects of corporate
law concerning corporate governance, constitutionally disqualify a
potential acquiror from voting on the affairs of a target
corporation without the prior approval of the remaining stockholders.
The state law before the U.S. Supreme Court was by its terms applicable
only to corporations that had a substantial number of stockholders
in the state and were incorporated there.
The Company, directly or through subsidiaries, conducts business
in a number of states throughout the United States, some of which
have enacted takeover laws. The Offeror does not know whether any of
these laws will, by their terms, apply to the Offer or the Merger
and has not complied with any such laws. Should any person seek to
apply any state takeover law, the Offeror will take such action as
then appears desirable, which may include challenging the validity
or applicability of any such statute in appropriate court
proceedings. In the event it is asserted that one or more state
takeover laws 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, the Offeror might be required to
file certain information with, or receive approvals from, the
relevant state authorities. In addition, if enjoined, the Offeror
might be unable to accept for payment any Shares tendered pursuant
to the Offer, or be delayed in continuing or consummating the Offer
and the Merger. In such event, the Offeror may not be obligated to
accept for payment any Shares tendered. See Section 15.
17. FEES AND EXPENSES.
Neither the Offeror nor Parent, nor any officer, director,
stockholder, agent or other representative of the Offeror or Parent
will pay any fees or commissions to any broker, dealer or other
person (other than the Dealer Manager, the Information Agent and the
Depositary) for soliciting tenders of Shares pursuant to the Offer.
Brokers, dealers, commercial banks and trust companies and other
nominees will, upon request, be reimbursed by the Offeror for
customary mailing and handling expenses incurred by them in
forwarding materials to their customers.
Donaldson, Lufkin & Jenrette is acting as Dealer Manager for the
Offer for which services Donaldson, Lufkin & Jenrette will receive
customary compensation. Parent also has agreed to reimburse Donaldson,
Lufkin & Jenrette for reasonable travel and other out-of-pocket expenses,
including reasonable legal fees and expenses, and to indemnify Donaldson,
Lufkin & Jenrette and certain related parties against certain liabilities,
including liabilities under the federal securities laws, arising out of
Donaldson, Lufkin & Jenrette's engagement. In the ordinary course of
business, Donaldson, Lufkin & Jenrette and its affiliates may actively
trade or hold the securities of Parent and the Company for their own
account or for the account of customers and, accordingly, may at any
time hold a long or short position in such securities.
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The Offeror has retained American Securities Transfer & Trust, Inc.
to act as Depositary in connection with the Offer and has retained
Morrow & Co., Inc. to act as Information Agent. The Information
Agent and the Depositary will receive reasonable and customary
compensation for their services hereunder and reimbursement for
their reasonable out-of-pocket expenses. The Depositary will also be
indemnified by the Offeror against certain liabilities in connection
with the Offer. The Information Agent may contact holders of Shares
by mail, telex, telegraph and personal interviews and may request brokers,
dealers and other nominee stockholders to forward materials relating to
the Offer to beneficial owners of Shares.
18. MISCELLANEOUS.
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 or acceptance thereof would not be in compliance
with the securities, blue sky or other laws of such jurisdiction. In
any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the
Offer shall be deemed to be made on behalf of the Offeror by the
Dealer Manager or one or more registered brokers or dealers licensed
under the laws of such jurisdiction.
No person has been authorized to give any information or make
any representation on behalf of the Offeror other than as contained
in this Offer to Purchase or in the Letter of Transmittal and, if
any such information or representation is given or made, it should
not be relied upon as having been authorized by the Offeror or
Parent.
The Offeror and Parent have filed with the Commission the
Schedule 14D-1, pursuant to Section 14(d)(1) of the Exchange Act and
Rule 14d-3 promulgated thereunder, furnishing certain information
with respect to the Offer. The Schedule 14D-1 and any amendments
thereto, including exhibits, may be examined and copies may be
obtained at the same places and in the same manner as set forth with
respect to the Company in Section 8 (except that they will not be
available at the regional offices of the Commission).
This document and the exhibits attached hereto may contain
certain statements that are not strictly historical and are
considered forward-looking statements. Although the Parent believes
the expectations reflected in such forward-looking statements are
based on reasonable assumptions, it can give no assurance that its
expectations will be realized. Forward-looking statements involve
known and unknown risks which may cause the Parent's actual results
and corporate developments to differ materially from those expected.
Factors that could cause results and developments to differ
materially from the Parent's expectations include, without
limitation, the risks described from time to time in the Parent's
reports filed with the Securities and Exchange Commission including
quarterly reports on Form 10-Q, annual reports on Form 10-K and
reports on Form 8-K. The safe harbor provisions of the Private
Securities Litigation Reform Act of 1995 with respect to
forward-looking statements are not available to statements made in
connection with a tender offer.
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ANNEX I
CERTAIN INFORMATION CONCERNING THE DIRECTORS
AND EXECUTIVE OFFICERS OF THE PARENT AND THE OFFEROR
DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. Set forth below are
the name, current business address, present principal occupation or
employment and employment history (covering a period of not less
than five years) of each executive officer and director of Parent.
Unless otherwise indicated, each such person's business address is
23 Inverness Way East, Suite 160, Englewood, Colorado 80112. All
persons listed below are citizens of the United States of America.
<TABLE>
<CAPTION>
DIRECTORS
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND MATERIAL
POSITIONS HELD DURING PAST
NAME BUSINESS ADDRESS FIVE YEARS
---- ---------------- ----------------------------
<S> <C> <C>
Gerald F. Mahoney........... Chairman of the Board and Chief Executive Officer
Paul V. Reilly.............. President and Chief Operating Officer
Frank P. Diassi............. Chairman of Sterling Chemicals, Inc.
Frank J. Hevredjs........... Chairman of First Sterling Ventures Corp., Endoro
Holdings, Inc. and Fibreglass Holdings, Inc.
Janice C. Peters............ Chief Executive Officer of MediaOne(R)
Jerome W. Pickholz.......... Chairman of Pickholz, Tweedy, Cowan, L.L.C.
William R. Thomas........... Chairman of the Board of Directors and President of
Capital Southwest Corporation
<CAPTION>
EXECUTIVE OFFICERS
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND MATERIAL
POSITIONS HELD DURING PAST
NAME BUSINESS ADDRESS FIVE YEARS
---- ---------------- ----------------------------
<S> <C> <C>
Gerald F. Mahoney........... Chairman and Chief Executive Officer
Paul V. Reilly.............. President and Chief Operating Officer
Gary Ritondaro.............. Sr. Vice President and Chief Financial Officer
V. Bruce Thomson............ Sr. Vice President--Corporate Development
Roger Wertheimer............ Vice President General Counsel and Secretary
Robert Meyer................ Vice President--Treasurer and Tax
Keith T. Pratt.............. Vice President--Corporate Purchasing
Julie Clark................. Vice President--Internal Audit
</TABLE>
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DIRECTORS AND EXECUTIVE OFFICERS OF OFFEROR. Set forth below are
the name, current business address, present principal occupation or
employment and employment history (covering a period of not less
than five years) of each executive officer and director of the
Offeror. Unless otherwise indicated, each such person's business
address is 23 Inverness Way East, Suite 160, Englewood, Colorado
80112. All persons listed below are citizens of the United States of
America.
<TABLE>
<CAPTION>
DIRECTORS AND EXECUTIVE OFFICERS
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND MATERIAL
POSITIONS HELD DURING PAST
NAME BUSINESS ADDRESS FIVE YEARS
---- ---------------- ----------------------------
<S> <C> <C>
Gerald F. Mahoney..... Chief Executive Officer and President
Paul V. Reilly........ Director
Gary Ritondaro........ Director, Treasurer and Chief Financial
Officer
Roger Wertheimer...... Director, Vice President and Secretary
</TABLE>
29
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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:
AMERICAN SECURITIES TRANSFER & TRUST, INC.
12039 W. Alameda Parkway, Suite Z-2
Lakewood, Colorado 80228
Attention: Kim Hammonds
TEL: (303) 985-5400
FAX: (303) 986-2444
By Hand or Overnight Courier:
American Securities Transfer & Trust, Inc.
12039 W. Alameda Parkway
Suite Z-2
Lakewood, Colorado 80228
By Mail:
American Securities Transfer & Trust, Inc.
P.O. Box 1596
Denver, Colorado 80201-1596
Questions and requests for assistance or additional copies of
this Offer to Purchase, the Letter of Transmittal, the Notice of
Guaranteed Delivery and the Guidelines for Certification of Taxpayer
Identification on Substitute Form W-9 may be directed to the
Information Agent at the locations and telephone numbers set forth
below. Shareholders may also contact Donaldson, Lufkin & Jenrette
Securities Corporation, Dealer Manager for the Offer, or their
broker, dealer, commercial bank or trust company for assistance
concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
MORROW & CO., INC.
445 Park Avenue, 5th Floor
New York, NY 10022
Call Collect (212) 754-8000
Banks and Brokerage Firms, Please Call:
(800) 662-5200
SHAREHOLDERS PLEASE CALL: (800) 566-9061
THE DEALER MANAGER FOR THE OFFER IS:
DONALDSON, LUFKIN & JENRETTE
277 Park Avenue
New York, New York 10172
(212) 892-7700
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