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Securities and Exchange Commission
Washington, D.C. 20549
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SCHEDULE 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
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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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CALCULATION OF FILING FEE
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Transaction Valuation<F*> Amount of Filing Fee<F**>
$297,172,099 $59,435
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[FN]
<F*> For the purpose of calculating the fee only, this amount assumes
the purchase of 15,488,101 shares of Common Stock, par value $2.00
per share, of American Business Products, Inc. at $20.00 per share.
Such number includes all outstanding shares as of January 20, 2000, and
assumes the exercise of and receipt of the exercise price for all in-the-
money stock options to purchase shares of Common Stock which are outstanding
as of such date.
<F**>The amount of the filing fee calculated in accordance with Rule
0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50 of
one percent of the value of shares to be purchased.
[ ] 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:______________ Filing Party:_________________
Form or Registration No.:____________ Date Filed:___________________
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This Statement relates to a tender 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.
Offeror and Parent have entered into a Shareholders' Stock Tender
Agreement dated as of January 13, 2000 (the "Tender Agreement"), with
certain stockholders of the Company (the "Tendering Stockholders"),
pursuant to which the Tendering Stockholders have agreed to tender an
aggregate of 415,306 Shares owned by them (the "Committed Shares")
pursuant to the Offer and certain Tendering Stockholders have agreed to
vote their portion of such Committed Shares in favor of the Merger (as
defined below) and otherwise in the manner directed by the Offeror. In
addition, Offeror, Parent and the Company have entered into an Agreement
and Plan of Merger dated as of January 13, 2000 (the "Merger
Agreement"). Offeror and Parent disclaim ownership of the Committed
Shares.
Additional information about the Tender Agreements is contained in
Section 13 ("The Merger Agreement and the Tender Agreement") of the
Offer to Purchase.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is American Business
Products, Inc. The address of the principal executive offices of the
Company is set forth in Section 8 ("Certain Information Concerning the
Company") of the Offer to Purchase and is incorporated herein by
reference.
(b) The exact title of the class of equity securities being
sought in the Offer is the common stock, par value $2.00 per share, of
the Company. The information set forth in the Introduction to the Offer
to Purchase is incorporated herein by reference.
(c) The information set forth in Section 6 ("Price Range of
Shares; Dividends") of the Offer to Purchase is incorporated herein by
reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a) through (d), (g): The information set forth in the
Introduction and Section 9 ("Certain Information Concerning Parent and
the Offeror") of the Offer to Purchase, and in Annex I thereto, is
incorporated herein by reference.
(e) and (f): Except as set forth in Section 9 ("Certain
Information Concerning Parent and the Offeror") of the Offer to
Purchase, which is incorporated herein by reference, neither Offeror,
Parent nor, to the best of their knowledge, any of the persons listed in
Annex I of the Offer to Purchase, has during the last five years (i)
been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a
result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting activities
subject to, federal or state securities laws or finding any violation of
such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT
COMPANY.
(a) and (b): The information set forth in the Introduction
and Section 11 ("Background of the Offer; Past Contacts, Transactions or
Negotiations with the Company") of the Offer to Purchase is incorporated
herein by reference.
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ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) and (b): The information set forth in Section 10 ("Source
and Amount of Funds") of the Offer to Purchase is incorporated herein by
reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE
BIDDER.
(a) through (e): The information set forth in the Introduction,
Section 11 ("Background of the Offer; Past Contacts, Transactions or
Negotiations with the Company"), Section 12 ("Purpose of the Offer and
the Merger; Plans for the Company") and Section 13 ("The Merger
Agreement and the Tender Agreement") of the Offer to Purchase is
incorporated herein by reference.
(f) and (g): The information set forth in Section 7 ("Certain
Effects of the Transaction") of the Offer to Purchase is incorporated
herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) and (b): The information set forth in the Introduction,
Section 9 ("Certain Information Concerning Parent and the Offeror") and
Section 13 ("The Merger Agreement and the Tender Agreement") of the
Offer to Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the Introduction, Section 11
("Background of the Offer; Past Contacts, Transactions or Negotiations
with the Company") and Section 13 ("The Merger Agreement and the Tender
Agreement") of the Offer to Purchase is incorporated herein by
reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the Introduction and in Section 17
("Fees and Expenses") of the Offer to Purchase is incorporated herein by
reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 9 ("Certain Information
Concerning Parent and the Offeror") of the Offer to Purchase is
incorporated herein by reference.
The incorporation by reference herein of the above-mentioned
financial information does not constitute a representation that such
information is material to a decision by a stockholder of the Company as
to whether to sell, tender or hold Shares being sought in the Offer.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in Section 11 ("Background of the
Offer; Past Contacts, Transactions or Negotiations with the Company")
and Section 13 ("The Merger Agreement and the Tender Agreement") of the
Offer to Purchase is incorporated by reference.
(b) and (c) The information set forth in Section 16 ("Certain
Legal Matters") of the Offer to Purchase is incorporated herein by
reference.
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(d) The information set forth in Section 7 ("Certain Effects of
the Transaction") of the Offer to Purchase is incorporated herein by
reference.
(e) None.
(f) The information set forth in the Offer to Purchase and in
the Letter of Transmittal is incorporated herein by reference in its
entirety.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Offer to Purchase, dated January 21, 2000.
(a)(2) Letter of Transmittal.
(a)(3) Letter from Donaldson, Lufkin & Jenrette Securities
Corporation to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to Clients.
(a)(5) Notice of Guaranteed Delivery.
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(7) Summary Announcement, dated January 21, 2000.
(a)(8) Press Release issued by the Parent and the Company on
January 14, 2000.
(a)(9) Press Release issued by the Parent on January 14, 2000.
(a)(10) Press Release issued by the Parent and the Company on
January 21, 2000.
(b)(1) Commitment Letter, dated as of January 13, 2000, between
Bank of America N.A., and Parent.
(c)(1) Agreement and Plan of Merger, dated as of January 13,
2000, among Parent, Offeror and the Company.
(c)(2) Form of Shareholders' Stock Tender Agreement, dated as of
January 13, 2000, among each of the Tendering Stockholders, Offeror and
Parent.
(d) None.
(e) Not applicable.
(f) None.
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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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: January 21, 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
-----------------------------
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.
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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
2
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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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<PAGE>
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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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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<PAGE>
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
10
<PAGE>
<PAGE>
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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<PAGE>
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.
12
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<PAGE>
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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<PAGE>
<PAGE>
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
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<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
17
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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 acceptance for payment of Shares or the
payment therefor, 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
25
<PAGE>
<PAGE>
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.
26
<PAGE>
<PAGE>
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.
27
<PAGE>
<PAGE>
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>
28
<PAGE>
<PAGE>
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
<PAGE>
<PAGE>
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
30
<PAGE>
<PAGE>
Exhibit (a)(2)
--------------
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
OF
AMERICAN BUSINESS PRODUCTS, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED JANUARY 21, 2000
BY
SHERMAN ACQUISITION CORPORATION,
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
MAIL-WELL, INC.
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.
The Depositary for the Offer is:
AMERICAN SECURITIES TRANSFER & TRUST, INC.
<TABLE>
<C> <C>
By Mail: By Hand Delivery/Overnight Delivery:
American Securities Transfer & Trust, Inc. American Securities Transfer & Trust, Inc.
P.O. Box 1596 12039 West Alameda Parkway, Suite Z-2
Denver, Colorado 80201-1596 Lakewood, Colorado 80228
Attn: Kim Hammonds Attn: Kim Hammonds
</TABLE>
Facsimile Transmission (Eligible Institutions Only): (303) 986-2444
Confirm by Telephone To: (303) 985-5400
------------------------
Delivery of this letter of transmittal to an address, or transmission of
instructions via a facsimile to a number other than as set forth above, does not
constitute a valid delivery to the Depositary. You must sign this Letter of
Transmittal in the appropriate space therefor provided below and complete the
substitute form W-9 set forth below.
------------------------
<PAGE>
<PAGE>
The undersigned acknowledges receipt of the Offer to Purchase dated
January 21, 2000 (the "Offer to Purchase") of Sherman Acquisition Corporation,
a Georgia corporation ("Offeror") and Mail-Well, Inc., a Colorado corporation
("Parent"), and this Letter of Transmittal (this "Letter"), which may be
amended from time to time, for shares of the common stock of American Business
Products, Inc., a Georgia corporation (the "Company"). The Offer to Purchase
and this Letter together constitute Offeror's and Parent's offer (the "Offer")
to purchase 100% of the outstanding shares of the Company's common stock, par
value $2.00 per share (the "Shares").
The undersigned has completed, executed and delivered this Letter to
indicate the action he or she desires to take with respect to the Offer.
All stockholders who wish to tender their Shares must, prior to the
Expiration Date: (1) complete, sign, date and deliver this Letter, or a
facsimile thereof, to the Depositary, in person or to the address set forth
above; and (2) tender the certificates representing his or her Shares or, if a
tender of Shares is to be made by book-entry transfer to the account maintained
by the Depositary at The Depository Trust Company ("DTC") or the Philadelphia
Depository Trust Company (the "Book-Entry Transfer Facilities"), confirm such
book-entry transfer (a "Book-Entry Confirmation"), in each case in accordance
with the procedures for tendering described in the Instructions to this Letter.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
Stockholders whose certificates are not immediately available, or who are
unable to deliver their certificates or Book-Entry Confirmation, together with
all other documents required by this Letter to be delivered to the Depositary
on or prior to the Expiration Date, must tender their Shares according to the
guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase.
(See Instruction 2).
Upon the terms and subject to the conditions of the Offer, the acceptance
of Shares validly tendered and not withdrawn will take place on the Expiration
Date, and the payment of the purchase price for the Shares will be made as soon
as reasonably practicable after the Expiration Date. For the purposes of the
Offer, the Offeror shall be deemed to have accepted validly tendered Shares
when, as and if the Offeror has given written notice thereof to the Depositary.
The Instructions included with this Letter must be followed in their
entirety. Questions and requests for assistance or additional copies of the
Offer to Purchase or this Letter may be directed to the Depositary at one of
the addresses listed above, or to Morrow & Co., Inc., the Information Agent,
at the address listed on the final page of this Letter of Transmittal.
PLEASE READ THE ENTIRE LETTER OF TRANSMITTAL, INCLUDING THE INSTRUCTIONS,
CAREFULLY BEFORE CHECKING ANY BOX BELOW
Capitalized terms used in this Letter but not defined in this Letter shall
have the respective meanings ascribed to them in the Offer to Purchase. List
below the Shares of which you are the holder. If the space provided below is
inadequate, list the certificate numbers of the Shares on a separate signed
schedule and affix that schedule to this Letter.
2
<PAGE>
<TABLE>
- ----------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED
- ----------------------------------------------------------------------------------------------------------------------------
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S) SHARES TENDERED
(PLEASE FILL IN, IF BLANK) (ATTACH ADDITIONAL LIST IF NECESSARY)
- ----------------------------------------------------------------------------------------------------------------------------
NUMBER OF
SHARE SHARES NUMBER OF
CERTIFICATE REPRESENTED BY SHARES
NUMBER(S)<F*> CERTIFICATE(S)<F*> TENDERED<F**>
---------------------------------------------------------------
<S> <C> <C> <C>
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
Total Shares
- ----------------------------------------------------------------------------------------------------------------------------
<FN>
<F*> Need not be completed by stockholders tendering by book-entry transfer.
<F**> Unless otherwise indicated, it will be assumed that all Shares
represented by any certificates delivered to the Depositary are being
tendered. See Instruction 4.
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
PLEASE READ THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL CAREFULLY
BEFORE YOU COMPLETE THIS LETTER OF TRANSMITTAL.
- -------------------------------------------------------------------------------
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO THE DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER
FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
-------------------------------------------
Name of Book-Entry Transfer Facility:
------------------------------------
Account Number:
----------------------------------------------------------
Transaction Code Number:
-------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE
THE FOLLOWING:
Name(s) of Tendering Stockholder(s):
-------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
----------------------
Window Ticket Number (if available):
-------------------------------------
Name of Institution which Guaranteed Delivery:
---------------------------
Name of Tendering Institution:
-------------------------------------------
Name of Book-Entry Transfer Facility:
------------------------------------
Account Number:
----------------------------------------------------------
Transaction Code Number:
-------------------------------------------------
- --------------------------------------------------------------------------------
3
<PAGE>
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Sherman Acquisition Corporation
("Offeror"), a Georgia corporation and indirect wholly owned subsidiary of
Mail-Well, Inc., a Colorado corporation ("Parent"), the above-described
shares of common stock, par value $2.00 per share (the "Shares"), of American
Business Products, Inc., a Georgia corporation (the "Company"), pursuant to
Offeror's offer to purchase all of the outstanding Shares 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"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which, together with the
Offer to Purchase, and any amendments or supplements hereto or thereto,
collectively constitute the "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 the Parent, the Offeror and the Company.
Subject to and effective upon acceptance for payment of and payment
for the Shares tendered herewith, the undersigned hereby sells, assigns and
transfers to or upon the order of the Offeror all right, title and interest
in and to all the Shares that are being tendered hereby (and any and all
other Shares or other securities issued or issuable in respect thereof)
and appoints the Depositary the true and lawful agent and attorney-in-fact
of the undersigned with respect to such Shares (and all such other Shares
or securities), with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), to
(a) deliver certificates for such Shares (and all such other Shares or
securities), or transfer ownership of such Shares (and all such other
Shares or securities) on the account books maintained by any of the
Book-Entry Transfer Facilities, together, in any such case, with all
accompanying evidences of transfer and authenticity, to or upon the order
of the Offeror, (b) present such Shares (and all such other Shares or
securities) for transfer on the books of the Company and (c) receive all
benefits and otherwise exercise all rights of beneficial ownership of
such Shares (and all such other Shares or securities), all in accordance
with the terms of the Offer.
The undersigned hereby irrevocably appoints each designee of the
Offeror as the agent, attorney-in-fact and proxy of the undersigned, each
with full power of substitution, to exercise all voting and other rights of
the undersigned in such manner as each such attorney and proxy or his
substitute shall in his sole judgment deem proper, with respect to all of
the Shares tendered hereby which have been accepted for payment by the
Offeror prior to the time of any vote or other action (and any and all
other Shares or other securities or rights issued or issuable in respect
of such Shares) at any meeting of stockholders of the Company (whether
annual or special and whether or not an adjourned meeting), any actions
by written consent in lieu of any such meeting or otherwise. This proxy
is irrevocable, is coupled with an interest in the Shares and is granted
in consideration of, and is effective upon, the acceptance for payment of
such Shares by the Offeror in accordance with the terms of the Offer. Such
acceptance for payment shall revoke any other power of attorney, proxy or
written consent granted by the undersigned at any time with respect to
such Shares (and all such other Shares or other securities or rights), and
no subsequent powers of attorney or proxies will be given or written consents
will be executed by the undersigned (and if given or executed, will not be
deemed effective). The undersigned understands that in order for Shares to
be deemed validly tendered, immediately upon the acceptance for payment of
such Shares, the Offeror or its designee must be able to exercise full voting
rights with respect to such Shares and other securities, including voting at
any meeting of stockholders.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby (and any and all other Shares or other securities or rights
issued or issuable in respect of such Shares) and that 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 undersigned, upon
request, will execute and deliver any additional documents deemed by the
Depositary or the Offeror to be necessary or desirable to complete the sale,
assignment and transfer of the Shares tendered hereby (and all such other
Shares or other securities or rights).
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, personal
4
<PAGE>
representatives, successors and assigns of the undersigned. Except as stated in
the Offer, this tender is irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in Section 3 of the Offer to Purchase and in the
instructions hereto will constitute an agreement between the undersigned and the
Offeror upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of any Shares accepted for payment, and
return any Shares not tendered or not accepted for payment, in the name(s) of
the undersigned. Similarly, unless otherwise indicated under "Special Delivery
Instructions," please mail the check for the purchase price of any Shares
accepted for payment and return any certificates for Shares not tendered or not
accepted for payment (and accompanying documents, as appropriate) to the
undersigned at the address shown below the undersigned's signature(s). If both
"Special Payment Instructions" and "Special Delivery Instructions" are
completed, please issue the check for the purchase price of any Shares purchased
and return any Shares not tendered or not purchased in the name(s) of, and
deliver said check and any certificates to, the person(s) so indicated at the
address so indicated. Stockholders tendering Shares by book-entry transfer may
request that any Shares not accepted for payment be returned by crediting such
account maintained at such Book-Entry Transfer Facility as such stockholder may
designate by making an appropriate entry under "Special Payment Instructions."
The undersigned recognizes that the Offeror has no obligation, pursuant to the
"Special Payment Instructions," to transfer any Shares from the name of the
registered holder(s) thereof if the Offeror does not accept for payment any of
the Shares so tendered.
5
<PAGE>
- ------------------------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or certificates for Shares not tendered or not purchased are to
be issued in the name of someone other than the undersigned or if Shares
tendered hereby and delivered by book-entry transfer which are not accepted
for payment are to be returned by credit to an account at one of the
Book-Entry Transfer Facilities other than designated above.
Issue / / check / / certificate to:
Name:
---------------------------------------------------------------------
(PLEASE PRINT)
Address:
------------------------------------------------------------------
------------------------------------------------------------------
(INCLUDE ZIP CODE)
--------------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9)
/ / Credit Shares delivered by book-entry transfer and not purchased to
the account set forth below
Name of Book-Entry Transfer Facility:
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased or certificates for Shares not tendered or not purchased are to be
mailed to someone other than the undersigned or to the undersigned at an
address other than that shown below the undersigned's signature(s).
Mail check and/or certificates to:
Name:
---------------------------------------------------------------------
(PLEASE PRINT)
Address:
------------------------------------------------------------------
------------------------------------------------------------------
(INCLUDE ZIP CODE)
--------------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9)
- ------------------------------------------------------------------------------
6
<PAGE>
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, signatures
on all Letters of Transmittal must be guaranteed by a firm that is a bank,
broker, dealer, credit union, savings association or other entity which is a
member in good standing of the Securities Transfer Agents 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 Securities Exchange Act of 1934, as amended (each of the
foregoing constituting an "Eligible Institution"), unless the Shares tendered
thereby are tendered (i) by a registered holder of Shares who has not completed
either the box labeled "Special Payment Instructions" or the box labeled
"Special Delivery Instructions" on the Letter of Transmittal or (ii) for the
account of an Eligible Institution. See Instruction 5. If the certificates are
registered in the name of a person or persons other than the signer of this
Letter of Transmittal, or if payment is to be made or delivered to, or
certificates evidencing unpurchased Shares are to be issued or returned to, a
person other than the registered owner 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 or stock powers, with the signatures on the certificates or
stock powers guaranteed by an Eligible Institution as provided herein. See
Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARES. This Letter of Transmittal
is to be used either if certificates are to be forwarded herewith or, unless an
Agent's Message (as defined in the Offer to Purchase) is utilized, if the
delivery of Shares is to be made by book-entry transfer pursuant to the
procedures set forth in Section 3 of the Offer to Purchase. Certificates for all
physically delivered Shares, or a confirmation of a book-entry transfer into the
Depositary's account at one of the Book-Entry Transfer Facilities of all Shares
delivered electronically, as well as a properly completed and duly executed
Letter of Transmittal (or a facsimile thereof) and any other documents required
by this Letter of Transmittal, or an Agent's Message in the case of a book-entry
delivery, must be received by the Depositary at one of its addresses set forth
on the front page of this Letter of Transmittal prior to the Expiration Date.
Stockholders who cannot deliver their Shares and all other required documents to
the Depositary prior to the Expiration Date must tender their Shares pursuant to
the guaranteed delivery procedures set forth in Section 3 of the Offer to
Purchase. Pursuant to such procedures: (a) such tender must be made by or
through an Eligible Institution; (b) a properly completed and duly executed
Notice of Guaranteed Delivery, substantially in the form provided by the
Offeror, must be received by the Depositary prior to the Expiration Date; and
(c) the certificates for all tendered Shares, in proper form for tender, or a
confirmation of a book-entry transfer into the Depositary's account at one of
the Book-Entry Transfer Facilities of all Shares delivered electronically, as
well as a properly completed and duly executed Letter of Transmittal (or a
facsimile thereof), and any other documents required by this Letter of
Transmittal, must be received by the Depositary within three trading days after
the date of execution of such Notice of Guaranteed Delivery, all as provided in
Section 3 of the Offer to Purchase. The term "trading day" is any day on which
the New York Stock Exchange is open for business.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH A BOOK-ENTRY TRANSFER FACILITY,
IS AT THE 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 A CONFIRMATION OF A BOOK-ENTRY TRANSFER). IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. By executing this Letter of Transmittal (or
a facsimile thereof), the tendering stockholder waives any right to receive any
notice of the acceptance for payment of the Shares.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares and any other required
information should be listed on a separate schedule attached hereto and
separately signed on each page thereof in the same manner as this Letter of
Transmittal is signed.
4. PARTIAL TENDERS (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER). If fewer than all the Shares represented by any certificate delivered
to the Depositary are to be tendered, fill in the number of Shares which are to
be tendered in the box entitled "Number of Shares Tendered." In such case, a new
certificate for the remainder of the Shares represented by the old certificate
will be sent to the person(s) signing this Letter of Transmittal unless
otherwise provided in the appropriate box marked "Special
7
<PAGE>
<PAGE>
Payment Instructions" and/or "Special Delivery Instructions" on this Letter of
Transmittal, as promptly as practicable following the Expiration Date. All
Shares represented by certificates delivered to the Depositary will be deemed to
have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificates without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in different names on
different certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of certificates or separate stock powers
are required unless payment of the purchase price is to be made, or Shares not
tendered or not purchased are to be returned, in the name of any person other
than the registered holder(s), in which case the certificate(s) for such Shares
tendered hereby must be endorsed, or accompanied by, appropriate stock powers,
in either case signed exactly as the name(s) of the registered holder(s)
appear(s) on the certificate for such Shares. Signatures on any such
certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the certificate must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear(s) on the certificates
for such Shares. Signature(s) on any such certificates or stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
the Offeror of the authority of such person so to act must be submitted.
6. STOCK TRANSFER TAXES. The Offeror will pay or cause to be paid any stock
transfer taxes with respect to the sale and transfer of any Shares to it or its
order pursuant to the Offer. If, however, payment of the purchase price is to be
made to, or Shares not tendered or not purchased are to be returned in the name
of, any person other than the registered holder(s), then the amount of any stock
transfer taxes (whether imposed on the registered holder(s), such other person
or otherwise) payable on account of the transfer to such person will be deducted
from the purchase price unless satisfactory evidence of the payment of such
taxes, or exemption therefrom, is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTION. If the check for the purchase
price of any Shares purchased is to be issued, or any Shares not tendered or not
purchased are to be returned, in the name of a person other than the person(s)
signing this Letter of Transmittal or if the check or any certificates for
Shares not tendered or not purchased are to be mailed to someone other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal at an address other than that shown above, the appropriate
boxes on this Letter of Transmittal should be completed. Stockholders tendering
Shares by book-entry transfer may request that Shares not purchased be credited
to such account at any of the Book-Entry Transfer Facilities as such stockholder
may designate under "Special Payment Instructions." If no such instructions are
given, any such Shares not purchased will be returned by crediting the account
at the Book-Entry Transfer Facilities designated above.
8. SUBSTITUTE FORM W-9. Under U.S. Federal income tax law, a tendering
stockholder whose Shares are accepted for payment is required to provide the
Depositary with such stockholder's correct taxpayer identification number
("TIN") on Substitute Form W-9, which is provided below, unless an exemption
applies. Failure to provide the information on the Substitute Form W-9 may
subject the tendering stockholder to a $50 penalty and to 31% federal income tax
backup withholding on the payment of the purchase price for the Shares.
8
<PAGE>
<PAGE>
9. FOREIGN HOLDERS. Foreign holders must submit a completed IRS Form W-8 to
avoid 31% backup withholding. IRS Form W-8 may be obtained by contacting the
Depositary at one of the addresses on the face of this Letter of Transmittal.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance or
additional copies of the Offer to Purchase and this Letter of Transmittal may be
obtained from the Information Agent or the Dealer Manager at the addresses and
telephone number set forth below.
11. WAIVER OF CONDITIONS. The conditions of the Offer may be waived by the
Offeror (subject to certain limitations in the Merger Agreement), in whole or in
part, at any time or from time to time, in the Offeror's sole discretion.
12. LOST, DESTROYED, MUTILATED, OR STOLEN CERTIFICATES. If any
certificate(s) representing Shares has been lost, destroyed, mutilated, or
stolen, the stockholder should promptly notify the Depositary. The stockholder
will then be instructed as to the steps to be taken in order to replace the
certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed, mutilated or
stolen certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL OR A FACSIMILE COPY HEREOF (TOGETHER
WITH CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS) OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY
PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE OFFER TO PURCHASE).
IMPORTANT TAX INFORMATION
Under federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required to provide the Depositary with such
stockholder's correct TIN on the Substitute Form W-9. If such stockholder is an
individual, the TIN is such stockholder's Social Security Number. If the
Depositary is not provided with the correct TIN, the stockholder may be subject
to a $50 penalty imposed by the Internal Revenue Service. In addition, payments
that are made to such stockholder with respect to Shares purchased pursuant to
the Offer may be subject to backup withholding.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, that stockholder must submit a statement, signed under penalties of
perjury, attesting to that individual's exempt status. Such statements may be
obtained from the Depositary. All exempt recipients (including foreign persons
wishing to qualify as exempt recipients) should see the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payments made to the stockholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will be
reduced by the amount of tax withheld. If backup withholding results in an
overpayment of taxes, a refund may be obtained.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup federal income tax withholding on payments that are made
to a stockholder with respect to Shares purchased pursuant to the Offer, the
stockholder is required to notify the Depositary of such stockholder's correct
TIN by completing the form certifying that the TIN provided on the Substitute
Form W-9 is correct.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the Social Security
Number or Employer Identification Number of the record owner of the Shares. If
the Shares are in more than one name or are not in the name of the actual owner,
consult the enclosed Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 for additional guidelines on which number to
report.
9
<PAGE>
<PAGE>
- ------------------------------------------------------------------------------
SIGN HERE
(COMPLETE SUBSTITUTE FORM W-9 BELOW)
--------------------------------------------------------------------------
--------------------------------------------------------------------------
SIGNATURE(S) OF OWNER(S)
Name(s):
------------------------------------------------------------------
Capacity (full title):
----------------------------------------------------
Address:
------------------------------------------------------------------
--------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-------------------------------------------
--------------------------------------------------------------------------
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9)
Dated:
--------------------------------------------------------------------
(Must be signed by registered holder(s) exactly as name(s) appear(s)
on stock certificate(s) or on a security position listing or by the
person(s) authorized to become registered holder(s) by certificates and
documents transmitted herewith. If signature is by a trustee, executor,
administrator, guardian, attorneys-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, please set
forth full title and see Instruction 5.)
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN
SPACE BELOW.
Authorized signature(s):
--------------------------------------------------
Name:
---------------------------------------------------------------------
Name of Firm:
-------------------------------------------------------------
Address:
------------------------------------------------------------------
--------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone Number:
-------------------------------------------
Dated:
--------------------------------------------------------------------
- ------------------------------------------------------------------------------
10
<PAGE>
<PAGE>
<TABLE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
- ----------------------------------------------------------------------------------------------------------------------
<CAPTION>
NAME OF PAYER: AMERICAN STOCK TRANSFER & TRUST, INC.
- ----------------------------------------------------------------------------------------------------------------------
<S> <C>
PLEASE PROVIDE PART 1
YOUR TAXPAYER
IDENTIFICATION NUMBER AT Social Security Number
THE RIGHT AND CERTIFY BY or Employer Identification Number
SIGNING AND DATING BELOW
------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
SUBSTITUTE PART 2 / /
FORM W-9
DEPARTMENT OF THE Check the box if you are NOT subject to back-up withholding under the provisions of
TREASURY, INTERNAL Section 2406(a)(1)(C) of the Internal Revenue Code because (1) you have not been
REVENUE SERVICE notified that you are subject to back-up withholding as a result of failure to report
all interest or dividends or (2) the Internal Revenue Service has notified you that
you are no longer subject to back-up withholding.
----------------------------------------------------------------------------------------
PAYER'S REQUEST FOR PART 3 / /
TAXPAYER
IDENTIFICATION Check box if a TIN has not been issued to you, and either (1) you have mailed or
NUMBER (TIN) delivered an application to receive a TIN to the appropriate IRS Center or Social
Security Administration office or (2) you intend to mail or deliver an application in
the near future. If you do not provide a TIN by the time of payment, 31% of all
payments pursuant to the Offer made to you thereafter will be withheld until you
provide a TIN.
----------------------------------------------------------------------------------------
CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT THE INFORMATION PROVIDED
IN THIS FORM IS TRUE, CORRECT AND COMPLETE.
Signature:
----------------------------------------------------------------------------
Date:
---------------------------------------------------------------------------------
Name:
---------------------------------------------------------------------------------
(PLEASE PRINT)
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
Note: failure to complete and return this Substitute Form W-9 may result in
backup withholding of 31% of any payments made to you pursuant to the Offer.
Please review the enclosed Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 for additional details.
11
<PAGE>
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
12
<PAGE>
<PAGE>
Exhibit (a)(3)
--------------
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.
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
January 21, 2000
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by Sherman Acquisition Corporation, a Georgia
corporation ("Offeror"), an indirect wholly owned subsidiary of Mail-Well,
Inc., a Colorado corporation ("Parent"), to act as Dealer Manager in
connection with the Offeror's offer 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 with any amendments or supplements thereto,
collectively constitute the "Offer") enclosed herewith. The Offer is being
made in connection with the Agreement and Plan of Merger, dated as of January
13, 2000, among Parent, Offeror and the Company (the "Merger Agreement").
Holders of Shares whose certificates for such Shares (the "Certificates") are
not immediately available or who cannot deliver their Certificates and all
other required documents to American Securities Transfer & Trust, Inc. (the
"Depositary") or complete the procedures for book-entry transfer prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase) must tender
their Shares according to the guaranteed delivery procedures set forth in
Section 3 of the Offer to Purchase.
Please furnish copies of the enclosed materials to those of your clients
for whose accounts you hold Shares in your name or in the name of your
nominee.
Enclosed herewith for your information and forwarding to your clients are
copies of the following documents:
1. The Offer to Purchase, dated January 21, 2000.
2. The Letter of Transmittal to tender Shares for your use and for the
information of your clients. Facsimile copies of the Letter of Transmittal may
be used to tender Shares.
3. A letter to stockholders of the Company from Harold Smethills, the
Chief Executive Officer of the Company, together with a
Solicitation/Recommendation Statement on Schedule 14D-9 filed with the
Securities and Exchange Commission by the Company and mailed to the
stockholders of the Company.
4. The Notice of Guaranteed Delivery for Shares to be used to accept the
Offer if Certificates and all other required documents are not immediately
available or cannot be delivered to the Depositary prior to the Expiration
Date (as defined in the Offer to Purchase) or if the procedure for book-entry
transfer cannot be completed prior to the Expiration Date.
5. A printed form of letter which may be sent to your clients for whose
accounts you hold Shares registered in your name, with space provided for
obtaining such clients' instructions with regard to the Offer.
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9.
7. A return envelope addressed to the Depositary.
<PAGE>
<PAGE>
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, FEBRUARY 18, 2000,
UNLESS THE OFFER IS EXTENDED.
Please note the following:
1. The tender price is $20.00 per Share, net to the seller in cash without
interest.
2. The Offer is being made for all of the outstanding Shares.
3. 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.
4. The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the expiration of the Offer such number of
Shares that would constitute more than 50% of the Shares that are outstanding
determined on a fully diluted basis.
5. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of Shares pursuant to the
Offer.
In order to accept the Offer, (i) a duly executed and properly completed
Letter of Transmittal (or facsimile thereof) and any required signature
guarantees or, in the case of a book-entry transfer, an Agent's Message (as
defined in the Offer to Purchase) or other required documents should be sent
to the Depositary and (ii) Certificates representing the tendered Shares or a
timely Book-Entry Confirmation (as defined in the Offer to Purchase) should be
delivered to the Depositary in accordance with the instructions set forth in
the Offer.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Certificates or other required documents or complete the
procedures for book-entry transfer prior to the Expiration Date, a tender must
be effected by following the guaranteed delivery procedures specified in
Section 3 of the Offer to Purchase.
Neither Offeror, Parent nor any officer, director, stockholder, agent or
other representative of Offeror or Parent will pay any fees or commissions to
any broker, dealer or other person (other than the Dealer Manager, the
Depositary and the Information Agent as described in the Offer to Purchase)
for soliciting tenders of Shares pursuant to the Offer. Offeror will, however,
upon request, reimburse you for customary mailing and handling expenses
incurred by you in forwarding any of the enclosed materials to your clients.
Offeror will pay or cause to be paid any transfer taxes payable on the
transfer of Shares to it, except as otherwise provided in Instruction 6 of the
Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed
to Morrow & Co., Inc., the Information Agent for the Offer, at 445 Park
Avenue, 5th Floor, New York, NY 10022, telephone (212) 754-8000 (Banks and
Brokerage Firms, please call: (800) 662-5200) or Donaldson, Lufkin & Jenrette
Securities Corporation, the Dealer Manager for the Offer, at 277 Park Avenue,
New York, New York 10172, telephone (212) 892-3000.
Requests for copies of the enclosed materials may be directed to the
Information Agent at the above address and telephone number.
Very truly yours,
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY OTHER PERSON THE AGENT OF PARENT, OFFEROR, THE DEPOSITARY, THE
INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY
OTHER PERSON TO MAKE ANY STATEMENT OR USE ANY DOCUMENT ON BEHALF OF ANY OF
THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE
STATEMENTS CONTAINED THEREIN.
<PAGE>
<PAGE>
Exhibit (a)(4)
--------------
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.
- --------------------------------------------------------------------------------
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.
- --------------------------------------------------------------------------------
January 21, 2000
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated January 21,
2000 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") relating to an offer by Sherman Acquisition Corporation, a Georgia
corporation ("Offeror"), 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. The Offer is being made in connection
with the Agreement and Plan of Merger, dated as of January 13, 2000, among
Parent, Offeror and the Company (the "Merger Agreement"). This material is being
forwarded to you as the beneficial owner of Shares carried by us in your account
but not registered in your name.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT
TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR
YOUR ACCOUNT.
Accordingly, we request instructions as to whether you wish to tender any or
all of the Shares held by us for your account, upon the terms and conditions set
forth in the Offer.
Please note the following:
1. The tender price is $20.00 per Share, net to you in cash without
interest.
2. The Board of Directors of the Company unanimously has determined that the
Offer and the Merger (as defined in the Offer to Purchase), are fair to and in
the best interests of the Company's stockholders, has approved the Offer and
adopted the Merger Agreement and recommends acceptance of the Offer by the
Company's stockholders.
3. The Offer is being made for all of the outstanding Shares.
4. 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.
<PAGE>
<PAGE>
5. The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the expiration of the Offer such number of
Shares that would constitute more than 50% of the Shares that are outstanding
determined on a fully diluted basis.
6. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the transfer of Shares pursuant to the
Offer.
If you wish to have us tender any or all of the Shares, please so instruct
us by completing, executing, detaching and returning to us the instruction form
contained in this letter. An envelope to return your instructions to us is
enclosed. If you authorize tender of your Shares, all such Shares will be
tendered unless otherwise indicated in such instruction form. PLEASE FORWARD
YOUR INSTRUCTIONS TO US AS SOON AS POSSIBLE TO ALLOW US AMPLE TIME TO TENDER
YOUR SHARES ON YOUR BEHALF PRIOR TO THE EXPIRATION OF THE OFFER.
The Offer is made solely by the Offer to Purchase and the related Letter of
Transmittal and any supplements or amendments thereto. The Offer is not being
made to, nor will tenders be accepted from or on behalf of, holders of Shares
residing in any jurisdiction in which the making of the Offer or acceptance
thereof would not be in compliance with the securities laws of such
jurisdiction. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer will be
deemed to be made on behalf of the Offeror by one or more registered brokers or
dealers licensed under the laws of such jurisdiction.
<PAGE>
<PAGE>
Exhibit (a)(5)
--------------
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF SHARES OF COMMON STOCK OF
AMERICAN BUSINESS PRODUCTS, INC.
This form, or one substantially equivalent hereto, must be used to accept
the Offer (as defined below) if certificates for shares of common stock, par
value $2.00 per share (the "Shares"), of American Business Products, Inc., a
Georgia corporation (the "Company"), are not immediately available or if the
procedure for book-entry transfer cannot be completed on a timely basis or time
will not permit all required documents to reach the Depositary prior to the
Expiration Date (as defined in the Offer to Purchase). Such form may be
delivered by hand, facsimile transmission or mail to the Depositary. See Section
3 of the Offer to Purchase, dated January 21, 2000 (the "Offer to Purchase").
TO: AMERICAN SECURITIES TRANSFER & TRUST, INC.
Facsimile Transmission: (303) 986-2444
Confirm by Telephone To: (303) 985-5400
<TABLE>
<C> <C>
By Mail: By Hand Delivery/Overnight Delivery:
American Securities Transfer & Trust, Inc. American Securities Transfer & Trust, Inc.
P.O. Box 1596 12039 West Alameda Parkway, Suite Z-2
Denver, Colorado 80201-1596 Lakewood, Colorado 80228
Attn: Kim Hammonds Attn: Kim Hammonds
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE
DOES NOT CONSTITUTE A VALID DELIVERY.
If you require additional information, please call Kim Hammonds at American
Securities Transfer & Trust, Inc. at (303) 985-5400.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" (as defined in the Offer to Purchase)
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal or an
Agent's Message and certificates for Shares to the Depositary within the time
period shown herein. Failure to do so could result in a financial loss to such
Eligible Institution.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
1
<PAGE>
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tender(s) to Sherman Acquisition Corporation, a
Georgia corporation, upon the terms and subject to the conditions set forth in
the Offer to Purchase, and the related Letter of Transmittal (which together
constitute the "Offer"), receipt of which is hereby acknowledged, the number of
Shares of the common stock of the Company indicated below, pursuant to the
guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase.
- -------------------------------------------------------------------------------
SIGNATURES
X
------------------------------------------------
X
------------------------------------------------
SIGNATURE(S) OF OWNER(S) OR AUTHORIZED SIGNATORY
Date: , 2000
---------------------
Name(s):
--------------------------------------------------------------------
(PLEASE PRINT)
Capacity:
-------------------------------------------------------------------
Address:
--------------------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code and Telephone No.:
------------------------------------------------
Taxpayer Identification or Social Security No.:
-----------------------------
Number of Shares:
-----------------------------------------------------------
Certificate No(s). (if available):
------------------------------------------
----------------------------------------------------------------------------
If Shares will be tendered by book-entry transfer, complete below:
Name of Tendering Institution:
----------------------------------------------
Name of Book Entry Transfer Facility:
---------------------------------------
----------------------------------------------------------------------------
Account No.:
----------------------------------------------------------------
- --------------------------------------------------------------------------------
2
<PAGE>
<PAGE>
- --------------------------------------------------------------------------------
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of the
Securities Transfer Agents Medallion Program or a 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
Securities Exchange Act of 1934, as amended, guarantees the delivery to the
Depositary of the Shares tendered hereby, together with a properly completed
and duly executed Letter of Transmittal (or manually signed facsimile(s)
thereof) and any other required documents, or an Agent's Message (as defined
in the Offer to Purchase) in the case of a book-entry delivery of Shares,
all within three trading days of the date hereof. A "trading day" is any day
on which the New York Stock Exchange is open for business.
Name of Firm:
---------------------------------------------------------------
Number and Street or P.O. Box:
----------------------------------------------
----------------------------------------------------------------------------
(INCLUDE ZIP CODE)
Tel. No.:
-------------------------------------------------------------------
Fax No.:
--------------------------------------------------------------------
Authorized Signature:
-------------------------------------------------------
Title:
----------------------------------------------------------------------
Date:
-----------------------------------------------------------------------
DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES SHOULD BE
SENT WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL.
- --------------------------------------------------------------------------------
3
<PAGE>
<PAGE>
Exhibit (a)(6)
--------------
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER --
Social security numbers have nine digits separated by two hyphens: i.e.
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
- ----------------------------------------------------------- -----------------------------------------------------------------
<CAPTION>
FOR THIS TYPE OF ACCOUNT: GIVE THE FOR THIS TYPE OF ACCOUNT: GIVE THE EMPLOYER
SOCIAL SECURITY IDENTIFICATION
NUMBER OF - NUMBER OF -
- ---------------------------------------------------------- -----------------------------------------------------------------
<S> <C> <C> <C>
1. Individual The individual 6. Sole proprietorship The owner<F3>
2. Two or more individuals The actual owner of the 7. A valid trust, estate, or pension The legal entity<F4>
(joint account) account or, if combined trust
funds, the first individual
on the account <F1>
3. Custodian account of a The minor <F2> 8. Corporate The corporation
minor (Uniform Gift to
Minors Act)
4. a. The usual revocable The grantor-trustee <F1> 9. Association, club, religious, The organization
savings trust charitable, educational, or other
account (grantor tax-exempt organization
is also trustee)
b. So-called trust The actual owner <F1> 10. Partnership account held in the The partnership
account that is not name of the business
a legal or valid
trust under State
law
5. Sole Proprietorship The owner <F3> 11. A broker or registered nominee The broker or nominee
12. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a State
or local government, school
district, or prison) that
receives agricultural program
payments
- ---------------------------------------------------------- -----------------------------------------------------------------
<FN>
<F1> List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a social security number, that
person's number must be furnished.
<F2> Circle the minor's name and furnish the minor's social security number.
<F3> You must show your individual name, but you may also enter your business or
"doing business as" name. You may use either your social security number or
employer identification number (if you have one).
<F4> List first and circle the name of the legal trust, estate, or pension
trust. (Do not furnish the taxpayer identification number of the personal
representative or trustee unless the legal entity itself is not designated
in the account title.)
</TABLE>
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Card, or Form SS-4,
Application for Employer Identification Number (for businesses and all other
entities), or Form W-7 for Individual Taxpayer Identification Number (for alien
individuals required to file U.S. tax returns), at an office of the Social
Security Administration or the Internal Revenue Service and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
* A corporation.
* An organization exempt from tax under section 501(a), or an individual
retirement plan, or a custodial account under Section 403(b)(7), if the
account satisfies the requirements of Section 401(f)(2).
* The United States or any agency or instrumentality thereof.
* A State, the District of Columbia, a possession of the United States, or any
political subdivision or instrumentality thereof.
* A foreign government, a political subdivision of a foreign government, or any
agency or instrumentality thereof.
* An international organization or any agency or instrumentality thereof.
* A foreign central bank of issue.
Payees that are exempt from backup withholding on interest, dividends and broker
transactions include the following:
* A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
* A real estate investment trust.
* A common trust fund operated by a bank under section 584(a).
* An entity registered at all times during the tax year under the Investment
Company Act of 1940.
* A financial institution.
Payees that are exempt from backup withholding on broker transactions include
the following:
* A futures commission merchant registered with the Commodity Futures Trading
Commission.
* A person registered under the Investment Advisors Act of 1940 who regularly
acts as a broker.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
* Payments to nonresident aliens subject to withholding under Section 1441.
* Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident alien partner.
* Payments of patronage dividends where the amount received is not paid in
money.
* Payments made by certain foreign organizations.
Payments of interest not generally subject to backup withholding include the
following:
* Payments of interest on obligations issued by individuals.
NOTE: You may be subject to backup withholding if this interest is $600 or more
and is paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
* Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
* Payments described in section 6049(b)(5) to nonresident aliens.
* Payments on tax-free covenant bonds under section 1451.
* Payments made by certain foreign organizations.
* Mortgage interest paid to you.
<PAGE>
Exempt payees described above should file a Substitute Form W-9 to avoid
possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH
YOUR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND
RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS OR PATRONAGE
DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends and patronage dividends that are
not subject to information reporting are also not subject to backup withholding.
For details, see sections 6041, 6041(a), 6042, 6044, 6045, 6049, 6050A, and
6050N, and their regulations.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend, interest
or other payments to give taxpayer identification numbers to payers who must
report the payments to the IRS. The IRS uses the numbers for identification
purposes and to help verify the accuracy of your tax return. Payers must be
given the numbers whether or not recipients are required to file tax returns.
Payers must generally withhold 31% of taxable interest, dividend and certain
other payments to a payee who does not furnish a taxpayer identification number
to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your correct taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
<PAGE>
<PAGE>
Exhibit (a)(7)
--------------
This announcement is neither an offer to purchase nor a
solicitation of an offer to sell Shares. The Offer is made only by the
Offer to Purchase and the related Letter of Transmittal and is being
made to all holders of the Shares. The Offer is not being made to (nor
will tenders be accepted from) holders of Shares in any jurisdiction in
which the Offer or the acceptance thereof would not be in compliance
with the securities laws of such jurisdiction. Neither the Offeror nor
Parent is aware of any jurisdiction in which the making of the Offer or
the acceptance thereof would not be in compliance with the laws of such
jurisdiction. To the extent that the Offeror or Parent becomes aware of
any state law that would limit the class of offerees in the Offer, the
Offeror will amend the Offer and, depending on the timing of such
amendment, if any, will extend the Offer to provide adequate
dissemination of such information to such holders of Shares prior to the
expiration of the Offer. In those jurisdictions where the securities
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 Donaldson,
Lufkin & Jenrette Securities Corporation or one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
All Outstanding Shares of Common Stock
of
AMERICAN BUSINESS PRODUCTS, INC.
at
$20.00 NET PER SHARE
by
SHERMAN ACQUISITION CORPORATION
a wholly-owned indirect subsidiary of
MAIL-WELL, INC.
Sherman Acquisition Corporation, a Georgia corporation (the
"Offeror") and a wholly owned indirect subsidiary of Mail-Well, Inc., a Colorado
corporation (the "Parent"), hereby offers to purchase all of the shares
of common stock, par value $2.00 per share (the "Shares"), of American
Business Products, Inc, a Georgia corporation (the "Company"), for
$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 with any amendments or
supplements thereto, collectively constitute the "Offer").
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.
<PAGE>
<PAGE>
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
Corporation $20.00 (or any higher price that may be paid for each Share
pursuant to the Offer) in cash, without interest thereon (the "Offer
Price").
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 at least a majority of the
Shares that are outstanding determined on a fully diluted basis, (ii)
any waiting period under the HSR Act (as defined in the Offer to
Purchase) 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
set forth in Section 15 of the Offer to Purchase.
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 their
portion of 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 BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED AND
ADOPTED THE MERGER AGREEMENT, APPROVED THE OFFER AND THE MERGER, 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 COMPANY'S STOCKHOLDERS ACCEPT THE OFFER AND TENDER ALL THEIR
SHARES PURSUANT TO THE OFFER.
-2-
<PAGE>
<PAGE>
For purposes of the Offer, the Offeror will be deemed to have
accepted for payment, and thereby purchased Shares validly tendered and
not withdrawn, if and when the Offeror gives oral or written notice to
American Securities Transfer & Trust, Inc. (the "Depositary") of the
Offeror's acceptance of such Shares for payment. In all cases, payment
for Shares purchased pursuant to the Offer will be made by deposit of
the purchase price with the Depositary, which shall act as agent for
tendering stockholders for the purpose of receiving payment from the
Offeror and transmitting payment to the tendering stockholders. Payment
for Shares accepted for payment pursuant to the Offer will be made only
after timely receipt by the Depositary of (i) certificates for such
Shares or timely confirmation of a book-entry transfer of such Shares
into the Depositary's account at the Book-Entry Transfer Facility (as
defined in the Offer to Purchase) pursuant to the procedures set forth
in the Offer to Purchase, (ii) a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), with any required
signature guarantees, or, in the case of a book-entry transfer, an
Agent's Message (as defined in the Offer to Purchase) and (iii) any
other documents required by the Letter of Transmittal.
If any of the conditions set forth in the Offer to Purchase that
relate to the Offeror's obligations to purchase the Shares are not
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, (i) extend the Offer
and, subject to applicable withdrawal rights, retain all tendered Shares
until the expiration of the Offer as so extended, (ii) subject to
complying with applicable rules and regulations of the Securities and
Exchange Commission, accept for payment all Shares so tendered and not
extend the Offer, or (iii) terminate the Offer and not accept for
payment any Shares and return all tendered Shares to tendering
stockholders. The term "Expiration Date" shall mean 12:00 Midnight, New
York City time, on Friday, 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.
Subject to the limitations set forth in the 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. There can be no assurance that the Offeror will
exercise its right to extend the Offer. Any extension of the period
during which the Offer is open will be followed, as promptly as
practicable, by public announcement thereof, such announcement 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. During any
such extension, all Shares previously tendered and not withdrawn will
remain subject to the Offer, subject to the rights of a tendering
stockholder to withdraw such stockholder's Shares.
Except as otherwise provided in Section 4 of the Offer to
Purchase, tenders of Shares made pursuant to the Offer are irrevocable,
except that Shares tendered pursuant to the Offer may be withdrawn at
any time prior to the Expiration Date, and, unless theretofore accepted
for payment, may also be withdrawn at any time after March 21, 2000. For
a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the
Depositary at the address set forth on the back cover of the Offer to
-3-
<PAGE>
<PAGE>
Purchase. Any such notice of withdrawal must specify the name of the
person who tendered the Shares to be withdrawn, the number of Shares to
be withdrawn and the name of the registered holder if different from the
name 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 for the account of
an Eligible Institution (as defined in the Offer to Purchase), the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution. If Shares have been delivered pursuant to the procedure for
book-entry transfer as set forth in Section 3 of the Offer to Purchase,
any notice of withdrawal must also specify the name and number of the
account at the appropriate Book-Entry Transfer Facility to be credited
with the withdrawn Shares and otherwise comply with such Book-Entry
Transfer Facility's procedures. All questions as to the form and
validity (including time of receipt) of a notice of withdrawal will be
determined by the Offeror, in its sole discretion, and its determination
shall be final and binding on all parties.
The information required to be disclosed by Paragraph (e)(1)(vii)
of Rule 14d-6 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended, is contained in the Offer to Purchase
and is incorporated herein by reference.
The Company has provided to the Offeror its lists of stockholders
and security position listings for the purpose of disseminating the
Offer to holders of Shares. The Offer to Purchase, the related Letter of
Transmittal and other related materials are being mailed to record
holders of Shares and will be mailed to brokers, dealers, commercial
banks, trust companies and similar persons whose names, or the names of
whose nominees, appear on the stockholder lists or, if applicable, who
are listed as participants in a clearing agency's security position
listing, for subsequent transmittal to beneficial owners of Shares.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL
CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ BEFORE ANY DECISION IS
MADE WITH RESPECT TO THE OFFER.
Any questions or requests for assistance or for copies of the
Offer to Purchase and the related Letter of Transmittal and other tender
offer materials may be directed to the Information Agent or the Dealer
Manager as set forth below, and copies will be furnished promptly at the
Offeror's expense. No fees or commissions will be payable to brokers,
dealers or other persons other than the Information Agent, the Dealer
Manager and the Depositary for soliciting tenders of Shares pursuant to
the Offer.
-4-
<PAGE>
<PAGE>
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) 892-3000
January 21, 2000
-5-
<PAGE>
<PAGE>
Exhibit (a)(8)
--------------
FOR IMMEDIATE RELEASE: Friday, January 14, 2000
MAIL-WELL TO ACQUIRE AMERICAN BUSINESS PRODUCTS
ENGLEWOOD, CO and ATLANTA, GA -- Mail-Well, Inc. (NYSE: MWL) and
American Business Products, Inc. (NYSE: ABP) announced that they have
entered into a definitive agreement for Mail-Well to acquire all the
shares of the common stock of Atlanta-based American Business Products
for $20 per share in cash. The total value of the transaction, including
the assumption of debt, will be approximately $334 million.
American Business Products is a premier provider of printed office
products and specialty packaging solutions through its Curtis 1000,
International Envelope, Discount Label and Jen-Coat business units. ABP
reported 1998 sales of $461 million and net income and earnings per
share from continuing operations of $18.3 million and $1.15,
respectively. For the nine months ended September 30, 1999, it earned
$13.9 million, or $0.92 per share, on sales of $350 million.
"We are delighted with the acquisition of American Business Products.
Three of ABP's four business units are perfect fits with existing
Mail-Well operations. The fourth, Jen-Coat, is in specialty packaging,
which is an area we have been interested in for some time," said Gerald
F. Mahoney, Mail-Well's Chairman and Chief Executive Officer. "In
addition to businesses that are complementary, we will be adding to the
depth of our management. The teams leading each of ABP's business units
have positioned their businesses to grow both the top and bottom lines.
We are excited by the upside potential," Mahoney noted.
G. Harold Northrop, Chairman of the Board of American Business Products,
stated, "The Board of American Business Products is unanimous in its
support of Mail-Well's proposal. This proposal not only is in the best
interest of our shareholders, it represents an excellent fit for our
businesses and their employees. We are convinced that Mail-Well is
acquiring four well managed business units."
Completion of the acquisition is subject to the customary terms and
conditions, and termination of the necessary waiting period under the
Hart-Scott-Rodino Act.
Goldman, Sachs & Co. acted as financial advisor to American Business
Products in connection with this transaction.
Mail-Well 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. Mail-Well currently has more than 13,000 employees and 110
printing plants and numerous sales offices throughout North America.
With this acquisition, Mail-Well will have a revenue run rate of $2.5 billion.
This press release may make forward-looking statements, which are
subject to various uncertainties and risks that could affect their
outcome. Factors which could cause or contribute to differences include,
but are not limited to, product demand and sales, interest rates,
ability to obtain assumed productivity savings and availability of
acquisition opportunities. This press release does not constitute an
offer to sell or solicitation of an offer to buy Mail-Well's or American
Business Products' securities.
<PAGE>
<PAGE>
Exhibit (a)(9)
--------------
FOR IMMEDIATE RELEASE: Friday, January 14, 2000
MAIL-WELL CONFIRMS CASH TENDER OFFER FOR AMERICAN BUSINESS PRODUCTS
ENGLEWOOD, CO and ATLANTA, GA -- Mail-Well, Inc. (NYSE: MWL) confirmed
today that the previously announced definitive agreement for Mail-Well
to acquire all the shares of the common stock of Atlanta-based American
Business Products, Inc. (NYSE: ABP) for $20 per share in cash will be
effected as a cash tender offer. The total value of the transaction,
including the assumption of debt, will be approximately $334 million.
The cash tender offer will be commenced on or about January 21, 2000.
Completion of the acquisition is subject to the customary terms and
conditions, and termination of the necessary waiting period under the
Hart-Scott-Rodino Act.
Mail-Well 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. Mail-Well currently has more than 13,000 employees and 110
printing plants and numerous sales offices throughout North America.
With this acquisition, Mail-Well will have a revenue run rate of $2.5
billion.
This press release may make forward-looking statements, which are
subject to various uncertainties and risks that could affect their
outcome. Factors which could cause or contribute to differences include,
but are not limited to, product demand and sales, interest rates,
ability to obtain assumed productivity savings and availability of
acquisition opportunities. This press release does not constitute an
offer to sell or solicitation of an offer to buy Mail-Well's or American
Business Products' securities.
<PAGE>
<PAGE>
Exhibit (a)(10)
---------------
MAIL-WELL COMMENCES TENDER OFFER
FOR SHARES OF AMERICAN BUSINESS PRODUCTS
ENGLEWOOD, CO and ATLANTA, GACMail-Well, Inc. (NYSE: MWL) and American
Business Products, Inc. (NYSE: ABP) announced today that Mail-Well's
wholly-owned indirect subsidiary Sherman Acquisition Corporation has
commenced its previously announced tender offer for all of the shares of
ABP for $20 per share, net to the seller in cash. The tender offer is
being conducted pursuant to an Agreement and Plan of Merger among the
companies dated January 13, 2000. The tender offer is schedule to
expire at 12:00 midnight, eastern standard time, on Friday, February 18,
unless extended.
Certain ABP shareholders who collectively own approximately 2.7% of the
ABP shares outstanding on a fully diluted basis have agreed to tender
their shares in the offer. The offer is conditioned upon 51% of the ABP
shares outstanding being validly tendered and not withdrawn prior to the
expiration of the offer, termination of the necessary waiting period
under the Hart-Scott-Rodino Act and other customary closing conditions.
Donaldson, Lufkin & Jenrette is the Dealer Manager for the offer. The
complete terms and conditions of the offer are set forth in the Offer to
Purchase being filed today with the Securities and Exchange Commission,
copies of which are available from Morrow & Co., the information agent
for the offer. American Securities Transfer & Trust is acting as
depositary for the offer.
Goldman, Sachs & Co. acted as financial advisor to American Business
Products in connection with this transaction.
Mail-Well 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. Mail-Well currently has more than 13,000 employees and
110 printing plants, and numerous sales offices throughout North
America. Reporting 1998 sales of $1.5 billion, Mail-Well expects to
have a revenue run rate of $2.5 billion once it completes the
acquisition of American Business Products.
This press release may make forward-looking statements, which are
subject to various uncertainties and risks that could affect their
outcome. Factors which could cause or contribute to differences
include, but are not limited to, product demand and sales, interest
rates, ability to obtain assumed productivity savings, availability of
financing and availability of acquisition opportunities. This press
release does not constitute an offer to sell or solicitation of an offer
to buy Mail-Well's securities.
Note: News releases and other information on Mail-Well can
be accessed at www.mail-well.com.
# # #
<PAGE>
<PAGE>
Exhibit (b)(1)
--------------
January 13, 2000
Gary H. Ritondaro
Senior Vice President and Chief Financial Officer
Mail-Well, Inc.
23 Inverness Way East, Suite 160
Englewood, CO 80112
Re: $800,000,000 Senior Secured Credit Facilities
Dear Gary:
Mail-Well I, Inc. (the "Borrower") has informed Bank of America, N.A.
("Bank of America") and Banc of America Securities LLC ("BAS") that the
Borrower intends to acquire all of the outstanding capital stock of
American Business Products, Inc. (the "Merged Company") for total
consideration of approximately $334 million (the "Transaction"). You
have advised us that up to $800 million in senior debt financing will
be required in order to effect the Transaction, to pay the related costs
and expenses, to refinance certain indebtedness of the Borrower and\or
the Merged Company and to provide funds for ongoing general corporate
purposes after completion of the Transaction, and that no external debt
financing other than the financing described herein will be required in
connection with the Transaction. In connection with the foregoing, Bank
of America is pleased to offer to be the sole and exclusive
administrative agent (in such capacity, the "Administrative Agent") for
$800 million Senior Secured Credit Facilities (the "Senior Credit
Facilities") to the Borrower, and Bank of America is pleased to offer
its commitment to lend up to $800 million of the Senior Credit
Facilities, upon and subject to the terms and conditions of this letter
and the Summary of Terms and Conditions attached hereto (the "Summary of
Terms"). BAS is pleased to advise you of its willingness, as sole and
exclusive Lead Arranger and Book Manager for the Senior Credit
Facilities, to form a syndicate of financial institutions (the
"Lenders") reasonably acceptable to you for the Senior Credit
Facilities. Notwithstanding the foregoing, subject to the terms and
conditions hereof and the Summary of Terms, Bank of America is committed
to lend up to $800 million of the Senior Credit Facilities.
Bank of America will act as sole and exclusive Administrative Agent for
the Senior Credit Facilities and BAS will act as sole and exclusive Lead
Arranger and Book Manager for the Senior Credit Facilities. No
additional agents, co-agents or arrangers will be appointed and no other
titles will be awarded without our prior written approval.
BAS intends to commence syndication efforts promptly, and you agree to
actively assist, and to cause the Merged Company to assist, BAS in
achieving a syndication of the Senior Credit Facilities that is
satisfactory to it. Such assistance by you and the Merged Company shall
include (a) your providing and causing your advisors to provide us and
the other Lenders upon request with all information reasonably deemed
necessary by us to complete syndication, including, but not limited to,
information and evaluations prepared by the Borrower and the Merged
Company and their advisors, or on their behalf, relating to the
Transaction; (b) assistance in the preparation of an Offering Memorandum
to be used in connection with the syndication; (c) your using
commercially reasonable efforts to ensure that the syndication efforts
benefit materially from your existing lending relationships; and (d)
otherwise assisting us in our syndication efforts, including by making
senior management and advisors of the Borrower and the Merged Company and
their subsidiaries available from time to time to attend and make presentations
regarding the business and prospects of the Borrower
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Mail-Well, Inc.
January 13, 2000
Page 2
and the Merged Company and their subsidiaries, as appropriate, at one or
more meetings of prospective Lenders.
It is understood and agreed that Bank of America and BAS will manage and
control all aspects of the syndication, including decisions as to the
selection of proposed Lenders and any titles offered to proposed
Lenders, when commitments will be accepted and the final allocations of
the commitments among the Lenders. It is understood that no Lender
participating in the Senior Credit Facilities will receive compensation
from you in order to obtain its commitment, except on the terms
contained herein and in the Summary of Terms. It is also understood and
agreed that the amount and distribution of the fees among the Lenders
will be at our sole discretion and that any syndication prior to
execution of the definitive documentation for the Senior Credit
Facilities will reduce the commitment of Bank of America.
In the event that such syndication cannot be achieved in a manner
satisfactory to Bank of America and BAS under the structure outlined in
the Summary of Terms, you agree that Bank of America and BAS shall be
entitled, in consultation with you, to change the pricing, structure or
other terms of the Senior Credit Facilities if Bank of America and BAS
determine that such changes are advisable to ensure a successful
syndication or an optimal credit structure, provided that the total
amount of the Senior Credit Facilities remains unchanged.
The commitment of Bank of America hereunder and the agreement of BAS to
provide the services described herein are subject to the agreement in
the preceding paragraph and the satisfaction of each of the following
conditions precedent in a manner acceptable to us in our sole
discretion: (a) each of the terms and conditions set forth herein and in
the Summary of Terms; (b) the completion of all due diligence with
respect to the Borrower, the Merged Company and their respective
subsidiaries in scope and determination satisfactory to us in our sole
discretion; (c) the absence of a material breach of any representation,
warranty or agreement of the Borrower or the Company set forth herein;
(d) execution by the Borrower, the Merged Company and/or other
appropriate parties of a definitive merger agreement and other related
documentation for the Transaction (collectively, the "Transaction
Documents"), which Transaction Documents shall be in form and substance
satisfactory to us; (e) our satisfaction that prior to and during the
syndication of the Senior Credit Facilities there shall be no competing
offering, placement or arrangement of any debt securities or bank
financing by or on behalf of the Borrower or the Merged Company (except
as described in this letter); (f) the negotiation, execution and
delivery of definitive documentation for the Senior Credit Facilities
consistent with the Summary of Terms and otherwise satisfactory to us;
(g) since the date hereof, no material adverse change in or material
disruption of conditions in the financial, banking or capital markets
which we, in our sole discretion, deem material in connection with the
syndication of the Senior Credit Facilities shall have occurred and be
continuing; (h) no change, occurrence or development that could, in our
opinion, have a material adverse effect on the business, assets,
liabilities (actual or contingent), operations, condition (financial or
otherwise) or prospects of the Borrower or the Merged Company, in each
case together with its subsidiaries taken as a whole, shall have
occurred or become known to us; and (i) our not becoming aware after the
date hereof of any information or other matter which in our judgment is
inconsistent in a material and adverse manner with any information or
other matter disclosed to us prior to the date hereof (in which case we
may, in our sole discretion, suggest alternative financing amounts or
structures that ensure adequate protection for the Lenders or terminate
this letter and any commitment or undertaking hereunder).
You hereby represent, warrant and covenant that (a) all information,
other than the Projections (defined below), which has been or is
hereafter made available to us or the Lenders by you or any of your
representatives in connection with the transactions contemplated hereby
(the "Information") is and will be complete and correct in all material
respects and does not and will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements contained therein not misleading, and (b) all financial
projections concerning the Borrower and the Merged Company and their
respective subsidiaries that have been or are hereafter made available
to us or the Lenders by you or any of your representatives (the
"Projections") have been or will be prepared in good faith based upon
assumptions you believe to be reasonable. You agree to furnish us with
such Information and Projections as we may reasonably request and to
supplement the Information and the Projections from time to time until
the closing date for the Senior Credit Facilities so that the
representation, warranty and covenant in the preceding sentence is
correct on such closing date. You understand that in arranging and
syndicating the Senior Credit
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Mail-Well, Inc.
January 13, 2000
Page 3
Facilities, Bank of America and BAS will be using and relying on the
Information and the Projections without independent verification
thereof.
By acceptance of this offer, you agree to pay all reasonable out-of-
pocket fees and expenses (including reasonable attorneys' fees and
expenses, the allocated cost of internal counsel and due diligence
expenses) incurred before or after the date hereof by us in connection
with the Senior Credit Facilities, the syndication thereof and the other
transactions contemplated hereby. With respect to attorney's costs and
expenses incurred by us, we agree to discuss with you our best estimate
of the actual cost to be incurred and work with you to manage to this
estimate. We further agree that we will keep you aprised, from time to
time or as often as you may reasonably request, of actual costs incurred
during the course of the transaction.
You agree to indemnify and hold harmless Bank of America, BAS, each
Lender and each of their affiliates and their directors, officers,
employees, advisors and agents (each, an "Indemnified Party") from and
against (and will reimburse each Indemnified Party as the same are
incurred) any and all losses, claims, damages, liabilities, and expenses
(including, without limitation, the reasonable fees and expenses of
counsel and the allocated cost of internal counsel) that may be incurred
by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (a) the
Transaction or any similar transaction and any of the other transactions
contemplated thereby, or (b) the Senior Credit Facilities or any other
financings, or any use made or proposed to be made with the proceeds
thereof, unless and only to the extent that, as to any Indemnified
Party, it shall be determined in a final, nonappealable judgment by a
court of competent jurisdiction that such losses, claims, damages,
liabilities or expenses resulted primarily from the gross negligence or
willful misconduct of such Indemnified Party. No Indemnified Party
shall be liable for any damages arising from the use by others of
Information or other materials obtained through internet, Intralinks or
other similar information transmission systems in connection with the
Senior Credit Facilities. In the case of any investigation, litigation
or proceeding to which the indemnity in this paragraph applies, such
indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by you, your shareholders or
creditors or an Indemnified Party and whether or not the Transaction is
consummated. You agree that no Indemnified Party shall have any
liability to you or your subsidiaries or affiliates or to your or their
respective security holders or creditors for any indirect or
consequential damages arising out of, related to or in connection with
the Transaction or any of the financings.
The terms of this letter, the Summary of Terms and the fee letter among
you and us (the "Fee Letter") are confidential and, except for
disclosure on a confidential basis to your accountants, attorneys and
other professional advisors retained by you in connection with the
Senior Credit Facilities or as may be required by law, may not be
disclosed in whole or in part to any other person or entity (including
the Merged Company) without our prior written consent; provided that,
after your acceptance of this letter and the Fee Letter, you may
disclose the terms of this letter (but not the Fee Letter) to the Merged
Company and its stockholders and their respective attorneys, financial
advisors and accountants in connection with the Transaction.
The provisions of the immediately preceding three paragraphs shall
remain in full force and effect regardless of whether any definitive
documentation for the Senior Credit Facilities shall be executed and
notwithstanding the termination of this letter or any commitment or
undertaking hereunder.
This letter and the Fee Letter shall be governed by laws of the State of
California. Each of us hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this letter,
the Summary of Terms, the transactions contemplated hereby and thereby
or the actions of Bank of America and BAS in the negotiation,
performance or enforcement hereof.
This letter, together with the Summary of Terms and the Fee Letter, are
the only agreements that have been entered into among us with respect to
the Senior Credit Facilities and set forth the entire understanding of
the parties with respect thereto. This letter may be modified or
amended only by the written agreement of all of
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Mail-Well, Inc.
January 13, 2000
Page 4
us. This letter is not assignable by you without our prior written
consent and is intended to be solely for the benefit of the parties
hereto and the Indemnified Parties.
This offer will expire at 5:00 p.m. PST time on Friday, January 14, 2000
unless you execute this letter and the Fee Letter and return them to us
prior to that time (which may be by facsimile transmission), whereupon
this letter and the Fee Letter (each of which may be signed in one or
more counterparts) shall become binding agreements. Thereafter, this
undertaking and commitment will expire on the earliest to occur of (a)
the closing of the Transaction without the use of the Senior Credit
Facilities, (b) the acceptance by the Merged Company or any of its
affiliates of an offer for all or any substantial part of the capital
stock or assets of the Merged Company other than the offer contemplated
hereby, and (c) April 14, 2000, unless definitive documentation for the
Senior Credit Facilities is executed and delivered prior to such date.
We are pleased to have the opportunity to work with you in connection
with this important financing.
Very truly yours,
BANK OF AMERICA, N.A.
By: Kevin Leader
Title: Managing Director
BANC OF AMERICA SECURITIES LLC
By: Grant Moyer
Title: Vice President
Accepted and Agreed to
as of ________________, 20___:
MAIL-WELL, INC.
By: Gary H. Ritondaro
Title: Senior Vice President and Chief Financial Officer
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Exhibit (c)(1)
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AGREEMENT AND PLAN OF MERGER
AMONG
AMERICAN BUSINESS PRODUCTS, INC.
MAIL-WELL, INC.
AND
SHERMAN ACQUISITION CORP.
DATED AS OF JANUARY 13, 2000
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, is made, entered into, and
effective as of the 13th day of January, 2000 (this "Agreement") by and
among American Business Products, Inc., a Georgia corporation
("Company"), Mail-Well, Inc., a Colorado corporation ("Parent"), and
Sherman Acquisition Corp., a Georgia corporation ("Acquisition Co.")
(Acquisition Co. and Company being hereinafter collectively referred to
as the "Constituent Corporations").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Parent directly owns all of the issued and outstanding
stock of Acquisition Co.; and
WHEREAS, the Boards of Directors of each of Company, Parent, and
Acquisition Co. (i) have approved the merger of Company with Acquisition
Co. (the "Merger") upon the terms and conditions set forth herein, and
(ii) deem the Merger to be in the best interests of their respective
shareholders.
NOW, THEREFORE, in consideration of the premises, representations,
warranties, and agreements herein contained, the parties agree as
follows:
ARTICLE I
THE OFFER
1.1 THE OFFER.
(a) Subject to the provisions of this Agreement, as
promptly as practicable (but in no event later than five business
days after the public announcement of the execution of this
Agreement), Acquisition Co. shall, and Parent shall cause
Acquisition Co. to, commence (within the meaning of Rule 14d-2
under the Securities Exchange Act of 1934, as amended (together
with the rules and regulations promulgated thereunder, the
"Exchange Act") a tender offer (as it may be amended from time to
time as permitted by this Agreement, the "Stock Offer") for all of
the outstanding shares (the "Shares") of Company Common Stock (as
defined in Section 3.2) at a price of $20.00 per Share (such
price, or any such higher price per Share as may be paid in the
Stock Offer, being referred to herein as the "Stock Offer Price").
The obligation of Acquisition Co. to, and of Parent to cause
Acquisition Co. to, commence the Stock Offer and accept for
payment, and pay for, any Shares tendered pursuant to the Stock
Offer shall be subject to the conditions set forth in Section 1.2
(any of which may be waived by Acquisition Co. in its sole
discretion; provided, that, without the consent of Company,
Acquisition Co. shall not waive the Minimum Tender Condition (as
defined in Section 1.2)) and to the other terms and conditions of
this Agreement. Acquisition Co. expressly reserves the right to
modify the terms of the Stock Offer, except that, without the
consent of Company, Acquisition Co. shall not (i) reduce the
number of Shares subject to the Stock Offer, (ii) reduce the price
per Share to be paid pursuant to the Stock Offer, (iii) modify or
add to the conditions set forth in Section 1.2, (iv) except as
provided in the next sentence, extend the Stock Offer, or
(v) change the form of consideration payable in the Stock Offer.
Notwithstanding the foregoing, Acquisition Co. may, without the
consent of Company, (i) extend the Stock Offer, if at the
scheduled expiration date of the Stock Offer any of the conditions
to Acquisition Co.'s obligations to purchase Shares shall not be
satisfied until such conditions have been satisfied, (ii) extend
the Stock Offer for a period of not more than ten business days
beyond the initial
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expiration date of the Stock Offer (which initial expiration date
shall be 20 business days following the commencement of the Stock
Offer), if on the date of such extension less than 90% of the
outstanding Shares of Company Common Stock have been validly
tendered and not properly withdrawn pursuant to the Stock Offer,
notwithstanding that all conditions to the Stock Offer are
satisfied as of the date of such extension, and (iii) extend the
Stock Offer for any period required by any rule, regulation,
interpretation or position of the SEC or the staff thereof
applicable to the Stock Offer. Notwithstanding the foregoing, the
Stock Offer may not be extended beyond the date of termination of
this Agreement pursuant to Article 8. Subject to the terms and
conditions of the Stock Offer and this Agreement, Acquisition Co.
shall, and Parent shall cause Acquisition Co. to, pay for all
Shares validly tendered and not properly withdrawn pursuant to the
Stock Offer that Acquisition Co. becomes obligated to purchase
pursuant to the Stock Offer as soon as practicable after the
expiration of the Stock Offer.
(b) On the date of commencement of the Stock Offer, Parent
and Acquisition Co. shall file with the Securities and Exchange
Commission (the "SEC") a Tender Offer Statement on Schedule 14D-1
with respect to the Stock Offer, which shall contain an offer to
purchase (the "Offer to Purchase") and a related letter of
transmittal and summary advertisement, all in accordance with the
terms of the Stock Offers as set forth herein (such Schedule 14D-1
and the documents included therein pursuant to which the Stock
Offers will be made, together with any supplements or amendments
thereto, the "Offer Documents"). The Offer Documents shall comply
in all material respects with the requirements of applicable
federal securities laws and, on the date filed with the SEC and on
the date first published, sent or given to Company's shareholders,
shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
that no representation is made by Parent or Acquisition Co. with
respect to information furnished in writing by or on behalf of
Company expressly for inclusion in the Offer Documents. Each of
Parent, Acquisition Co. and Company agrees promptly to correct any
information provided by or on its behalf for use in the Offer
Documents if and to the extent that such information shall have
become false or misleading in any material respect, and each of
Parent and Acquisition Co. further agrees to take all steps
necessary to amend or supplement the Offer Documents and to cause
the Offer Documents as so amended or supplemented to be filed with
the SEC and to be disseminated to Company's shareholders, in each
case as to and to the extent required by applicable Federal
securities laws. Company and its counsel shall be given at least
three business days to review the Schedule 14D-1 before it is
filed with the SEC. In addition, Parent and Acquisition Co. will
provide Company and its counsel, in writing, with any comments,
whether written or oral, Parent, Acquisition Co. or their counsel
may receive from time to time from the SEC or its staff with
respect to the Offer Documents promptly after the receipt of such
comments.
(c) Parent shall provide or cause to be provided to
Acquisition Co. on a timely basis the funds necessary to purchase
any Shares that Acquisition Co. becomes obligated to purchase
pursuant to the Stock Offers.
1.2 CONDITIONS OF THE STOCK OFFER. Notwithstanding any other
provision of the Stock Offer or the Agreement, Acquisition Co. 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 Acquisition Co.'s obligation to pay for or return
tendered Shares promptly after termination or withdrawal of the Stock
Offer), pay for any Shares tendered pursuant to the Stock Offer, and may
postpone the acceptance for payment or, subject to the restriction
referred to above, payment for any Shares tendered pursuant to the Stock
Offer, and may amend or terminate the Stock 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 Stock Offer, that number of
Shares which
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would represent at least a majority of the Fully Diluted Shares (as
defined below) (the "Minimum Tender Condition") and (ii) any waiting
period under the HSR Act (as defined in Section 3.4) applicable to the
purchase of Shares pursuant to the Stock Offers shall have expired or
been terminated. The term "Fully Diluted Shares" means all outstanding
securities entitled generally to vote in the election of 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
as defined in Section 6.4) exercisable or convertible into such voting
securities. Furthermore, notwithstanding any other term of the Stock
Offer or the Agreement, Acquisition Co. 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 Stock Offer, with the consent of Company, if, at any time on or
after the date of the Agreement and prior to the acceptance for payment
of Shares or the payment therefor, 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 Acquisition Co. of any Shares, directly or indirectly
seeking to restrain or prohibit or otherwise make substantially
more costly the making or consummation of the Stock Offers or the
Merger or the performance of any of the other Transactions (as
defined in Section 1.3) or materially delaying the Merger, or
seeking to obtain from Company, Parent or Acquisition Co. 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 Stock Offers, the
Merger or any of the other Transactions (as defined in Section
1.3), (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 (a "Consent") withheld with
respect to, (i) Parent, Company or any of their respective
Subsidiaries or (ii) the Stock Offers, the Merger or any of the
other Transactions (as defined in Section 1.3), by any
Governmental Entity (as defined in Section 3.4) 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 Acquisition Co. the approval or
recommendation of the Stock Offer, the Merger or this Agreement,
or approved or recommended any Superior Proposal (as defined in
Section 5.2(b)) or any other acquisition of Shares other than the
Stock Offer and the Merger or (ii) the Board of Directors of
Company shall have determined to approve, endorse or recommend a
Superior Proposal to this Company's shareholders.
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(d) any of the representations and warranties of Company
set forth in the 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 Agreement;
(f) the Agreement shall have been terminated in accordance
with its terms or the Stock Offer shall have been terminated with
the consent of Company; or
(g) all Consents of and notices to or filings with
governmental authorities and third parties required in connection
with the Transactions (as defined in Section 1.3) shall not have
been obtained or made other than those the absence of which,
individually or in the aggregate, would not have an Company
Material Adverse Effect or prevent or materially delay
consummation of any of the Transactions (as defined in Section
1.3).
1.3 COMPANY ACTIONS.
(a) Company hereby approves of and consents to the Stock
Offer and represents and warrants that its Board of Directors, at
a meeting duly called and held, has duly adopted resolutions
(i) approving this Agreement and the transactions contemplated
herein, including the Stock Offer and the Merger (collectively,
the "Transactions"), and such approval constitutes approval of the
Stock Offer, this Agreement and the Transactions, including the
Merger, for purposes of Article 11, Part 3 of the Georgia Business
Corporation Code ("GBCC"), such that the provisions of said
Article 11, Part 3 will not apply to the Transactions,
(ii) determining that the terms of the Stock Offers, the Merger
and the other Transactions are fair to, and in the best interests
of, the shareholders of Company, and (iii) recommending that the
shareholders of Company accept the Stock Offers, tender their
Shares thereunder to Acquisition Co. and approve and adopt this
Agreement and the Merger.
(b) Within 10 business days after the Offer Documents are
filed with the SEC, Company shall file with the SEC a
Solicitation/Recommendation Statement on Schedule 14D-9 with
respect to the Stock Offers (together with all amendments and
supplements thereto and including the exhibits thereto, the
"Schedule 14D-9") which shall contain the recommendation referred
to in clause (iii) of Section 1.3(a) and shall mail the Schedule
14D-9 to the shareholders of Company. The Schedule 14D-9 shall
comply in all material respects with the requirements of
applicable federal securities laws and, on the date filed with the
SEC and on the date first published, sent or given to Company's
shareholders, shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, except that no representation is made by Company with
respect to information furnished in writing by or on behalf of
Parent or Acquisition Co. expressly for inclusion in the Schedule
14D-9. Each of Parent, Acquisition Co. and Company agrees
promptly to correct any information provided by or on its behalf
for use in the Schedule 14D-1 if and to the extent that such
information shall have become false or misleading in any material
respect, and Company further agrees to take all steps necessary to
amend or supplement the Schedule 14D-1 and to cause the Schedule
14D-1 as so amended or supplemented to be filed with the SEC and
to be disseminated to Company's shareholders, in each case as to
and to the extent required by applicable Federal securities laws.
Parent and its counsel shall be given the opportunity to review
the Schedule 14D-9 before it is filed with the SEC. In addition,
Company agrees to
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provide Parent, Acquisition Co. and their counsel, in writing,
with any comments, whether written or oral, that Company or its
counsel may receive from time to time from the SEC or its staff
with respect to the Schedule 14D-1 promptly after the receipt of
such comments or other communications.
(c) In connection with the Stock Offer, Company will
promptly furnish or cause to be furnished to Acquisition Co.
mailing labels, security position listings and any available
listing, or computer file containing the names and addresses of
all record holders of the Shares as of a recent date, and shall
furnish Acquisition Co. with such additional information
(including, but not limited to, updated lists of holders of the
Shares and their addresses, mailing labels and lists of security
positions) and assistance as the Acquisition Co. or its agents may
reasonably request in communicating the Stock Offers to the record
and beneficial holders of the Shares. Subject to the requirements
of applicable law, and except for such steps as are necessary to
disseminate the Offer Documents and any other documents necessary
to consummate the Merger, Parent and Acquisition Co. shall hold in
confidence the information contained in any of such labels and
lists and the additional information referred to in the preceding
sentence, will use such information only in connection with the
Stock Offers and the Merger, and, if this Agreement is terminated,
will upon request of Company deliver or cause to be delivered to
Company all copies of such information then in their possession.
(d) The Company covenants that it will take all action
necessary to approve the Stock Offer, the Merger, and all other
transactions contemplated by this 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 represents and warrants that
upon the taking of such action none of the Stock Offer, the
Merger, or any other transactions contemplated by this Agreement
will result in any of the Rights (as defined therein) becoming
exercisable.
ARTICLE II
THE MERGER
2.1 THE MERGER. Upon the terms and subject to the conditions
hereof, and in accordance with the GBCC, Acquisition Co. shall be merged
with and into the Company at the Effective Time (as hereinafter
defined). Following the Merger, the separate corporate existence of
Acquisition Co. shall cease, and the Company shall continue as the
surviving corporation (the "Surviving Corporation").
2.2 EFFECTIVE TIME. The Merger shall become effective when
Articles of Merger (the "Articles of Merger"), executed in accordance
with the relevant provisions of the GBCC, are filed with the Secretary
of State of the State of Georgia; provided, however, that, upon mutual
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consent of the constituent corporations, the Articles of Merger may
provide for a later date of effectiveness of the Merger. When used in
this Agreement, the term "Effective Time" shall mean the later of the
date and time at which the Articles of Merger are filed or such later
date and time of effectiveness established by the Articles of Merger.
The filing of the Articles of Merger shall be made on the date of the
"Closing" (as defined in Section 2.13).
2.3 EFFECTS OF THE MERGER. The Merger shall have the effects
set forth in Section 14-2-1106 of the GBCC.
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2.4 CHARTER AND BYLAWS. At the Effective Time, the Articles of
Incorporation of the Company, as in effect immediately prior to the
Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation until thereafter changed or amended as provided therein or
by applicable law. At the Effective Time, the Bylaws of the Company, as
in effect immediately prior to the Effective Time, shall be the Bylaws
of the Surviving Corporation until thereafter changed or amended as
provided therein or by the Articles of Incorporation of the Surviving
Corporation or by applicable law. At the Effective Time, the board of
directors and officers of Acquisition Co. shall be the Board of
Directors and officers of the Surviving Corporation.
2.5 CONVERSION OF SECURITIES. As of the Effective Time, by
virtue of the Merger and without any action on the part of Acquisition
Co., the Company, or the holders of any securities of the Constituent
Corporations:
(a) Each share of capital stock of Acquisition Co. issued
and outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be converted into one fully paid
and nonassessable share of Company Common Stock (as defined in
Section 3.2).
(b) Each share of Company Common Stock (excluding shares
held by Company, Parent, or any of their respective subsidiaries,
and excluding shares held by shareholders who perfect their
statutory dissenters' rights as provided in Section 2.6) issued
and outstanding immediately prior to the Effective Time shall
cease to be outstanding and shall be converted into and exchanged
for the right to receive from Parent a cash payment equal to the
price per Share paid pursuant to the Stock Offer (the "Merger
Consideration").
2.6 DISSENTING SHAREHOLDERS. Any holder of shares of Company
Common Stock who perfects his dissenters' rights in accordance with the
GBCC shall be entitled to receive the value of such shares in cash as
determined pursuant to such provision; provided, that no such payment
shall be made to any dissenting shareholder unless and until such
dissenting shareholder has complied with the applicable provisions of
the GBCC and surrendered to Company the certificate or certificates
representing the shares for which payment is being made. In the event
that after the Effective Time a dissenting shareholder of Company fails
to perfect, or effectively withdraws or loses, his right to appraisal
and of payment for his shares, Parent shall issue and deliver the
consideration to which such holder of shares of Company Common Stock is
entitled under this Article 2 (without interest) upon surrender by such
holder of the certificate or certificates representing shares of Company
Common Stock held by him. Company shall give Parent (i) prompt notice of
any written notice of intent to seek dissenters rights received by
Company and (ii) the opportunity to direct all negotiations and
proceedings with respect to any such notices. Company shall not, without
the prior written consent of Parent, voluntarily make any payment with
respect to, or settle, offer to settle, or otherwise negotiate with
respect to, any such notices.
2.7 EXCHANGE OF CERTIFICATES.
(a) Exchange Fund. Parent shall authorize a commercial
-------------
bank reasonably acceptable to the Company (or such other person or
persons as shall be acceptable to Parent and the Company) to act
as Exchange Agent hereunder (the "Exchange Agent"). As soon as
practicable after the Effective Time, Parent shall deposit with
the Exchange Agent, in trust for the holders of shares of Company
Common Stock converted in the Merger, the cash payable pursuant to
Section 2.5(b) (such cash being hereinafter referred to as the
"Exchange Fund"). The Exchange Agent shall, pursuant to
irrevocable instructions, deliver the consideration contemplated
to be issued pursuant to Section 2.5(b) out of the Exchange Fund.
Except as contemplated by Section 2.8, the Exchange Fund shall not
be used for any other purpose.
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(b) Exchange Procedures. As soon as practicable after the
-------------------
Effective Time, Parent shall cause the Exchange Agent to mail to
each record holder of a certificate or certificates which
immediately prior to the Effective Time represented outstanding
shares of Company Common Stock converted in the Merger (and
excluding, for the avoidance of doubt, any record holder that has
perfected its dissenters' rights under the GBCC) (the
"Certificates") a letter of transmittal (which shall be in
customary form, shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon
actual delivery of the Certificates to the Exchange Agent, and
shall contain instructions for use in effecting the surrender of
the Certificates in exchange for the consideration contemplated by
Section 2.5(b)). Upon surrender for cancellation to the Exchange
Agent of a Certificate, together with such letter of transmittal,
properly executed and duly executed in accordance with the
instructions thereon, the holder of such Certificate shall be
entitled to receive in exchange therefor the consideration
contemplated by Section 2.5(b) and any Certificate so surrendered
shall forthwith be canceled.
2.8 RETURN OF EXCHANGE FUND. Any portion of the Exchange Fund
which remains undistributed to the former shareholders of the Company
for one year after the Effective Time shall be delivered to Parent, upon
demand of Parent, and any such former shareholders who have not
theretofore complied with this Article I shall thereafter look only to
Parent for payment of their claim. Neither Parent nor the Surviving
Corporation shall be liable to any former holder of Company Common Stock
for any consideration which is delivered to a public official pursuant
to any applicable abandoned property, escheat or similar law.
2.9 NO FURTHER OWNERSHIP RIGHTS IN COMPANY COMMON STOCK. The
consideration issued upon the surrender for exchange of Certificates in
accordance with the terms hereof shall be deemed to have been issued in
full satisfaction of all rights pertaining to the shares of Company
Common Stock represented by such Certificates.
2.10 CLOSING OF COMPANY TRANSFER BOOKS. At the Effective Time,
the stock transfer books of the Company shall be closed and no transfer
of shares of Company Common Stock shall thereafter be made on the
records of the Company. If, after the Effective Time, Certificates are
presented to the Surviving Corporation, the Exchange Agent or the
Parent, such Certificates shall be canceled and exchanged as provided in
this Article I.
2.11 LOST CERTIFICATES. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a
bond, in such reasonable amount as the Surviving Corporation may direct
(but consistent with the practices the Parent applies to its own
shareholders), as indemnity against any claim that may be made against
it with respect to such Certificate, the Exchange Agent will issue in
exchange for such lost, stolen or destroyed Certificate the
consideration contemplated by Section 2.5(b).
2.12 FURTHER ASSURANCES. If at any time after the Effective Time
the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments or assurances or any other acts or things are
necessary, desirable or proper (a) to vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation its right, title or
interest in, to or under any of the rights, privileges, powers,
franchises, properties or assets of either of the Constituent
Corporations, or (b) otherwise to carry out the purposes of this
Agreement, the Surviving Corporation and its proper officers and
directors or their designees shall be authorized to execute and deliver,
in the name and on behalf of either of the Constituent Corporations, all
such deeds, bills of sale, assignments and assurances and to do, in the
name and on behalf of either Constituent Corporation, all such other
acts and things as may be necessary, desirable or proper to vest,
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perfect or confirm the Surviving Corporation's right, title or interest
in, to or under any of the rights, privileges, powers, franchises,
properties or assets of such Constituent Corporation and otherwise to
carry out the purposes of this Agreement.
2.13 CLOSING. The closing of the transactions contemplated by
this Agreement (the "Closing") and all actions specified in this
Agreement to occur at the Closing shall take place at the offices of
Long Aldridge & Norman LLP at 10:00 a.m., local time, no later than the
second (2nd) business day following the day on which the last of the
conditions set forth in Article VI shall have been fulfilled or waived,
or at such other time and place as Parent and the Company shall agree.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPANY
Company hereby represents and warrants as of the date hereof to
Parent and Acquisition Co. as follows:
3.1 ORGANIZATION, STANDING AND POWER. Company is a corporation
duly organized, validly existing and in good standing under the laws of
the State of Georgia and has the requisite corporate power and authority
to carry on its business as now being conducted. Each Subsidiary of
Company, as hereinafter defined in this Section 3.1, is duly organized,
validly existing and in good standing under the laws of the jurisdiction
in which it is organized and has the requisite corporate or other power
and authority to carry on its business as now being conducted, except
where the failure to be so organized, existing or in good standing or to
have such power or authority would not, individually or in the
aggregate, have a Material Adverse Effect on Company as hereinafter
defined in this Section 3.1. Company and each of its Subsidiaries are
duly qualified to do business, and are in good standing, in each
jurisdiction where the character of their properties owned or held under
lease or the nature of their activities makes such qualification
necessary, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect on
Company. For purposes of this Agreement, (a) "Material Adverse Change"
or "Material Adverse Effect" means, when used with respect to Company or
Parent, as the case may be, any change or effect that is materially
adverse to the business, assets, liabilities, results of operation or
financial condition of Company and its Subsidiaries, taken as a whole,
or Parent and its Subsidiaries, taken as a whole, as the case may be,
but excluding any changes or effects resulting from this Agreement, the
transactions contemplated hereby or the announcement thereof, and (b)
"Subsidiary" means any corporation, partnership, joint venture or other
legal entity of which Company or Parent, as the case may be (either
alone or through or together with any other Subsidiary), owns, directly
or indirectly, 50% or more of the stock or other equity interests the
holders of which are generally entitled to vote for the election of the
board of directors or other governing body of such corporation,
partnership, joint venture or other legal entity.
3.2 CAPITAL STRUCTURE. The authorized capital stock of Company
consists of 50,000,000 shares of common stock, par value $2.00 per share
("Company Common Stock"), and 500,000 shares of preferred stock, no par
value ("Company Preferred Stock"), of which (i) 14,881,511 shares of
Company Common Stock are issued and outstanding, all of which are
validly issued, fully paid and nonassessable and free of preemptive
rights or rights of first refusal, (ii) 2,056,986 shares of Company
Common Stock are held in the treasury of Company or by the Subsidiaries
of Company. No shares of Company Preferred Stock are outstanding. As of
the date of this Agreement, except as shown on Schedule 3.2, there are
------------
no securities convertible into Company Common Stock or any other capital
stock of the Company or any of its subsidiaries outstanding, or any
options, warrants, calls, rights or agreements to which Company or any
of its Subsidiaries is a party or by which any of them is bound
obligating Company or any of its Subsidiaries to issue, deliver
8
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or sell, or cause to be issued, delivered or sold, additional shares of
capital stock of Company or any of its Subsidiaries or obligating
Company or any of its Subsidiaries to grant, extend or enter into any
such option, warrant, call, right or agreement. Other than the holders
of Company Common Stock no holder of any securities or indebtedness of
the Company or any of its subsidiaries has any voting rights. Each
outstanding share of capital stock of each Subsidiary of Company that is
a corporation is duly authorized, validly issued, fully paid and
nonassessable. Except as disclosed in the "Company SEC Documents" (as
defined in Section 3.5) or Schedule 3.2, each share of capital stock of
------------
each Subsidiary of Company that is a corporation, and each equity
interest in each Subsidiary of Company that is another form of legal
entity, is owned by Company or another Subsidiary of Company, free and
clear of all security interests, liens, claims, pledges, options, rights
of first refusal, agreements, limitations on voting rights, charges and
other encumbrances of any nature whatsoever.
3.3 AUTHORITY.
(a) The Board of Directors of Company has on or prior to
the date of this Agreement at a meeting duly called and held and
not subsequently rescinded or modified in any way (i) adopted this
Agreement in accordance with the GBCC, (ii) resolved to recommend
the approval of this Agreement to Company's shareholders and (iii)
directed that this Agreement be submitted to Company's
shareholders for approval.
(b) Company has all requisite corporate power and
authority to enter into this Agreement and, subject to approval by
the shareholders of Company of this Agreement, to consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement by Company and the consummation by Company of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Company, subject to (x)
approval of this Agreement by the shareholders of Company and (y)
the filing of appropriate Merger documents as required by the
GBCC. This Agreement has been duly executed and delivered by
Company and (assuming the valid authorization, execution and
delivery of this Agreement by Parent and Acquisition Co.)
constitutes the valid and binding obligation of Company
enforceable against Company in accordance with its terms, except
in all cases as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership,
conservatorship, moratorium or similar laws affecting the
enforcement of creditor's rights generally and except that the
availability of the equitable remedy of specific performance or
injunctive relief is subject to the discretion of the court before
which any proceeding may be brought. The Merger and the
transactions contemplated hereby have been duly authorized by
Company's Board of Directors.
3.4 CONSENTS AND APPROVALS; NO VIOLATION. No filing or
registration with, or authorization, declaration, consent or approval
of, any domestic (federal and state), foreign, or supranational court,
commission, governmental body, regulatory agency, authority or tribunal
(each a "Governmental Entity") is required by or with respect to Company
or any of its Subsidiaries in connection with the execution and delivery
of this Agreement by Company or is necessary for the consummation of the
Merger and the other transactions contemplated by this Agreement, except
for (i) in connection, or in compliance, with the provisions of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), the Securities Act of 1933, as amended (together with the
rules and regulations promulgated thereunder, the "Securities Act"), and
the Exchange Act, (ii) the filing of the Certificate of Merger with the
Secretary of State of the State of Georgia and appropriate documents
with the relevant authorities of other states in which Company or any of
its Subsidiaries is qualified to do business, (iii) such filings and
consents as may be required under any environmental, health or safety
law or regulation pertaining to any notification, disclosure or required
approval triggered by the Merger or by the transactions contemplated by
this Agreement, (iv) applicable requirements, if any, of state
securities or "blue sky" laws ("Blue Sky Laws") and the New York
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Stock Exchange, (v) any consents, orders, authorizations, registrations,
declarations, or filing as set forth on Schedule 3.4, and (vi) such
------------
other consents, orders, authorizations, registrations, declarations and
filings the failure of which to be obtained or made would not,
individually or in the aggregate, have a Material Adverse Effect on
Company or prevent the consummation of any of the transactions
contemplated hereby. Assuming that all consents, approvals,
authorizations and other actions described in this Section 3.4 have been
obtained and all filings and obligations described in this Section 3.4
have been made, and except as set forth in Schedule 3.4 (including the
------------
required consents, approvals, authorizations and other actions
identified therein), the execution and delivery of this Agreement do
not, and the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, result in any violation
of, or default (with or without notice or lapse of time, or both) under,
or give to others a right of termination, cancellation or acceleration
of any obligation or the loss of a material benefit under, or result in
the creation of any lien, security interest, charge or encumbrance upon
any of the properties or assets of Company or any of its Subsidiaries
under, any provision of (i) the Articles of Incorporation, as amended,
or Bylaws, as amended, of Company, (ii) any provision of the comparable
organizational documents of any of Company's Subsidiaries, (iii) any
loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise or license
applicable to Company or any of its Subsidiaries or (iv) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
Company or any of its Subsidiaries or any of their respective properties
or assets, other than, in the case of clauses (ii), (iii) or (iv) of
this sentence, any such violations, defaults, rights, liens, security
interests, charges or encumbrances that, individually or in the
aggregate, would not have a Material Adverse Effect on Company, or
prevent the consummation of any of the transactions contemplated hereby.
3.5 SEC DOCUMENTS AND OTHER REPORTS. Company has filed all
required documents, reports and Schedules with the SEC since December
31, 1998 (the "Company SEC Documents"). As of their respective dates,
the Company SEC Documents complied in all material respects with the
requirements of the Securities Act or the Exchange Act, as the case may
be, and, at the respective times they were filed, none of the Company
SEC Documents contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. Except as set forth in
Schedule 3.5, the consolidated financial statements (including, in each
- ------------
case, any notes thereto) of Company included in the Company SEC
Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the
SEC with respect thereto, were prepared in accordance with generally
accepted accounting principles (except as may be indicated therein or in
the notes thereto) applied on a consistent basis during the periods
involved (except as may be indicated therein or in the notes thereto)
and fairly presented in all material respects the consolidated financial
position of Company and its consolidated Subsidiaries as at the
respective dates thereof and the consolidated results of their
operations and their consolidated cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments and to any other adjustments described therein). Except as
disclosed in Schedule 3.5, Company has not, since December 31, 1998,
------------
made any change in the accounting practices or policies applied in the
preparation of financial statements.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed
in Schedule 3.6, since September 30, 1999, (A) Company and its
------------
Subsidiaries have not incurred any material liability or obligation
(indirect, direct or contingent), or entered into any material oral or
written agreement or other transaction, that is not in the ordinary
course of business or that would result in a Material Adverse Effect on
Company, excluding any changes or effects resulting from this Agreement,
the transactions contemplated hereby or the announcement thereof; (B)
Company and its Subsidiaries have not sustained any loss or interference
with their business or properties from fire, flood, windstorm, accident
or other calamity (whether or not covered by insurance) that has had a
Material Adverse Effect on Company; (C) there has been no material
change in the consolidated indebtedness of Company and its Subsidiaries,
and no dividend or distribution of any kind
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declared, paid or made by Company on any class of its stock; and (D)
there has been no other event causing a Material Adverse Effect on
Company, excluding any changes or effects resulting from this Agreement,
the transactions contemplated hereby or the announcement thereof.
3.7 PERMITS AND COMPLIANCE. Each of Company and its
Subsidiaries is in possession of all franchises, grants, authorizations,
licenses, permits, easements, variances, exceptions, consents,
certificates, approvals and orders of any Governmental Entity necessary
for Company or any of its Subsidiaries to own, lease and operate its
properties or to carry on its business as it is now being conducted
(collectively, the "Company Permits"), except where the failure to have
any of the Company Permits would not, individually or in the aggregate,
have a Material Adverse Effect on Company, and, as of the date of this
Agreement, no suspension or cancellation of any of the Company Permits
is pending or, to the Knowledge of Company (as defined in Section 9.10),
threatened, except where the suspension or cancellation of any of the
Company Permits would not, individually or in the aggregate, have a
Material Adverse Effect on Company. Neither Company nor any of its
Subsidiaries is in default or violation of (A) its articles of
incorporation, bylaws or other organizational documents, (B) any
applicable law, ordinance, administrative or governmental rule or
regulation, or (C) any order, decree or judgment of any Governmental
Entity having jurisdiction over Company or any of its Subsidiaries,
except, in the case of clauses (A), (B), or (C), for any violations
that, individually or in the aggregate, would not have a Material
Adverse Effect on Company. Except as set forth in Schedule 3.7, as of
------------
the date of this Agreement, no event of default or event that, but for
the giving of notice or the lapse of time or both, would constitute an
event of default exists or, upon the consummation by Company of the
transactions contemplated by this Agreement, will exist under any
indenture, mortgage, loan agreement, note or other agreement or
instrument for borrowed money, any guarantee of any agreement or
instrument for borrowed money or any lease, contractual license or other
agreement or instrument to which Company or any of its Subsidiaries is a
party or by which Company or any such Subsidiary is bound or to which
any of the properties, assets or operations of Company or any such
Subsidiary is subject, other than any defaults that, individually or in
the aggregate, would not have a Material Adverse Effect on Company.
Set forth in Schedule 3.7 is a description of any material changes to
------------
the amount and terms of the indebtedness of the Company and its
Subsidiaries as described in the Company's annual report on form 10-K
filed for the year ended December 31, 1998 (the "Company Annual
Report").
3.8 TAX MATTERS.
(a) Tax Definitions. For purposes of this Agreement, the
---------------
following definitions shall apply:
(i) The term "Taxes" shall mean all taxes, however
denominated, including any interest, penalties or other
additions to tax that may become payable in respect thereof,
imposed by any federal, territorial, state, local or foreign
government or any agency or political subdivision of any
such government, which taxes shall include, without limiting
the generality of the foregoing, all income or profits taxes
(including, but not limited to, federal income taxes and
state income taxes), payroll and employee withholding taxes,
unemployment insurance, social security taxes, sales and use
taxes, ad valorem taxes, excise taxes, franchise taxes,
gross receipts taxes, business license taxes, occupation
taxes, real and personal property taxes, stamp taxes,
environmental taxes, transfer taxes, workers' compensation,
Pension Benefit Guaranty Corporation premiums and other
governmental charges, and other obligations of the same or
of a similar nature to any of the foregoing, which a party
is required to pay, withhold or collect.
(ii) The term "Return" or "Tax Return" shall mean all
reports, estimates, declarations of estimated tax,
information statements and returns relating to, or required
to
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be filed in connection with, any Taxes, including
information returns or reports with respect to backup
withholding and other payments to third parties.
(b) Returns Filed and Taxes Paid. Except as otherwise
----------------------------
disclosed in Schedule 3.8(b), or except as would not have a
---------------
Material Adverse Effect on Company: (i) all Returns required to
be filed by or on behalf of Company and each of its Subsidiaries
have been duly filed on a timely basis and such Returns are
correct, true, and complete; (ii) all Taxes shown to be payable on
the Returns or on subsequent assessments with respect thereto have
been paid in full on a timely basis, and no other Taxes are
payable by Company or any of its Subsidiaries with respect to
items or periods covered by such Returns or with respect to any
taxable periods ending prior to the date of this Agreement; (iii)
Company and each of its Subsidiaries have withheld and paid over
all Taxes required to have been withheld and paid over, and
complied with all information reporting and backup withholding
requirements, including maintenance of required records with
respect thereto, in connection with amounts paid or owing to any
employee, creditor, independent contractor, or other third party;
and (iv) there are no liens on any of the assets of Company or any
of its Subsidiaries with respect to Taxes, other than liens for
Taxes not yet due and payable.
(c) Tax Deficiencies; Audits; Statutes of Limitations.
-------------------------------------------------
Except as otherwise disclosed in Schedule 3.8(c), or except as
---------------
would not have a Material Adverse Effect on Company: (i) neither
the Returns of Company nor any of its Subsidiaries have been
audited by a government or taxing authority, nor is any such audit
in process; (ii) no deficiencies exist or have been asserted
(either in writing or verbally, formally or informally) or are
expected to be asserted with respect to Taxes of Company or any of
its Subsidiaries, and neither Company nor any of its Subsidiaries
has received notice (either in writing or verbally, formally or
informally) that it has not filed a Return or paid Taxes required
to be filed or paid by it; (iii) neither Company nor any of its
Subsidiaries is a party to any action or proceeding for assessment
or collection of Taxes, nor has such event been asserted or
threatened (either in writing or verbally, formally or informally)
against Company or any of its Subsidiaries, or any of their
respective assets; (iv) no waiver or extension of any statute of
limitations is in effect with respect to Taxes or Returns of
Company or any of its Subsidiaries; and (v) Company and each of
its Subsidiaries have disclosed on their federal income tax
returns all positions taken therein that could give rise to a
substantial understatement penalty within the meaning of
Section 6662 of the Internal Revenue Code (the "Code").
(d) Tax Sharing Agreements. Except as otherwise disclosed
----------------------
in Schedule 3.8(d), neither Company nor any of its Subsidiaries
---------------
are a party to any tax sharing agreement, and (i) Company has
never been a party to a tax sharing agreement, and (ii) to the
Knowledge of Company, none of its Subsidiaries has ever been a
party to any tax sharing agreement.
3.9 ACTIONS AND PROCEEDINGS. Except as set forth in
Schedule 3.9, there are no outstanding orders, judgments, injunctions,
- ------------
awards or decrees of any Governmental Entity against or involving
Company or any of its Subsidiaries, or against or involving any of the
present or former directors, officers, employees, consultants, agents or
shareholders of Company or any of its Subsidiaries, as such, any of its
or their properties, assets or business that, individually or in the
aggregate, would have a Material Adverse Effect on Company. Except as
set forth on Schedule 3.9, as of the date of this Agreement, there are
------------
no actions, suits or claims or legal, administrative or arbitrative
proceedings or investigations pending or, to the Knowledge of Company,
threatened against or involving Company or any of its Subsidiaries or
any of its or their present or former directors, officers, employees,
consultants, agents or shareholders, as such, or any of its or their
properties, assets or business that, individually or in the aggregate,
would have a Material Adverse Effect on Company. As of the date hereof,
there are no actions, suits, labor disputes or other litigation, legal
or administrative proceedings or governmental investigations pending or,
to the Knowledge of Company,
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threatened against or affecting Company or any of its Subsidiaries or
any of its or their present or former officers, directors, employees,
consultants, agents or shareholders, as such, or any of its or their
properties, assets or business relating to the transactions contemplated
by this Agreement.
3.10 CERTAIN CHANGE IN CONTROL AGREEMENTS. Schedule 3.10 sets
-------------
forth a list of all agreements, arrangements, commitments and Employee
Benefit Plans (as defined in Section 3.11), under which (i) any benefits
will be increased, (ii) the vesting or funding of benefits will be
accelerated, or (iii) amounts become immediately payable upon the
occurrence of the transaction contemplated by this Agreement.
3.11 EMPLOYEE BENEFIT PLANS AND ARRANGEMENTS.
(a) List of Plans and Arrangements. Schedule 3.11(a)
------------------------------ ----------------
sets forth a list of all agreements, arrangements, commitments,
and policies (i) which relate to employee benefits; (ii) which
pertain to present or former employees, retirees, directors or
independent contractors (or their beneficiaries, dependents or
spouses) of the Company; and (iii) which are currently or expected
to be adopted, maintained by, sponsored by, or contributed to by
the Company or any employer which, under Section 414 of the Code,
would constitute a single employer with the Company (a "Company
Affiliate") or as to which the Company or any Company Affiliate
has any ongoing liability or obligation whatsoever (collectively,
"Employee Benefit Plans"), including, but not limited to, all:
(A) employee benefit plans as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
("ERISA"); and (B) all other deferred compensation, incentive,
profit-sharing, thrift, stock ownership, stock appreciation
rights, bonus, stock option, stock purchase, welfare or vacation,
or other nonqualified benefit plans or arrangements.
(b) Compliance with ERISA and the Code. Except as set
----------------------------------
forth on Schedule 3.11(b), to the Knowledge of the Company, the
----------------
Company and all Company Affiliates have complied with their
respective substantive obligations with respect to all Employee
Benefit Plans (including, but not limited to, (i) filing or
distributing all forms, reports or notices required by ERISA or
the Code and (ii) complying with all requirements of Part 6 of
ERISA and Code Section 4980B) and have maintained the Employee
Benefit Plans in compliance with all applicable laws and
regulations (including but not limited to ERISA and the Code),
except where the failure to comply with such obligations would not
result in a Material Adverse Effect on Company. Each eligible
Employee Benefit Plan has received a favorable determination
letter from the Internal Revenue Service, and the Internal Revenue
Service has not threatened or taken any action to revoke any
favorable determination letter issued with respect to any such
Employee Benefit Plan.
(c) Copies of Documents Provided to Acquisition Co. The
-----------------------------------------------
Company has made available to Parent true, correct and complete
copies of all documents relating to the Employee Benefit Plans
that Parent has requested, including, but not limited to: (i) all
plan texts, amendments, trust instruments and other agreements
adopted or entered into in connection with each of the Employee
Benefit Plans; (ii) the notices and election forms used to notify
employees and their dependents of their continuation coverage
rights under the Company's group health plans (under Code Section
4980B(f) and ERISA Section 606), if applicable; and (iii) the most
recent Form 5500 annual reports, certified financial statements,
actuarial reports, summary plan descriptions and favorable
determination letters, if applicable, for Employee Benefit Plans.
Since the date such documents were supplied to Parent, no plan
amendments have been adopted, no changes to the documents have
been made, and no such amendments or changes shall be adopted or
made prior to the Closing Date without Parent's approval.
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(d) Agreements to Create, Continue or Terminate Plans.
-------------------------------------------------
Neither the Company nor any Company Affiliate has any agreement,
arrangement, commitment or understanding, whether legally binding
or not, to create any additional Employee Benefit Plan or to
continue, modify, change in any material respect, or terminate any
existing Employee Benefit Plan.
(e) Agency Review, Taxes and Fiduciary Liability. None of
--------------------------------------------
the Employee Benefit Plans is currently under investigation, audit
or review by the Department of Labor, the Internal Revenue Service
or any other federal or state agency or is liable for any federal,
state, local or foreign taxes. To the best Knowledge of the
Company, there is no transaction in connection with which the
Company or any Company Affiliate could be subject to either a
civil penalty assessed pursuant to ERISA Section 502, a tax
imposed by Code Section 4975 or liability for a breach of
fiduciary responsibility under ERISA.
(f) Claims Against Plans and Fiduciaries. Except as set
------------------------------------
forth on Schedule 3.11(f), and other than routine claims for
----------------
benefits payable to participants or beneficiaries in accordance
with the terms of the Employee Benefit Plans, there are no claims,
pending or threatened, by any participant or beneficiary against
any of the Employee Benefit Plans or any fiduciary of any of the
Employee Benefit Plans.
(g) Defined Benefit and Multiemployer Plans. To the
---------------------------------------
Knowledge of the Company, and except as set forth on Schedule
--------
3.11(g), neither the Company nor any Company Affiliate has at any
-------
time maintained, sponsored or contributed to any "pension plan" as
defined in ERISA Section 3(2) which is subject to Title IV of
ERISA or contributed to any such pension plan which is a
multiemployer plan as defined in ERISA Section 3(37)(A).
3.12 COMPLIANCE WITH CERTAIN LAWS. The properties, assets and
operations of Company and its Subsidiaries are in compliance in all
material respects with all applicable federal, state, local, and foreign
laws, rules, and regulations, orders, decrees, judgments, permits and
licenses relating to public and worker health and safety (collectively,
"Worker Safety Laws") and the protection and cleanup of the environment
and activities or conditions related thereto, including, without
limitation, those relating to the generation, handling, disposal,
transportation, or release of hazardous materials (collectively
"Environmental Laws"), except for any violations that, individually or
in the aggregate, would not have a Material Adverse Effect on Company.
With respect to such properties, assets and operations, including any
previously owned, leased or operated properties, assets or operations,
there are no past, present or reasonably anticipated future events,
conditions, circumstances, activities, practices, incidents, actions or
plans of Company or any of its Subsidiaries that may interfere with or
prevent compliance or continued compliance in all material respects with
applicable Worker Safety Laws and Environmental Laws, other than any
such interference or prevention as would not, individually or in the
aggregate with any such other interference or prevention, have a
Material Adverse Effect on Company. The term "hazardous materials"
shall mean those substances that are regulated by, or form the basis for
liability under, any applicable Environmental Laws.
3.13 LABOR MATTERS. Neither Company nor any of its Subsidiaries
is a party to any collective bargaining agreement or labor contract.
Neither Company nor any of its Subsidiaries has engaged in any unfair
labor practice with respect to any persons employed by or otherwise
performing services primarily for Company or any of its Subsidiaries
(the "Company Business Personnel"), and there is no unfair labor
practice complaint or grievance against Company or any of its
Subsidiaries by the National Labor Relations Board or any comparable
state agency pending or threatened in writing with respect to the
Company Business Personnel, except where such unfair labor practice,
complaint or grievance would not have a Material Adverse Effect on
Company. There is no labor strike, dispute, slowdown or stoppage
pending or, to the Knowledge of Company, threatened against or affecting
Company or any of its Subsidiaries which may interfere with the
respective business activities of Company or any of its Subsidiaries,
except where such dispute, strike or work stoppage would not have a
Material Adverse Effect on Company. There is no labor strike, dispute,
slowdown or stoppage pending or, to the Knowledge of Company, threatened
against or affecting Company or any of its Subsidiaries which may
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interfere with the respective business activities of Company or any of
its Subsidiaries, except where such dispute, strike or work stoppage
would not have a Material Adverse Effect on Company. To the Knowledge
of Company, Company and all of its Subsidiaries are in compliance with
all federal and state laws respecting employment and employment
practices, immigration, terms and conditions of employment, and wages
and hours, except where noncompliance would not have a Material Adverse
Effect on Company. With respect to the employees of Company and/or its
Subsidiaries, to the Knowledge of Company, no event has occurred and
there exists no condition or set of circumstances in connection with
which Company, or any of its Subsidiaries or any ERISA Affiliate of
Company could be subject to any liability under any federal or state law
handicap or disability discrimination law, any federal, state or local
fair employment practices or nondiscrimination act, or any other
applicable law which would have a Material Adverse Effect on Company.
3.14 INTELLECTUAL PROPERTY. Company and its Subsidiaries have
all patents, trademarks, trade names, service marks, trade secrets,
copyrights, and other proprietary intellectual property rights
(collectively, "Intellectual Property Rights") as are necessary to
operate the business of the Company and its Subsidiaries, taken as a
whole, except where the failure to have such Intellectual Property
Rights would not have a Material Adverse Effect on Company. Neither
Company nor any of its Subsidiaries has infringed any Intellectual
Property Rights of any third party other than any infringements that,
individually or in the aggregate, would have a Material Adverse Effect
on Company.
3.15 BROKERS. No broker, investment banker or other person is
entitled to any broker's, finder's or other similar fee or commission in
connection with the transactions contemplated by this Agreement, other
than Goldman, Sachs & Co. based upon arrangements made by or on behalf
of Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION CO.
Parent and Acquisition Co. hereby jointly and severally represent
and warrant as of the date hereof to Company as follows:
4.1 ORGANIZATION, STANDING AND POWER. Each of Parent and
Acquisition Co. is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado and Georgia,
respectively, and has the requisite corporate power and authority to
carry on its business as now being conducted. Each of Subsidiary of
Parent is duly organized, validly existing and in good standing under
the laws of the jurisdiction in which it is organized and has the
requisite corporate (in the case of a Subsidiary that is a corporation)
or other power and authority to carry on its business as now being
conducted, except where the failure to be so organized, existing or in
good standing or to have such power or authority would not, individually
or in the aggregate, have a Material Adverse Effect on Parent. Except
as set forth on Schedule 4.1, Parent and each of its Subsidiaries are
------------
duly qualified to do business, and are in good standing, in each
jurisdiction where the character of their properties owned or held under
lease or the nature of their activities makes such qualification
necessary, except where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect on
Parent.
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4.2 AUTHORITY.
(a) The respective Boards of Directors of Parent and
Acquisition Co. have, on or prior to the date of this Agreement at
a meeting duly called and held and not subsequently rescinded or
modified in any way, (i) adopted this Agreement in accordance with
the GBCC (ii) resolved to recommend the approval of this Agreement
to their respective shareholders, and (iii) directed that this
Agreement be submitted to their respective shareholders for
approval.
(b) Each of Parent and Acquisition Co. has all requisite
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Parent and Acquisition Co. and the
consummation by Parent and Acquisition Co. of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of Parent and Sub, subject to the
filing of appropriate Merger documents as required by the GBCC.
This Agreement has been duly executed and delivered by Parent and
Acquisition Co. and (assuming the valid authorization, execution
and delivery of this Agreement by Company) this Agreement
constitutes the valid and binding obligation of Parent and
Acquisition Co. enforceable against each of them in accordance
with its terms, except in all cases as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
receivership, conservatorship, moratorium or similar laws
affecting the enforcement of creditor's rights generally and
except that the availability of the equitable remedy of specific
performance or injunctive relief is subject to the discretion of
the court before which any proceeding may be brought. The Merger
and the transactions contemplated hereby have been duly authorized
by Parent's Board of Directors and Acquisition Co.'s Board of
Directors.
4.3 CONSENTS AND APPROVALS; NO VIOLATION. No filing or
registration with, or authorization, declarations, consent or approval
of a Governmental Entity is required by or with respect to Parent or any
of its Subsidiaries in connection with the execution and delivery of
this Agreement by Parent or Acquisition Co. or is necessary for the
consummation of the Merger and the other transactions contemplated by
this Agreement, except for (i) in connection, or in compliance, with the
provisions of the HSR Act, the Securities Act and the Exchange Act, (ii)
the filing of the Articles of Merger with the Secretary of State of the
State of Georgia, (iii) such filings and consents as may be required
under any environmental, health or safety law or regulation pertaining
to any notification, disclosure or required approval triggered by the
Merger or by the transactions contemplated by this Agreement, (iv)
applicable requirements, if any, of Blue Sky Laws and the New York Stock
Exchange, (v) any consents, orders, authorizations, registrations,
declarations, or filings set forth on Schedule 4.3, and (vi) such other
------------
consents, orders, authorizations, registrations, declarations and
filings, the failure of which to be obtained or made would not,
individually or in the aggregate, have a Material Adverse Effect on
Parent or the Company, or prevent the consummation of any of the
transactions contemplated hereby. Assuming that all consents,
approvals, authorizations and other actions described in this
Section 4.3 have been obtained and all filings and obligations described
in this Section 4.3 have been made, and except as set forth in
Schedule 4.3 (including the required consents, approvals, authorizations
- ------------
and other actions identified therein), the execution and delivery of
this Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the provisions hereof will not,
result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give to others a right of termination,
cancellation or acceleration of any obligation or the loss of a material
benefit under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of Parent or
any of its Subsidiaries under, any provision of (i) the Articles of
Incorporation or Bylaws of Parent, (ii) any provision of the comparable
charter or organization documents of any of Parent's Subsidiaries, (iii)
any loan or credit agreement, note, bond, mortgage, indenture, lease or
other agreement, instrument, permit, concession, franchise or license
applicable to Parent or any of its Subsidiaries or (iv) any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
Parent or any of its Subsidiaries or any of their
16
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respective properties or assets, other than, in the case of clauses
(ii), (iii) or (iv) of this sentence, any such violations, defaults,
rights, liens, security interests, charges or encumbrances that,
individually or in the aggregate, would not have a Material Adverse
Effect on Parent, or prevent the consummation of any of the transactions
contemplated hereby.
4.4 ACCURACY OF STATEMENTS AND SEC DOCUMENTS. None of the
information supplied or to be supplied by Parent or Acquisition Co., or
any of their officers, directors, employees, representatives or agents
for inclusion or incorporation by reference in the Offer Documents or
the Schedule 14D-9, including any amendments or supplements thereto,
will at the respective times they are filed with the SEC or first
published or sent or given to the Company's shareholders, contain any
statement which, at such time and in light of the circumstances under
which it is made, is false or misleading with respect to any material
fact, or omit to state any material fact necessary in order to make the
statements therein not false or misleading. The Offer Documents and any
amendments or supplements thereto will comply in all material respects
with the applicable provisions of the Exchange Act and all other
documents that Parent or any of its subsidiaries or affiliates is
responsible for filing with any regulatory authority in connection with
the Transactions will comply as to form in all material respects with
the provisions of applicable law. None of the required documents,
reports or schedules filed by Parent with the SEC in the last three
years contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
4.5 FINANCING. Parent has, or will have prior to the Effective
Time, sufficient cash, available lines of credit or other sources of
immediately available funds to enable it to make the aggregate cash
payment required to be paid pursuant to Article II of this Agreement.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.1 CONDUCT OF BUSINESS PENDING THE MERGER.
(a) Actions by the Company. Except as expressly permitted
----------------------
by clauses (i) through (x) of this Section 5.1(a) or as otherwise
expressly permitted by this Agreement, during the period from the
date of this Agreement through the Effective Time, the Company
shall, and shall cause each of its Subsidiaries to, in all
material respects, carry on its business in the ordinary course of
its business as currently conducted and, to the extent consistent
therewith, use reasonable best efforts to preserve intact its
current business organizations, keep available the services of its
current officers and employees and preserve its relationships with
customers, suppliers and others having business dealings with it
to the end that its goodwill and ongoing business shall be
unimpaired at the Effective Time. Without limiting the generality
of the foregoing, and except as otherwise expressly contemplated
by this Agreement, the Company shall not, and shall not permit any
of its Subsidiaries to, without the prior written consent of
Parent:
(i) (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
17
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securities thereof or any rights, warrants or options to
acquire any such shares or other securities;
(ii) 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 (A)
the issuance of shares of Company Common Stock upon the
exercise of Company Options outstanding on the date of this
Agreement in accordance with their current terms, or (B) 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;
(iii) Amend its Articles of Incorporation or Bylaws;
(iv) 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;
(v) 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 (A) in the ordinary course of
business consistent with past practices and (B)
indebtedness, loans, advances, capital contributions and
investments between the Company and any of its Subsidiaries
or between any of such Subsidiaries;
(vi) 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;
(vii) Except as set forth on Schedule 5.1(a)(vii),
--------------------
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;
(viii) Except as set forth in Schedule 5.1(a)(viii),
---------------------
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 its
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;
(ix) 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;
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(x) 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.
(b) Actions by Parent. During the period from the date of
-----------------
this Agreement through the Effective Time, Parent shall, and shall
cause each of its Subsidiaries to, in all material respects carry
on its business in the ordinary course of its business as
currently conducted and, to the extent consistent therewith, use
reasonable best efforts to preserve intact its current business
organizations, keep available the services of its current officers
and employees and preserve its relationships with customers,
suppliers and others having business dealings with it to the end
that its goodwill and ongoing business shall be unimpaired at the
Effective Time. Parent will not take any action that adversely
affects or is reasonably likely to adversely affect the Merger and
the consummation of the transactions contemplated by this
Agreement.
5.2 NO SOLICITATION.
(a) The Company agrees that, from and after the date
hereof, except with respect to the transactions contemplated by
this Agreement, it shall not, and shall not cause, authorize or
permit its Subsidiaries or 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" (as such term is defined in Section 5.2(b)); provided,
--------
however, that the Company shall be permitted (i) to the extent
-------
applicable, to comply with Rule 14d-9 and Rule 14e-2 promulgated
under the Exchange Act, and (ii) subject to subsection 5.2(c)
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 if the Board of Directors of the Company concludes in
good faith after conferring with independent legal counsel and its
financial advisors that such action is necessary in order to meet
its fiduciary duties under applicable law. The Company shall
promptly (within 24 hours) advise Parent following the receipt by
the Company of any Company Takeover Proposal and the material
terms thereof (including the identity of the person making such
Company Takeover Proposal), and advise Parent of any developments
with respect to such Company Takeover Proposal immediately upon
the occurrence thereof.
(b) "Company Takeover Proposal" means 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,
this Agreement. For purposes of this Agreement, "Superior
Proposal" means 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
shareholders when compared as a whole with the transactions
contemplated by this 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.
(c) Upon making the determination described in paragraphs
(a)(ii) and (b) of this Section 5.2 with respect to a Superior
Proposal, and prior to engaging in discussions or negotiations
with, or furnishing information concerning the Company and its
Subsidiaries, business, properties
19
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or assets to, any third party in connection with such Superior
Proposal in accordance with paragraph (a)(ii) of this Section 5.2,
the Board of Directors of the Company shall provide not less than
five (5) days prior written notice to Parent of such
determination, which notice shall include a description of such
Superior Proposal in reasonable detail for the purpose of
permitting Acquisition Co. and Parent to evaluate such Superior
Proposal.
5.3 ACCESS; COOPERATION. Company shall allow Parent,
Acquisition Co., 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; provided, however, that all such
requests shall be made through the Chief Executive Officer of Company or
his designee. In addition, Company shall promptly provide Parent - to
the attention of Gerald F. Mahoney - with copies of all management
reports normally provided to the Company's Chief Executive Officer.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 SHAREHOLDERS' MEETING.
(a) If required by applicable law, the Company shall duly
take all lawful action to call, give notice of, convene and hold a
meeting of its shareholders (the "Shareholder Meeting") promptly
as practicable after the acceptance for payment and purchase of
the Shares by Acquisition Co. pursuant to the Stock Offer for the
purpose of considering, voting upon, and obtaining the vote
required by law and the Articles of Incorporation of the Company
with respect to the approval of this Agreement, and the
transactions contemplated hereby (the "Company Required Vote").
(b) The Company will (i) through its Board of Directors,
recommend to its shareholders approval of the matters described in
Section 6.1(a) above, and (ii) take all lawful action to solicit
the adoption of this Agreement by the Company Required Vote;
provided, however, the Company shall not be required to make such
recommendation or take such action if the Board of Directors of
this Company shall take any of the actions described in Section
1.2(c).
(c) Parent shall vote, or cause to be voted, all of the
Shares then owned by it, Acquisition Co. or any other Parent
Subsidiary in favor of the approval of the Merger and the approval
and adoption of this Agreement.
6.2 MERGER WITHOUT MEETING OF SHAREHOLDERS. Notwithstanding the
provisions of Section 6.1, in the event that Parent, Acquisition Co. and
any other Parent Subsidiary shall acquire in the aggregate at least 90%
of the outstanding Shares of Company Common Stock, pursuant to the Stock
Offer or otherwise, the parties hereto shall, at the request of Parent
and subject to the provisions of Article 6, take all necessary and
appropriate action to cause a merger between Parent and Company and for
such merger to become effective as soon as practicable after such
acquisition, without a meeting of shareholders of Company, all in
accordance with the GBCC.
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6.3 FEES AND EXPENSES. Parent shall pay all HSR Act filing fees
and printing expenses of the parties. Except as provided in this
Section 6.3, 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.
6.4 PAYMENT IN RESPECT OF EQUITY RIGHTS. As soon as practicable
after the date of this Agreement, the Board of Directors of Company (or
if appropriate, any committee administering the Company's Employee
Benefit Plans) shall 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 of Company Common Stock
("Company Options") to provide that each Company Options outstanding
immediately prior to the acceptance for payment of Shares pursuant to
the Stock Offer shall be canceled in exchange for a cash payment from
the Company of an amount equal to (i) the excess, if any, of (x) the
price per Share to be paid pursuant to the Stock Offer over (y) the
exercise or conversion price per Share of such Company Options,
multiplied by (ii) the number of Shares for which such Company Options
shall not theretofore have been exercised (the "Option Consideration").
At the Effective Time, each holder of a then-outstanding Company
Options, whether or not then exercisable, shall in settlement thereof,
receive for each share of Company Common Stock subject to such Company
Options an amount (subject to any applicable withholding tax) in cash
equal to the difference between the Stock Offer Price and the per share
exercise price of such Company Options to the extent such difference is
a positive number. Prior to the Effective Time, Company shall 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, as the case may be, or
pursuant to the terms of any Company Options granted thereunder, and
take all such other lawful action as may be necessary to give effect to
the transactions contemplated by this Section 6.4 (except for such
action that may require the approval of Company's shareholders). Except
as otherwise agreed to by Parent or Acquisition Co. and Company, Company
shall take all action necessary to ensure that (i) 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
(ii) following the Effective Time, (1) 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
(2) 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.
6.5 REASONABLE BEST EFFORTS.
(a) Upon the terms and subject to the conditions set forth
in this Agreement, each of the parties agrees to use reasonable
best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable
to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by
this Agreement, including, but not limited to: (i) the obtaining
of all necessary actions or non-actions, waivers, consents and
approvals from all Governmental Entities and the making of all
necessary registrations and filings (including filings with
Governmental Entities) and the taking of all reasonable steps as
may be necessary to obtain an approval or waiver from, or to avoid
an action or proceeding by, any Governmental Entity (including
those in connection with the HSR Act, (ii) the obtaining of all
necessary consents, approvals or waivers from third parties, (iii)
the defending of any lawsuits or other legal proceedings, whether
judicial or administrative, challenging this Agreement or the
consummation of the transactions contemplated hereby, including
seeking to have any stay or temporary restraining order entered by
any court or other Governmental Entity vacated or reversed, and
(iv) the execution and delivery of any additional instruments
necessary to consummate the transactions contemplated by this
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Agreement. No party to this Agreement shall consent to any
voluntary delay of the consummation of the Merger at the behest of
any Governmental Entity without the consent of the other parties
to this Agreement, which consent shall not be unreasonably
withheld. Parent hereby guarantees Acquisition Co.'s performance
hereunder, and waives any defenses which Parent may have or
hereafter acquire with respect to such guaranty obligations.
(b) Each party shall use all reasonable best efforts to
not take any action, or enter into any transaction, which would
cause any of its representations or warranties contained in this
Agreement to be untrue or result in a breach of any covenant or
agreement made by it in this Agreement.
6.6 PUBLIC ANNOUNCEMENTS. Parent and the Company will not issue
any press release with respect to the transactions contemplated by this
Agreement or otherwise issue any written public statements with respect
to such transactions other than upon mutual agreement and cooperation
with the other party, except as may be required by applicable law or by
obligations pursuant to any listing agreement with any national
securities exchange. Parent and the Company also agree to reasonably
cooperate regarding any written communications which relate to the
transactions contemplated by this Agreement made to their employees
during the period from the date hereof until the Effective Time.
6.7 STATE TAKEOVER LAWS. 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 hereby, Parent and the Company and their
respective Boards of Directors shall use their reasonable best efforts
to obtain or grant such approvals and take such actions as are necessary
so that the transactions contemplated hereby may be consummated as
promptly as practicable on the terms contemplated hereby and otherwise
act to minimize the effects of any such statute or regulation on the
transactions contemplated hereby.
6.8 NOTIFICATION OF CERTAIN MATTERS. Parent shall use its
reasonable best efforts to give prompt notice to the Company, and the
Company shall use its reasonable best efforts to give prompt notice to
Parent, of: (i) the occurrence, or non-occurrence, of any material event
the occurrence, or non-occurrence, of which it is aware and which would
be reasonably likely to cause (x) any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material
respect or (y) any covenant, condition or agreement contained in this
Agreement not to be complied with or satisfied in all material respects,
(ii) any failure of Parent or the Company, as the case may be, to comply
in a timely manner with or satisfy any covenant, condition or agreement
to be complied with or satisfied by it hereunder or (iii) any change or
event which would be reasonably likely to have a Material Adverse Effect
on Parent or the Company, as the case may be; provided, however, that
the delivery of any notice pursuant to this Section 6.10 shall not limit
or otherwise affect the remedies available hereunder to the party
receiving such notice.
6.9 RESIGNATION OF DIRECTORS. The Company shall cause each
director of the Company to resign as a director of the Company effective
immediately after the Effective Time.
6.10 INDEMNIFICATION; DIRECTORS AND OFFICERS INSURANCE. From and
after the Effective Time, Parent agrees not to, and agrees to cause the
Surviving Corporation 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,
as the case may be, and applicable law. Parent further agrees to fund
all such indemnification obligations of the Surviving Corporation as
they relate to such matters. For a period of six years from the
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Effective Time, Parent further agrees 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 (the "D&O Insurance") that is no less favorable
than the Company's existing policy or, if substantially equivalent
insurance coverage is unavailable, the best available coverage.
ARTICLE VII
CONDITIONS PRECEDENT TO THE MERGER
7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER.
The respective obligations of each party to effect the Merger shall be
Subject to the fulfillment at or prior to the Effective Time of the
following conditions:
(a) HSR and Other Approvals.
-----------------------
(i) The waiting period (and any extension thereof)
applicable to the consummation of the Merger under the HSR
Act shall have expired or been terminated.
(ii) All authorizations, consents, orders,
declarations or approvals of, or filings with, or
terminations or expirations of waiting periods imposed by,
any Governmental Entity, which the failure to obtain, make
or occur would have the effect of making the Merger or any
of the transactions contemplated hereby illegal or would
have a Material Adverse Effect on Parent (assuming the
Merger had taken place), shall have been obtained, shall
have been made or shall have occurred.
(b) No Order. 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.
(c) Purchase of Shares in Stock Offer. Parent, Acquisition
---------------------------------
Co. and their affiliates shall have purchased not less than a majority
of the Fully Diluted Shares pursuant to the Stock Offer, except that
this condition shall not apply if Parent, Acquisition Co. or their
affiliates shall have failed to purchase Shares pursuant to the Stock
Offer in breach of their obligations under this Agreement.
7.2 CONDITIONS TO OBLIGATION OF THE COMPANY TO EFFECT THE
MERGER. The obligation of the Company to effect the Merger shall be
subject to the fulfillment at or prior to the Effective Time of the
following additional conditions:
(a) Performance of Obligations; Representations and
-----------------------------------------------
Warranties. Each of Parent and Acquisition Co. shall have
----------
performed in all material respects each of its agreements
contained in this Agreement required to be performed on or prior
to the Effective Time, each of the representations and warranties
of Parent and Acquisition Co. contained in this Agreement that is
qualified by materiality shall be true and correct on and as of
the Effective Time as if made on and as of such date (other than
representations and warranties which address matters only as of a
certain date which shall be true and correct as of such certain
date) and each of the representations and warranties that is not
so qualified shall be true and correct in all material respects on
and as of the Effective Time as if made on and as of such date
(other than representations and warranties which address matters
only
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as of a certain date which shall be true and correct in all
material respects as of such certain date), in each case except as
contemplated or permitted by this Agreement, and the Company shall
have received a certificate signed on behalf of each of Parent and
Acquisition Co. by its Chief Executive Officer and its Chief
Financial Officer to such effect.
(b) Exchange Agent Certification. 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 Section 2.5(b).
7.3 CONDITIONS TO OBLIGATIONS OF PARENT AND ACQUISITION CO. TO
EFFECT THE MERGER. The obligations of Parent and Acquisition Co. to
effect the Merger shall be subject to the fulfillment at or prior to the
Effective Time of the following additional conditions:
(a) Performance of Obligations; Representations and
-----------------------------------------------
Warranties. The Company shall have performed in all material
----------
respects each of its agreements contained in this Agreement
required to be performed on or prior to the Effective Time, each
of the representations and warranties of the Company contained in
this Agreement that is qualified by materiality shall be true and
correct on and as of the Effective Time as if made on and as of
such date (other than representations and warranties which address
matters only as of a certain date which shall be true and correct
as of such certain date) and each of the representations and
warranties that is not so qualified shall be true and correct in
all material respects on and as of the Effective Time as if made
on and as of such date (other than representations and warranties
which address matters only as of a certain date which shall be
true and correct in all material respects as of such certain
date), in each case except as contemplated or permitted by this
Agreement, and 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.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after any approval of the
matters presented in connection with the Merger by the shareholders of
the Company or Parent:
(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 this 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 this 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 Acquisition Co.) of any representation or
warranty that is not qualified as to materiality which has the
effect of making such representation
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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 Acquisition Co.) 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 this Agreement pursuant to this paragraph;
(d) by Parent or the Company, if any court or other
Governmental Entity having jurisdiction over a party hereto shall
have issued an order, decree or ruling or taken any other action
permanently enjoining, restraining or otherwise prohibiting the
transactions contemplated by this 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 this Agreement
and the transactions contemplated hereby at the 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 Stock Offer
shall have expired without the Minimum Tender Condition being met
or (ii) Acquisition Co. shall not have accepted for payment all
Shares tendered pursuant to the Stock Offer by July 13, 2000;
provided, however, that the right to terminate this Agreement
under this Section 8.1(g) shall not be available to any party
whose failure to fulfill any obligation under this Agreement has
been the cause of, or resulted in, the failure of Parent or
Acquisition Co., as the case may be, to purchase the Shares
pursuant to the Stock Offer on or prior to such date; or
(h) by Parent upon the occurrence of any event set forth
in paragraph (c) of Section 1.2.
(i) by Parent, in the event that Company has notified
Parent of the existence of a Superior Proposal as contemplated by
Section 5.2(c) and Company has failed to notify Parent that it has
rejected such Superior Proposal within ten days of the date of
such notice.
The right of any party hereto to terminate this Agreement pursuant
to this Section 8.1 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any party
hereto, any person controlling any such party or any of their respective
officers or directors, whether prior to or after the execution of this
Agreement.
8.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either Parent or the Company, as provided in Section 8.1,
this Agreement shall forthwith become void and there shall be no
liability hereunder on the part of the Company, Parent, Acquisition Co.
or their respective officers or directors (except for Section 6.3 and
Article IX, which shall survive the termination); provided, however,
that nothing contained in this Section 8.2 shall relieve any party
hereto from any liability for any willful breach of a representation or
warranty contained in this Agreement or the breach of any covenant
contained in this Agreement; provided further, that, upon termination of
this Agreement (x) by Parent or Company pursuant to paragraphs (e), (f)
or (h) of Section 8.1, or (y) by Parent pursuant to paragraph (i) of
Section 8.1 in the event that Company determines to accept the Superior
Proposal that was the subject of the notice to
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Parent pursuant to Section 5.2(c), 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.
8.3 AMENDMENT. This Agreement may be amended by the parties
hereto, by or pursuant to action taken by their respective Boards of
Directors, at any time before or after approval of the matters presented
in connection with the Merger by the shareholders of the Company, but,
after any such approval, no amendment shall be made which by law
requires further approval by such shareholders without such further
approval. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
8.4 WAIVER. At any time prior to the Effective Time, the
parties hereto may (i) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (ii) waive any
inaccuracies in the representations and warranties contained herein or
in any document delivered pursuant hereto and (iii) waive compliance
with any of the agreements or conditions contained herein which may
legally be waived. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
ARTICLE IX
GENERAL PROVISIONS
9.1 NONSURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
The representations and warranties in this Agreement or in any schedule,
exhibit or instrument delivered pursuant to this Agreement shall
terminate at the Effective Time or upon the termination of this
Agreement.
9.2 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given when delivered personally,
one day after being delivered to an overnight courier or when telecopied
(with a confirmatory copy sent by overnight courier) to the parties at
the following addresses (or at such other address for a party as shall
be specified by like notice):
(a) if to Company, to
American Business Products, Inc.
2100 Riveredge Parkway, Suite 1200
Atlanta, Georgia 30328
Attention: President
Facsimile: (770) 850-0220
with a copy to:
Long Aldridge & Norman LLP
One Peachtree Center, Suite 5300
303 Peachtree Street
Atlanta, Georgia 30308
Attention: Jeffrey K. Haidet, Esq.
Facsimile: (404) 527-4198
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(b) if to Parent or Acquisition Co., to
Mail-Well, Inc.
23 Inverness Way East
Suite 160
Englewood, Colorado 80112
Attention: President
Facsimile:
with a copy to:
Rothgerber, Appel, Powers & Johnson LLP
One Tabor Center, Suite 3000
1200 Seventeenth Street
Denver, Colorado 80202-5839
Attention: Woody Davis, Esq.
Facsimile: (303)623-9222
9.3 INTERPRETATION. When a reference is made in this Agreement
to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."
9.4 COUNTERPARTS. This Agreement may be executed in
counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties.
9.5 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the Subject matter hereof. This Agreement, is not
intended to confer upon any person other than the parties hereto any
rights or remedies hereunder.
9.6 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS
OF PARENT, THE COMPANY, OR ACQUISITION CO. IN THE NEGOTIATION, ADMINISTRATION,
PERFORMANCE AND ENFORCEMENT THEREOF.
9.7 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties.
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9.8 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule
of law, or public policy, all other conditions and provisions of this
Agreement shall nevertheless remain in full force and effect so long as
the economic and legal Substance of the transactions contemplated hereby
are not affected in any manner materially adverse to any party. Upon
such determination that any term or other provision is invalid, illegal
or incapable of being enforced, the parties shall negotiate in good
faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Agreement may be
consummated as originally contemplated to the fullest extent possible.
9.9 ENFORCEMENT OF THIS AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with their specific
terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, such remedy being in addition to any other remedy to which
any party is entitled at law or in equity.
9.10 COMPANY'S KNOWLEDGE. As used herein, the terms "Company's
Knowledge" and "to the Knowledge of Company" with respect to the Company
shall mean the actual knowledge of any officer of the Company listed on
Schedule 9.10.
- -------------
9.11 PARENT'S KNOWLEDGE. As used herein, the terms "Parent's
Knowledge" and "to the Knowledge of Parent" with respect to Parent shall
mean the actual knowledge of any officer of Parent listed on Schedule
--------
9.11.
- ----
(Signatures appear on following page)
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IN WITNESS WHEREOF, Parent, Acquisition Co., and the Company have
caused this Agreement and Plan of Merger to be signed by their
respective officers thereunto duly authorized all as of the date first
written above.
AMERICAN BUSINESS PRODUCTS, INC.
By:__________________________________
Title:
MAIL-WELL, INC.
By:__________________________________
Title:
SHERMAN ACQUISITION CORP.
By:__________________________________
Title:
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Exhibit (c)(2)
--------------
SHAREHOLDERS' STOCK TENDER AGREEMENT
This SHAREHOLDERS' STOCK TENDER AGREEMENT (this "Agreement") is
entered into this 13th day of January, 2000, by and among Mail-Well,
Inc., a Colorado corporation ("Parent"), Sherman Acquisition Corp., a
Georgia corporation and a wholly-owned subsidiary of Parent
("Acquisition Co."), and each of Henry Curtis VII, Richard B. Curtis,
Jr., Hollis L. Harris, W. Stell Huie, Thomas F. Keller, James F.
McDonald, Daniel W. McGlaughlin, C. Douglas Miller, G. Harold Northrop,
Joe W. Rogers, and William B. Stokely, III (each a "Shareholder" and
collectively, the "Shareholders").
W I T N E S S E T H :
WHEREAS, each Shareholder Beneficially Owns (as hereafter
defined) that number of shares of the common stock, $2.00 par value per
share (the "Common Stock") of American Business Products, Inc., a
Georgia corporation (the "Company"), set forth opposite such
Shareholder's name on Appendix A hereto; and
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Acquisition Co. and the Company are entering into an Agreement
and Plan of Merger (as amended from time to time, the "Merger
Agreement") pursuant to which, among other things, Acquisition Co. is
agreeing to promptly commence a cash tender offer (as such tender offer
may hereafter be amended from time to time, the "Offer") to purchase all
of the issued and outstanding shares of Common Stock; and
WHEREAS, as an inducement and a condition to their willingness
to enter into the Merger Agreement and incur the obligations set forth
therein, including the Offer and the subsequent merger of Acquisition
Co. with and into the Company as contemplated thereby (the "Merger"),
Parent and Acquisition Co. have requested that the Shareholders agree,
and each Shareholder has agreed, to tender that number of shares of
Common Stock Beneficially Owned by such Shareholder and set forth
opposite such Shareholder's name on Appendix A hereto, together with any
shares of Common Stock acquired by the Shareholders after the date
hereof and prior to the consummation or termination of the Offer, upon
exercise of options or otherwise, (collectively, the "Shares"), and to
vote all of such Shareholder's Shares in favor of the Merger.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises, representations, warranties, covenants and agreements
set forth herein and the promises, representations, warranties,
covenants and agreements of Parent and Acquisition Co. in the Merger
Agreement, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, except
as otherwise expressly provided or unless the context clearly requires
otherwise:
"Beneficially Own" or "Beneficial Ownership" shall mean, with
respect to any securities, having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended), including pursuant to any agreement,
arrangement or understanding, whether or not in writing.
"Person" shall mean a natural person, corporation, partnership,
joint venture, association, trust, limited liability company, business
trust, joint stock company, unincorporated organization or other entity.
<PAGE>
<PAGE>
"Transfer" shall mean, with respect to a security, the sale,
transfer, pledge, hypothecation, encumbrance, assignment or disposition
of such security or the Beneficial Ownership thereof, the offer to make
such a sale, transfer or other disposition, and the entering into of any
option, agreement, arrangement or understanding, whether or not in
writing, to effect any of the foregoing. As a verb, "Transfer" shall
have a correlative meaning.
"Voting Period" shall mean the period from the date hereof until
the termination of this Agreement in accordance with its terms.
2. RESTRICTIONS. Until the termination of this Agreement in
accordance with its terms, each of the Shareholders agrees not to,
directly or indirectly, (a) except as provided in Section 3 hereof,
Transfer any of such Shareholder's Shares to any Person, grant any
proxies or powers of attorney or enter into a voting agreement,
understanding or arrangement with respect to such shareholder's Shares,
or (b) take any action that would make any representation or warranty of
the Shareholder herein untrue or incorrect or would result in a breach
by the Shareholder of any of its obligations under this Agreement.
3. TENDER OF SHARES. Each Shareholder hereby agrees to validly
tender or cause to be validly tendered, pursuant to and in accordance
with the terms of the Offer, promptly after Acquisition Co. commences
the Offer (but in no event later than five business days after the date
of such commencement or, with respect to shares of Common Stock acquired
by such Shareholder after the date of this Agreement upon exercise of
options or otherwise, no later than five business days after the date of
such acquisition), all of such Shareholder's Shares and to not withdraw
such Shares unless the Merger Agreement shall be validly terminated in
accordance with Article VIII thereof.
4. VOTING OF SHARES; PROXY.
a. During the Voting Period, at any meeting (whether
annual or special and whether or not an adjourned or postponed
meeting)of the Company's shareholders, however called, or in connection
with any written consent of the Company's shareholders, each Shareholder
in its capacity as such shall vote (or cause to be voted) all of such
Shareholder's Shares: (i) in favor of the Merger, and each of the other
actions contemplated by the Merger Agreement and this Agreement and any
actions required in furtherance thereof and hereof, (ii) against any
action or agreement that would (A) result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or the Shareholders under this
Agreement or (B) impede, interfere with, delay, postpone, or adversely
affect the Offer, the Merger or any other transaction contemplated by
the Merger agreement or this Agreement; and (iii) except as otherwise
agreed to in writing in advance by Parent, against the following actions
(other than the Offer, the merger and any other transaction contemplated
by the Merger Agreement and this Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or any of its Subsidiaries (as defined
in the Merger Agreement); (B) any sale, lease or transfer of a material
amount of the assets or business of the Company or its Subsidiaries, or
any reorganization, restructuring, recapitalization, special dividend,
dissolution, liquidation or winding up of the Company or its
Subsidiaries; (C) any material change in the present capitalization of
the Company or its Subsidiaries or any amendment of the Articles of
Incorporation of the Company; (D) any other material change in the
Company's corporate structure or business; and (E) any other action that
is intended to impede, interfere with, delay, postpone, discourage or
materially adversely affect the Offer, the Merger, any other transaction
contemplated by the Merger Agreement or this Agreement. No Shareholder
in his capacity as such shall enter into any agreement, arrangement or
understanding with any Person the effect of which would
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be inconsistent or violative of the provisions and agreements contained
in this Section 4. Notwithstanding the foregoing, the provisions of
this Section 4 shall in no way be interpreted to apply to any
Shareholder in his capacity as a member of the Board of Directors of
the Company, and in such capacity each Shareholder shall be free to
exercise his fiduciary duties to the Company and its shareholders.
b. IRREVOCABLE PROXY. Each Shareholder hereby appoints
Jerry Wertheimer and Roger Wertheimer in their respective capacities as
officers of Acquisition Co., and any individual who shall hereafter
succeed to any such office of Acquisition Co., and any other designee of
Acquisition Co., each of them individually, the Shareholder's
irrevocable (until the termination of The Voting Period) proxy and
attorney-in-fact (with full power of substitution) to vote the Shares of
such Shareholder as indicated in section 5(a) above. Each Shareholder
intends this proxy to be irrevocable (until the termination of the
Voting Period) and coupled with an interest and will take such further
action and execute such other instruments as may be necessary to
effectuate the intent of this proxy and hereby revokes any proxy
previously granted by the Shareholder with respect to the Shares of such
Shareholder.
5. WAIVER OF APPRAISAL OR DISSENTING RIGHTS. Each Shareholder
hereby waives any rights of appraisal or rights to dissent from the
Merger under the Georgia Business Corporation Code.
6. WAIVER OF CLAIMS. Each Shareholder, effective upon the
acquisition of such Shareholder's Shares pursuant to the Offer, waives
and relinquishes any claims, actions, recourse or other rights of any
nature which the Shareholder may have against the Company, Parent or
Acquisition Co. which arises out of or relates to such Shareholder's
ownership of the Shares, its status as a shareholder of the Company, the
conduct of the business of the Company or the authorization, execution
and delivery of the Merger Agreement or this Agreement or the
consummation of the transactions contemplated thereby or hereby;
provided, however, that the provisions of this Section 6 shall not
extend to the obligations of Parent and Acquisition Co. pursuant to this
Agreement.
7. NO PURCHASE. Acquisition Co. and Parent may allow the Offer
to expire without accepting for payment or paying for any Shares, on the
terms and conditions set forth in the Offer to Purchase (as defined in
the Merger Agreement). If all Shares validly tendered and not withdrawn
are not accepted for payment and paid for in accordance with the terms
of the Offer to Purchase, they shall be returned to the Shareholders,
whereupon they shall continue to be held by the Shareholders subject to
the terms and conditions of this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each
Shareholder, severally but not jointly, represents and warrants to
Parent and Acquisition Co. as follows:
a. Such Shareholder is the record holder of the Shares
and Beneficially Owns the Shares, free and clear of any claims, security
interests, liens and encumbrances (other than liens of registered
brokers in connection with Shares held in margin accounts) and the
transfer of the Shares hereunder will pass to Acquisition Co. good and
marketable record title and Beneficial Ownership to the Shares free and
clear of any claims, security interests, liens and encumbrances
whatsoever.
b. Such Shareholder has the legal power, authority and
capacity to execute and deliver this Agreement and perform its
obligations hereunder. The execution and delivery by such Shareholder
of this Agreement and the performance by such Shareholder of its
obligations hereunder have been duly and validly authorized and no
further actions or proceedings on the part of such Shareholder are
necessary to
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authorize the execution, delivery or performance of this Agreement or
the consummation of the transactions contemplated hereby.
c. This Agreement constitutes the legal, valid and
binding agreement of such Shareholder enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting creditors' rights
generally or by the principles governing the availability of equitable
remedies.
d. This Agreement covers all of such Shareholder's Shares
except for options to purchase shares of Common Stock which were granted
by the Company to the Shareholder (provided, however, that any shares of
Common Stock acquired by such Shareholder upon exercise of any such
options after the date hereof and prior to the consummation or
termination of the Offer are covered by this Agreement). As of the date
hereof, such Shareholder Beneficially Owns the number of shares of the
Company's Common Stock set forth on Appendix A hereto.
e. This Agreement and the execution and delivery hereof
by the Shareholder does not, and the consummation of the transactions
contemplated hereby will not, (i) result in a violation of or breach of,
or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or
acceleration) under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, agreement or other instruments
or obligations to which such Shareholder is a party or by which any of
its property or assets may be bound, or (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to such
Shareholder or any of its properties or assets.
9. REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION
CO.. Parent and Acquisition Co., jointly and severally, hereby
represent and warrant to each Shareholder as follows:
a. Each of Parent and Acquisition Co. is a corporation
duly organized and validly existing under the laws of its jurisdiction
of incorporation, and each of them is in good standing under the laws of
its jurisdiction of incorporation. Parent and Acquisition Co. have all
necessary corporate power and authority to execute and deliver this
Agreement and perform their respective obligations hereunder. The
execution and delivery by Parent and Acquisition Co. of this Agreement
and the performance by Parent and Acquisition Co. of their respective
obligations hereunder have been duly and validly authorized by the Board
of Directors of each of Parent and Acquisition Co. and no other
corporate proceedings on the part of Parent or Acquisition Co. are
necessary to authorize the execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby.
b. This Agreement has been duly and validly executed and
delivered by Parent and Acquisition Co. and constitutes a valid and
binding Agreement of each of Parent and Acquisition Co., enforceable
against each of them in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally or by the
principles governing the availability of equitable remedies.
10. TERMINATION. This Agreement shall terminate on the earlier
of (i) the purchase by Acquisition Co. of the Shares pursuant to the
Offer or (ii) the termination of the Merger Agreement pursuant to
Article VIII thereof. The provisions of Sections 8 and 9 hereof shall
survive the termination of this Agreement.
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11. SPECIFIC PERFORMANCE. The parties hereto acknowledge and
agree that if any of the provisions of this Agreement were not performed
by the Shareholders, as the case may be, in accordance with their
specific terms or were otherwise breached, Parent would not have an
adequate remedy at law and would be irreparably harmed and that the
damages therefor would be difficult to determine. It is accordingly
agreed that Parent shall be entitled to injunctive relief to prevent
breaches of this Agreement by any Shareholder and to specifically
enforce the terms and provisions hereof.
12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if hand
delivered in person or by next-day courier, transmitted by facsimile or
mailed by registered or certified mail, postage prepaid, return receipt
requested, as follows:
a. If to Parent, to:
Mail-Well, Inc.
23 Inverness Way East
Suite 160
Englewood, Colorado 80112
Attention: President
Fax:
with a copy to:
Woody Davis, Esq.
Rothgerber, Appel, Powers & Johnson LLP
One Tabor Center, Suite 3000
1200 Seventeenth Street
Denver, Colorado 80202-5839
Fax: 303-623-9222
b. If to the Shareholders, to the respective addresses
set forth on Schedule A hereto.
or to such other address as the person to whom notice is given may have
previously furnished to the other parties in writing in accordance
herewith, except that notices of change of address shall be effective
only upon receipt.
13. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties, except that Acquisition Co.
may assign, in its sole discretion, any or all of its rights, interests
and obligations hereunder to Parent or to any direct or indirect wholly
owned Subsidiary of Parent. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
14. AMENDMENTS. This Agreement may not be modified, amended,
altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
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15. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Georgia, without regard to its conflicts of law rules.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
17. EFFECT OF HEADINGS. The headings herein are for reference
purposes only and shall not in any way affect the meaning or
interpretation hereof.
18. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements
and understandings, oral or written, among the parties hereto with
respect to the subject matter hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed under
seal and delivered by the parties hereto on the date first above written.
MAIL-WELL, INC.
__________________________________
Name: Roger Wertheimer
Title: President
SHERMAN ACQUISITION CORP.
___________________________________
Name: Roger Wertheimer
Title: President
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SHAREHOLDERS:
_____________________________________
Henry Curtis VII
_____________________________________
Hollis L. Harris
_____________________________________
W. Stell Huie
_____________________________________
Thomas F. Keller
_____________________________________
James F. McDonald
_____________________________________
Daniel W. McGlaughlin
_____________________________________
C. Douglas Miller
_____________________________________
G. Harold Northrup
_____________________________________
Joe W. Rogers
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_____________________________________
William B. Stokely, III
_____________________________________
Richard B. Curtis, Jr.
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APPENDIX A
TOTAL SHARES OF THE COMPANY'S
COMMON STOCK
NAME/ADDRESS BENEFICIALLY OWNED
------------ ------------------
Henry Curtis VII
5547 Waterford Green Glen
Marietta, GA 30068 229,719
Hollis L. Harris
100 St. Andrews Square
Peachtree City, GA 30269 1,030
W. Stell Huie
Long Aldridge & Norman
One Peachtree Center, Suite 5300
303 Peachtree Street
Atlanta, GA 30309 20,926
Thomas F. Keller
Duke University
The Fuqua School of Business
Towerview Drive
Durham, NC 27706 1,050
James F. McDonald
Scientific Atlanta, Inc.
One Technology Parkway South
Norcross, GA 30092 1,400
Daniel W. McGlaughlin
Equifax, Inc.
P.O. Box 4081
Atlanta, GA 30302 10,500
C. Douglas Miller
Norrell Corporation
3535 Piedmont Road, NE
Atlanta, GA 30305 500
G. Harold Northrop
5253 Georgia Highway 354
Pine Mountain, GA 31822 8,312
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TOTAL SHARES OF THE COMPANY'S
COMMON STOCK
NAME/ADDRESS BENEFICIALLY OWNED
------------ ------------------
Joe W. Rogers
5986 Financial Drive
Norcross, GA 30071 5,300
William B. Stokely, III
The Stokely Company
620 Campbell Station Road, Suite 27
Knoxville, TN 37922 5,000
Richard B. Curtis, Jr.
1910 Waryswood Road
Watkinsville, GA 30677 131,569
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