<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 6, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT
(PURSUANT TO SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
(AMENDMENT NO. 8)
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 21)
LOCTITE CORPORATION
(Name Of Subject Company)
HC INVESTMENTS, INC.
HENKEL KGAA
(Bidders)
------------------------------
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Including Any Associated Stock Purchase Rights)
(Title of Class of Securities)
540137 10 6
(CUSIP Number of Class of Securities)
------------------------------
DR. KARL GRUTER
HENKEL KGAA
HENKELSTRASSE 67
D-40191 DUSSELDORF
GERMANY
49-211-797-2137
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications on Behalf of Bidder)
------------------------------
WITH A COPY TO:
WILLIAM A. GROLL, ESQ.
CLEARY, GOTTLIEB, STEEN & HAMILTON
ONE LIBERTY PLAZA
NEW YORK, NEW YORK 10006
(212) 225-2000
------------------------
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE**
<S> <C>
$1,308,117,001 $261,623.40
</TABLE>
- ------------------------------
* For purposes of calculating amount of filing fee only. The amount assumes
the purchase of 21,444,541 shares of Common Stock, par value $0.01 per
share, of Loctite Corporation, at $61 net in cash per share, which
represents all shares represented by Loctite Corporation to be outstanding
at October 31, 1996 and not owned by the bidder.
** The amount of the filing fee calculated in accordance with Regulation
240.0-11 of the Securities Exchange Act of 1934 equals 1/50 of 1% of the
value of the shares to be purchased.
/X/ Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
<TABLE>
<S> <C>
Amount Previously Paid: $247,389.84 Filing Party: HC Investments, Inc.
Form or Registration No.: 14D-1/13D/A Date Filed: November 6, 1996
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
HC Investments, Inc. and Henkel KGaA hereby amend and supplement their
Tender Offer Statement on Schedule 14D-1 (the "STATEMENT") originally filed on
November 6, 1996, with respect to the offer, as amended on December 5, 1996, by
HC Investments, Inc. to purchase all outstanding shares of Common Stock, par
value $0.01 per share, of Loctite Corporation, a Delaware corporation, including
the associated common stock purchase rights issued pursuant to the Rights
Agreement, dated as of April 14, 1994, between the Company and The First
National Bank of Boston, as Rights Agent, and all benefits that may inure to
holders thereof, for a purchase price of $61.00 per share, net to the seller in
cash, without interest thereon, as set forth in this Amendment No. 8. This
amendment also amends and supplements the Schedule 13D of Purchaser with respect
to the Shares. Capitalized terms not defined herein have the meaning assigned
thereto in the Statement.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(b) Item 1(b) of the Statement is hereby amended and supplemented to
incorporate by reference the information set forth in the sections entitled
"INTRODUCTION," "SPECIAL FACTORS -- Background to the Offer since November 6,
1996," "SPECIAL FACTORS -- Purpose of the Offer and the Merger," and "THE
AMENDED OFFER -- Amended Terms of the Offer" of the Supplement, dated December
6, 1996 (the "SUPPLEMENT"), to the Offer to Purchase, dated November 6, 1996, a
copy of which Supplement is annexed hereto as exhibit (a)(9).
(c) Item 1(c) of the Statement is hereby amended and supplemented to
incorporate by reference the information set forth in the section entitled "THE
AMENDED OFFER -- Price Range of the Shares; Dividends" of the Supplement.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(b) Item 3(b) of the Statement is hereby amended and supplemented to
incorporate by reference the information set forth in the sections entitled
"INTRODUCTION," "SPECIAL FACTORS -- Background to the Offer since November 6,
1996," "SPECIAL FACTORS -- Fairness of the Offer," "SPECIAL FACTORS -- Purpose
of the Offer and the Merger" and "THE AMENDED OFFER -- Certain Additional
Information Concerning the Company" of the Supplement.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) Item 4(a) of the Statement is hereby amended and supplemented to
incorporate by reference the information set forth in the section entitled "THE
AMENDED OFFER -- Source and Amount of Funds" of the Supplement.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
Item 5 of the Statement is hereby amended and supplemented to incorporate by
reference the information set forth in the sections entitled "INTRODUCTION,"
"SPECIAL FACTORS -- Background to the Offer Since November 6, 1996" and "SPECIAL
FACTORS -- Purpose of the Offer and the Merger" of the Supplement.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Item 6 of the Statement is hereby amended and supplemented to incorporate by
reference the information set forth in the sections entitled "INTRODUCTION,"
"SPECIAL FACTORS -- Background to the Offer Since November 6, 1996" and "SPECIAL
FACTORS -- Purpose of the Offer and the Merger" of the Supplement.
2
<PAGE>
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
Item 7 of the Statement is hereby amended and supplemented to incorporate by
reference the information set forth in the sections entitled "INTRODUCTION,"
"SPECIAL FACTORS -- Background to the Offer Since November 6, 1996" and "SPECIAL
FACTORS -- Purpose of the Offer and the Merger" of the Supplement.
ITEM 10. ADDITIONAL INFORMATION.
(f) Item 10(f) of the Statement is hereby amended and supplemented to
incorporate by reference the Supplement in its entirety.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
Item 11 of the Statement is hereby amended to add the following exhibits:
(a)(9) Supplement, dated December 6, 1996, to Offer to Purchase, dated
November 6, 1996.
(a)(10) Revised Letter of Transmittal.
(a)(11) Revised Notice of Guaranteed Delivery.
(a)(12) Revised Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(13) Revised Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(14) Summary Advertisement dated December 6, 1996.
(c)(6) Agreement and Plan of Merger, dated as of December 5, 1996, between
Henkel KGaA, HC Investments, Inc. and Loctite Corporation.
3
<PAGE>
SIGNATURE
After due inquiry and to the best of its knowledge and belief, each of the
undersigned certifies that the information set forth in this Statement is true,
complete and correct.
Dated: December 6, 1996
HC INVESTMENTS, INC.
by /s/ ERNEST G. SZOKE
------------------------------------------
Name: Ernest G. Szoke
Title: SECRETARY
HENKEL KGAA
by /s/ LOTHAR STEINEBACH /s/ PETRA
HAMMERLEIN
------------------------------------------
Name: Lothar Steinebach Petra
Hammerlein
Title: VICE PRESIDENT SENIOR
COUNSEL
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT NAME
- ----------- -------------------------------------------------------------------------------------------------------
<S> <C>
(a)(9) Supplement, dated December 6, 1996, to Offer to Purchase, dated November 6, 1996.
(a)(10) Revised Letter of Transmittal.
(a)(11) Revised Notice of Guaranteed Delivery.
(a)(12) Revised Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
(a)(13) Revised Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(14) Summary Advertisement dated December 6, 1996.
(c)(6) Agreement and Plan of Merger, dated as of December 5, 1996, between Henkel KGaA, HC Investments, Inc.
and Loctite Corporation.
</TABLE>
<PAGE>
SUPPLEMENT TO THE OFFER TO PURCHASE DATED NOVEMBER 6, 1996
HC INVESTMENTS, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
HENKEL KGaA
HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING ANY ASSOCIATED STOCK PURCHASE RIGHTS)
OF
LOCTITE CORPORATION
AND IS NOW OFFERING
$61.00 NET PER SHARE
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, DECEMBER 20, 1996,
UNLESS THE OFFER IS EXTENDED.
------------------------
THE BOARD OF DIRECTORS OF LOCTITE CORPORATION (THE "COMPANY") HAS
UNANIMOUSLY (WITH THE HENKEL-NOMINATED DIRECTORS (AS DEFINED HEREIN) ABSTAINING)
APPROVED THE OFFER AS AMENDED AND DETERMINED THAT THE OFFER AND THE MERGER
(DESCRIBED BELOW) ARE IN THE BEST INTERESTS OF THE COMPANY'S STOCKHOLDERS. THE
BOARD RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES.
------------------------
THE OFFER IS CONDITIONED UPON THERE BEING VALIDLY TENDERED (AND NOT
WITHDRAWN) PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF SHARES OF COMMON
STOCK ("SHARES") OF THE COMPANY THAT WOULD, WHEN AGGREGATED WITH THE SHARES
ALREADY OWNED BY HC INVESTMENTS, INC. ("PURCHASER"), REPRESENT AT LEAST A
MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE OF
PURCHASE. THE OFFER IS SUBJECT TO OTHER TERMS AND CONDITIONS. SEE THE
INTRODUCTION AND "THE AMENDED OFFER--AMENDMENTS TO CERTAIN CONDITIONS OF THE
OFFER."
PURCHASER CURRENTLY OWNS 11,208,224 SHARES, REPRESENTING APPROXIMATELY 35.0%
OF THE OUTSTANDING SHARES AND APPROXIMATELY 34.3% OF THE OUTSTANDING SHARES ON A
FULLY DILUTED BASIS.
Questions and requests for assistance may be directed to the Information
Agent or to the Dealer Manager at their respective addresses and telephone
numbers set forth on the back cover of this Supplement. Additional copies of the
Offer to Purchase, this Supplement, the Letter of Transmittal, the Notice of
Guaranteed Delivery and other related materials may be obtained from the
Information Agent or from brokers, dealers, commercial banks and trust
companies.
------------------------
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION (THE "COMMISSION") NOR HAS THE COMMISSION PASSED UPON THE
FAIRNESS OR MERITS OF SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE
INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS
UNLAWFUL.
------------------------
THE DEALER MANAGER FOR THE OFFER IS:
ROTHSCHILD INC.
<PAGE>
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (i) complete and sign one of the Letters of Transmittal (or
a facsimile thereof) in accordance with the instructions in the Letter of
Transmittal, have such stockholder's signature thereon guaranteed if required by
Instruction 1 to the Letter of Transmittal, mail or deliver the Letter of
Transmittal (or such manually signed facsimile), or, in the case of a book-entry
transfer, an Agent's Message (as defined in the Offer to Purchase), and any
other required documents to the Depositary and either deliver the certificates
for such Shares to the Depositary along with the Letter of Transmittal (or a
manually signed facsimile thereof) or deliver such Shares pursuant to the
procedure for book-entry transfer set forth in the Offer to Purchase or (ii)
request such stockholder's broker, dealer, commercial bank, trust company or
other nominee to effect the transaction for such stockholder. Any stockholder
having Shares registered in the name of a broker, dealer, commercial bank, trust
company or other nominee must contact such broker, dealer, commercial bank,
trust company or other nominee if such stockholder desires to tender such
Shares.
If a stockholder desires to tender Shares and such stockholder's
certificates for Shares are not immediately available or the procedure for
book-entry transfer cannot be completed on a timely basis, or time will not
permit all required documents to reach the Depositary prior to the expiration of
the Offer, such stockholder's tender may be effected by following the procedure
for guaranteed delivery set forth in the Offer to Purchase.
DECEMBER 6, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
INTRODUCTION............................................................................................... 1
SPECIAL FACTORS............................................................................................ 2
Background to the Offer Since November 6, 1996........................................................... 2
Fairness of the Offer.................................................................................... 3
Purpose of the Offer and the Merger...................................................................... 4
THE AMENDED OFFER.......................................................................................... 11
Amended Terms of the Offer............................................................................... 11
Procedure for Tendering Shares........................................................................... 11
Price Range of the Shares; Dividends..................................................................... 12
Certain Additional Information Concerning the Company.................................................... 13
Source and Amount of Funds............................................................................... 16
Amendments to Certain Conditions of the Offer............................................................ 16
Miscellaneous............................................................................................ 18
</TABLE>
<PAGE>
To the Holders of Common Stock
of Loctite Corporation:
INTRODUCTION
The following information amends and supplements the Offer to Purchase,
dated November 6, 1996 (the "OFFER TO PURCHASE"), of HC Investments, Inc., a
Delaware corporation ("PURCHASER") and an indirect wholly-owned subsidiary of
Henkel KGaA, a Kommanditgesellschaft auf Aktien (a partnership limited by
shares) organized under the laws of the Federal Republic of Germany ("PARENT").
Purchaser is now offering to purchase all outstanding shares of Common Stock,
par value $0.01 per share ("SHARES"), of Loctite Corporation, a Delaware
corporation (the "COMPANY" or "LOCTITE"), including the associated common stock
purchase rights (the "RIGHTS") issued pursuant to the Rights Agreement (the
"RIGHTS AGREEMENT"), dated as of April 14, 1994, between the Company and The
First National Bank of Boston, as Rights Agent, and all benefits that may inure
to holders thereof, for a purchase price of $61.00 per share (the "OFFER
PRICE"), net to the seller in cash, without interest thereon, upon the terms and
subject to the conditions set forth in the Offer to Purchase, this Supplement
and in the revised Letter of Transmittal (which, together with any amendments or
supplements hereto or thereto, collectively constitute the "OFFER"). Unless the
context otherwise requires, all references to Shares shall include the
associated Rights.
Except as otherwise set forth in this Supplement and the revised Letter of
Transmittal, the terms and conditions previously set forth in the Offer to
Purchase and the Letter of Transmittal remain applicable in all respects to the
Offer and this Supplement should be read in conjunction with the Offer to
Purchase. Capitalized terms used and not otherwise defined herein have the
meaning ascribed to them in the Offer to Purchase. Procedures for tendering
Shares are set forth in the sections entitled "THE TENDER OFFER--Procedure for
Tendering Shares" of the Offer to Purchase and "THE AMENDED OFFER-- Procedure
for Tendering Shares" herein.
The Offer to Purchase, this Supplement and the related Letters of
Transmittal contain important information which should be read before any
decision is made with respect to the Offer.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "LOCTITE BOARD") HAS UNANIMOUSLY
(WITH THE HENKEL-NOMINATED DIRECTORS (AS DEFINED BELOW) ABSTAINING) APPROVED THE
OFFER AS AMENDED AND DETERMINED THAT THE OFFER AND THE MERGER (AS DEFINED BELOW)
ARE IN THE BEST INTERESTS OF THE COMPANY'S STOCKHOLDERS. THE LOCTITE BOARD
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES.
Purchaser, Parent and the Company have entered into an Agreement and Plan of
Merger, dated as of December 5, 1996 (the "MERGER AGREEMENT"), providing for,
among other things, (i) an increase in the price to be paid pursuant to the
Offer from $57.75 per Share to $61.00 per Share, net to the seller in cash, (ii)
the period the Offer is to remain open to be shortened to provide for the
expiration of the Offer at 12:00 Midnight on Friday, December 20, 1996, (iii)
the waiver of all conditions to the Offer related to potential divestitures of
businesses under any antitrust laws and (iv) following consummation of the
Offer, on the terms and subject to the conditions set forth in the Merger
Agreement, the merger of a newly formed wholly-owned subsidiary of Purchaser
with and into the Company (the "MERGER"). In the Merger each outstanding Share
(other than Shares owned by Parent, Purchaser or any other direct or indirect
subsidiary of Parent, Shares held in the treasury of the Company and Shares held
by stockholders of the Company who properly exercise their appraisal rights
under the applicable provisions of the General Corporation Law of the State of
Delaware (the "DGCL")) will be converted into the right to receive $61.00 per
Share in cash. See "SPECIAL FACTORS--Purpose of the Offer and the Merger" and
"THE AMENDED OFFER--Amended Terms of the Offer" herein.
MINIMUM TENDER CONDITION. THE OFFER IS CONDITIONED UPON THERE BEING VALIDLY
TENDERED (AND NOT WITHDRAWN) PRIOR TO THE EXPIRATION DATE THAT NUMBER OF SHARES
THAT WOULD, WHEN AGGREGATED WITH THE SHARES ALREADY OWNED BY PURCHASER,
REPRESENT AT LEAST A MAJORITY OF ALL OUTSTANDING
1
<PAGE>
SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE (THE "MINIMUM TENDER
CONDITION").
Based upon representations and warranties of the Company contained in the
Merger Agreement, as of October 31, 1996, there were 32,041,559 Shares issued
and outstanding and 611,206 Shares reserved for issuance upon exercise of
outstanding employee stock options. Based on the foregoing and assuming no
subsequent issuance or repurchase of Shares, Purchaser believes that the number
of Shares outstanding on a fully diluted basis (the "FULLY DILUTED SHARES") is
32,652,765. The percentages of Shares used herein are based on the information
contained in the Merger Agreement.
Purchaser owns 11,208,224 shares, representing approximately 35.0% of the
outstanding shares and approximately 34.3% of the Fully Diluted Shares.
Accordingly, the Minimum Tender Condition will be satisfied if at least
5,118,159 Shares are validly tendered and not withdrawn prior to the Expiration
Date (defined herein).
THE OFFER IS NO LONGER SUBJECT TO THE RIGHTS CONDITION DESCRIBED IN THE
OFFER TO PURCHASE. THE OFFER REMAINS SUBJECT TO CERTAIN OTHER TERMS AND
CONDITIONS DESCRIBED HEREIN IN ADDITION TO THE MINIMUM TENDER CONDITION. SEE
"THE AMENDED OFFER--AMENDMENTS TO CERTAIN CONDITIONS OF THE OFFER."
The only vote that may be necessary to approve the Merger Agreement and the
Merger is the affirmative vote of the holders of a majority of the outstanding
Shares entitled to vote thereon. Accordingly, if the Minimum Tender Condition is
satisfied Purchaser would be able to cast sufficient votes to approve the Merger
Agreement and the Merger without the affirmative vote of any other stockholder.
In the event that Purchaser acquires, pursuant to the Offer or otherwise, at
least 90% of the then outstanding Shares, Purchaser would be able to effect the
Merger pursuant to the short-form merger provisions of the DGCL, without prior
notice to or any action by any other stockholder of the Company and Purchaser
intends to do so under such circumstances as soon as practicable in 1997.
SPECIAL FACTORS
BACKGROUND TO THE OFFER SINCE NOVEMBER 6, 1996
The discussion set forth in the section entitled "SPECIAL
FACTORS--Background to the Offer" of the Offer to Purchase is hereby amended and
supplemented as follows:
Purchaser commenced the Offer on Wednesday, November 6, 1996. On November
15, 1996, in response to a request from legal counsel to the Special Committee,
Purchaser and Parent delivered to the Special Committee copies of reports
prepared for Parent by its financial advisor Rothschild Inc. dated August 1996,
September 1996 and October 4, 1996. On November 18, 1996, the Company announced
that the Special Committee had unanimously determined that the offer price of
$57.75 was inadequate and recommended that the stockholders reject the Offer.
The Company also announced that the Special Committee had determined to seek to
sell the Company at a price that fully reflects its value.
On November 19, 1996, Dieter Winkhaus, President and Chief Executive Officer
of Parent, sent the members of the Special Committee a letter reiterating
Parent's desire to enter into a negotiated transaction and requesting that
Parent be furnished with the same information provided to any other interested
parties.
The waiting period under the HSR Act applicable to the Offer expired at
11:59 eastern time on Friday, November 22, 1996.
On November 26, 1996, representatives of Parent and Purchaser and Parent's
financial and legal advisors met with representatives of the Company and the
Company's financial advisors. Parent and Purchaser were provided with certain
information, including projections, regarding the Company that had been gathered
or prepared by the Company for the purpose of its being provided to potential
acquirors of
2
<PAGE>
the Company. For a more detailed discussion of the projections provided to
Parent, see "THE AMENDED OFFER--Certain Information Concerning the Company."
On Wednesday, November 27, 1996, Parent received from Loctite guidelines for
the submission of a bid to acquire the Company together with a preliminary draft
of the Merger Agreement (the "BID PACKAGE").
On Wednesday, December 4, 1996, Parent submitted a bid to the Special
Committee. In its bid, Parent proposed increasing the Offer Price to $61.00 per
Share and provided the Company with comments on the preliminary draft of the
Merger Agreement that had been included in the Bid Package.
On December 4 and 5, 1996, negotiations took place between representatives
of Parent and the Company concerning the terms of Parent's proposal. On December
5, 1996, the Loctite Board unanimously (except for Roman Dohr, Christoph Henkel
and Jochen Krautter (the "HENKEL-NOMINATED DIRECTORS"), who abstained) duly
adopted the Merger Agreement, including the Plan of Merger contained therein,
approved the Offer and the Merger, determined that the Offer and the Merger are
in the best interests of the stockholders of the Company, and recommended that
stockholders of the Company accept the Offer and tender their Shares pursuant to
the Offer. Following such approval by the Loctite Board, Parent, Purchaser and
the Company executed and delivered the Merger Agreement. On December 5, 1996,
the Company and Parent jointly issued a press release announcing the execution
of the Merger Agreement, increasing the Offer Price to $61.00 per Share and
shortening the Offer.
FAIRNESS OF THE OFFER
The discussion set forth in the section entitled "SPECIAL FACTORS--Fairness
of the Offer" of the Offer to Purchase is hereby amended and supplemented as
follows:
Purchaser and Parent continue to believe that the Offer is fair to the
Public Stockholders. In addition to considering the factors described in the
section entitled "SPECIAL FACTORS--Fairness of the Offer" of the Offer to
Purchase, and the fact that the Offer Price is higher than the price being
offered at the time those factors were initially considered, in making this
determination, Purchaser and Parent have also considered the following
additional factors: (i) the Loctite Board has received an opinion (the "DILLON
READ OPINION") from Dillon, Read & Co. Inc., financial advisor to the Special
Committee, that the Offer Price is fair, from a financial point of view, to the
Public Stockholders; (ii) the Offer is being made pursuant to a negotiated
transaction with the Company and resulted from a process designed by the Special
Committee to produce the best transaction for the Public Stockholders; and (iii)
none of the Henkel-Nominated Directors is a member of the Special Committee or
participated in the vote of the Loctite Board concerning the Offer or the
Merger. Purchaser and Parent did not find it practicable to, and did not, assign
specific relative weights to any of the factors considered in reaching their
opinion as to the fairness of the Offer.
Except as described herein and in the Offer to Purchase, neither Purchaser
nor Parent has obtained, or sought to obtain, any report, opinion or appraisal
from an outside party, including, without limitation, an investment banker's
opinion as to the fairness of the Offer to the Public Stockholders. The Offer is
conditioned upon, among other things, satisfaction of the Minimum Tender
Condition, but is not conditioned upon there being tendered a majority of the
Shares not owned by Purchaser or otherwise upon the approval of holders of a
majority of the Shares not owned by Purchaser. See the section entitled "SPECIAL
FACTORS -- Background to the Offer" of the Offer to Purchase.
3
<PAGE>
PURPOSE OF THE OFFER AND THE MERGER
The discussion set forth in the section entitled "SPECIAL FACTORS--Purpose
and Structure of the Offer; Plans for the Company After the Offer" of the Offer
to Purchase is hereby amended and supplemented as follows:
The purpose of the Offer is to acquire control of, and the entire equity
interest in, the Company. The purpose of the Merger is to acquire all Shares not
beneficially owned by Parent or Purchaser following consummation of the Offer.
On December 5, 1996, Parent, Purchaser and the Company entered into the
Merger Agreement, pursuant to which, among other things, the parties have
expressed their intention that the Merger will be effected as promptly as
practicable in 1997. Pursuant to the Merger Agreement, Purchaser has amended the
Offer to provide for the terms and conditions set forth herein. Set forth below
is a summary of the material provisions of the Merger Agreement. The full text
of the Merger Agreement has been filed as exhibit (c)(6) to Amendment No. 8 to
the Schedule 14D-1 and is incorporated herein by reference. Such exhibit should
be available for inspection and copies should be obtainable in the manner set
forth below under "THE AMENDED OFFER--Certain Information Concerning the
Company." The summary contained herein is qualified in its entirety by such
reference.
THE MERGER AGREEMENT
THE OFFER. The Merger Agreement provides that, as promptly as practicable
following the execution thereof, Parent and Purchaser will amend the Offer to
provide (a) for a purchase price per Share (including the associated Rights) of
$61.00, (b) for the period the Offer is to remain open to be shortened to
provide for the expiration of the Offer at 12:00 Midnight on Friday, December
20, 1996 and (c) for the consummation of the Offer to be subject only to the
conditions set forth in the section of this Supplement entitled "THE AMENDED
OFFER--Amendments to Certain Conditions of the Offer" below. The Merger
Agreement further provides that without the prior written consent of the
Company, neither Parent nor Purchaser shall (i) change or waive the Minimum
Tender Condition, (ii) reduce the number of Shares subject to the Offer, (iii)
reduce the price per Share to be paid pursuant to the Offer, (iv) extend the
Offer if all of the Offer Conditions (as defined in the Merger Agreement) have
been satisfied or waived, (v) change the form of consideration payable in the
Offer, (vi) amend, modify, or add to the Offer Conditions (provided, that Parent
or Purchaser in its sole discretion may waive any such conditions other than the
Minimum Tender Condition) or (vii) amend any other term of the Offer in a manner
adverse to the holders of the Shares. Notwithstanding the foregoing, Parent and
Purchaser may, without the consent of the Company, (A) extend the Offer, if at
the scheduled expiration date of the Offer any of the Offer Conditions shall not
have been satisfied or waived, until such time as such conditions are satisfied
or waived, (B) extend the Offer for any period required by any statute, rule,
regulation, interpretation or position of the Commission or any other
governmental authority or agency (domestic, foreign or supranational) applicable
to the Offer, and (C) extend the Offer for any reason on one or more occasions
for an aggregate of not more than fifteen business days beyond the latest
expiration date that would otherwise be permitted under clauses (A) and (B) of
this sentence; and, if at any scheduled expiration date of the Offer any of the
Offer Conditions have not been satisfied or waived by Parent or Purchaser but
are capable of being satisfied in the reasonable opinion of Parent and
Purchaser, on the written request of the Company, Purchaser shall from time to
time extend the Offer for up to twenty business days in the aggregate from the
originally scheduled expiration date thereof.
THE MERGER. The Merger Agreement provides that, following the consummation
of the Offer, a newly formed, direct, wholly-owned subsidiary of Purchaser
("MERGER SUB") shall be merged with and into the Company and the separate
corporate existence of Merger Sub shall thereupon cease. The Company shall be
the surviving corporation in the Merger and shall continue as a wholly owned
subsidiary of Purchaser under the name "Loctite Corporation." At the time the
Merger is effective (the "EFFECTIVE TIME"), each
4
<PAGE>
Share issued and outstanding immediately prior to the Effective Time (other than
Shares held in the Company's treasury or owned by Parent, Purchaser, Merger Sub
or any other wholly-owned Subsidiary (as defined in the Merger Agreement) of
Parent or the Company or Shares which are held by stockholders exercising
appraisal rights pursuant to Section 262 of the DGCL) shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into the right to receive, without interest, an amount in cash equal to $61.00
or such greater amount which may be paid pursuant to the Offer.
For a description of certain dissenters' rights available to stockholders
upon consummation of the Merger, see the section entitled "SPECIAL
FACTORS--Appraisal Rights" of the Offer to Purchase.
REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains
representations and warranties by the Company with respect to, among other
things, its organization, its capitalization, its authority to enter into the
Merger Agreement (and all other agreements and documents contemplated thereby),
its filings with the Commission and its financial statements, the absence of
certain changes in its business, the information supplied by the Company in
connection with the Offer, the Company's employee benefit plans and other
compensation arrangements, the absence of certain litigation with respect to the
Company, compliance by the Company with applicable law, environmental matters
relating to the Company, tax matters relating to the Company and the receipt of
the Dillon Read Opinion.
The Merger Agreement also contains representations and warranties by Parent
and Purchaser with respect to, among other things, their organization, their
authority to enter into the Merger Agreement (and all other agreements and
documents contemplated thereby), their compliance with applicable law and their
ability to finance the purchase of the Shares.
PROHIBITION ON SOLICITATION. Pursuant to the Merger Agreement, the Company
has agreed that prior to the Effective Time, (a) neither it nor any of its
Subsidiaries shall, and each of them shall not knowingly permit any of its
officers, directors, employees, agents and representatives (including, without
limitation, any investment banker, attorney or accountant retained by it or any
of its subsidiaries) to, solicit or encourage, directly or indirectly, any
inquiries, any proposal or offer with respect to any Acquisition Transaction (as
defined below) (any such proposal or offer being referred to in the Merger
Agreement as an "ACQUISITION PROPOSAL") or engage in any negotiations concerning
an Acquisition Proposal; and (b) it will immediately cease and cause to be
terminated any existing negotiations with any parties with respect to any of the
foregoing; PROVIDED, that nothing contained in the Merger Agreement shall
prevent the Company or the Loctite Board from (A) complying with Rule 14e-2
promulgated under the Exchange Act with regard to an Acquisition Proposal; or
(B) providing information to or engaging in any negotiations or discussions with
any person or entity who has made an unsolicited bona fide Acquisition Proposal
that involves an Acquisition Transaction that the Loctite Board in good faith
determines, with the assistance of its financial advisor, represents a superior
transaction for the stockholders of the Company when compared to the Offer and
the Merger, if and only to the extent that the Loctite Board reasonably
determines, after consultation with, and taking into account the advice of,
outside legal counsel, that the failure to do so would be inconsistent with its
fiduciary obligations. The Company has agreed that it will promptly notify
Parent and Purchaser if any such information is requested from it or any such
negotiations or discussions are sought to be initiated with the Company and will
promptly communicate to Parent and Purchaser the terms of any proposal or
inquiry and the identity of the party making such proposal or inquiry which it
may receive in respect of any such transaction. Except to the extent that the
Loctite Board reasonably determines, after consultation with, and taking into
account the advice of, outside legal counsel, that the failure to take such
action would be inconsistent with the compliance by the Loctite Board with its
fiduciary duties to the stockholders of the Company, the Company agrees not to
release any third party from any confidentiality or standstill agreement to
which the Company is a party without Parent's prior written consent and to take
all steps deemed necessary or appropriate by Parent to enforce to the fullest
extent possible all such agreements. For purposes of the Merger Agreement,
"Acquisition Transaction" means any tender offer or exchange offer, any merger,
consolidation, liquidation, dissolution, recapitalization, reorganization or
other business combination, any acquisition, sale or other disposition of all or
a
5
<PAGE>
substantial portion of the assets or securities of the Company or any similar
transaction involving the Company, its securities or any of its "significant
subsidiaries" (as defined under Rule 405 promulgated by the Commission under the
Securities Act) or divisions.
COVENANTS OF THE COMPANY. In the Merger Agreement, the Company has agreed
that, among other things, during the period from the date of the Merger
Agreement to the Effective Time, the Company (a) shall, and shall cause its
Subsidiaries to, conduct its operations according to their usual, regular and
ordinary course in substantially the same manner as previously conducted; (b)
shall use its reasonable efforts, and shall cause each of its Subsidiaries to
use its reasonable efforts, to preserve intact its business organizations and
goodwill, keep available the services of its respective officers and employees
and maintain satisfactory relationships with those persons having business
relationships with it; (c) shall confer on a regular basis with Parent to report
on operational matters of materiality and any proposals to engage in material
transactions; (d) shall not amend its Certificate of Incorporation or By-Laws;
(e) shall promptly make available to Parent true and correct copies of any
report, statement or schedule filed with the Commission subsequent to the date
of the Merger Agreement; (f) shall not and shall not permit any of its
Subsidiaries to (i) except pursuant to the exercise of options, warrants,
conversion rights and other contractual rights existing on the date hereof and
disclosed pursuant to the Merger Agreement, issue any shares of its capital
stock, effect any stock split or otherwise change its capitalization as it
existed on the date hereof, (ii) grant, confer or award any option, warrant,
conversion right or other right not existing on the date hereof to acquire any
shares of its capital stock, other than employee stock options, stock benefits
and stock purchases under any stock option, stock benefit or stock purchase plan
existing on the date hereof, provided that the aggregate amount of employee
stock options granted pursuant to such employee stock option plans shall not
exceed the number of options granted during such period in the prior year, (iii)
increase any compensation or enter into or amend any employment agreement with
any of its present or future employees, officers or directors, except for normal
increases consistent with past practice and the payment of cash bonuses to
officers pursuant to and consistent with existing plan or programs, or (iv)
adopt any new employee benefit plan (including any stock option, stock benefit
or stock purchase plan) or amend any existing employee benefit plan in any
material respect, except for changes which are less favorable to participants in
such plans; (g) shall not (i) declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital stock or
(ii) redeem, purchase or otherwise acquire any shares of its capital stock or
capital stock of any of its Subsidiaries, or make any commitment for any such
action; (h) shall not, and shall not permit any of its Subsidiaries to, sell,
lease or otherwise dispose of any of its assets (including capital stock of
Subsidiaries) which are material, individually or in the aggregate, except in
the ordinary course of business; (i) shall not, and shall not permit any of its
Subsidiaries to, acquire or agree to acquire by merging or consolidating with,
or by purchasing a substantial equity interest in or a substantial portion of
the assets of, or by any other manner, any business or any corporation,
partnership, association or other business organization division thereof or
otherwise acquire or agree to acquire any assets or securities in each case
which are material, individually or in the aggregate; (j) shall not, and shall
not permit any of its Subsidiaries to, incur or become contingently liable with
respect to any material indebtedness for borrowed money or guarantee any such
indebtedness; and (k) except as may be required as a result of a change in law
or in generally accepted accounting principals, change any of the accounting
principles or practices used by it.
SHAREHOLDER APPROVAL; PREPARATION OF PROXY STATEMENT. The Merger Agreement
provides that unless the Merger is consummated in accordance with Section 253 of
the DGCL, and subject to applicable law, the Company shall prepare proxy
materials and file such materials and cause them to be mailed to the Company's
stockholders at the earliest practicable date and to hold a special meeting of
its stockholders as soon as practicable following the consummation of the Offer
for the purpose of adopting the agreement of merger (within the meaning of
Section 251 of the DGCL) set forth in the Merger Agreement. The Merger Agreement
further provides that if Purchaser shall acquire at least 90 percent of the
outstanding Shares, each of Parent, Purchaser, Merger Sub and the Company shall
take all necessary and appropriate action to
6
<PAGE>
cause the Merger to become effective, as soon as practicable in 1997, without a
meeting of stockholders of the Company, in accordance with Section 253 of the
DGCL.
ACCESS TO INFORMATION. Pursuant to the Merger Agreement, from the date of
the Merger Agreement to the Effective Time, the Company shall allow all
designated officers, attorneys, accountants and other representatives of Parent
access at all reasonable times to the records and files, correspondence, audits
and properties, as well as to all information relating to commitments,
contracts, titles and financial position, or otherwise pertaining to the
business and affairs, of the Company and its Subsidiaries.
COSTS AND EXPENSES. The Merger Agreement provides that all costs and
expenses incurred in connection with the Merger Agreement and the transactions
contemplated thereby shall be paid by the party incurring such expenses, whether
or not the Merger is consummated.
TERMINATION FEE. Under the Merger Agreement, the Company will pay to Parent
a fee of $40 million (the "TERMINATION FEE"), in immediately available funds, if
the Merger Agreement is terminated (1) pursuant to the provisions described in
clause (a)(i),(d)(iii) or (d)(iv) under "Termination" below or (2) pursuant to
any provision described in clause (a) or (b)(i) or any other provision of
described in clause (c)(ii) or (d) under "Termination" below (regardless of
whether such termination is by Parent or the Company) and (in the case of clause
(2) only) either (y) prior to such termination an Acquisition Proposal shall
have been received by the Company or (z) prior to such termination the Offer
shall have expired without the purchase of any Shares by Purchaser pursuant
thereto and within twelve months from the date of such expiration an Acquisition
Event (as such term is defined below) other than with Parent or Purchaser or any
of their affiliates shall have occurred. The Termination Fee shall be payable at
the time of termination if such fee becomes payable pursuant to clause (1) or
clause (2)(y) above, or on the second business day following the occurrence of
the Acquisition Event if such fee becomes payable in the circumstances described
in clause (2)(z) above. As used in the Merger Agreement, "Acquisition Event"
shall mean the consummation of any (i) Acquisition Transaction or (ii) series of
transactions that results in any person, entity or "group" (other than Parent or
Purchaser or any of their affiliates) acquiring more than 50% of the outstanding
Shares or assets of the Company (through any open market purchases, merger,
consolidation, recapitalization reorganization or other business combination).
INDEMNIFICATION AND INSURANCE. In the Merger Agreement (a) Parent has
agreed that all rights to indemnification existing in favor of the present or
former directors, officers, employees, fiduciaries and agents (individually, an
"INDEMNIFIED PARTY" and, collectively, the "INDEMNIFIED PARTIES") of the Company
or any of its Subsidiaries or divisions as provided in the Company's Certificate
of Incorporation or By-Laws or pursuant to other agreements, or the articles of
incorporation, by-laws or similar documents of any of the Company's Subsidiaries
shall continue in full force and effect for a period of not less than the
statutes of limitations applicable to such matters and that the payment thereof
will be guaranteed by Parent; (b) Parent shall cause the Surviving Corporation
to keep in effect provisions in its Certificate of Incorporation and By-Laws
providing for exculpation of director and officer liability and indemnification
of the Indemnified Parties to the same extent as are currently contained in the
Certificate of Incorporation and By-Laws of the Company; and (c) for a period of
three years after the Effective Time, Parent shall cause the Surviving
Corporation to maintain officers' and directors' liability insurance covering
the Indemnified Parties who are currently covered, in their capacities as
officers and directors, by the Company's existing officers' and directors'
liability insurance policies on terms substantially no less advantageous to the
Indemnified Parties than such existing insurance; PROVIDED, HOWEVER, that the
Surviving Corporation shall not be required in order to maintain or procure such
coverage to pay an annual premium in excess of two times the current annual
premium paid by the Company for its existing coverage.
NOTIFICATION. The Merger Agreement provides that each party shall give
prompt notice to the other parties of (a) the occurrence or failure to occur of
any event, which occurrence or failure would be likely to cause any
representation or warranty on its part obtained in the Merger Agreement to be
untrue or inaccurate at any time from the date hereof to the Effective Time, and
(b) any material failure of the party,
7
<PAGE>
or any officer, director, employee or agent thereof, to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
thereunder.
BOARD OF DIRECTORS; CORPORATE GOVERNANCE. The Merger Agreement provides
that (a) the directors of Merger Sub immediately prior to the effectiveness of
the Merger shall be the directors of the Surviving Corporation as of the
effectiveness of the Merger; and (b) the officers of the Company immediately
prior to the effectiveness of the Merger shall be the officers of the Surviving
Corporation as of the effectiveness of the Merger. If, immediately following the
consummation of the Amended Offer, Purchaser and Merger Sub are unable to cause
the Merger to be effected pursuant to Section 253 of the DGCL, promptly upon the
purchase by Purchaser pursuant to the Offer of such number of Shares which, when
added to Shares currently owned by Purchaser, represent at least a majority of
the outstanding Shares, and from time to time thereafter, Purchaser will be
entitled to designate such number of directors, rounded up to the next whole
number, on the Company's Board of Directors as will give Purchaser
representation on the Company's Board of Directors equal to the product of the
number of directors on the Company's Board of Directors and the percentage that
the number of Shares held by Purchaser bears to the number of Shares
outstanding, and the Company will, upon request by Purchaser, promptly increase
the size of the Company Board or use its best efforts to secure the resignations
of such number of directors as is necessary to provide Purchaser with such level
of representation and will cause Purchaser's designees to be so elected.
CORPORATE HEADQUARTERS. The Merger Agreement provides that the corporate
headquarters of the Company shall be the corporate headquarters of the Surviving
Corporation for a period of at least two years following the date the Merger is
effective.
CERTAIN BENEFITS. The Merger Agreement provides that (a) from and after the
time the Merger is effective, subject to applicable law, and except as
contemplated thereby with respect to the Company's stock option plans, Parent
and its Subsidiaries will honor in accordance with their terms, the Executive
Retention Agreements (as described in the Company Reports (as defined in the
Merger Agreement)) between the Company or its Subsidiaries and certain employees
thereof, and all the Company Benefit Plans (as defined in the Merger Agreement);
(b) for a period of not less than one year following the time the Merger is
effective, subject to applicable law, Parent and its Subsidiaries will provide
benefits or cash compensation in lieu thereof (with the exception of stock based
plans) to the employees of the Company and its Subsidiaries which will, in the
aggregate, be no less favorable than those provided by the Company and its
Subsidiaries to their employees immediately prior to the time the Merger is
effective; and (c) Parent agrees to employ or cause to be employed at the
Effective Time all employees of the Company and its Subsidiaries on terms
consistent with the Company's current employment practices and at comparable
levels of compensation and positions; PROVIDED FURTHER that for a period of
three years following the Effective Time, any reductions in workforce in respect
of employees of Parent and the Surviving Corporation shall be made on a fair and
equitable basis, without regard to whether employment was with Parent or the
Company or their respective Subsidiaries, and any employee whose employment is
terminated or job is eliminated by Parent or any of its Subsidiaries during such
period shall be entitled to participate on a fair and equitable basis in the job
opportunity and employment placement programs offered by Parent or any of its
Subsidiaries.
RIGHTS AGREEMENT. The Merger Agreement provides that the Company shall
maintain in effect all actions previously taken, and take any additional actions
(including, if necessary, amending or terminating the Rights Agreement)
necessary, to (i) render the Rights Agreement inapplicable with respect to the
Offer, the Merger, the Merger Agreement and the other transactions contemplated
by the Merger Agreement and (ii) ensure that (x) none of Parent, Purchaser or
Merger Sub or any of their Affiliates or Associates (each as defined in the
Rights Agreement) is or will be considered to be an Acquiring Person (as defined
in the Rights Agreement) and (y) none of a Distribution Date, Triggering Event
or Shares Acquisition Date (each as defined in the Rights Agreement) occurs or
shall occur by reason of the
8
<PAGE>
announcement or consummation of the Offer, the Merger or the execution or
delivery of the Merger Agreement or the consummation of any of the other
transactions contemplated by the Merger Agreement.
CONDITIONS. The Merger Agreement provides that the respective obligation 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) if such approval of the
Merger is required by applicable law, the Merger Agreement and the transactions
contemplated thereby shall have been approved by the holders of the issued and
outstanding Shares in the manner required by the Company's Certificate of
Incorporation and By-Laws and by applicable law; provided that Parent and
Purchaser shall vote all of their Shares in favor of the Merger; (b) the waiting
period applicable to the consummation of the Merger under the HSR Act or any
other law (domestic or foreign) applicable to the Merger shall have expired or
been terminated and all consents, authorizations, orders and approvals of (or
filings or registrations with) any governmental commission, board or other
regulatory body shall have been obtained or made; (c) neither of the parties to
the Merger Agreement shall be subject to any statute, rule, regulation,
executive order, judgment decree or injunction enacted, entered, issued,
promulgated or enforced by any court of competent jurisdiction or governmental
authority which prohibits or restricts the consummation of the transactions
contemplated by the Merger Agreement or makes such consummation illegal or
otherwise restricts Parent's or Purchaser's exercise of full rights to own and
operate the Company; and (d) Parent shall have purchased Shares pursuant to the
Offer.
TERMINATION. The Merger Agreement provides that it (a) may be terminated
and the Offer and Merger may be abandoned by the mutual consent of Parent and
the Company; (b) may be terminated and the Offer and the Merger may be abandoned
at any time prior to the time the Merger is effective, before or after the
approval of the Merger Agreement by the holders of Shares, by action of the
Board of Directors of Parent or of the Company if (i) the Merger shall not have
been consummated by June 30, 1997 or (ii) any court of competent jurisdiction
any other governmental, regulatory or administrative agency, body or commission
shall have issued an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated by the Merger Agreement and such order, decree, ruling or other
action shall have become final and non-appealable; PROVIDED, HOWEVER, that the
party seeking to terminate the Merger Agreement pursuant to this clause (b)(ii)
shall have used all reasonable efforts to remove such injunction, order or
decree; PROVIDED, FURTHER, the right to terminate the Merger Agreement pursuant
to clause (b)(i) above, shall not be available to any party whose failure to
perform or observe in any material respect any of its obligations under the
Merger Agreement in any manner shall have been the cause of, or resulted in, the
failure of the Merger to occur on or before such date; (c) may be terminated and
the Offer and the Merger may be abandoned at any time prior to the Effective
Time, before or after the adoption and approval by the holders of Shares, by
action of the Loctite Board if (i) the Loctite Board reasonably determines,
after consultation with, and taking into account the advice of, outside legal
counsel, that proceeding with the transactions contemplated by the Merger
Agreement would be inconsistent with its fiduciary obligations by reason of an
Acquisition Proposal for the Company, or (ii) Parent or Purchaser shall have
terminated or withdrawn the Offer or amended the Offer in any manner not
expressly permitted by the Merger Agreement, or (iii) there has been a breach by
Parent or Purchaser of any representation or warranty contained in the Merger
Agreement which breach (x) is not curable, or, if curable, is not cured within
30 days after written notice of said breach is given by the Company to Parent
and (y) would have a Parent Material Adverse Effect (as defined in the Merger
Agreement), or (iv) there has been a material breach of or failure to comply
with any of the covenants or agreements set forth in the Merger Agreement on the
part of Parent or Purchaser, which breach is not curable or, if curable, is not
cured within 30 days after written notice of such breach is given by the Company
to Parent; PROVIDED, HOWEVER, that the right to terminate the Merger Agreement
pursuant to sub-section (c)(iii) or (iv) above shall not be available to the
Company if it, at such time, is in material breach of any representation,
warranty, covenant or agreement set forth in the Merger Agreement; or (d) until
any Shares have been purchased pursuant to the Offer, may be terminated and the
Offer and the Merger may be abandoned at any time prior to the Effective Time,
before or after the
9
<PAGE>
approval by the holders of Shares, by action of the Board of Directors of Parent
if (i) there has been a breach by the Company of any representation or warranty
contained in the Merger Agreement which breach (x) is not curable, or, if
curable, is not cured within 30 days after written notice of said breach is
given by Parent to the Company and (y) would have a Company Material Adverse
Effect (as defined in the Merger Agreement), or (ii) there has been a material
breach of any of the covenants or agreements set forth in the Merger Agreement
on the part of the Company, which breach is not curable or, if curable, is not
cured within 30 days after written notice of such breach is given by Parent to
the Company, or (iii) the Loctite Board or the Special Committee shall have
withdrawn or modified in a manner adverse to Parent or Purchaser its
authorization approval or recommendation of the transactions contemplated by the
Merger Agreement or recommended another Acquisition Proposal for the Company; or
shall have resolved to do any of the foregoing or (iv) if the Company or any of
its Subsidiaries (or the Loctite Board or any committee thereof) shall have
approved, recommended, authorized, proposed, publicly announced its intention to
enter into an Acquisition Transaction (other than the Offer and the Merger) or
filed a Schedule 14D-9 not opposing any tender offer by a party other than
Parent or Purchaser or any of their affiliates; PROVIDED, HOWEVER, that the
right to terminate the Merger Agreement pursuant to sub-section (d)(i) or (ii)
above shall not be available to Parent if it, at such time, is in material
breach of any representation, warranty, covenant or agreement set forth in the
Merger Agreement.
AMENDMENT. The Merger Agreement provides that it may be amended by the
parties thereto, by action taken or authorized by their respective Boards of
Directors, PROVIDED, HOWEVER, that after any approval of the Merger Agreement by
the stockholders of the Company, no amendment will be made to the Merger
Agreement which by law requires further approval by such stockholders without
such further approval.
10
<PAGE>
THE AMENDED OFFER
AMENDED TERMS OF THE OFFER
The terms of the Offer set forth under the section entitled "THE TENDER
OFFER--Terms of the Offer" of the Offer to Purchase are hereby amended and
supplemented as follows:
The price to be paid for Shares purchased pursuant to the Offer has been
increased from $57.75 to $61.00 per Share, net to the seller in cash, without
interest thereon. Upon the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and conditions of any
such extension or amendment), Purchaser will promptly after the Expiration Date
accept for payment and will pay for all Shares validly tendered prior to the
Expiration Date and not properly withdrawn in accordance with the section
entitled "THE TENDER OFFER--Withdrawal Rights" of the Offer to Purchase. All
stockholders whose Shares are tendered and purchased pursuant to the Offer
(including those Shares tendered prior to the date hereof) will receive the
increased price. The Merger Agreement provides that, without the prior consent
of the Company, the consideration of $61.00 may not be decreased.
THE EXPIRATION DATE OF THE OFFER HAS BEEN SHORTENED AND THE OFFER WILL NOW
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, DECEMBER 20, 1996,
unless and until Purchaser extends the period of time during which the Offer is
open, in which event the term "Expiration Date" shall refer to the latest time
and date at which the Offer, as so extended by Purchaser, shall expire. The
Merger Agreement provides that Purchaser may extend the Offer under certain
circumstances. See "SPECIAL FACTORS--Purpose of the Offer and the Merger."
Shares tendered pursuant to the Offer may be withdrawn in the manner set forth
in the section entitled "THE TENDER OFFER--Withdrawal Rights" of the Offer to
Purchase at any time unless theretofore accepted for payment as provided in the
Offer.
The waiting period applicable to the Offer under the HSR Act expired at
11:59 p.m. eastern time on Friday, November 22, 1996. The conditions contained
in the section entitled "THE TENDER OFFER-- Certain Conditions of the Offer" of
the Offer to Purchase have been amended. See "THE AMENDED OFFER--Amendments to
Certain Conditions of the Offer."
PROCEDURE FOR TENDERING SHARES
The procedures for tendering Shares set forth in the section entitled "THE
TENDER OFFER-- Procedure for Tendering Shares" of the Offer to Purchase are
amended and supplemented as follows:
Tendering stockholders may continue to use the original BLUE Letter of
Transmittal and the original GREY Notice of Guaranteed Delivery previously
circulated with the Offer to Purchase or may use the revised PINK Letter of
Transmittal and the revised YELLOW Notice of Guaranteed Delivery circulated with
this Supplement. Although the BLUE Letter of Transmittal previously circulated
with the Offer to Purchase refers only to the Offer to Purchase, stockholders
using such document to tender their Shares will nevertheless receive the
increased Offer price of $61.00 per Share for each Share validly tendered and
not properly withdrawn and accepted for payment pursuant to the Offer, subject
to the conditions of the Offer.
In the Merger Agreement, the Company represented, among other things, that
it has taken or will take any necessary action to (i) render the Rights
inapplicable to the Offer, the Merger and the other transactions contemplated by
the Merger Agreement and (ii) ensure that a Distribution Date (as defined in the
Rights Agreement) does not occur by reason of the announcement or consummation
of the Offer, the Merger or any of the other transactions contemplated by the
Merger Agreement. Accordingly, Rights will continue to be evidenced by the
certificates for Shares. Unless separate certificates for Rights are issued, a
tender of Shares will also constitute a tender of associated Rights.
11
<PAGE>
STOCKHOLDERS WHO PREVIOUSLY TENDERED THEIR SHARES PURSUANT TO THE OFFER ARE
NOT REQUIRED TO TAKE ANY FURTHER ACTION IN ORDER TO RECEIVE THE INCREASED PRICE
OF $61.00 PER SHARE, EXCEPT AS MAY BE REQUIRED BY THE PROCEDURE FOR GUARANTEED
DELIVERY IF SUCH PROCEDURE WAS UTILIZED.
See the section entitled "THE TENDER OFFER--Withdrawal Rights" of the Offer
to Purchase for the procedures for withdrawing Shares tendered pursuant to the
Offer.
PRICE RANGE OF THE SHARES; DIVIDENDS
The discussion set forth in the section entitled "THE TENDER OFFER--Price
Range of the Shares; Dividends" of the Offer to Purchase is hereby amended and
supplemented as follows:
The Shares are traded on the New York Stock Exchange, Inc. (the "NYSE") and
the Pacific Stock Exchange Incorporated (the "PSE") under the symbol LOC. The
range of the high and low sales prices for the Shares and dividends paid per
Share for each of the fiscal quarters indicated is set forth below.
<TABLE>
<CAPTION>
DIVIDEND
PAID
HIGH LOW PER SHARE
--------- --------- -------------
<S> <C> <C> <C>
1994
First Quarter.................................................... $ 44 $ 35 $ 0.20
Second Quarter................................................... 45 1/2 39 1/4 0.20
Third Quarter.................................................... 45 7/8 41 1/4 0.21
Fourth Quarter................................................... 46 3/4 41 7/8 0.21
1995
First Quarter.................................................... $ 48 7/8 $ 44 3/8 $ 0.21
Second Quarter................................................... 50 7/8 45 1/2 0.25
Third Quarter.................................................... 49 1/4 43 3/8 0.25
Fourth Quarter................................................... 49 3/4 45 1/8 0.25
1996
First Quarter.................................................... $ 53 3/4 $ 47 1/8 $ 0.25
Second Quarter................................................... 51 3/4 45 5/8 0.30
Third Quarter.................................................... 47 42 1/4 0.30
Fourth Quarter through December 5, 1996.......................... 60 7/8 44 1/4 0.30
</TABLE>
On October 25, 1996, the last full trading day before Purchaser announced
its consideration of a change in its position as a minority investor, including
the possibility of the commencement of the Offer, the last reported sale price
of the Shares on the NYSE was $46 1/4 per share. On November 5, 1996, the last
full trading day before the first public announcement of the Offer, the last
reported sale price of the Shares on the NYSE was $57 7/8 per Share.
From November 6, 1996, the date of commencement of the Offer, through
December 4, 1996, the last full trading day prior to the announcement by Parent
and the Company of the increased price to be paid pursuant to the Offer and the
execution of the Merger Agreement, the high and low reported sales prices of the
Shares on the NYSE were $60 7/8 and $58 1/2 , respectively. On December 4, 1996,
the last full trading day prior to announcement of the increased price to be
paid pursuant to the Offer and the execution of the Merger Agreement, the
reported closing price of the Shares on the NYSE was $60 3/8 per Share.
STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
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<PAGE>
CERTAIN ADDITIONAL INFORMATION CONCERNING THE COMPANY
The information concerning the Company set forth in the Section entitled
"THE TENDER OFFER--Certain Information Concerning the Company" is hereby
supplemented and amended as follows:
Except as otherwise set forth herein, the information concerning the Company
contained in this Supplement, including financial information, has been taken
from or based upon publicly available documents on file with the Commission and
other public sources.
Set forth below is a summary of certain selected financial information with
respect to the Company for the nine months ended September 30, 1996 and
September 30, 1995, and for the years ended December 31, 1995 and 1994. The
September 30, 1996 and September 30, 1995 income statement data was excerpted
from the Company's Form 10-Q for the Quarterly Period ended September 30, 1996
(the "COMPANY'S SEPTEMBER 10-Q") and the September 30, 1996 and September 30,
1995 balance sheet information was excerpted from the Company's September 10-Q
and the Company's Quarterly Report on Form 10-Q for the Quarterly Period ended
September 30, 1995, respectively. The December 31, 1995 and 1994 information was
excerpted from the Company's Form 10-K. More comprehensive financial information
is included in the Company's September 10-Q and the Company's Form 10-K and the
following summary is qualified in its entirety by reference to such reports and
the financial statements and other financial information (including any related
notes) contained therein. The Company's September 10-Q and the Company's Form
10-K may be inspected and copies may be obtained in the manner set forth below.
LOCTITE CORPORATION
SELECTED CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED YEAR ENDED
SEPTEMBER 30, DECEMBER 31,
---------------------------- ----------------------------
<S> <C> <C> <C> <C>
1996 1995 1995 1994
------------- ------------- ------------- -------------
INCOME STATEMENT DATA:
Sales and Operating Revenues...................... $ 602,336 $ 593,708 $ 785,148 $ 703,593
Net Income........................................ 67,981 68,132 83,913 82,400
Earnings Per Share................................ 2.10 1.93 2.40 2.33
BALANCE SHEET DATA:
Total Assets...................................... 708,843 718,281 715,628 669,076
Total Liabilities................................. 359,304 272,073 318,830 245,716
Stockholders' Equity.............................. 349,539 446,208 396,798 423,360
</TABLE>
The book value per Share as of September 30, 1996 was $10.91 and as of
December 31, 1995 was $11.81.
CAUTIONARY STATEMENT CONCERNING
FORWARD-LOOKING INFORMATION:
CERTAIN MATTERS DISCUSSED HEREIN ARE FORWARD-LOOKING STATEMENTS THAT INVOLVE
RISKS AND UNCERTAINTIES. Forward-looking statements include the information set
forth below concerning the projections provided to Parent and Purchaser by the
Company. To that extent, Purchaser claims the protection of the disclosure
liability safe harbor for forward looking statements contained in the Private
Securities Litigation Reform Act of 1995. The Company does not as a matter of
course make public projections as to future performance or earnings. Such
information has been included in this Supplement for the limited purpose
13
<PAGE>
of giving Loctite stockholders access to financial projections on the Company
that were made available to Parent and Purchaser. Such information was prepared
by Loctite management for internal use and was not prepared with a view to
public disclosure or compliance with the published guidelines of the Commission
or the guidelines established by the American Institute of Certified Public
Accountants regarding projections or forecasts. Readers are cautioned that the
following factors may cause the Company's actual financial performance to differ
materially from the projected or planned financial performance expressed in such
forward-looking statements: the projections were based on a number of
assumptions, many of which are beyond the control of the Company, Purchaser or
Parent; a deterioration in general economic conditions may result in reduced
demand for the Company's products and services; there may be unexpected
increases in operating expenses or in competition, which may result in reduced
revenue or increased expenses. The inclusion of the projections herein is not,
and should not be regarded as, an indication that any of the Company, Purchaser,
Parent or any other person who received such information considers it an
accurate prediction of future events. None of the Company, Purchaser or Parent
intends to update, revise or correct such projections if they prove to be
inaccurate (even in the short term).
In connection with the negotiation of the Merger Agreement, the Company's
management and financial advisors held discussions with representatives of
Parent and Purchaser with respect to the business, operations and prospects of
the Company and the Company furnished Parent and Purchaser with certain
non-public information about the Company. Such information included a copy of
the Company's 1997 business plan (the "LOCTITE BUSINESS PLAN"). The Loctite
Business Plan contains (among other things) non-public financial projections of
the Company on a consolidated basis and for the North America, Europe, Pacific
and Latin America regions for the years 1996 and 1997 both on an aggregate basis
and broken down by division (I.E., industrial/electronics, auto aftermarket and
consumer). The following information (the "PROJECTIONS") is excerpted from the
consolidated projections included in the Loctite Business Plan:
LOCTITE CORPORATION
PLAN 1997 VS OCTOBER FORECAST 1996
AS OF OCTOBER, 1996
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
CONSOLIDATED
<TABLE>
<CAPTION>
FORECAST
TOTAL PLAN 1997 1996 $% GROWTH
- -------------------------------------------------------------------------- ---------- ------------ -------------
<S> <C> <C> <C>
Sales..................................................................... $ 918,713 $ 810,526 13.3%
Gross Margin.............................................................. 566,868 500,789 13.2%
Operating Expenses........................................................ 411,753 371,712 10.8%
---------- ------------ ---
Operating Profit.......................................................... 155,116 129,076 20.2%
---------- ------------ ---
---------- ------------ ---
</TABLE>
BY REGION:
NORTH AMERICA
<TABLE>
<CAPTION>
FORECAST
TOTAL PLAN 1997 1996 $% GROWTH
- -------------------------------------------------------------------------- ---------- ------------ -------------
<S> <C> <C> <C>
Sales..................................................................... $ 324,674 $ 299,029 8.6%
Gross Margin.............................................................. 180,400 161,553 11.7%
Operating Expenses........................................................ 114,549 105,774 8.3%
---------- ------------ ---
Operating Profit.......................................................... 65,851 55,778 18.1%
---------- ------------ ---
---------- ------------ ---
</TABLE>
14
<PAGE>
EUROPE
<TABLE>
<CAPTION>
FORECAST
TOTAL PLAN 1997 1996 $% GROWTH
- -------------------------------------------------------------------------- ---------- ------------ -------------
<S> <C> <C> <C>
Sales..................................................................... $ 371,559 $ 324,877 14.4%
Gross Margin.............................................................. 251,335 225,932 11.2%
Operating Expenses........................................................ 144,582 131,664 9.8%
---------- ------------ ---
Operating Profit.......................................................... 106,753 94,268 13.2%
---------- ------------ ---
---------- ------------ ---
</TABLE>
PACIFIC
<TABLE>
<CAPTION>
FORECAST
TOTAL PLAN 1997 1996 $% GROWTH
- -------------------------------------------------------------------------- ---------- ------------ -------------
<S> <C> <C> <C>
Sales..................................................................... $ 109,467 $ 91,555 19.6%
Gross Margin.............................................................. 68,093 56,379 20.8%
Operating Expenses........................................................ 54,181 46,269 17.1%
---------- ------------ ---
Operating Profit.......................................................... 13,912 10,111 37.6%
---------- ------------ ---
---------- ------------ ---
</TABLE>
LATIN AMERICA
<TABLE>
<CAPTION>
FORECAST
TOTAL PLAN 1997 1996 $% GROWTH
- -------------------------------------------------------------------------- ---------- ------------ -------------
<S> <C> <C> <C>
Sales..................................................................... $ 113,013 $ 95,065 18.9%
Gross Margin.............................................................. 67,041 56,925 17.8%
Operating Expenses........................................................ 41,248 37,625 9.6%
---------- ------------ ---
Operating Profit.......................................................... 25,793 19,300 33.6%
---------- ------------ ---
---------- ------------ ---
</TABLE>
BY DIVISION:
INDUSTRIAL/ELECTRONICS CHANNEL
<TABLE>
<CAPTION>
FORECAST
TOTAL PLAN 1997 1996 $% GROWTH
- -------------------------------------------------------------------------- ---------- ------------ -------------
<S> <C> <C> <C>
Sales..................................................................... $ 519,783 $ 456,234 13.9%
Gross Margin.............................................................. 345,505 305,562 13.1%
Operating Expenses........................................................ 243,836 211,515 15.3%
---------- ------------ ---
Operating Profit.......................................................... 101,669 94,046 8.1%
---------- ------------ ---
---------- ------------ ---
</TABLE>
AUTO AFTERMARKET CHANNEL
<TABLE>
<CAPTION>
FORECAST
TOTAL PLAN 1997 1996 $% GROWTH
- -------------------------------------------------------------------------- ---------- ------------ -------------
<S> <C> <C> <C>
Sales..................................................................... $ 172,321 $ 155,043 11.1%
Gross Margin.............................................................. 85,628 75,948 12.7%
Operating Expenses........................................................ 72,332 69,570 4.0%
---------- ------------ -----
Operating Profit.......................................................... 13,295 6,378 108.5%
---------- ------------ -----
---------- ------------ -----
</TABLE>
15
<PAGE>
CONSUMER CHANNEL
<TABLE>
<CAPTION>
FORECAST
TOTAL PLAN 1997 1996 $% GROWTH
- -------------------------------------------------------------------------- ---------- ------------ -------------
<S> <C> <C> <C>
Sales..................................................................... $ 226,609 $ 199,249 13.7%
Gross Margin.............................................................. 135,736 119,280 13.8%
Operating Expenses........................................................ 95,584 90,627 5.5%
---------- ------------ ---
Operating Profit.......................................................... 40,151 28,652 40.1%
---------- ------------ ---
---------- ------------ ---
</TABLE>
The Company is subject to the information reporting requirements of the
Exchange Act and, in accordance therewith, is required to file reports relating
to its business, financial condition and other matters. Information as of
particular dates concerning the Company's directors and officers, their
remuneration, stock options and other matters, the principal holders of the
Company's securities and any material interest of such persons in transactions
with the Company is required to be disclosed in proxy statements distributed to
the Company's stockholders and filed with the Commission. Such reports, proxy
statements and other information should be available for inspection at the
Commission's public reference facilities at 450 Fifth Street, N.W., Washington,
D.C. 20549 and should also be available for inspection and copying at prescribed
rates at the regional offices of the Commission located at Northwestern Atrium
Center, 500 West Madison Street, Suite 1400, Chicago, IL 60601 and 7 World Trade
Center, 13th Floor, New York, NY 10048. Copies of such material may also be
obtained by mail at prescribed rates, from the Commission's principal office at
450 Fifth Street, N.W., Washington, D.C. 20549. Such material should also be
available for inspection at the offices of the NYSE, 20 Broad Street, New York,
New York 10005 and the PSE (by appointment), 115 Sansome Street, 2nd Floor, San
Francisco, California 94104, Telephone Number, 415-393-4067.
SOURCE AND AMOUNT OF FUNDS
The information contained in the Section entitled "THE TENDER OFFER--Source
and Amount of Funds" of the Offer to Purchase is hereby amended and supplemented
as follows:
The Offer is not conditioned upon obtaining any arrangements for the
financing of the Offer. Purchaser estimates that the total amount of funds
required to purchase pursuant to the Offer the number of Shares that are
outstanding on a fully diluted basis (excluding Shares held by Purchaser) and
pay fees and expenses related to the Offer will be approximately $1.3 billion.
All funds needed for the Offer will be obtained from Parent. Parent will provide
such funds from the sources described in the Offer to Purchase.
AMENDMENTS TO CERTAIN CONDITIONS OF THE OFFER
The conditions to the Offer as set forth in the section entitled "THE TENDER
OFFER--Certain Conditions to the Offer" of the Offer to Purchase are hereby
amended and restated in their entirety as follows:
Notwithstanding any other term or provision of the Offer, Purchaser will not
be required to accept for payment, purchase or, subject to any applicable rules
and regulations of the Commission, including Rule 14e-1(c) under the Exchange
Act (relating to Purchaser's obligation to pay for or return tendered Shares
promptly after termination or withdrawal of the Offer), pay for and may delay
the acceptance for payment of or, subject to the restriction referred to above,
the payment for any tendered Shares and may terminate the Offer as to any Shares
not then paid for, if (1) there are not validly tendered (and not withdrawn)
prior to the Expiration Date of the Offer that number of Shares that would, when
aggregated with the Shares already owned by Purchaser, represent a majority of
all outstanding Shares on a fully diluted basis on the date of purchase (the
"MINIMUM CONDITION"), or (2) at any time on or after the date of the Offer to
Purchase, and prior to the time of acceptance for payment of or payment for any
such Shares, any of the following events or conditions exist:
16
<PAGE>
(a) there shall be instituted or pending any action, proceeding,
application or counterclaim by any government or governmental, regulatory or
administrative authority, agency or instrumentality, domestic, foreign or
supranational (each, a "GOVERNMENTAL ENTITY"), or by any other person,
domestic or foreign, before any court or Governmental Entity, (i)(A) which
is reasonably likely to make illegal, delay or otherwise directly or
indirectly restrain or prohibit, or which is reasonably likely to impose
price or other requirements, in addition to those required by the Federal
securities laws (as in effect on the date of the Offer to Purchase), in
connection with, the making of the Offer, the acceptance for payment of, or
payment for, some of or all the Shares by Purchaser, Parent or any other
affiliate of Parent, or the consummation by Purchaser or any other affiliate
of Parent of the Merger or other similar business combination with the
Company or (B) which is reasonably likely to result in material damages,
(ii) which is reasonably likely to impose limitations on the ability of
Purchaser, Parent or any other affiliate of Parent effectively to exercise
full rights of ownership of the Shares, including, without limitation, the
right to vote any Shares acquired or owned by Purchaser, Parent or any other
affiliate of Parent on all matters properly presented to the Company's
stockholders, (iii) which is reasonably likely to require divestiture by
Purchaser, Parent or any other affiliate of Parent of any Shares, (iv) which
is reasonably likely to result in any material diminution in the benefits
expected to be derived by Purchaser, Parent or any other affiliate of Parent
as a result of the transactions contemplated by the Offer, the Merger or
other similar business combination, or (v) materially adversely affecting
the business, assets, liabilities, financial condition or results of
operations of the Company and its Subsidiaries taken as a whole;
(b) there shall be any action taken or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction proposed,
enacted, enforced, promulgated, amended, issued or deemed applicable to (i)
Purchaser, Parent or any other affiliate of Parent or the Company or any of
its Subsidiaries or (ii) the Offer, the Merger, or other similar business
combination by Purchaser or any affiliate of Parent with the Company, by any
government, legislative body or court, domestic, foreign or supranational,
or Governmental Entity, that is reasonably likely, directly or indirectly,
to result in any of the consequences referred to in clauses (i) through (v)
of paragraph (a) above;
(c) any change shall have occurred or been threatened (or any condition,
event or development shall have occurred or been threatened involving a
prospective change) in the business, assets, liabilities, financial
condition or results of operations of the Company and its Subsidiaries taken
as a whole that is reasonably likely to be materially adverse to the Company
and its Subsidiaries taken as a whole;
(d) there shall have occurred or been threatened (i) any general
suspension of trading in, or limitation on prices for, securities on any
national securities exchange or in the over-the-counter market in the United
States, (ii) a decline of at least 15% in either the Dow Jones Average of
Industrial Stocks or the Standard & Poor's 500 Index from that existing at
the close of business on December 5, 1996, (iii) any change in the general
political, market, economic or financial conditions in the United States or
abroad that is reasonably likely to have a material adverse effect upon the
business, assets, liabilities, financial condition or results of operations
of the Company and its Subsidiaries taken as a whole, (iv) any material
change in currency exchange rates that is reasonably likely to have a
material adverse effect on the business, assets, liabilities, financial
condition or results of operations of the Company and its Subsidiaries taken
as a whole, (v) a declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States, (vi) any limitation
(whether or not mandatory) by any government, domestic, foreign or
supranational, or Governmental Entity on, or other event that is reasonably
likely to have a material adverse affect on, the extension of credit by
banks or other lending institutions, which is reasonably likely to have a
material adverse effect on the business, assets, liabilities, financial
condition or results of operations of the Company and its Subsidiaries taken
as a whole, (vii) a commencement of a war involving the United States or
17
<PAGE>
(viii) in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof;
(e) it shall have been publicly disclosed or Purchaser shall have
learned that (i) any person or "group" (as defined in Section 13(d)(3) of
the Exchange Act) shall have acquired or proposed to acquire more than 50%
of any class or series of capital stock of the Company (including the
Shares) or shall have been granted any option or right to acquire more than
50% of any class or series of capital stock of the Company (including the
Shares) or (ii) any person or group shall have entered into a definitive
agreement or an agreement in principle with respect to a tender offer or
exchange offer or a merger, share exchange, consolidation or other business
combination or a sale of assets (other than in the ordinary course of
business) with the Company or any of its Subsidiaries;
(f) Purchaser, Parent or another affiliate of Parent and the Company
shall have entered into an agreement that the Offer be terminated or
amended;
(g) the Company shall have breached or failed to comply in any material
respect with any of its obligations under the Merger Agreement or the
representations or warranties of the Company contained therein shall have
been inaccurate when made or at any time thereafter in any respect that is
reasonably likely to have a material adverse effect on the business, assets,
liabilities, financial condition or results of operations of the Company and
its Subsidiaries taken as a whole; or
(h) the Company Board shall have modified or amended in any manner
adverse to Purchaser or shall have withdrawn its recommendation of the Offer
or the Merger
which, regardless of the circumstances (including any action or inaction by
Purchaser or any affiliate of Purchaser) giving rise to any such condition,
makes it inadvisable, in the reasonable good faith judgment of Purchaser, to
proceed with the Offer and/or with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Purchaser and may be
asserted by Purchaser regardless of the circumstances giving rise to any such
condition or may be waived by Purchaser in whole or in part at any time and from
time to time in its sole discretion. The failure by Purchaser at any time to
exercise any of the foregoing rights will not be deemed a waiver of any such
right, and the waiver of any such right with respect to particular facts and
circumstances will not be deemed a waiver with respect to any other facts and
circumstances and each such right will be deemed an ongoing right that may be
asserted at any time and from time to time.
MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Purchaser is not aware of any jurisdiction in which the making of
the Offer or the tender of Shares in connection therewith would not be in
compliance with the laws of such jurisdiction. To the extent Purchaser becomes
aware of any state law that would limit the class of offerees in the Offer,
Purchaser 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 holders of Shares prior to the expiration of the Offer. In any
jurisdiction the securities, blue sky or other laws of which require the Offer
to be made by a licensed broker or dealer, the Offer shall be deemed to be made
on behalf of Purchaser by the Dealer Manager or one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
18
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF PURCHASER NOT CONTAINED HEREIN, IN THE OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Purchaser has filed with the Commission a Tender Offer Statement on Schedule
14D-1 and a Transaction Statement on Schedule 13E-3, together with exhibits,
pursuant to Rules 14d-1 and 13e-3, respectively, under the Exchange Act,
together with exhibits furnishing certain additional information with respect to
the Offer, and may file amendments thereto. A copy of such documents, and any
amendments thereto, may be examined at, and copies may be obtained from the
Commission (but not the regional offices of the Commission) in the manner set
forth under "--Certain Information Concerning the Company" above.
HC Investments, Inc.
DECEMBER 6, 1996
19
<PAGE>
THE DEPOSITARY FOR THE OFFER IS:
CITIBANK, N.A.
<TABLE>
<S> <C> <C>
BY HAND: BY MAIL: BY OVERNIGHT COURIER:
Citibank, N.A. Citibank, N.A. Citibank, N.A.
Corporate Trust Window c/o Citicorp Data Distribution, c/o Citicorp Data Distribution,
111 Wall Street, 5th Floor Inc. Inc.
New York, New York 10043 P.O. Box 7072 404 Sette Drive
Paramus, New Jersey 07653 Paramus, New Jersey 07652
</TABLE>
FACSIMILE FOR ELIGIBLE INSTITUTIONS: (201) 262-3240
TO CONFIRM FAX ONLY: (800) 422-2077
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective telephone numbers and locations
listed below. Additional copies of the Offer to Purchase, this Supplement, the
Letter of Transmittal, the Notice of Guaranteed Delivery and other related
materials may be obtained from the Information Agent. You may also contact your
broker, dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[Logo of MacKenzie Partners, Inc.]
156 Fifth Avenue
New York, New York 10010
(800) 322-2885 (TOLL FREE)
(212) 929-5500 (CALL COLLECT)
THE DEALER MANAGER FOR THE OFFER IS:
ROTHSCHILD INC.
1251 Avenue of the Americas
New York, New York 10020
CALL TOLL FREE: (800) 753-5151
(EXTENSION 3611)
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING ANY ASSOCIATED STOCK PURCHASE RIGHTS)
OF
LOCTITE CORPORATION
PURSUANT TO THE OFFER TO PURCHASE
DATED NOVEMBER 6, 1996 AND THE
SUPPLEMENT DATED DECEMBER 6, 1996
BY
HC INVESTMENTS, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
HENKEL KGaA
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, DECEMBER 20, 1996,
UNLESS THE OFFER IS EXTENDED.
THE DEPOSITARY FOR THE OFFER IS:
CITIBANK, N.A.
<TABLE>
<S> <C> <C>
BY HAND: BY MAIL: BY OVERNIGHT COURIER:
Citibank, N.A. Citibank, N.A. Citibank, N.A.
Corporate Trust Window c/o Citicorp Data Distribution, Inc. c/o Citicorp Data Distribution, Inc.
111 Wall Street, 5th Floor P.O. Box 7072 404 Sette Drive
New York, New York 10043 Paramus, New Jersey 07653 Paramus, New Jersey 07652
</TABLE>
FACSIMILE FOR ELIGIBLE INSTITUTIONS: (201) 262-3240
TO CONFIRM FAX ONLY: (800) 422-2077
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS LETTER
OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE SUBSTITUTE FORM W-9
PROVIDED BELOW.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be completed by stockholders of Loctite
Corporation (the "COMPANY") either if certificates ("SHARE CERTIFICATES")
evidencing Shares (as defined below) are to be forwarded herewith or if delivery
of Shares is to be made by book-entry transfer to the account of Citibank, N.A.
(the "DEPOSITARY") at The Depository Trust Company or Philadelphia Depository
Trust Company (each, a "BOOK-ENTRY TRANSFER FACILITY" and collectively, the
"BOOK-ENTRY TRANSFER FACILITIES") pursuant to the book-entry transfer procedures
described in the section entitled "THE TENDER OFFER--Procedure for Tendering
Shares" of the Offer to Purchase (as defined below). DELIVERY OF DOCUMENTS TO A
BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
<PAGE>
Stockholders whose Share Certificates are not immediately available or who
cannot deliver their Share Certificates and all other documents required hereby
to the Depositary prior to the Expiration Date (as defined in the Supplement (as
defined below)) or who cannot complete the procedure for delivery by book-entry
transfer on a timely basis and who wish to tender their Shares must do so
pursuant to the guaranteed delivery procedure described in the sections entitled
"THE TENDER OFFER--Procedure for Tendering Shares" of the Offer to Purchase and
"THE AMENDED OFFER--Procedure for Tendering Shares" of the Supplement. See
Instruction 2.
/ / CHECK HERE IF SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE
DEPOSITARY'S ACCOUNT AT ONE OF THE BOOK-ENTRY TRANSFER FACILITIES AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution: ____________________________________________
Check box of Applicable Book-Entry Transfer Facility:
/ / The Depository Trust Company
/ / Philadelphia Depository Trust Company
Account Number: ___________________________________________________________
Transaction Code Number: __________________________________________________
/ / CHECK HERE IF SHARES ARE BEING TENDERED PURSUANT TO A NOTICE OF GUARANTEED
DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s): __________________________________________
Date of Execution of Notice of Guaranteed Delivery: _______________________
Name of Institution which Guaranteed Delivery: ____________________________
If Delivered by Book-Entry Transfer, Check box of Applicable Book-Entry
Transfer Facility:
/ / The Depository Trust Company
/ / Philadelphia Depository Trust Company
Account Number: ___________________________________________________________
Transaction Code Number: __________________________________________________
<TABLE>
<S> <C> <C> <C>
DESCRIPTION OF SHARES TENDERED
Name(s) and Address(es) of Registered Holder(s) Share(s) Tendered (Attach additional schedule, if
(please fill in, if blank) necessary)
<CAPTION>
Total Number of
Shares
Represented
Certificate by Number Of Shares
Number(s)* Certificate(s)* Tendered**
<S> <C> <C> <C>
Total Shares
*Need not be completed by stockholders making delivery of Shares by book-entry transfer.
**Unless otherwise indicated, it will be assumed that all Shares evidenced by any certificate delivered to
the Depositary are being tendered. See Instruction 4.
</TABLE>
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE INSTRUCTIONS SET FORTH IN THIS
LETTER OF TRANSMITTAL CAREFULLY.
Ladies and Gentlemen:
The undersigned hereby tenders to HC Investments, Inc., a Delaware
corporation ("PURCHASER"), the above-described shares of Common Stock, par value
$0.01 per share (the "SHARES"), of Loctite Corporation, a Delaware corporation
(the "COMPANY"), pursuant to Purchaser's offer to purchase all outstanding
Shares including the associated common stock purchase rights (the "RIGHTS")
issued pursuant to the Rights Agreement (the "RIGHTS AGREEMENT"), dated as of
April 14, 1994, between the Company and The First National Bank of Boston, as
Rights Agent, and all benefits that may inure to holders thereof, for a purchase
price of $61.00 per Share, net to the seller in cash, without interest thereon,
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated November 6, 1996 (the "OFFER TO PURCHASE"), the Supplement thereto dated
December 6, 1996 (the "SUPPLEMENT"), receipt of which is hereby acknowledged,
and in this Letter of Transmittal (which, as they may be amended from time to
time, together constitute the "OFFER"). The undersigned understands that
Purchaser reserves the right to transfer or assign, in whole at any time or in
part from time to time, to one or more of its affiliates, the right to purchase
all or any portion of the Shares tendered pursuant to the Offer, but any such
transfer or assignment will not relieve Purchaser of its obligations under the
Offer and will in no way prejudice the rights of tendering stockholders to
receive payment for Shares validly tendered and accepted for payment pursuant to
the Offer. All references to Shares include references to the associated Rights,
unless the context indicates otherwise. Capitalized terms not defined herein
shall have the meanings attributed to them in the Offer to Purchase and the
Supplement.
Subject to, and effective upon, acceptance for payment of the Shares
tendered herewith, in accordance with the terms of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to, or upon the
order of, Purchaser all right, title and interest in and to all the Shares that
are being tendered hereby (and any and all other Shares or other securities or
rights issued or issuable in respect of such Shares on or after November 6, 1996
(collectively, "DISTRIBUTIONS")), and irrevocably appoints the Depositary the
true and lawful agent and attorney-in-fact of the undersigned with respect to
such Shares and all Distributions, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with an interest),
to (a) deliver Share Certificates evidencing such Shares and all Distributions,
or transfer ownership of such Shares and all Distributions on the account books
maintained by a Book-Entry Transfer Facility, together, in either case, with all
accompanying evidence of transfer and authenticity, to or upon the order of
Purchaser, (b) present such Shares and all Distributions for transfer on the
Company's books and (c) receive all benefits and otherwise exercise all rights
of beneficial ownership of such Shares and all Distributions, all in accordance
with the terms of the Offer.
By executing this Letter of Transmittal, the undersigned irrevocably
appoints Dr. Karl Gruter and Mr. Ernest G. Szoke, and each of them, as
attorneys-in-fact and proxies of the undersigned, each with full power of
substitution, to the full extent of the undersigned's rights with respect to the
Shares tendered by the undersigned and accepted for payment by Purchaser (and
any and all Distributions). All such attorneys-in-fact and proxies shall be
considered coupled with an interest in the tendered Shares (and Distributions).
This appointment will be effective if, when, and only to the extent that,
Purchaser accepts such Shares for payment pursuant to the Offer. Upon such
acceptance for payment, all prior powers of attorney and proxies given by the
undersigned with respect to such Shares and Distributions will, without further
action, be revoked, and no subsequent powers of attorney or proxies may be given
(and if given will be deemed not to be effective). The individuals named above
as attorneys-in-fact and proxies will, with respect to the Shares and
Distributions for which the appointment is effective, be empowered to exercise
all voting and other rights of the undersigned as they in their sole discretion
may deem proper at any annual, special, adjourned or postponed meeting of the
Company's stockholders, and the right to act by written consent or otherwise.
The undersigned understands that Purchaser reserves the right to require that,
in order for Shares or Distributions to be deemed validly tendered, immediately
upon Purchaser's acceptance for payment of such Shares, Purchaser must be able
to exercise full voting and consent rights with respect to such Shares and other
securities.
<PAGE>
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 all Distributions and that when the same are accepted for payment by
Purchaser, Purchaser will acquire good, marketable and unencumbered title
thereto and to all Distributions, free and clear of all liens, restrictions,
charges and encumbrances, and that none of such Shares and Distributions will be
subject to any adverse claim. The undersigned, upon request, shall execute and
deliver all additional documents deemed by the Depositary or Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby and all Distributions. In addition, the undersigned shall
remit and transfer promptly to the Depositary for the account of Purchaser all
Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of transfer, and, pending such remittance and transfer
or appropriate assurance thereof, Purchaser shall be entitled to all rights and
privileges as owner of each such Distribution and may withhold the entire
purchase price of the Shares tendered hereby or deduct from such purchase price
the amount or value of such Distribution as determined by Purchaser in its sole
discretion.
No authority herein conferred or agreed to be conferred shall be affected
by, and all such authority shall survive, the death or incapacity of the
undersigned. All obligations of the undersigned hereunder shall be binding upon
the heirs, personal representatives, successors and assigns and trustees in
bankruptcy or other legal representatives of the undersigned. Except as stated
in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in the sections entitled "THE TENDER OFFER--Procedure
for Tendering Shares" of the Offer to Purchase and "THE AMENDED OFFER--Procedure
for Tendering Shares" of the Supplement and in the instructions hereto will
constitute the undersigned's acceptance of the terms and conditions of the
Offer. Purchaser's acceptance for payment of Shares tendered pursuant to the
Offer will constitute a binding agreement between the undersigned and Purchaser
upon the terms and subject to the conditions of the Offer, including, without
limitation, the undersigned's representation and warranty that the undersigned
owns the Shares being tendered. The undersigned recognizes that, under certain
circumstances set forth in the Offer to Purchase and the Supplement, Purchaser
may not be required to accept for payment any of the Shares tendered hereby.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the check for the purchase price of all Shares
purchased, and return all Share Certificates evidencing Shares not purchased or
not tendered, in the name(s) of the registered holder(s) appearing above under
"Description of Shares Tendered." Similarly, unless otherwise indicated in the
box entitled "Special Delivery Instructions," please mail the check for the
purchase price of all Shares purchased and all Share Certificates evidencing
Shares not tendered or not purchased (and accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing above
under "Description of Shares Tendered." In the event that the boxes entitled
"Special Payment Instructions" and "Special Delivery Instructions" are both
completed, please issue the check for the purchase price of all Shares purchased
and return all Share Certificates evidencing Shares not purchased or not
tendered in the name(s) of, and mail such check and Share Certificates to, the
person(s) so indicated. Unless otherwise indicated herein in the box entitled
"Special Payment Instructions," please credit any Shares tendered hereby and
delivered by book-entry transfer, but which are not purchased, by crediting the
account at the Book-Entry Transfer Facility designated above. The undersigned
recognizes that Purchaser has no obligation, pursuant to the Special Payment
Instructions, to transfer any Shares from the name of the registered holder(s)
thereof if Purchaser does not accept for payment any of the Shares tendered
hereby.
<PAGE>
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST OR DESTROYED AND SEE INSTRUCTION 10.
Number of Shares represented by the lost or destroyed
certificates: ____________
<TABLE>
<S> <C>
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the To be completed ONLY if the check for the
purchase price of Shares purchased or Share purchase price of Shares purchased or Share
Certificates evidencing Shares not tendered or Certificates evidencing Shares not tendered or
not purchased are to be issued in the name of not purchased are to be mailed to someone
someone other than the undersigned or if other than the undersigned, or to the
Shares tendered by book-entry transfer which undersigned at an address other than that
are not purchased are to be returned by credit shown under "Description of Shares Tendered."
to an account maintained at a Book-Entry
Transfer Facility other than that designated
above.
Issue: / / Check / / Share Certificate(s) to: Deliver: / / Check / / Share Certificate(s)
to:
Name: Name:
(Print) (Print)
Address: Address:
(Include Zip Code) (Include Zip Code)
(Taxpayer Identification or Social Security
Number)
/ / Credit unpurchased Shares tendered by
book-entry transfer to the Book-Entry
Transfer Facility account set forth below:
/ / The Depository Trust Company
/ / Philadelphia Depository Trust Company
(Account Number)
(See Substitute Form W-9)
</TABLE>
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal if (a) this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of these instructions, includes
any participant in either of the Book-Entry Transfer Facilities' systems whose
name appears on a security position listing as the owner of Shares) of the
Shares tendered herewith and such registered holder(s) has not completed either
the box entitled "Special Payment Instructions" or the box entitled "Special
Delivery Instructions" above or (b) such Shares are tendered for the account of
a financial institution (including most commercial banks, savings and loan
associations and brokerage houses) that is a participant in the Security
Transfer Agents Medallion Program, the New York Stock Exchange Medallion
Signature Guarantee Program or the Stock Exchange Medallion Program (an
"ELIGIBLE INSTITUTION"). In all other cases, all signatures on this Letter of
Transmittal must be guaranteed by an Eligible Institution. See Instruction 5. If
Share Certificates are registered in the name of a person other than the signer
of this Letter of Transmittal, or if payment is to be made or Share Certificates
not accepted for payment are to be returned to a person other than the
registered holder of the Share Certificates surrendered, the tendered Share
Certificates must be endorsed or accompanied by appropriate stock powers, in
either case signed exactly as the name or name(s) of the registered holders or
owners appear on the Share Certificates, with the signatures on such Share
Certificates or stock powers guaranteed as aforesaid. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATES. This Letter of
Transmittal is to be used either if Share Certificates are to be forwarded
herewith or if Shares are to be delivered by book-entry transfer pursuant to the
procedure set forth in the section entitled "THE TENDER OFFER--Procedure for
Tendering Shares" of the Offer to Purchase. Share Certificates evidencing all
tendered Shares, or confirmation of a book-entry transfer of such Shares (a
"BOOK-ENTRY CONFIRMATION"), if such procedure is available, into the
Depositary's account at one of the Book-Entry Transfer Facilities pursuant to
the procedures set forth in the section entitled "THE TENDER OFFER--Procedure
for Tendering Shares" of the Offer to Purchase, together with a properly
completed and duly executed Letter of Transmittal (or a manually executed
facsimile thereof) with any required signature guarantees (or, in the case of a
book-entry transfer, an Agent's Message, as defined below) and any other
documents required by this Letter of Transmittal, 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 (as defined in the Supplement). If
Share Certificates are forwarded to the Depositary in multiple deliveries, a
properly completed and duly executed Letter of Transmittal must accompany each
such delivery. Stockholders whose Share Certificates are not immediately
available, who cannot deliver their Share Certificates and all other required
documents to the Depositary prior to the Expiration Date or who cannot complete
the procedure for delivery by book-entry transfer on a timely basis may tender
their Shares pursuant to the guaranteed delivery procedure described in the
section entitled "THE TENDER OFFER--Procedure for Tendering Shares" of the Offer
to Purchase. Pursuant to such procedure: (i) such tender must be made by or
through an Eligible Institution; (ii) a properly completed and duly executed
Notice of Guaranteed Delivery, substantially in the form provided by Purchaser
herewith, must be received by the Depositary prior to the Expiration Date; and
(iii) the Share Certificates, in proper form for transfer, or a confirmation of
a book-entry transfer of such Shares, if such procedure is available, into the
Depositary's account at one of the Book-Entry Transfer Facilities, together with
a properly completed and duly executed Letter of Transmittal (or a manually
executed facsimile thereof) with any required signature guarantees (or, in the
case of a book-entry transfer, an Agent's Message), and any other documents
required by this Letter of Transmittal, must be received by the Depositary
within three trading days after the date of execution of the Notice of
Guaranteed Delivery, all as described in the section entitled "THE TENDER
OFFER--Procedure for Tendering Shares" of the Offer to Purchase. A "trading day"
is any day on which the New York Stock Exchange is open for business. 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 this Letter of Transmittal and that Purchaser may
enforce such agreement against the participant.
<PAGE>
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE CERTIFICATES AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND THE
DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. By execution of this Letter of Transmittal
(or a facsimile hereof), all tendering stockholders waive any right to receive
any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the Share Certificate numbers, the number of
Shares evidenced by such Share Certificates and the number of Shares tendered
should be listed on a separate schedule and attached hereto.
4. PARTIAL TENDERS. (Not applicable to stockholders who tender by
book-entry transfer.) If fewer than all the Shares evidenced by any Share
Certificate delivered to the Depositary herewith are to be tendered hereby, fill
in the number of Shares which are to be tendered in the box entitled "Number of
Shares Tendered." In such cases, new Share Certificate(s) evidencing the
remainder of the Shares that were evidenced by the Share Certificates delivered
to the Depositary herewith will be sent to the person(s) signing this Letter of
Transmittal, unless otherwise provided in the box entitled "Special Delivery
Instructions," as soon as practicable after the expiration or termination of the
Offer. All Shares evidenced by Share Certificates delivered to the Depositary
will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written on
the face of the certificate(s) without any alteration, enlargement or change
whatsoever.
If any Share tendered hereby is owned 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 the names of different holders, it will be necessary to
complete, sign and submit as many separate Letters of Transmittal as there are
different registrations of such Shares.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of Share Certificates or separate stock
powers are required, unless payment is to be made to, or Share Certificates
evidencing Shares not tendered or not purchased are to be issued in the name of
a person other than the registered holder(s), in which case the Share
Certificate(s) evidencing the Shares tendered hereby must be endorsed or
accompanied by appropriate stock powers, in either case signed exactly as the
name(s) of the registered holder(s) appears(s) on such Share Certificate(s).
Signatures on such Share Certificate(s) and stock powers must be guaranteed by
an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Share Certificate(s)
evidencing the 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 such Share Certificate(s). Signatures on such
Share Certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal or any Share Certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or representative
capacity, such person should so indicate when signing, and proper evidence
satisfactory to Purchaser of such person's authority so to act must be
submitted.
6. STOCK TRANSFER TAXES. Except as provided in this Instruction 6,
Purchaser will pay all stock transfer taxes with respect to the transfer and
sale of Shares to it or its order pursuant to the Offer. If, however, payment of
the purchase price of any Shares purchased is to be made to, or if Share
Certificates evidencing Shares not tendered or not purchased are to be issued in
the name of, a person other than the registered holder(s), the amount of any
stock transfer taxes (whether imposed on the registered owner(s), such other
person or otherwise) payable on account of the transfer to such other person
will be deducted from the purchase price of such Shares purchased, unless
satisfactory evidence to Purchaser of the payment of such taxes or exemption
therefrom is submitted.
<PAGE>
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE CERTIFICATES EVIDENCING THE
SHARES TENDERED HEREBY.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the purchase
price of any Shares tendered hereby is to be issued, or Share Certificate(s)
evidencing Shares not tendered or not purchased are to be issued, in the name of
a person other than the person(s) signing this Letter of Transmittal or if such
check or any such Share Certificate is to be sent to someone other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal but at an address other than that shown in the box
entitled "Description of Shares Tendered," the appropriate boxes on this Letter
of Transmittal must be completed. Stockholders delivering Shares tendered hereby
by book-entry transfer may request that Shares not purchased be credited to such
account maintained at a Book-Entry Transfer Facility as such stockholder may
designate in the box entitled "Special Payment Instructions." If no such
instructions are given, all such Shares not purchased will be returned by
crediting the account at the Book-Entry Transfer Facility designated herein as
the account from which such Shares were delivered. See Instruction 1.
8. SUBSTITUTE FORM W-9. Each tendering stockholder (or other payee) is
required to provide the Depositary with a correct Taxpayer Identification Number
("TIN") and certain other information on the Substitute Form W-9, which is
provided under "Important Tax Information" below, and to certify whether such
stockholder (or other payee) is subject to backup withholding of federal income
tax. If a tendering stockholder has been notified by the Internal Revenue
Service that such stockholder is subject to backup withholding, such stockholder
must cross out item (2) of the certification box of the Substitute Form W-9,
unless such stockholder has since been notified by the Internal Revenue Service
that such stockholder is no longer subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the tendering
stockholder (or other payee) to 31% federal income tax withholding on the
payment of the purchase price of all Shares purchased from such stockholder. If
the tendering stockholder has not been issued a TIN and has applied for one or
intends to apply for one in the near future, such stockholder should write
"Applied For" in the space provided for the TIN in Part I of the Substitute Form
W-9, sign and date the Substitute Form W-9, and complete the additional
Certificate of Awaiting Taxpayer Identification Number. If "Applied For" is
written in Part I and the Depositary is not provided with a TIN by the time of
payment, the Depositary will withhold 31% on all payments thereafter to such
stockholder (or other payee) until a TIN is provided to the Depositary.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to the Information Agent or the Dealer Manager at their
respective addresses or telephone numbers set forth herein. Additional copies of
the Offer to Purchase, the Supplement, this Letter of Transmittal, the Notice of
Guaranteed Delivery and the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9 may be obtained from the
Information Agent or from brokers, dealers, commercial banks or trust companies.
10. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly notify the Depositary by checking the box immediately preceding the
special payment/special delivery instructions and indicating the number of
Shares so lost, destroyed or stolen. The Depositary will, in turn, notify the
Company's transfer agent, who will initiate lost stock proceedings. This Letter
of Transmittal and related documents cannot be processed until the procedures
for replacing lost, destroyed or stolen certificates have been followed.
11. WAIVER OF CONDITIONS. The Conditions of the Offer may be waived by
Purchaser, in whole or in part, at any time in its sole discretion in the case
of any Shares tendered.
<PAGE>
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A FACSIMILE HEREOF), PROPERLY
COMPLETED AND DULY EXECUTED, WITH ANY REQUIRED SIGNATURE GUARANTEES, OR AN
AGENT'S MESSAGE (TOGETHER WITH SHARE CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY
TRANSFER AND ALL OTHER REQUIRED DOCUMENTS) OR A PROPERLY COMPLETED AND DULY
EXECUTED NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY THE DEPOSITARY PRIOR
TO THE EXPIRATION DATE (AS DEFINED IN THE SUPPLEMENT).
IMPORTANT TAX INFORMATION
Under the federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required by law to provide the Depositary (as payer)
with such stockholder's correct TIN on Substitute Form W-9 below. If such
stockholder is an individual, the TIN is such stockholder's social security
number. If the Depositary is not provided with the correct TIN, the stockholder
or other payee may be subject to a $50 penalty imposed by the Internal Revenue
Service. In addition, payments that are made to such stockholder or other payee
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, such individual must submit a statement, signed under penalties of
perjury, attesting to such individual's exempt status. Forms of such statements
can be obtained from the Depositary. 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 or other payee. 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 withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a stockholder or
other payee with respect to Shares purchased pursuant to the Offer, the
stockholder is required to notify the Depositary of such stockholder's correct
TIN (or the TIN of any other payee) by completing the form below certifying that
the TIN provided on Substitute Form W-9 is correct (or that such stockholder is
awaiting a TIN), and that (i) such stockholder is exempt from backup
withholding, (ii) such stockholder has not been notified by the Internal Revenue
Service that such stockholder is subject to backup withholding as a result of a
failure to report all interest or dividends or (iii) the Internal Revenue
Service has notified such stockholder that such stockholder is no longer subject
to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the name
of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance on
which number to report. If the tendering Stockholder has not been issued a TIN
and has applied for a number or intends to apply for a number in the near
future, the stockholder should write "Applied For" in the space provided for the
TIN in Part I, sign and date the Substitute Form W-9, and complete the
additional Certificate of Awaiting Taxpayer Identification Number. If "Applied
For" is written in Part I and the Depositary is not provided with a TIN by the
time of payment, the Depositary will withhold 31% of all payments to such
stockholder until a properly certified TIN is provided to the Depositary.
<PAGE>
IMPORTANT
STOCKHOLDERS SIGN HERE
(Also Please Complete Substitute Form W-9 Included Herein)
X:
- --------------------------------------------------------------------------------
X:
- --------------------------------------------------------------------------------
SIGNATURE(S) OF HOLDER(S)
Dated:
- --------------------------------- , 1996
(Must be signed by the register holder(s) exactly as name(s) appear(s) on
Certificates or, if tendered by a participant in a Book-Entry Transfer Facility
by the participant exactly as such participant's name appears on a security
position listing as the owner of the Shares or by a person(s) authorized to
become the registered holder(s) by certificates and documents transmitted
herewith. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or other person acting in a fiduciary
or representative capacity, please provide the following information. See
Instruction 5.)
Name(s):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please Print)
Capacity (full title):
- -----------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone No.:
- -------------------------------------------------------------------
Taxpayer Identification or Social Security No.:
- ------------------------------------------------------
GUARANTEE OF SIGNATURE(S)
(If required--See Instructions 1 and 5)
Authorized Signature:
- ---------------------------------------------------------------------------
Name (Please Print):
- ----------------------------------------------------------------------------
Name of Firm:
- --------------------------------------------------------------------------------
Title:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
(Include Zip Code)
Area Code and Telephone Number:
- ---------------------------------------------------------------
Dated:
- --------------------------------- , 1996
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION
GUARANTEE IN SPACE BELOW.
<PAGE>
<TABLE>
<S> <C> <C>
PAYER'S NAME: CITIBANK, N.A.
PART I--Taxpayer Identification Social Security Number OR
Number --For all accounts, enter Employer Identification Number
taxpayer identification number in ---------------------------------
the box at right. (For most (If awaiting TIN write "Applied
SUBSTITUTE individuals, this is your social For")
FORM W-9 security number. If you do not
DEPARTMENT OF THE have a number, see OBTAINING A
TREASURY NUMBER in the enclosed
INTERNAL REVENUE SERVICE GUIDELINES). Certify by signing
Payer's Request for and dating below.
Taxpayer Identification NOTE:If the account is in more
Number (TIN) than one name, see chart in the
enclosed GUIDELINES to determine
which number to give the payer.
PART II--For Payers exempt from backup withholding, see the enclosed
Guidelines and complete as instructed therein.
PART III--CERTIFICATION--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting
for a number to be issued to me); and
(2) I am not subject to backup withholding either because (a) I am exempt from backup
withholding, (b) I have not been notified by the Internal Revenue Service (IRS) that I am
subject to backup withholding as a result of a failure to report all interest or dividends,
or (c) the IRS has notified me that I am no longer subject to backup withholding.
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have been notified by the
IRS that you are subject to backup withholding because of underreporting interest or dividends
on your tax return. However, if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS that you were no longer subject to
backup withholding, do not cross out item (2). (Also see instructions in the enclosed
GUIDELINES).
</TABLE>
<TABLE>
<S> <C>
- -------------------------------------- ----------------------------
Signature Date
</TABLE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU
WROTE "APPLIED FOR" IN PART I OF THIS SUBSTITUTE FROM W-9
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand
that, notwithstanding the information I provided in Part III of the Substitute
Form W-9 (and the fact that I have completed this Certificate of Awaiting
Taxpayer Identification Number), all reportable payments made to me thereafter
will be subject to a 31% backup withholding tax until I provide a properly
certified taxpayer identification number.
<TABLE>
<S> <C>
- -------------------------------------- ----------------------------
Signature Date
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER TO PURCHASE. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
<PAGE>
The Information Agent for the Offer is:
[Logo of MacKenzie Partners, Inc.]
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
CALL TOLL FREE: (800) 322-2885
The Dealer Manager for the Offer is:
ROTHSCHILD INC.
1251 Avenue of the Americas
New York, NY 10020
CALL TOLL FREE: (800) 753-5151 (EXT. 3611)
<PAGE>
NOTICE OF GUARANTEED DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING ANY ASSOCIATED STOCK PURCHASE RIGHTS)
OF
LOCTITE CORPORATION
TO
HC INVESTMENTS, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
HENKEL KGaA
This Notice of Guaranteed Delivery, or one substantially in the form hereof,
must be used to accept the Offer (as defined below) if (i) certificates ("SHARE
CERTIFICATES") evidencing shares of Common Stock, par value $0.01 per share (the
"SHARES"), of Loctite Corporation, a Delaware corporation (the "COMPANY"),
including the associated common stock purchase rights (the "RIGHTS") issued
pursuant to the Rights Agreement (the "RIGHTS AGREEMENT"), dated as of April 14,
1994, between the Company and The First National Bank of Boston, as Rights
Agent, are not immediately available, (ii) time will not permit all required
documents to reach Citibank, N.A. (the "DEPOSITARY") prior to the Expiration
Date (as defined in the Supplement (as defined below)) or (iii) the procedures
for book-entry transfer cannot be completed on a timely basis. This Notice of
Guaranteed Delivery may be delivered by hand or overnight courier or transmitted
by facsimile transmission or mailed to the Depositary. See the sections entitled
"THE TENDER OFFER--Procedure for Tendering Shares" of the Offer to Purchase (as
defined below) and "THE AMENDED OFFER--Procedure for Tendering Shares" of the
Supplement. All references to Shares include references to the associated
Rights, unless the context indicates otherwise. All capitalized terms used but
not defined herein shall have the meanings ascribed to them in the Offer to
Purchase and the Supplement.
To: CITIBANK, N.A.
<TABLE>
<S> <C> <C>
BY HAND: BY MAIL: BY OVERNIGHT COURIER:
Citibank, N.A. Citibank, N.A. Citibank, N.A.
Corporate Trust Window c/o Citicorp Data Distribution, c/o Citicorp Data Distribution,
111 Wall Street, 5th Inc. Inc.
Floor P.O. Box 7072 404 Sette Drive
New York, New York 10043 Paramus, New Jersey 07653 Paramus, New Jersey 07652
</TABLE>
FACSIMILE FOR ELIGIBLE INSTITUTIONS: (201) 262-3240
TO CONFIRM FAX ONLY: (800) 422-2077
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION
OTHER THAN AS SET FORTH ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY.
THIS FORM 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, in
the case of book-entry transfers, 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.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to HC Investments, Inc., a Delaware corporation
("PURCHASER"), upon the terms and subject to the conditions set forth in the
Offer to Purchase dated November 6, 1996 (the "OFFER TO PURCHASE"), the
Supplement to the Offer to Purchase dated December 6, 1996 (the "SUPPLEMENT")
and the related revised Letter of Transmittal (which, together with any
amendments or supplements thereof, collectively constitute the "OFFER"), receipt
of which is hereby acknowledged, the number of Shares specified below pursuant
to the guaranteed delivery procedure set forth in the sections entitled "THE
TENDER OFFER--Procedure for Tendering Shares" of the Offer to Purchase and "THE
AMENDED OFFER--Procedure for Tendering Shares" of the Supplement.
<TABLE>
<S> <C>
Number of Shares: Name(s) of Record Holder(s):
Certificate Nos. (if applicable): (Please Type or Print)
Address(es):
Check ONE box if Shares will be delivered by (Include Zip Code)
book-entry transfer: Area Code and Tel. No.:
/ / The Depository Trust Company Signature(s):
/ / Philadelphia Depository Trust Company
Account Number: Dated:
</TABLE>
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
The undersigned, an Eligible Institution (as defined in the Offer to
Purchase), hereby guarantees delivery to the Depositary of the certificates
evidencing the Shares tendered hereby, in proper form for transfer, or
Book-Entry Confirmation (as defined in the Offer to Purchase) with respect to
such Shares, in either case together with delivery of a Letter of Transmittal
(or facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or an Agent's Message (as defined in the Offer to
Purchase), and any other documents required by the Letter of Transmittal, within
three trading days after the date of execution of this Notice of Guaranteed
Delivery. A "trading day" is any day on which the New York Stock Exchange, Inc.
is open for business.
<TABLE>
<S> <C>
Name of Firm: (Authorized Signature)
Address: Name:
(Please Print or Type)
Title:
(Include Zip Code)
Area Code and Tel. No.: Date:
</TABLE>
NOTE: DO NOT SEND SHARE CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY.
SHARE CERTIFICATES SHOULD BE SENT ONLY TOGETHER WITH YOUR LETTER OF
TRANSMITTAL.
<PAGE>
ROTHSCHILD INC.
SUPPLEMENT TO THE OFFER TO PURCHASE DATED NOVEMBER 6, 1996
HC INVESTMENTS, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
HENKEL KGaA
HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING ANY ASSOCIATED STOCK PURCHASE RIGHTS)
OF
LOCTITE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, DECEMBER 20, 1996,
UNLESS THE OFFER IS EXTENDED.
December 6, 1996
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
As a supplement to our prior letter, we are enclosing herewith the material
listed below relating to the offer by HC Investments, Inc., a Delaware
corporation ("PURCHASER"), to purchase any and all outstanding shares of common
stock, par value $0.01 per share (the "SHARES"), of Loctite Corporation, a
Delaware corporation (the "COMPANY"), including the associated common stock
purchase rights (the "RIGHTS") issued pursuant to the Rights Agreement (the
"RIGHTS AGREEMENT"), dated as of April 14, 1994, between the Company and The
First National Bank of Boston, as Rights Agent, at a price of $61.00 per Share,
net to the seller in cash, without interest thereon, upon the terms and subject
to the conditions set forth in Purchaser's Offer to Purchase dated November 6,
1996 (the "OFFER TO PURCHASE"), the Supplement thereto dated December 6, 1996
(the "SUPPLEMENT") and the related revised Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"OFFER") enclosed herewith. References to Shares include references to the
associated Rights, unless the context indicates otherwise. All capitalized terms
used but not defined herein shall have the meaning ascribed to them in the Offer
to Purchase and the Supplement.
THE OFFER IS CONDITIONED UPON THERE BEING VALIDLY TENDERED (AND NOT
WITHDRAWN) PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE SUPPLEMENT) THAT
NUMBER OF SHARES THAT WOULD, WHEN AGGREGATED WITH THE SHARES ALREADY OWNED BY
PURCHASER, REPRESENT AT LEAST A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY
DILUTED BASIS ON THE DATE OF PURCHASE. THE OFFER IS SUBJECT TO OTHER TERMS AND
CONDITIONS. SEE THE SECTION ENTITLED "THE AMENDED OFFER--AMENDMENTS TO CERTAIN
CONDITIONS OF THE OFFER" OF THE SUPPLEMENT.
1
<PAGE>
Enclosed herewith are copies of the following documents:
1. The Supplement dated December 6, 1996;
2. The revised Letter of Transmittal to be used by holders of Shares in
accepting the Offer and tendering Shares;
3. The revised Notice of Guaranteed Delivery to be used to accept the
Offer if the certificates evidencing such Shares (the "SHARE CERTIFICATES")
are not immediately available or time will not permit all required documents
to reach Citibank, N.A. (the "DEPOSITARY") prior to the Expiration Date or
the procedure for book-entry transfer cannot be completed on a timely basis;
4. A revised letter which may be sent to your clients for whose
accounts you hold Shares registered in your name or in the name of your
nominees, with space provided for obtaining such clients' instructions with
regard to the Offer;
5. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9, providing information
relating to backup federal income tax withholding; and
6. Return envelope addressed to the Depositary.
Upon the terms and subject to the conditions of the Offer, Purchaser will
accept for payment, and pay for, any and all Shares validly tendered prior to
the Expiration Date and not theretofore withdrawn in accordance with the
provisions set forth in the section entitled "THE TENDER OFFER--Withdrawal
Rights" of the Offer to Purchase. Payment for Shares accepted for payment
pursuant to the Offer will in all cases be made only after timely receipt by the
Depositary of (a) the Share Certificates or timely confirmation of a book-entry
transfer of such Shares, if such procedure is available, into the Depositary's
accounts at The Depository Trust Company or Philadelphia Depository Trust
Company pursuant to the procedures set forth in the Offer to Purchase, (b) the
Letter of Transmittal (or a facsimile thereof), properly completed and duly
executed, or an Agent's Message (as defined in the Offer to Purchase) and (c)
any other documents required by the Letter of Transmittal.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE
THAT THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN SHORTENED AND WILL NOW EXPIRE AT
12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, DECEMBER 20, 1996, UNLESS THE
OFFER IS EXTENDED AS SET FORTH IN THE SUPPLEMENT.
Purchaser will not pay fees or commissions to any broker or dealer or other
person (other than to the Dealer Manager, as described in the Offer to Purchase)
for soliciting tenders of Shares pursuant to the Offer. You will be reimbursed
upon request for customary mailing and handling expenses incurred by you in
forwarding the enclosed materials to your customers.
Purchaser will pay any stock transfer taxes incident to the transfer to it
of validly tendered Shares, except as otherwise provided in Instruction 6 of the
Letter of Transmittal.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal (or a manually executed facsimile thereof), with
any required signature guarantees and any other required documents, should be
sent to the Depositary, and certificates evidencing the tendered Shares should
be delivered or such Shares should be tendered by book-entry transfer, all in
accordance with the Offer to Purchase, the Supplement and the Instructions set
forth in the Letter of Transmittal.
If stockholders wish to tender Shares, but such stockholders are unable to
forward their certificates or other required documents prior to the Expiration
Date, a tender may be effected by following the guaranteed delivery procedures
specified in the sections entitled "THE TENDER OFFER--Procedure for Tendering
Shares" of the Offer to Purchase and "THE AMENDED OFFER--Procedure for Tendering
Shares" of the Supplement.
2
<PAGE>
Additional copies of the enclosed material may be obtained from MacKenzie
Partners, Inc., the Information Agent, at the address and telephone numbers set
forth on the reverse side of this page. Any questions or requests you may have
with respect to the Offer should be directed to the undersigned or to MacKenzie
Partners, Inc. at the addresses and telephone numbers listed on the reverse side
of this page.
Very truly yours,
ROTHSCHILD INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON THE AGENT OF PURCHASER, THE DEPOSITARY, THE INFORMATION AGENT
OR THE DEALER MANAGER OR AUTHORIZE YOU OR ANY OTHER PERSON TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH RESPECT TO
THE OFFER NOT CONTAINED IN THE SUPPLEMENT, THE OFFER TO PURCHASE OR THE LETTER
OF TRANSMITTAL.
3
<PAGE>
The Information Agent for the Offer is:
[Logo of Mackenzie Partners, Inc.]156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
CALL TOLL FREE: (800) 322-2885
The Dealer Manager for the Offer is:
ROTHSCHILD INC.
1251 Avenue of the Americas
New York, New York 10020
CALL TOLL FREE: (800) 753-5151 (EXT. 3611)
4
<PAGE>
SUPPLEMENT TO THE OFFER TO PURCHASE DATED NOVEMBER 6, 1996
HC INVESTMENTS, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
HENKEL KGaA
HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING ANY ASSOCIATED STOCK PURCHASE RIGHTS)
OF
LOCTITE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON FRIDAY, DECEMBER 20, 1996,
UNLESS THE OFFER IS EXTENDED.
December 6, 1996
To Our Clients:
Enclosed for your consideration is a Supplement dated December 6, 1996 (the
"SUPPLEMENT") to the Offer to Purchase dated November 6, 1996 (the "OFFER TO
PURCHASE") and the related revised Letter of Transmittal (the "LETTER OF
TRANSMITTAL" and, together with the Offer to Purchase and the Supplement, the
"OFFER") relating to the offer by HC Investments, Inc., a Delaware corporation
("PURCHASER"), to purchase all outstanding shares of Common Stock, par value
$0.01 per share (the "SHARES"), of Loctite Corporation, a Delaware corporation
(the "COMPANY"), including the associated common stock purchase rights (the
"RIGHTS") issued pursuant to the Rights Agreement (the "RIGHTS AGREEMENT"),
dated as of April 14, 1994, between the Company and The First National Bank of
Boston, as Rights Agent, at a price of $61.00 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer. References to Shares include references to the associated
Rights, unless the context indicates otherwise.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. THIS
MATERIAL IS BEING SENT TO YOU AS THE BENEFICIAL OWNER OF SHARES HELD BY US FOR
YOUR ACCOUNT BUT NOT REGISTERED IN YOUR NAME.
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.
We request instructions as to whether you wish to have us tender on your
behalf any or all the Shares held by us for your account, upon the terms and
conditions set forth in the Offer.
Your attention is directed to the following:
1. The offer price is $61.00 per Share, net to the seller in cash.
2. On December 5, 1996, Purchaser, Parent and the Company entered into
a merger agreement providing for, among other things, an increase in the
price to be paid pursuant to the Offer from $57.75 to $61.00 net per Share
to you in cash and, following consummation of the Offer, the merger of a
wholly-owned subsidiary of Purchaser with and into the Company (the
"MERGER"), pursuant to which each outstanding Share (other than Shares owned
by Parent, Purchaser or any other direct or indirect subsidiary or affiliate
of Parent, Shares held in the treasury of the Company and Shares held by
stockholders of the Company who properly exercise their appraisal rights
under applicable Delaware law) will be converted into the right to receive
$61.00 per Share in cash.
<PAGE>
3. The Board of Directors of the Company has unaminously (with the
Henkel-Nominated Directors abstaining) approved the Offer and determined
that the Offer and the Merger are in the best interests of the Company's
stockholders. The Board recommends that stockholders accept the Offer and
tender their Shares.
4. THE OFFER AND WITHDRAWAL RIGHTS HAVE BEEN SHORTENED AND WILL NOW
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, DECEMBER 20, 1996,
UNLESS THE OFFER IS EXTENDED AS SET FORTH IN THE SUPPLEMENT.
5. The Offer is being made for all outstanding Shares.
6. Purchaser currently owns 11,208,224 Shares, representing
approximately 35.0% of the outstanding Shares and approximately 34.3% of the
outstanding Shares on a fully diluted basis.
7. The Offer is conditioned upon there being validly tendered (and not
withdrawn) prior to the Expiration Date (as defined in the Supplement) that
number of Shares that would, when aggregated with the Shares already owned
by Purchaser, represent at least a majority of all outstanding Shares on a
fully diluted basis on the date of purchase. The Offer is subject to other
terms and conditions. See the section entitled "THE AMENDED
OFFER--Amendments to Certain Conditions of the Offer" of the Supplement.
8. 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 purchase of Shares by Purchaser
pursuant to the Offer. However, any tendering stockholder or other payee who
fails to complete and sign the Substitute Form W-9 that is included in the
Letter of Transmittal may be subject to required backup federal income tax
withholding of 31% of the gross proceeds payable to such holder or other
payee pursuant to the Offer. See the sections entitled "SPECIAL FACTORS--
Certain U.S. Federal Income Tax Consequences" and "THE TENDER
OFFER--Procedure for Tendering Shares" of the Offer to Purchase and "THE
AMENDED OFFER--Procedure for Tendering Shares" of the Supplement.
The Offer is made solely by the Offer to Purchase, the Supplement and the
related revised Letter of Transmittal and is being made to all holders of
Shares. The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Purchaser is not aware of any jurisdiction in which the making of
the Offer or the tender of Shares in connection therewith would not be in
compliance with the laws of such jurisdiction. In any jurisdiction the
securities, blue sky or other laws of which require the Offer to be made by a
licensed broker or dealer, the Offer shall be deemed to be made on behalf of
Purchaser by Rothschild Inc., the Dealer Manager, or one or more registered
brokers or dealers licensed under the laws of such jurisdiction.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form contained in this letter. An envelope to return your
instructions to us is enclosed. If you authorize the tender of your Shares, all
such Shares will be tendered unless otherwise specified on the instruction form
contained in this letter.
YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT
A TENDER ON YOUR BEHALF PRIOR TO THE EXPIRATION DATE, WHICH, AS DESCRIBED IN THE
SUPPLEMENT, HAS BEEN SHORTENED TO FRIDAY, DECEMBER 20, 1996, UNLESS THE OFFER IS
EXTENDED.
<PAGE>
INSTRUCTIONS WITH RESPECT TO
THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING ANY ASSOCIATED STOCK PURCHASE RIGHTS)
OF
LOCTITE CORPORATION
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase dated November 6, 1996, the Supplement dated December 6, 1996 and
the related revised Letter of Transmittal (collectively, the "OFFER"), in
connection with the offer by HC Investments, Inc., a Delaware corporation
("PURCHASER"), to purchase all outstanding shares of Common Stock, par value
$0.01 per share (the "SHARES"), of Loctite Corporation, a Delaware corporation,
including the associated common stock purchase rights (the "RIGHTS") issued
pursuant to the Rights Agreement, dated as of April 14, 1994, between the
Company and The First National Bank of Boston, as Rights Agent.
This will instruct you to tender to Purchaser the number of Shares
(including the associated Rights) indicated below (or if no number is indicated
below, all Shares) held by you for the account of the undersigned, upon the
terms and subject to the conditions set forth in the Offer.
Number of Shares to be Tendered*: _____________________ Shares of Common Stock
Account Number: _________________________________
Dated: _____________________ , 1996
SIGN HERE
Signature(s): ________________________________________________________________
Print Name(s): _______________________________________________________________
Print Address(es): ___________________________________________________________
Area Code(s) and Telephone Numbers(s): _______________________________________
Taxpayer ID No. or Social Security No.: ______________________________________
*Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
<PAGE>
This announcement is neither an offer to purchase nor a solicitation of
an offer to sell Shares. The Offer is made solely by the Offer to Purchase
dated November 6, 1996 as amended and supplemented by the Supplement thereto
dated December 6, 1996, and the related Letter of Transmittal and is not
being made to (nor will tenders be accepted from or on behalf of) holders of
Shares in any jurisdiction in which the making of the Offer or the tender of
Shares in connection therewith would not be in compliance with the laws of
such jurisdiction. In any jurisdiction the securities, blue sky or other laws
of which require the Offer to be made by a licensed broker or dealer, the
Offer shall be deemed to be made on behalf of Purchaser by the Dealer Manager
or one or more registered brokers or dealers licensed under the laws of such
jurisdiction.
HC INVESTMENTS, INC.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
HENKEL KGaA
HAS INCREASED THE PRICE OF ITS OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING ANY ASSOCIATED STOCK PURCHASE RIGHTS)
OF
LOCTITE CORPORATION
AND IS NOW OFFERING
$61.00 NET PER SHARE
HC Investments, Inc., a Delaware corporation ("Purchaser") and an indirect
wholly-owned subsidiary of Henkel KGaA, a Kommanditgesellschaft auf Aktien (a
partnership limited by shares) organized under the laws of the Federal
Republic of Germany ("Parent"), has amended and supplemented its Offer to
Purchase dated November 6, 1996 (the "Offer to Purchase") by a Supplement
thereto dated December 6, 1996 (the "Supplement") and is offering to purchase
all outstanding shares of Common Stock, par value $0.01 per share (the
"Shares"), of Loctite Corporation, a Delaware corporation (the "Company"),
including the associated common stock purchase rights (the "Rights") issued
pursuant to the Rights Agreement (the "Rights Agreement"), dated as of April
14, 1994, between the Company and The First National Bank of Boston, as
Rights Agent, and all benefits that may inure to holders thereof, for a
purchase price of $61.00 per share (the "Offer Price"), net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions
set forth in the Offer to Purchase, the Supplement and in the related Letter
of Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer"). Unless the context otherwise requires,
all references to Shares shall include the associated Rights.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY (WITH THE
HENKEL-NOMINATED DIRECTORS ABSTAINING) APPROVED THE OFFER AS AMENDED, DETERMINED
THAT THE OFFER IS IN THE BEST INTERESTS OF THE COMPANY'S STOCKHOLDERS AND
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES.
The Company, Parent and Purchaser have entered into an Agreement and Plan of
Merger, dated December 5, 1996 (the "Merger Agreement"), providing for the
merger of the Company and a subsidiary of Purchaser pursuant to which, following
the consummation of the Offer and subject to the terms and conditions of the
Merger Agreement, the remaining outstanding Shares (other than Shares owned by
Purchaser, Parent or any other direct or indirect subsidiary or affiliate of
Parent, Shares held in the treasury of the Company and Shares held by
stockholders of the Company who properly exercise their appraisal rights under
applicable Delaware law) will be converted into the right to receive $61.00 per
Share.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON FRIDAY, DECEMBER 20, 1996, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON THERE BEING VALIDLY TENDERED (AND NOT
WITHDRAWN) PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF SHARES THAT
WOULD, WHEN AGGREGATED WITH THE SHARES ALREADY OWNED BY PURCHASER, REPRESENT AT
LEAST A MAJORITY OF ALL OUTSTANDING SHARES ON A FULLY DILUTED BASIS ON THE DATE
OF PURCHASE. THE OFFER IS SUBJECT TO OTHER TERMS AND CONDITIONS.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to Purchaser and not
withdrawn as, if and when Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance for payment of such Shares. Payment for
Shares accepted for payment pursuant to the Offer will be made by deposit of the
Offer Price therefor with the Depositary, which will act as agent for tendering
stockholders for the purpose of receiving payment from Purchaser and
transmitting payment to tendering stockholders. 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 (a)
certificates for (or a timely Book-Entry Confirmation (as defined in the Offer
to Purchase) with respect to) such Shares, (b) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of book-entry transfer, an Agent's Message
(as defined in the Offer to Purchase), and (c) any other documents required by
the Letter of Transmittal. Under no circumstances will any interest be paid on
the Offer Price for tendered Shares, regardless of any extension of the Offer or
any delay in making such payment.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Friday, December 20, 1996, unless and until Purchaser shall have extended the
period of time during which the Offer is open, in which event the term
"Expiration Date" shall mean the time and date at which the Offer, as so
extended by Purchaser, shall expire. Subject to the applicable rules and
regulations of the Securities and Exchange Commission, Purchaser expressly
reserves the right, in its sole discretion, at any time and from time to time,
and regardless of whether or not any of the events set forth in the section
entitled "THE AMENDED OFFER-Amendments to Certain Conditions of the Offer" of
the Supplement shall have occurred or shall have been determined by Purchaser to
have occurred, but subject to the Merger Agreement, to (a) extend the period of
time during which the Offer is open, and thereby delay acceptance for payment
of, and payment for, any Shares, by giving oral or written notice of such
extension to the Depositary and (b) amend the Offer in any other respect by
giving oral or written notice of such amendment to the Depositary. There can be
no assurance that Purchaser will exercise its right to extend the Offer. Any
extension, waiver, amendment or termination will be followed as promptly as
practicable by public announcement. In the case of an extension, Rule 14e-1(d)
under the Exchange Act requires that the announcement be issued no later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled Expiration Date in accordance with the public announcement
requirements of Rule 14d-4(c) under the Exchange Act. If Purchaser extends the
Offer or if Purchaser is delayed in its acceptance for payment of or payment for
Shares (whether before or after its acceptance for payment of Shares) or it is
unable to pay for Shares pursuant to the Offer for any reason, then, without
prejudice to Purchaser's rights under the Offer, the Depositary may retain
tendered Shares on behalf of Purchaser, and such Shares may not be withdrawn
except to the extent tendering stockholders are entitled to withdrawal rights.
Except as otherwise provided below, tenders of Shares will be irrevocable.
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date and, unless theretofore accepted for payment and paid for by
Purchaser pursuant to the Offer, may also be withdrawn at any time after January
3, 1997. For a withdrawal to be effective, a written or facsimile transmission
notice of withdrawal must be timely received by the Depositary at one of its
addresses set forth on the back cover of the Offer to Purchase and the
Supplement and must specify the name of the person having tendered the Shares to
be withdrawn, the number of Shares to be withdrawn and the name of the regist-
ered holder of the Shares to be withdrawn, if different from the name of the
person who tendered the Shares. If certificates for Shares have been delivered
or otherwise identified to the Depositary, then, prior to the physical release
of such certificates, the serial numbers shown on such certificates must be
submitted to the Depositary and, unless such Shares have been tendered by an
Eligible Institution (as defined in the Offer to Purchase), the signatures on
the notice of withdrawal must be guaranteed by an Eligible Institution. If
Shares have been delivered pursuant to the procedures for book-entry transfer as
set forth in the section entitled "THE TENDER OFFER-Procedure for Tendering
Shares" 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 (as defined in the Offer to Purchase) to be credited with the withdrawn
Shares and otherwise comply with such Book-Entry Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any Shares properly
withdrawn will thereafter be deemed not validly tendered for any purposes of the
Offer. However, withdrawn Shares may be retendered by again following one of the
procedures described in the sections entitled "THE TENDER OFFER-Procedure for
Tendering Shares" of the Offer to Purchase and "THE AMENDED OFFER-Procedure for
Tendering Shares" of the Supplement at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of notices
of withdrawal will be determined by Purchaser in its sole discretion, which
determination will be final and binding.
Stockholders who have already tendered Shares pursuant to the Offer need not
take any further action in order to receive the increased tender offer price of
$61.00 per Share.
The Supplement, a revised Letter of Transmittal and other relevant materials
are being mailed to record holders of Shares, and will be furnished to brokers,
dealers, commercial banks, trust companies and similar persons whose names, or
the names of whose nominees, appear on the 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 information required to be disclosed by Rule 14d-6(e)(1)(vii) under the
Exchange Act is contained in the Offer to Purchase and the Supplement and is
incorporated herein by reference.
THE OFFER TO PURCHASE, THE SUPPLEMENT AND THE LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective telephone numbers and locations
listed below. Additional copies of the Offer to Purchase, the Supplement, the
revised Letter of Transmittal, the revised Notice of Guaranteed Delivery and
other related materials may be obtained from the Information Agent, and copies
will be furnished promptly at Purchaser's expense. You may also contact your
broker, dealer, commercial bank, trust company or other nominee for assistance
concerning the Offer. No fees or commissions will be payable to brokers, dealers
or other persons other than the Dealer Manager and the Information Agent for
soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
MACKENZIE
PARTNERS, INC.
156 Fifth Avenue
New York, New York 10010
(212) 929-5500 (Call Collect)
or
CALL TOLL-FREE (800) 322-2885
The Dealer Manager for the Offer is:
ROTHSCHILD INC.
1251 Avenue of the Americas
New York, New York 10020
CALL TOLL-FREE: (800) 753-5151 (EXT. 3611)
December 6, 1996
<PAGE>
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AGREEMENT AND PLAN OF MERGER
between
HENKEL KGaA,
HC INVESTMENTS, INC.
and
LOCTITE CORPORATION
Dated as of December 5, 1996
---------------------------------------------------------------------------
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<PAGE>
TABLE OF CONTENTS
PAGE
1. The Tender Offer........................................................2
1.1. Tender Offer......................................................2
1.2. Directors.........................................................4
2. The Merger..............................................................5
2.1. The Merger........................................................5
2.2. The Closing.......................................................5
2.3. Effective Time....................................................6
3. Surviving Corporation...................................................6
3.1. Certificate of Incorporation......................................6
3.2. Bylaws............................................................6
3.3. Directors.........................................................6
3.4. Officers..........................................................6
4. Conversion or Cancellation of Shares in the Merger......................7
4.1. Conversion or Cancellation of Shares in the Merger................7
4.2. Payment for Shares................................................7
4.3. Dissenters' Rights................................................9
4.4. Stock Options.....................................................9
5. Representations and Warranties of the Company...........................10
5.1. Existence; Good Standing; Corporate Authority.....................10
5.2. Authorization, Validity and Effect of Agreements..................11
5.3. Capitalization....................................................11
5.4. Subsidiaries; Other Interests.....................................12
5.5. Compliance with Law...............................................12
5.6. No Violation......................................................12
5.7. SEC Documents.....................................................13
5.8. Litigation........................................................14
5.9. Absence of Certain Changes........................................14
5.10. Taxes.............................................................14
5.11. Employee Benefit Plans............................................14
5.12. Labor Matters.....................................................15
5.13. No Brokers........................................................15
5.14. Opinion of Financial Advisor......................................16
5.15. Environmental Matters.............................................16
5.16. Required Vote of Company Stockholders.............................16
(i)
<PAGE>
6. Representations and Warranties of Parent and Parent Sub.................17
6.1. Existence; Good Standing; Corporate Authority.....................17
6.2. Authorization, Validity and Effect of Agreements..................17
6.3. Operations of Merger Sub..........................................17
6.4. No Violation......................................................17
6.5. Financing.........................................................18
6.6. No Brokers........................................................18
7. Covenants...............................................................19
7.1. Acquisition Proposals.............................................19
7.2. Conduct of Businesses.............................................20
7.3. Meeting of the Company's Stockholders.............................21
7.4. Filings; Other Action.............................................23
7.5. Inspection of Records.............................................23
7.6. Publicity.........................................................24
7.7. Expenses..........................................................24
7.8. Indemnification and Insurance.....................................24
7.9. Notification of Certain Matters...................................26
7.10. Governance........................................................26
7.11. Corporate Headquarters............................................26
7.12. Certain Benefits..................................................26
7.13. Rights Agreement..................................................27
8. Conditions..............................................................28
8.1. Conditions to Each Party's Obligation to Effect the Merger........28
9. Termination.............................................................29
9.1. Termination by Mutual Consent.....................................29
9.2. Termination by Either Parent or the Company.......................29
9.3. Termination by the Company........................................29
9.4. Termination by Parent.............................................30
9.5. Effect of Termination and Abandonment.............................30
9.6. Extension; Waiver.................................................32
10. General Provisions......................................................32
10.1. Nonsurvival of Representations, Warranties and Agreements.........32
10.2. Notices...........................................................32
10.3. Assignment; Binding Effect; Benefit...............................33
10.4. Entire Agreement..................................................33
10.5. Amendment.........................................................34
10.6. Governing Law.....................................................34
(ii)
<PAGE>
10.7. Counterparts......................................................34
10.8. Headings..........................................................34
10.9. Interpretation....................................................34
10.10.Waivers...........................................................35
10.11.Incorporation of Exhibits.........................................35
10.12.Severability......................................................35
10.13.Enforcement of Agreement..........................................36
10.14.Obligation of Parent..............................................36
10.15.Subsidiaries......................................................36
Annex A Conditions to Offer
(iii)
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December
5, 1996 between Henkel KGaA, a Kommanditgesellschaft auf Aktien ( a partnership
limited by shares) organized under the laws of the Federal Republic of Germany
("Parent"), HC Investments, Inc., a Delaware corporation and a wholly owned
subsidiary of Parent ("Parent Sub"), and Loctite Corporation, a Delaware
corporation (the "Company").
RECITALS
WHEREAS, on November 6, 1996, Parent and Parent Sub commenced a tender
offer to purchase all outstanding shares of Common Stock, par value $0.01 per
share (the "Shares") of the Company, including the associated common stock
purchase rights (the "Rights") issued pursuant to the Rights Agreement (the
"Rights Agreement"), dated as of April 14, 1994 between the Company and The
First National Bank of Boston, as Rights Agent, for a purchase price of $57.75
per Share, net to the seller in cash, without interest thereon, upon the terms
and subject to the conditions set forth in the Offer to Purchase dated November
6, 1996 (the "Offer to Purchase") of Parent Sub and the related Letter of
Transmittal (collectively, the "Initial Offer") which are filed as exhibits to
the Tender Offer Statement on Schedule 14D-1 filed by Parent and Parent Sub
(together with all supplements or amendments thereto, the "Schedule 14D-1") in
respect of the Initial Offer with the Securities and Exchange Commission (the
"SEC") on November 6, 1996.
WHEREAS, on November 18, 1996, the Special Committee (the "Special
Committee") of the Board of Directors of the Company (the "Company Board") filed
a Solicitation/Recommendation Statement on Schedule 14D-9 (together with all
supplements or amendments thereto, the "Schedule 14D-9") in which it recommended
the Company's stockholders reject the Initial Offer.
WHEREAS, the Boards of Directors of Parent, Parent Sub and the Company
each have determined that it is in the best interests of their respective
companies and stockholders for Parent to acquire the Company upon the terms and
conditions set forth herein.
WHEREAS, promptly following the execution hereof Parent and Parent Sub
will file with the SEC an amendment to the Schedule 14D-1 which reflects the
Amendments (as defined in Section 1.1) and the Company Board will file an
amendment to the Schedule 14D-9 in which it recommends to the Company's
stockholders that they accept the Offer (as defined in Section 1.1).
<PAGE>
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
1. THE TENDER OFFER.
1.1. TENDER OFFER.
(a) As promptly as practicable following the execution hereof,
Parent and Parent Sub will amend the Initial Offer (the Initial Offer as
amended, the "Offer") to provide (i) for a purchase price per Share (including
the associated Rights) of $61.00 (the "Per Share Price"), (ii) for the period
the Offer is to remain open to be shortened to provide for the expiration of the
Offer at 12:00 midnight on Friday, December 20, 1996 and (iii) for the
consummation of the Offer to be subject only to the conditions (the "Offer
Conditions") set forth on Annex A hereto (collectively, the "Amendments").
Without the prior written consent of the Company, neither Parent nor Parent Sub
shall (i) change or waive the Minimum Condition (as defined in Annex A), (ii)
reduce the number of Shares subject to the Offer, (iii) reduce the price per
Share to be paid pursuant to the Offer, (iv) extend the Offer if all of the
Offer Conditions have been satisfied or waived, (v) change the form of
consideration payable in the Offer, (vi) amend, modify, or add to the Offer
Conditions (provided, that Parent or Parent Sub in its sole discretion may waive
any such conditions other than the Minimum Condition) or (vii) amend any other
term of the Offer in a manner adverse to the holders of the Shares.
Notwithstanding the foregoing, Parent and Parent Sub may, without the consent of
the Company, (A) extend the Offer, if at the scheduled expiration date of the
Offer any of the Offer Conditions shall not have been satisfied or waived, until
such time as such conditions are satisfied or waived, (B) extend the Offer for
any period required by any statute, rule, regulation, interpretation or position
of the SEC or any other governmental authority or agency (domestic, foreign or
supranational) applicable to the Offer, and (C) extend the Offer for any reason
on one or more occasions for an aggregate of not more than 15 business days
beyond the latest expiration date that would otherwise be permitted under
clauses (A) and (B) of this sentence; and, if at any scheduled expiration date
of the Offer any of the Offer Conditions have not been satisfied or waived by
Parent or Parent Sub but are capable of being satisfied in the reasonable
opinion of Parent and Parent Sub, on the written request of the Company, Parent
Sub shall from time to time extend the Offer for up to twenty business days in
the aggregate from the originally scheduled expiration date thereof. Subject to
the terms and conditions of the Offer, Parent Sub will promptly pay for all
Shares tendered and not withdrawn pursuant to the Offer as soon as practicable
after the expiration of the Offer. The obligation of Parent Sub to accept for
payment and pay for Shares tendered pursuant to the Offer shall be subject only
to the satisfaction or waiver of the Offer Conditions.
2
<PAGE>
(b) The Company hereby consents to the Offer and the Merger (as
defined in Section 2.1 hereof) and represents and warrants that (A) the Company
Board (except for Roman Dohr, Christoph Henkel and Jochen Krautter (the
"Henkel-Nominated Directors"), who abstained), at a meeting duly called and
held, has (i) duly approved the adoption of this Agreement and the consummation
of the transactions contemplated hereby, including, without limitation, the
making of the Offer, (ii) by unanimous vote, (w) determined that the Offer and
the Merger are in the best interests of the stockholders of the Company, (x)
resolved to recommend acceptance of the Offer and approval and adoption of the
agreement of merger (as such term is used in Section 251 of the General
Corporation Law of the State of Delaware (the "DGCL")) contained in this
Agreement by such stockholders of the Company, (y) taken all necessary steps to
render Section 203 of the DGCL inapplicable to the Merger and the acquisition of
Shares pursuant to the Offer and (z) taken any action necessary (1) to render
the Rights Agreement inapplicable with respect to the Offer, the Merger, this
Agreement and the other transactions contemplated hereby, (2) to ensure that
none of Parent, Parent Sub or Merger Sub (as defined in Section 2.1) or any of
their Affiliates or Associates (each as defined in the Rights Agreement) is or
will be considered to be an Acquiring Person (as defined in the Rights
Agreement) and (3) to ensure that none of a Distribution Date, Triggering Event
or Shares Acquisition Date (each as defined in the Rights Agreement) occurs or
shall occur by reason of the announcement or consummation of the Offer, the
Merger or the execution or delivery of this Agreement or the consummation of any
of the other transactions contemplated hereby and (B) Dillon, Read & Co. Inc.,
the Company's independent financial advisor, has advised the Company Board that,
in its opinion, the consideration to be paid to the Company's stockholders
(other than Parent, Parent Sub, Merger Sub or any of their affiliates) in the
Offer and the Merger is fair, from a financial point of view, to such
stockholders.
(c) As soon as practicable after the date hereof, Parent and Parent
Sub will file with the SEC an amendment to the Schedule14D-1 which reflects the
Amendments. As soon as practicable after the date hereof, the Company Board
shall file with the SEC an amendment to the Schedule 14D-9 which contains the
recommendations described in Section 1.1(b)(ii)(x) and the Company hereby
consents to the inclusion of such recommendations in the Offer Documents (as
defined in Section 1.1(d)) and to the inclusion of a copy of the Schedule 14D-9
with the Offer Documents mailed or furnished to the Company's stockholders.
Notwithstanding anything to the contrary in this Agreement, the Company Board
may withdraw, modify or amend its recommendation if in the reasonable opinion of
the Company Board, after consultation with counsel, such recommendation would be
inconsistent with its fiduciary duties to the Company's stockholders under
applicable law. Any such withdrawal, modification or amendment shall not
constitute a breach of this Agreement.
3
<PAGE>
(d) Parent and Parent Sub agree, as to the Schedule 14D-1, the offer
to purchase and related letter of transmittal (collectively, the "Offer
Documents"), and the Company agrees, as to the Schedule 14D-9, that such
documents shall, in all material respects, comply with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations thereunder and other applicable laws. Parent, Parent Sub and
the Company each agree that none of the information supplied by them in writing
for inclusion in the Offer Documents and the Schedule 14D-9 will, at the
respective times that the Offer Documents and the Schedule 14D-9 or any
amendments or supplements thereto are filed with the SEC and are first published
or sent or given to holder of Shares, 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. Parent, Parent Sub and the Company
further agree to promptly correct any information provided by them for use in
the Offer Documents or the Schedule 14D-9 if and to the extent that it shall
have become false or misleading in any material respect and Parent and Parent
Sub agree, as to the Offer Documents, and the Company agrees, as to the Schedule
14D-9, to take all steps necessary to cause such documents as so corrected to be
filed with the SEC and to be disseminated to holders of Shares, in each case, as
and to the extent required by applicable laws. The Company and its counsel, as
to the Offer Documents, and Parent and Parent Sub and its counsel, as to the
Schedule 14D-9, shall be given an opportunity to review and comment upon such
documents prior to their being filed with the SEC.
(e) In connection with the Offer, the Company will cause its transfer
agent to furnish promptly to Parent Sub a list, as of a recent date, of the
record holders of Shares and their addresses, as well as mailing labels
containing the names and addresses of all record holders of Shares and lists of
security positions of Shares held in stock depositories. The Company will
furnish Parent Sub with such additional information (including, but not limited
to, updated lists of holders of Shares and their addresses, mailing labels and
lists of security positions) and such other assistance as Parent or Parent Sub
or their agents may reasonably request in communicating the Offer to the record
and beneficial holders of Shares.
1.2. DIRECTORS. If, immediately following the consummation of the
Offer, Parent Sub and Merger Sub are unable to cause the Merger to be effected
pursuant to Section 253 of the DGCL, promptly upon the purchase by Parent Sub
pursuant to the Offer of such number of Shares which, when added to Shares
currently owned by Parent Sub, represent at least a majority of the outstanding
Shares, and from time to time thereafter, Parent Sub shall be entitled to
designate such number of directors, rounded up to the next whole number, on the
Company Board as will give Parent Sub representation on the Company Board equal
to the product of the number of directors on the Company Board and the
percentage that the number of Shares held by Parent Sub bears to the
4
<PAGE>
number of Shares outstanding, and the Company shall, upon request by Parent Sub,
promptly increase the size of the Company Board or use its best efforts to
secure the resignations of such number of directors as is necessary to provide
Parent Sub with such level of representation and shall cause Parent Sub's
designees to be so elected. The Company's obligations to appoint designees to
the Company Board shall be subject to Section 14(f) of the Exchange Act. At the
request of Parent Sub and subject to applicable law, the Company shall take, at
its expense, all action necessary to effect any such election or appointment of
Parent Sub's designees, including mailing to its stockholders the information
required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder. Parent and Parent Sub will supply to the Company all information
with respect to themselves and their respective officers, directors and
affiliates required by such Section and Rule.
ARTICLE 2
2. THE MERGER.
2.1. THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 2.3), a newly formed,
direct, wholly owned subsidiary of Parent Sub ("Merger Sub") shall be merged
with and into the Company in accordance with this Agreement and the separate
corporate existence of Merger Sub shall thereupon cease (the "Merger"). The
Company shall be the surviving corporation in the Merger (sometimes hereinafter
referred to as the "Surviving Corporation") and shall continue as a wholly owned
subsidiary of Parent Sub under the name "Loctite Corporation." The Merger shall
have the effects specified in the DGCL.
2.2. THE CLOSING. Subject to the terms and conditions of this
Agreement, the closing of the Merger (the "Closing") shall take place (a) at the
offices of Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New
York, New York, at 9:00 a.m., local time, on the first business day immediately
following the day on which the last to be fulfilled or waived of the conditions
set forth in Article 8 shall be fulfilled or waived in accordance herewith or
(b) at such other time, date or place as Parent and the Company may agree. The
date on which the Closing occurs is hereinafter referred to as the "Closing
Date."
2.3. EFFECTIVE TIME. If all the conditions to the Merger set forth in
Article 8 shall have been fulfilled or waived in accordance herewith and this
Agreement shall not have been terminated as provided in Article 9, the parties
hereto shall cause a Certificate of Merger meeting the requirements of Section
251 of the DGCL to be properly executed and filed in accordance with such
Section on the Closing Date. The Merger shall become effective at the time of
filing of the Certificate of Merger with the Secretary of State of the State of
Delaware in accordance with the DGCL or at such later
5
<PAGE>
time which the parties hereto shall have agreed upon and designated in such
filing as the effective time of the Merger (the "Effective Time").
ARTICLE 3
3. SURVIVING CORPORATION.
3.1. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
of Merger Sub in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation, until duly amended in
accordance with applicable law.
3.2. BYLAWS. The Bylaws of Merger Sub in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Corporation, until duly
amended in accordance with applicable law.
3.3. DIRECTORS. The directors of Merger Sub immediately prior to the
Effective Time shall be the directors of the Surviving Corporation as of the
Effective Time.
3.4. OFFICERS. The officers of the Company immediately prior to the
Effective Time shall be the officers of the Surviving Corporation as of the
Effective Time.
ARTICLE 4
4. CONVERSION OR CANCELLATION OF SHARES IN THE MERGER.
4.1. CONVERSION OR CANCELLATION OF SHARES IN THE MERGER.
(a) At the Effective Time, each share of the Common Stock, $.01
par value, of Merger Sub outstanding immediately prior to the Effective Time
shall be converted into and become one fully paid and non-assessable Share.
(b) At the Effective Time, each Share issued and outstanding
immediately prior to the Effective Time (other than Shares held in the Company's
treasury or owned by Parent, Parent Sub, Merger Sub or any other wholly owned
Subsidiary of Parent or the Company or Shares which are held by stockholders
("Dissenting Stockholders") exercising appraisal rights pursuant to Section 262
of the DGCL) shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into the right to receive, without interest,
an amount in cash equal to $61.00 or such greater amount which may be paid
pursuant to the Offer (the "Merger Consideration"). All such Shares, by virtue
of the Merger and without any action on the part of the holders thereof, shall
no longer be outstanding and shall be canceled and
6
<PAGE>
retired and shall cease to exist, and each holder of a certificate representing
any such Shares shall thereafter cease to have any rights with respect to such
Shares, except the right to receive the Merger Consideration for such Shares
upon the surrender of such certificate in accordance with Section 4.2.
(c) Each Share issued and held in the Company's treasury, and
each Share owned by Parent, Parent Sub, Merger Sub or any other wholly owned
Subsidiary (as hereinafter defined) of Parent or the Company, shall, at the
Effective Time and, by virtue of the Merger, cease to be outstanding and shall,
be canceled and retired without payment of any consideration therefor.
4.2. PAYMENT FOR SHARES.
(a) As of the Effective Time, Parent shall deposit, or shall
cause to be deposited, with a bank or trust company selected by Parent, which
shall be reasonably satisfactory to Company (the "Paying Agent"), for the
benefit of the holders of Shares, for exchange in accordance with this Article
4, the funds necessary to make the payments contemplated by Section 4.1 (the
"Payment Fund") to holders of Shares issued and outstanding immediately prior to
the Effective Time.
(b) Promptly after the Effective Time, Parent shall cause the
Paying Agent to mail to each holder of record, as of the Effective Time, of a
certificate or certificates which immediately prior to the Effective Time
represented Shares ("Certificates") (other than to holders of Shares referred to
in Section 4.1(c)) (i) a letter of transmittal which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon proper delivery of the Certificates to the Paying Agent and shall be
in such form and have such other provisions as Parent and the Company may
reasonably specify and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for payment therefor. Upon surrender of a
Certificate for cancellation to the Paying Agent together with such letter of
transmittal, duly executed and completed in accordance with the instructions
thereto, the Surviving Corporation shall promptly cause to be delivered to the
holder of such Certificate a check representing an amount equal to the product
of the number of Shares represented by such Certificate multiplied by the Merger
Consideration, less any required withholding tax, and the Certificate so
surrendered shall forthwith be canceled. No interest will be paid or accrued on
the cash payable upon surrender of the Certificates. If payment is to be made
to a person other than the registered holder of the Certificate surrendered, it
shall be a condition of such payment that the Certificate so surrendered shall
be properly endorsed or otherwise in proper form for transfer and that the
person requesting such payment shall pay any transfer or other taxes required by
reason of the payment to a person other than the registered holder of the
Certificate surrendered or establish to the satisfaction of the Surviving
Corporation or the Paying Agent that such tax has been paid or is not
7
<PAGE>
applicable. From and after the Effective Time and until surrendered in
accordance with the provisions of this Section 4.2, each Certificate (other than
Certificates representing Shares owned by Parent or Parent Sub or any of their
respective Subsidiaries and Certificates held by Dissenting Stockholders) shall
represent for all purposes solely the right to receive the Merger Consideration
in cash multiplied by the number of Shares evidenced by such Certificate,
without any interest thereon.
(c) At or after the Effective Time, there shall be no transfers
of Shares on the stock transfer books of the Company. If, after the Effective
Time, a Certificate is presented to the Surviving Corporation, it shall be
canceled and the Surviving Corporation shall promptly cause to be delivered to
the person entitled thereto a check representing an amount equal to the product
of the number of Shares represented by such Certificate multiplied by the Merger
Consideration, less any required withholding tax, and the Certificate so
surrendered shall forthwith be canceled, subject to applicable law in the case
of Shares held by Dissenting Stockholders.
(d) Any portion of the Payment Fund that remains unclaimed by
the former stockholders of the Company one year after the Effective Time shall
be delivered to Parent Sub. Any former stockholders of the Company who have not
theretofore complied with this Article 4 shall thereafter look only to Parent
Sub for payment of their claim for the Merger Consideration with respect to
their Shares.
(e) None of Parent, Parent Sub, the Company, the Paying Agent or
any other person shall be liable to any former holder of Shares for any amount
properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws.
(f) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Company, the posting by such person of a bond in such reasonable amount as the
Company may direct as indemnity against any claim that may be made against it
with respect to such Certificate, the Paying Agent will issue in exchange for
such lost, stolen or destroyed Certificate the amount to which such persons are
entitled pursuant to this Agreement.
4.3. DISSENTERS' RIGHTS. Notwithstanding anything in this Agreement
to the contrary, if any Dissenting Stockholder shall be entitled to be paid the
"fair value" of his or her Shares, as provided in Section 262 of the DGCL, the
Company shall give Parent notice thereof and Parent shall have the right, at
its own expense, to direct all negotiations and proceedings with respect to any
such demands. Neither the Company nor the Surviving Corporation shall, except
with the prior written consent of Parent, which consent shall not be
unreasonably withheld, voluntarily make any payment with
8
<PAGE>
respect to, or settle or offer to settle, any such demand for payment. If any
Dissenting Stockholder shall fail to perfect or shall have effectively withdrawn
or lost the right to dissent, the Shares held by such Dissenting Stockholder
shall thereupon be treated as though such Shares had been converted into the
Merger Consideration pursuant to Section 4.1.
4.4. STOCK OPTIONS. After the Effective Time (or at such earlier time
as Merger Sub shall designate), each option (an "Option") which has been granted
under the Loctite Corporation 1993 Stock Option Plan and the Loctite Corporation
1976 Stock Option Plan, as amended through October 23, 1987 (the "Company Stock
Option Plans") and is outstanding at the Effective Time, whether or not then
exerciseable, will be exchanged for, and the holder of each such Option will be
entitled to receive upon surrender of the Option for cancellation, cash equal to
the product of the following: (i) the positive difference, if any, obtained by
subtracting the exercise price of each such Option from the Merger Consideration
times (ii) the number of Shares covered by such Option, less any required
withholding tax (the "Option Consideration"). The surrender of an Option in
exchange for the Option Consideration shall be deemed a release of any and all
rights the holder had or may have had in respect of such Option. Prior to the
Effective Time, the Company shall use its best efforts to obtain all necessary
consents or releases from holders of Options and take all such other action as
may be reasonably necessary to give effect to the transactions contemplated by
this Section 4.4. Except as otherwise agreed to by the parties, (i) the Company
Stock Option Plans shall terminate as of the Effective Time and, except with
respect to the right to receive the Option Consideration under this Section 4.4,
any and all rights under any provisions in any other plan, program or
arrangement providing for the issuance or grant of any other interest in respect
of the capital stock of the Company or any subsidiary thereof shall be canceled
as of the Effective Time, and (ii) the Company shall take all reasonable action
necessary to ensure that no person shall have any right under any Company Stock
Option Plan (or any Option granted thereunder) or other plan, program or
arrangement with respect to, including any right to acquire, equity securities
of the Company, the Surviving Corporation, Parent, Parent Sub or any subsidiary
of any of the foregoing following the Effective Time.
ARTICLE 5
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the disclosure letter delivered to Parent prior
to the execution hereof (the "Company Disclosure Letter") or as disclosed with
reasonable specificity in public filings made by the Company with the SEC prior
to the date hereof, the Company represents and warrants to Parent as of the date
of this Agreement as follows:
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5.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware. The Company is duly licensed or qualified to do
business as a foreign corporation and is in good standing under the laws of any
other state of the United States or any other jurisdiction in which the
character of the properties owned or leased by it therein or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so qualified would not be reasonably likely to have a material
adverse effect on the business, results of operations, financial condition,
assets or liabilities of the Company and its Subsidiaries (as defined in Section
10.15) taken as a whole or that materially impairs or delays, or is reasonably
likely to impair or delay, the ability of the parties to consummate the Offer or
the Merger other than any such adverse effect relating to general economic,
market wide or general industry conditions (a "Company Material Adverse
Effect"). The Company has all requisite corporate power and authority to own,
operate and lease its properties and carry on its business as now conducted.
The copies of the Company's Certificate of Incorporation and Bylaws previously
made available to Parent are true and correct.
5.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. The Company
has the requisite corporate power and authority to execute and deliver this
Agreement and all agreements and documents contemplated hereby. Subject only to
the approval of this Agreement and the transactions contemplated hereby by the
Company's stockholders to the extent required by applicable law, the
consummation by the Company of the transactions contemplated hereby has been
duly authorized by all requisite corporate action (including for purposes of
Section 203 of the DGCL) and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or to consummate the
transactions so contemplated. This Agreement constitutes, and all agreements
and documents contemplated hereby (when executed and delivered pursuant hereto)
will constitute, the valid and legally binding obligation of the Company,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, moratorium or other similar laws relating to creditors'
rights and general principles of equity.
5.3. CAPITALIZATION. The authorized capital stock of the Company
consists of 300,000,000 shares of Company Common Stock and, as of October 31,
1996, there were 32,041,559 shares of Company Common Stock issued and
outstanding and 611,206 shares reserved for issuance upon exercise of presently
outstanding employee stock options. All such issued and outstanding shares of
Company Common Stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. Since October 31, 1996, the
Company has not (i) issued any Shares other than upon the exercise of Options
outstanding on such date, (ii) granted any options, warrants or rights or
entered into other agreements or commitments to issue Shares (under the Company
Stock Option Plans or otherwise) or (iii) split, combined or reclassified any of
its shares
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of capital stock. Other than as contemplated by this Agreement and except for
the Rights, there are not at the date of this Agreement any existing options,
warrants, calls, subscriptions, convertible securities, or other rights,
agreements or commitments which obligate the Company or any of its Subsidiaries
to issue, transfer or sell any shares of capital stock of the Company or any of
its Subsidiaries. The Company has no outstanding bonds, debentures, notes or
other obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of the Company on any matter.
5.4. SUBSIDIARIES; OTHER INTERESTS. Each of the Company's
Subsidiaries is a corporation or partnership duly organized, validly existing
and in good standing under the laws of its jurisdiction of incorporation or
organization, has the corporate or partnership power and authority to own its
properties and to carry on its business as it is now being conducted, and is
duly qualified to do business and is in good standing in each jurisdiction in
which the ownership of its property or the conduct of its business requires such
qualification, except for jurisdictions in which such failure to be so qualified
or to be in good standing would not have a Company Material Adverse Effect. All
of the outstanding shares of capital stock, or other ownership interests in,
each of the Company's Subsidiaries is duly authorized, validly issued, fully
paid and nonassessable, and is owned, directly or indirectly, by the Company
free and clear of all liens, pledges, security interests, claims or other
encumbrances other than liens imposed by local law which are not material.
Except for interests in its Subsidiaries, neither the Company nor any of its
Subsidiaries owns directly or indirectly any equity interest or equity
investment in any corporation, partnership, joint venture, business, trust or
entity.
5.5. COMPLIANCE WITH LAW. Neither the Company nor any of its
Subsidiaries is in violation of any order of any court, governmental authority
or arbitration board or tribunal, or any law, ordinance, governmental rule or
regulation (domestic or foreign) to which the Company or any of its Subsidiaries
or any of their respective properties or assets is subject, where such violation
could reasonably be expected to have a Company Material Adverse Effect.
5.6. NO VIOLATION. Neither the execution and delivery by the Company
of this Agreement nor the consummation by the Company of the transactions
contemplated hereby in accordance with the terms hereof, will: (i) conflict
with or result in a breach of any provisions of the Certificate of Incorporation
or Bylaws of the Company; (ii) violate, or conflict with, or result in a breach
of any provision of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination or in a right of termination or cancellation of, or accelerate the
performance required by, or result in the creation of any lien, security
interest, charge or encumbrance upon any of the material properties of the
Company or its Subsidiaries under, or result in being declared void, voidable,
or without
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further binding effect, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, deed of trust or any material license, franchise,
permit, lease, contract, agreement or other instrument, commitment or obligation
to which the Company or any of its Subsidiaries is a party, or by which the
Company or any of its Subsidiaries or any of their properties is bound or
affected, except for any of the foregoing matters which could not reasonably be
expected to have a Company Material Adverse Effect; or (iii) other than the
filings provided for in Article 1, certain federal, state and local regulatory
filings, filings required under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976 (the "HSR Act"), the Exchange Act, the Securities Act of 1933, as
amended (the "Securities Act"), or applicable state securities and "Blue Sky"
laws or similar laws or regulations of jurisdictions outside the United States
or filings in connection with the maintenance of qualification to do business in
other jurisdictions (collectively, the "Regulatory Filings"), require any
material consent, approval or authorization of, or declaration, filing or
registration with, any domestic governmental or regulatory authority, the
failure to obtain or make which could reasonably be expected to have a Company
Material Adverse Effect.
5.7. SEC DOCUMENTS. The Company has made available to Parent each
registration statement, report, proxy statement or information statement
prepared by it since December 31, 1994, each in the form (including exhibits and
any amendments thereto) filed with the SEC (collectively, the "Company
Reports"). Since December 31, 1994, the Company has not failed to make any
required filing with the SEC on a timely basis. As of their respective dates,
the Company Reports (i) were prepared in all material respects in accordance
with the applicable requirements of the Securities Act, the Exchange Act, and
the rules and regulations thereunder and (ii) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made therein, in the light of
the circumstances under which they were made, not misleading except for such
statements, if any, as have been modified by subsequent filings prior to the
date hereof. Each of the consolidated balance sheets of the Company included in
or incorporated by reference into the Company Reports (including the related
notes and schedules) fairly presents the consolidated financial position of the
Company and its Subsidiaries as of its date and each of the consolidated
statements of income, retained earnings and cash flows of the Company included
in or incorporated by reference into the Company Reports (including any related
notes and schedules) fairly presents the results of operations, retained
earnings or cash flows, as the case may be, of the Company and its Subsidiaries
for the periods set forth therein (subject, in the case of unaudited statements,
to normal year-end audit adjustments which would not be material in amount or
effect), in each case in accordance with generally accepted accounting
principles consistently applied during the periods involved, except as may be
noted therein. Except as and to the extent set forth on the consolidated
balance sheet of the Company and its Subsidiaries at December 31, 1995,
including all
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notes thereto, or as set forth in the Company Reports, neither the Company nor
any of its Subsidiaries has any material liabilities or obligations of any
nature (whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on, or reserved against in, a balance sheet of the
Company or in the notes thereto, prepared in accordance with United States
generally accepted accounting principles consistently applied, except
liabilities arising in the ordinary course of business since such date.
5.8. LITIGATION. Except as disclosed in the Company Reports filed
with the SEC prior to the date hereof, there are no actions, suits or
proceedings pending against the Company or any of its Subsidiaries or, to the
Company's knowledge, threatened against the Company or any of its Subsidiaries,
at law or in equity, or before or by any federal, state, local, foreign or
supranational commission, board, bureau, agency or instrumentality, that are
reasonably likely to have a Company Material Adverse Effect.
5.9. ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Company
Reports filed with the SEC prior to the date hereof, since December 31, 1995,
the Company has conducted its business only in the ordinary course of such
business and there has not been any Company Material Adverse Effect.
5.10. TAXES. Each of the Company and its Subsidiaries has timely
filed all material federal, state, foreign, and other tax returns required to be
filed by it, and each such tax return was true, correct, and complete in all
material respects. All taxes shown to be due on each such tax return, or
claimed or asserted by any taxing authority to be due by the Company or any of
its Subsidiaries, have been paid except for those taxes being contested in good
faith and for which adequate reserves have been provided in accordance with
United States generally accepted accounting principles. Each of the Company and
its Subsidiaries has withheld and paid all taxes required to have been withheld
and paid in connection with amounts paid to any employee, independent
contractor, creditor, stockholder, or other third party.
5.11. EMPLOYEE BENEFIT PLANS. All employee benefit plans and
other benefit arrangements covering employees of the Company and its
Subsidiaries (the "Company Benefit Plans") are listed in the Company Reports,
except the Company Benefit Plans which are not material. True and complete
copies of the Company Benefit Plans have been made available to Parent. To the
extent applicable, the Company Benefit Plans comply, in all material respects,
with the requirements of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and the Code, and any Company Benefit Plan intended to be
qualified under Section 401(a) of the Code has been determined by the Internal
Revenue Service (the "IRS") to be so qualified and, to the Company's knowledge,
nothing has occurred that could reasonably be expected to adversely affect such
qualification. To the Company's knowledge, there are no pending or anticipated
material claims against or otherwise involving any Company Benefit Plans
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or relating to the employment or potential employment of any person and no suit,
action or other litigation (excluding claims for benefits incurred in the
ordinary course of the Company Benefit Plan activities) has been brought against
or with respect to any such Company Benefit Plan or relating to the employment
or potential employment of any person, except for any of the foregoing which
would not have a Company Material Adverse Effect. All material contributions
required to be made as of the date hereof to the Company Benefit Plans have been
made or provided for. No event has occurred, and no condition exists, that
could reasonably be expected to result in liability of the Company or its
Subsidiaries under Title IV of ERISA that would have a Company Material Adverse
Effect. Except as disclosed in the Company Reports, the execution of, and
performance of the transactions contemplated in, this Agreement will not (either
alone or upon the occurrence of any additional or subsequent events) constitute
an event under any benefit plan, policy, arrangement or agreement or any trust
or loan that will or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligations to fund benefits with respect to any
employee.
5.12. LABOR MATTERS. Neither the Company nor any of its
Subsidiaries is a party to, or bound by, any collective bargaining agreement,
contract or other agreement or understanding with a labor union or labor
organization. To the Company's knowledge, there are no organizational efforts
with respect to the formation of a collective bargaining unit presently being
made or threatened involving employees of the Company or any of its
Subsidiaries.
5.13. NO BROKERS. The Company has not entered into any contract,
arrangement or understanding with any person or firm which may result in the
obligation of the Company, Parent or any of their respective Subsidiaries to
pay any finder's fees, brokerage or agent's commissions or other like payments
in connection with the negotiations leading to this Agreement or the
consummation of the transactions contemplated hereby, except that the Company
has retained Dillon, Read & Co. Inc. as its financial advisor, the arrangements
with which have been disclosed in writing to Parent prior to the date hereof.
Other than the foregoing arrangements, the Company is not aware of any claim for
payment of any finder's fees, brokerage or agent's commissions or other like
payments in connection with the negotiations leading to this Agreement or the
consummation of the transactions contemplated hereby.
5.14. OPINION OF FINANCIAL ADVISOR. The Company has received the
opinion of Dillon, Read & Co. Inc., to the effect that, as of the date hereof,
the $61.00 in cash to be received by the holders of Shares in the Offer and the
Merger, is fair, from a financial point of view, to the holders of Shares.
5.15. ENVIRONMENTAL MATTERS
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(a) There are no past or present conditions or circumstances
that are reasonably likely to interfere materially with the conduct of the
business of the Company and each of its Subsidiaries in the manner now conducted
or which would interfere materially with compliance with any order of any court,
governmental authority or arbitration board or tribunal, or any law, ordinance,
governmental rule or regulation related to human health or the environment
("Environmental Law").
(b) There are no past or present conditions or circumstances at,
or arising out of, any current or former businesses, assets or properties of the
Company or any Subsidiary of the Company, including but not limited to on-site
or off-site disposal or release of any chemical substance, product or waste,
which may give rise to: (i) liabilities or obligations for any cleanup,
remediation or corrective action under any Environmental Law, or (ii) claims
arising for personal injury, property damage, or damage to natural resources
that, in the case of (i) and (ii), would have a Company Material Adverse Effect.
5.16. REQUIRED VOTE OF COMPANY STOCKHOLDERS. Unless the Merger is
consummated in accordance with Section 253 of the DGCL, the only vote of the
stockholders of the Company required to adopt the plan of merger contained in
this Agreement and approve the Merger is the affirmative vote of the holders of
not less than a majority of the outstanding Shares. No other vote of the
stockholders of the Company is required by law, the Certificate of Incorporation
or Bylaws of the Company as currently in effect or otherwise to adopt the plan
of merger contained in this Agreement and approve the Merger. Parent Sub will
have full voting power with respect to any Shares purchased pursuant to the
Offer.
ARTICLE 6
6. REPRESENTATIONS AND WARRANTIES OF PARENT AND PARENT SUB. Except
as set forth in the disclosure letter delivered to the Company concurrently with
the execution hereof (the "Parent Disclosure Letter") or as disclosed with
reasonable specificity in public filings made by Parent with the SEC prior to
the date hereof, Parent and Parent Sub, jointly and severally, represent and
warrant to the Company as of the date of this Agreement as follows:
6.1. EXISTENCE; GOOD STANDING; CORPORATE AUTHORITY. Each of Parent
and Parent Sub is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization. Parent is duly licensed or
qualified to do business as a foreign corporation and is in good standing under
the laws of any state of the United States or any other jurisdiction in which
the character of the properties owned or leased
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by it therein or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified could not
reasonably be expected to have a material adverse effect on the ability of
Parent, Parent Sub or Merger Sub to consummate the Offer or the Merger (a
"Parent Material Adverse Effect"). Parent has all requisite corporate power and
authority to own, operate and lease its properties and carry on its business as
now conducted.
6.2. AUTHORIZATION, VALIDITY AND EFFECT OF AGREEMENTS. Each of Parent
and Parent Sub has the requisite corporate power and authority to execute and
deliver this Agreement and all agreements and documents contemplated hereby.
The consummation by Parent and Parent Sub of the transactions contemplated
hereby has been duly authorized by all requisite corporate action. This
Agreement constitutes, and all agreements and documents contemplated hereby
(when executed and delivered pursuant hereto) will constitute, the valid and
legally binding obligations of Parent and Parent Sub, enforceable in accordance
with their respective terms, subject to applicable bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights and general
principles of equity.
6.3. OPERATIONS OF MERGER SUB. Merger Sub is or will be formed solely
for the purpose of engaging in the transactions contemplated hereby, has engaged
in no other business activities and has conducted and will conduct its
operations only as contemplated hereby.
6.4. NO VIOLATION. Neither the execution and delivery by Parent and
Parent Sub of this Agreement, nor the consummation by Parent and Parent Sub of
the transactions contemplated hereby in accordance with the terms hereof, will:
(i) conflict with or result in a breach of any provisions of the Certificate of
Incorporation or Bylaws (or similar corporate documents) of Parent or Parent
Sub; (ii) violate, or conflict with, or result in a breach of any provision of,
or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination or in a
right of termination or cancellation of, or accelerate the performance required
by, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the material properties of Parent or its Subsidiaries
under, or result in being declared void, voidable, or without further binding
effect, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust or any material license, franchise, permit, lease,
contract, agreement or other instrument, commitment or obligation to which
Parent or any of its Subsidiaries is a party, or by which Parent or any of its
Subsidiaries or any of their properties is bound or affected, except for any of
the foregoing matters which would not have a Parent Material Adverse Effect; or
(iii) other than the Regulatory Filings, require any material consent, approval
or authorization of, or declaration, filing or registration with, any domestic
governmental or regulatory
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authority, the failure to obtain or make which would have a Parent Material
Adverse Effect.
6.5. FINANCING. At the expiration of the Offer and at the Effective
Time, Parent and Parent Sub will have sufficient funds to consummate the Offer
and the Merger and to pay all fees and expenses related to the transactions
contemplated by this Agreement.
6.6. NO BROKERS. Parent has not entered into any contract,
arrangement or understanding with any person or firm which may result in the
obligation of the Company or Parent or any of their respective Subsidiaries to
pay any finder's fees, brokerage or agent's commissions or other like payments
in connection with the negotiations leading to this Agreement or the
consummation of the transactions contemplated hereby, except that Parent has
retained Rothschild Inc. as its financial advisor, the arrangements with which
have been disclosed in writing to the Company prior to the date hereof. Other
than the foregoing arrangements, Parent is not aware of any claim for payment of
any finder's fees, brokerage or agent's commissions or other like payments in
connection with the negotiations leading to this Agreement or the consummation
of the transactions contemplated hereby.
ARTICLE 7
7. COVENANTS.
7.1. ACQUISITION PROPOSALS. The Company agrees that, prior to the
Effective Time, (a) neither it nor any of its Subsidiaries shall, and each of
them shall not knowingly permit any of its officers, directors, employees,
agents and representatives (including, without limitation, any investment
banker, attorney or accountant retained by it or any of its Subsidiaries) to,
solicit or encourage, directly or indirectly, any inquiries, any proposal or
offer with respect to any Acquisition Transaction (as defined below) (any such
proposal or offer being hereinafter referred to as an "Acquisition Proposal") or
engage in any negotiations concerning an Acquisition Proposal; and (b) it will
immediately cease and cause to be terminated any existing negotiations with any
parties conducted heretofore with respect to any of the foregoing; PROVIDED,
that nothing contained in this Agreement shall prevent the Company or its Board
of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange
Act with regard to an Acquisition Proposal; or (B) providing information to or
engaging in any negotiations or discussions with any person or entity who has
made an unsolicited bona fide Acquisition Proposal that involves an Acquisition
Transaction that the Company Board in good faith determines, with the assistance
of its financial advisor, represents a superior transaction for the stockholders
of the Company when compared to the Offer and the Merger, if and only to the
extent that the Company Board reasonably determines, after consultation with,
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and taking into account the advice of, outside legal counsel, that the failure
to do so would be inconsistent with its fiduciary obligations. The Company will
promptly notify Parent and Parent Sub if any such information is requested from
it or any such negotiations or discussions are sought to be initiated with the
Company and will promptly communicate to Parent and Parent Sub the terms of any
proposal or inquiry and the identity of the party making such proposal or
inquiry which it may receive in respect of any such transaction. Except to the
extent that the Company Board reasonably determines, after consultation with,
and taking into account the advice of, outside legal counsel, that the failure
to take such action would be inconsistent with the compliance by the Company
Board with its fiduciary duties to the stockholders of the Company, the Company
agrees not to release any third party from any confidentiality or standstill
agreement to which the Company is a party without Parent's prior written consent
and to take all steps deemed necessary or appropriate by Parent to enforce to
the fullest extent possible all such agreements.
For purposes of this Agreement, "Acquisition Transaction" shall mean
any tender offer or exchange offer, any merger, consolidation, liquidation,
dissolution, recapitalization, reorganization or other business combination, any
acquisition, sale or other disposition of all or a substantial portion of the
assets or securities of the Company or any other similar transaction involving
the Company, its securities or any of its Significant Subsidiaries (as defined
in Section 10.15) or divisions.
7.2. CONDUCT OF BUSINESSES. Prior to the Effective Time, except as
set forth in the Company Disclosure Letter or as contemplated by any other
provision of this Agreement, unless Parent has consented in writing thereto, the
Company:
(a) shall, and shall cause its Subsidiaries to, conduct its
operations according to their usual, regular and ordinary course in
substantially the same manner as heretofore conducted;
(b) shall use its reasonable efforts, and shall cause each of
its Subsidiaries to use its reasonable efforts, to preserve intact its business
organizations and goodwill, keep available the services of its respective
officers and employees and maintain satisfactory relationships with those
persons having business relationships with it;
(c) shall confer on a regular basis with Parent to report
operational matters of materiality and any proposals to engage in material
transactions;
(d) shall not amend its Certificate of Incorporation or Bylaws;
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(e) shall promptly make available to Parent true and correct
copies of any report, statement or schedule filed with the SEC subsequent to the
date of this Agreement;
(f) shall not and shall not permit any of its Subsidiaries to
(i) except pursuant to the exercise of options, warrants, conversion rights and
other contractual rights existing on the date hereof and disclosed pursuant to
this Agreement, issue any shares of its capital stock, effect any stock split or
otherwise change its capitalization as it existed on the date hereof, (ii)
grant, confer or award any option, warrant, conversion right or other right not
existing on the date hereof to acquire any shares of its capital stock, other
than employee stock options, stock benefits and stock purchases under any stock
option, stock benefit or stock purchase plan existing on the date hereof,
provided that the aggregate amount of employee stock options granted pursuant to
such employee stock option plans shall not exceed the number granted during such
period in the prior year, (iii) increase any compensation or enter into or amend
any employment agreement with any of its present or future employees, officers
or directors, except for normal increases consistent with past practice and the
payment of cash bonuses to officers pursuant to and consistent with existing
plans or programs, or (iv) adopt any new employee benefit plan (including any
stock option, stock benefit or stock purchase plan) or amend any existing
employee benefit plan in any material respect, except for changes which are less
favorable to participants in such plans;
(g) shall not (i) declare, set aside or pay any dividend or make
any other distribution or payment with respect to any shares of its capital
stock or (ii) redeem, purchase or otherwise acquire any shares of its capital
stock or capital stock of any of its Subsidiaries, or make any commitment for
any such action;
(h) shall not, and shall not permit any of its Subsidiaries to,
sell, lease or otherwise dispose of any of its assets (including capital stock
of Subsidiaries) which are material, individually or in the aggregate, except in
the ordinary course of business;
(i) shall not, and shall not permit any of its Subsidiaries to,
acquire or agree to acquire by merging or consolidating with, or by purchasing a
substantial equity interest in or a substantial portion of the assets of, or by
any other manner, any business or any corporation, partnership, association or
other business organization division thereof or otherwise acquire or agree to
acquire any assets or securities in each case which are material, individually
or in the aggregate;
(j) shall not, and shall not permit any of its Subsidiaries to,
incur or become contingently liable with respect to any material indebtedness
for borrowed money or guarantee any such indebtedness; and
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(k) except as may be required as a result of a change in law or
in generally accepted accounting principals, change any of the accounting
principles or practices used by it.
7.3. MEETING OF THE COMPANY'S STOCKHOLDERS.
(a) Unless the Merger is consummated in accordance with Section
253 of the DGCL as contemplated by Section 7.3(b), and subject to applicable
law, the Company shall (i) prepare and file with the SEC, subject to the prior
approval of Parent (which approval shall not be unreasonably withheld), as soon
as practicable after the consummation of the Offer, a preliminary proxy or
information statement (the "Preliminary Proxy Statement") relating to the Merger
as required by the Exchange Act and the rules and regulations thereunder with
respect to the transactions contemplated hereby, (ii) obtain and furnish the
information required to be included in the Preliminary Proxy Statement, (iii)
after consultation with Parent, Parent Sub and Merger Sub, respond promptly to
any comments made by the SEC with respect to the Preliminary Proxy Statement,
(iv) cause the definitive proxy or information statement (together with all
supplements or amendments thereto the "Proxy Statement") to be mailed to the
Company's stockholders at the earliest practicable date and (v) in accordance
with applicable law, duly call, give notice of, convene and hold a special
meeting (the "Special Meeting") of its stockholders as soon as practicable
following the consummation of the Offer for the purpose of adopting the
agreement of merger (within the meaning of Section 251 of the DGCL) set forth in
this Agreement; and include in the Proxy Statement the recommendation of the
Company Board that stockholders of the Company vote in favor of the adoption of
the plan of merger set forth in this Agreement. Notwithstanding the foregoing,
the Company Board may at any time prior to the Effective Time withdraw, modify,
or change any recommendation and declaration regarding this Agreement or the
Merger, or recommend and declare advisable any other offer or proposal, if in
the opinion of such Board of Directors after consultation with, and taking into
account the advice of, outside legal counsel the failure to so withdraw, modify,
or change its recommendation and declaration would be inconsistent with its
fiduciary obligations.
(b) If Parent Sub shall acquire at least 90 percent of the
outstanding Shares, each of Parent, Parent Sub, Merger Sub and the Company shall
take all necessary and appropriate action to cause the Merger to become
effective, as soon as practicable in January of 1997, without a meeting of
stockholders of the Company, in accordance with Section 253 of the DGCL.
(c) The Company agrees that the Proxy Statement, and each
amendment or supplement thereto, will (i) in all material respects, comply with
the requirements of the Exchange Act and all applicable laws and (ii) at the
time of mailing thereof and at the time of the meeting of stockholders of the
Company, not include an
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untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the foregoing shall not apply to the extent that any such untrue statement
of a material fact or omission to state a material fact was made by the Company
in reliance upon and in conformity with written information concerning Parent,
Parent Sub and its nominees, directors and affiliates furnished to the Company
by Parent or Parent Sub specifically for use in the Proxy Statement. Parent and
Parent Sub agree that information provided by them for inclusion in the Proxy
Statement and each amendment or supplement thereto, at the time of mailing
thereof and at the time of the respective meetings of stockholders of the
Company will not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(d) At the Special Meeting, if any, Parent, Parent Sub and their
affiliates will vote all Shares owned by them in favor of approval and adoption
of this Agreement and the transactions contemplated hereby.
7.4. FILINGS; OTHER ACTION. Subject to the terms and conditions
herein provided, the Company and Parent shall: (a) use all reasonable efforts
to cooperate with one another in (i) determining which filings are required to
be made prior to the Effective Time with, and which consents, approvals, permits
or authorizations are required to be obtained prior to the Effective Time from,
governmental or regulatory authorities of the United States, the several states
and foreign jurisdictions in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and (ii)
timely making all such filings and timely seeking all such consents, approvals,
permits or authorizations; and (b) use all reasonable efforts to take, or cause
to be taken, all other actions and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement including, without limitation, the
sale of assets or modification of contracts by either party so long as such
sales of assets or modification of contracts would not have a Company Material
Adverse Effect or Parent Material Adverse Effect, as the case may be, using
reasonable efforts to lift or rescind any injunction or restraining order or
other order adversely affecting the ability of the parties to consummate the
transactions contemplated hereby and using reasonable efforts to defend any
litigation seeking to enjoin, prevent or delay the consummation of the
transactions contemplated hereby or seeking material damages.
7.5. INSPECTION OF RECORDS. From the date hereof to the Effective
Time, the Company shall allow all designated officers, attorneys, accountants
and other representatives of Parent access at all reasonable times to the
records and files, correspondence, audits and properties, as well as to all
information relating to
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commitments, contracts, titles and financial position, or otherwise pertaining
to the business and affairs, of the Company and its Subsidiaries; provided that
no investigation pursuant to this Section shall affect any representation or
warranty given by the Company hereunder, and provided further that
notwithstanding the provision of information or investigation by any party, the
Company shall not be deemed to make any representation or warranty except as
expressly set forth in this Agreement. Notwithstanding the foregoing, the
Company shall not be required to provide any information which it reasonably
believes it may not provide by reason of applicable law, rules or regulations,
which constitutes information protected by attorney/client privilege, or which
it is required to keep confidential by reason of contract or agreement with
third parties. The Company will make appropriate substitute disclosure
arrangements under circumstances in which the restrictions of the preceding
sentence apply.
7.6. PUBLICITY. The parties will consult with each other and will
mutually agree upon any press releases or public announcements pertaining to
this Agreement, the Offer or the Merger and shall not issue any such press
releases or make any such public announcements prior to such consultation and
agreement, except as may be required by applicable law or by obligations
pursuant to any listing agreement with any national securities exchange, in
which case the party proposing to issue such press release or make such public
announcement shall use its reasonable efforts to consult in good faith with the
other party before issuing any such press releases or making any such public
announcements.
7.7. EXPENSES. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses.
7.8. INDEMNIFICATION AND INSURANCE.
(a) Parent agrees that all rights to indemnification existing in
favor of the present or former directors, officers, employees, fiduciaries and
agents (individually, an "Indemnified Party" and collectively, the "Indemnified
Parties") of the Company or any of its Subsidiaries or divisions as provided in
the Company's Certificate of Incorporation or Bylaws or pursuant to other
agreements, or the articles of incorporation, by-laws or similar documents of
any of the Company's Subsidiaries as in effect as of the date hereof with
respect to matters prior to the Effective Time and including, without
limitation, liability arising under the Securities Act, the Exchange Act and
state corporation laws in connection with the Merger shall survive the Merger
and shall continue in full force and effect for a period of not less than the
statutes of limitations applicable to such matters, and that payment thereof
will be guaranteed by Parent. In the event of any such claim, action, suit,
proceeding or investigation (an "Action"), (i) any Indemnified Party entitled to
indemnification under this Section 7.8(a)
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shall notify the Surviving Corporation in writing promptly after such
Indemnified Party receives notice of such Action, (ii) the Surviving Corporation
shall be entitled to assume the defense thereof and, after notice from the
Surviving Corporation to the Indemnified Parties that it so chooses, the
Surviving Corporation shall not be liable to the Indemnified Parties for any
legal fees or expenses subsequently incurred by any Indemnified Party in
connection with the defense thereof (provided, however, that if (x) the
Surviving Corporation does not elect to assume the defense thereof, (y) the
Surviving Corporation otherwise authorizes the Indemnified Party to retain
counsel for the defense thereof or (z) the assumption of the defense thereof by
the Surviving Corporation would present counsel selected by the Surviving
Corporation with a conflict of interest or if such counsel's representation of
the Indemnified Parties would otherwise be inappropriate under the applicable
standards of professional conduct, then Parent shall cause the Surviving
Corporation to pay the reasonable fees and expenses of counsel selected by the
Indemnified Party, which counsel shall be reasonably acceptable to Parent, in
advance of the final disposition of any such action to the full extent permitted
by applicable law, upon receipt of any undertaking required by applicable law),
and (iii) the Surviving Corporation will cooperate in the defense of any such
matter; PROVIDED, HOWEVER, that the Surviving Corporation shall not be liable
for any settlement effected without its prior written consent (which consent
shall not be unreasonably withheld), and provided further, that the Surviving
Corporation shall not be obligated pursuant to this Section to pay the fees and
disbursements of more than one counsel for all Indemnified Parties in any single
Action except to the extent that, in the reasonable opinion of counsel for the
Indemnified Parties, two or more of such Indemnified Parties have conflicting
interests in the outcome of such action.
(b) Parent shall cause the Surviving Corporation to keep in
effect provisions in its Certificate of Incorporation and Bylaws providing for
exculpation of director and officer liability and indemnification of the
Indemnified Parties to the same extent as are currently contained in the
Certificate of Incorporation and Bylaws of the Company, which provisions shall
not be amended except as required by applicable law or except to make changes
permitted by law that would enlarge the Indemnified Parties' right of
indemnification.
(c) For a period of three years after the Effective Time, Parent
shall cause the Surviving Corporation to maintain officers' and directors'
liability insurance covering the Indemnified Parties who are currently covered,
in their capacities as officers and directors, by the Company's existing
officers' and directors' liability insurance policies on terms substantially no
less advantageous to the Indemnified Parties than such existing insurance;
PROVIDED, HOWEVER, that the Surviving Corporation shall not be required in order
to maintain or procure such coverage to pay an annual premium in excess of two
times the current annual premium paid by the Company for its existing coverage
(the "Cap"); and provided further, that if equivalent coverage cannot be
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obtained, or can be obtained only by paying an annual premium in excess of the
Cap, the Surviving Corporation shall only be required to obtain as much coverage
as can be obtained by paying an annual premium equal to the Cap.
(d) The Surviving Corporation shall pay all reasonable expenses,
including attorneys' fees, that may be incurred by any Indemnified Parties in
enforcing the indemnity and other obligations provided for in this Section 7.8.
(e) The rights of each Indemnified Party hereunder shall be in
addition to any other rights such Indemnified Party may have under the
Certificate of Incorporation or Bylaws of the Company, under the DGCL or
otherwise. The provisions of this Section shall survive the consummation of the
Merger and expressly are intended to benefit each of the Indemnified Parties.
(f) In the event the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity in such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any person, then and in either such case, proper
provision shall be made so that the successors and assigns of the Surviving
Corporation shall assume the obligations set forth in this Section 7.8.
7.9. NOTIFICATION OF CERTAIN MATTERS. Each party shall give prompt
notice to the other parties of (i) the occurrence of failure to occur of any
event, which occurrence or failure would be likely to cause any
representation or warranty on its part contained in this Agreement to be
untrue or inaccurate at any time from the date hereof to the Effective Time,
and (ii) any material failure of the party, or any officer, director,
employee or agent thereof, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder.
7.10. GOVERNANCE. [Reserved]
7.11. CORPORATE HEADQUARTERS. The corporate headquarters of the
Company shall be the corporate headquarters of the Surviving Corporation for a
period of at least two years following the Effective Date.
7.12. CERTAIN BENEFITS
(a) From and after the Effective Time, subject to
applicable law, and except as contemplated hereby with respect to the Company
Stock Option Plans, Parent and its Subsidiaries will honor in accordance with
their terms, the Executive Retention Agreements (as described in the Company
Reports) between the Company or its Subsidiaries and certain employees thereof,
and all the Company Benefit Plans; PROVIDED, HOWEVER, that nothing herein shall
preclude any change effected on a
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prospective basis in any the Company Benefit Plan that is permitted pursuant to
the following sentence of this Section 7.12. For a period of not less than one
year following the Effective Time, subject to applicable law, Parent and its
Subsidiaries will provide benefits or cash compensation in lieu thereof (with
the exception of stock based plans) to the employees of the Company and its
Subsidiaries which will, in the aggregate, be no less favorable than those
provided by the Company and its Subsidiaries to their employees immediately
prior to the Effective Time. With respect to the benefit plans of Parent and
the Surviving Corporation ("Parent Benefit Plans"), Parent and the Surviving
Corporation shall grant all the Company employees from and after the Effective
Time credit for all service with the Company and its affiliates and predecessors
prior to the Effective Time for all purposes for which such service was
recognized by the Company. To the extent Parent Benefit Plans provide medical
or dental welfare benefits after the Effective Time, such plans shall waive any
pre-existing conditions and shall provide that any expenses incurred on or
before the Effective Time shall be taken into account under Parent Benefit Plans
for purposes of satisfying applicable deductible, coinsurance and maximum
out-of-pocket provisions.
(b) Parent agrees to employ or cause to be employed at the
Effective Time all employees of the Company and its Subsidiaries who are
employed on the Closing Date on terms consistent with the Company's current
employment practices and at comparable levels of compensation and positions;
provided, that nothing in this sentence shall limit or restrict Parent from
causing or permitting the employment to be terminated, or such terms and
conditions to be changed, following the Effective Time. For a period of three
years following the Effective Time, any reductions in workforce in respect of
employees of Parent and the Surviving Corporation shall be made on a fair and
equitable basis, without regard to whether employment was with Parent or the
Company or their respective Subsidiaries, and any employee whose employment is
terminated or job is eliminated by Parent or any of its Subsidiaries during such
period shall be entitled to participate on a fair and equitable basis in the job
opportunity and employment placement programs offered by Parent or any of its
Subsidiaries.
(c) For purposes of this Section 7.12, the term "employees"
shall mean all current employees of the Company and its Subsidiaries (including
those on lay-off, disability or leave of absence, paid or unpaid).
7.13. RIGHTS AGREEMENT. The Company shall maintain in effect all
actions previously taken, and take any additional actions (including, if
necessary, amending or terminating the Rights Agreement) necessary, to (i)
render the Rights Agreement inapplicable with respect to the Offer, the Merger,
this Agreement and the other transactions contemplated hereby and (ii) ensure
that (x) none of Parent, Parent Sub or Merger Sub or any of their Affiliates or
Associates (each as defined in the Rights Agreement) is or will be considered to
be an Acquiring Person (as defined in the Rights Agreement) and (y) none of a
Distribution Date, Triggering Event or Shares Acquisition Date (each as defined
in the Rights
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Agreement) occurs or shall occur by reason of the announcement or consummation
of the Offer, the Merger or the execution or delivery of this Agreement or the
consummation of any of the other transactions contemplated hereby.
ARTICLE 8
8. CONDITIONS.
8.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The
respective obligation of each party to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Time of the following conditions:
(a) If such approval of the Merger is required by applicable
law, this Agreement and the transactions contemplated hereby shall have been
approved by the holders of the issued and outstanding Shares in the manner
required by the Company's Certificate of Incorporation and By-laws and by
applicable law; provided that Parent and Parent Sub shall vote all of their
Shares in favor of the Merger.
(b) The waiting period applicable to the consummation of the
Merger under the HSR Act or any other law (domestic or foreign) applicable to
the Merger shall have expired or been terminated and all consents,
authorizations, orders and approvals of (or filings or registrations with) any
governmental commission, board or other regulatory body which are set forth on
Exhibit 8.1 hereto, shall have been obtained or made.
(c) Neither of the parties hereto shall be subject to any
statute, rule, regulation, executive order, judgment, decree or injunction
enacted, entered, issued, promulgated or enforced by any court of competent
jurisdiction or governmental authority which prohibits or restricts the
consummation of the transactions contemplated by this Agreement or makes such
consummation illegal; PROVIDED, HOWEVER, that prior to invoking this condition
each party agrees to use its reasonable efforts to have any such decree, order
or injunction lifted or vacated.
(d) Parent Sub shall have purchased Shares pursuant
to the Offer.
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ARTICLE 9
9. TERMINATION.
9.1. TERMINATION BY MUTUAL CONSENT. This Agreement may be terminated
and the Offer and the Merger may be abandoned at any time prior to the Effective
Time, before or after the approval of this Agreement by the holders of Shares
referred to in Section 8.1(a), by the mutual consent of Parent and the Company.
9.2. TERMINATION BY EITHER PARENT OR THE COMPANY. This Agreement may
be terminated and the Offer and the Merger may be abandoned at any time prior to
the Effective Time, before or after the approval of this Agreement by the
holders of Shares referred to in Section 8.1(a), by action of the Board of
Directors of Parent or of the Company if (a) the Merger shall not have been
consummated by June 30, 1997, or (b) any court of competent jurisdiction or any
other governmental, regulatory or administrative agency, body or commission
shall have issued an order, decree or ruling or taken any other action
permanently restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement and such order, decree, ruling or other action
shall have become final and non-appealable; PROVIDED, HOWEVER, that the party
seeking to terminate this Agreement pursuant to this clause (b) shall have used
all reasonable efforts to remove such injunction, order or decree; PROVIDED,
FURTHER, the right to terminate this Agreement pursuant to clause (a) above,
shall not be available to any party whose failure to perform or observe in any
material respect any of its obligations under this Agreement in any manner shall
have been the cause of, or resulted in, the failure of the Merger to occur on or
before such date.
9.3. TERMINATION BY THE COMPANY. This Agreement may be terminated and
the Offer and the Merger may be abandoned at any time prior to the Effective
Time, before or after the adoption and approval by the holders of Shares
referred to in Section 8.1(a), by action of the Company Board if (a) the Company
Board reasonably determines, after consultation with, and taking into account
the advice of, outside legal counsel, that proceeding with the transactions
contemplated hereby would be inconsistent with its fiduciary obligations by
reason of an Acquisition Proposal for the Company, or (b) Parent or Parent Sub
shall have terminated or withdrawn the Offer or amended the Offer in any manner
not expressly permitted by this Agreement, or (c) there has been a breach by
Parent or Parent Sub of any representation or warranty contained in this
Agreement which breach (i) is not curable, or, if curable, is not cured within
30 days after written notice of said breach is given by the Company to Parent
and (ii) would have a Parent Material Adverse Effect, or (d) there has been a
material breach of any of the covenants or agreements set forth in the Agreement
on the part of Parent or Parent Sub, which breach is not curable or, if curable,
is not cured within 30 days after written notice of such breach is given by the
Company to Parent; PROVIDED, HOWEVER, that the right to terminate this
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Agreement pursuant to Section 9.3(c) or (d) shall not be available to the
Company if it, at such time, is in material breach of any representation,
warranty, covenant or agreement set forth in this Agreement.
9.4. TERMINATION BY PARENT. Until any Shares have been purchased
pursuant to the Offer, this Agreement may be terminated and the Offer and the
Merger may be abandoned at any time prior to the Effective Time, before or after
the approval by the holders of Shares referred to in Section 8.1(a), by action
of the Board of Directors of Parent if (a) there has been a breach by the
Company of any representation or warranty contained in this Agreement which
breach (i) is not curable, or, if curable, is not cured within 30 days after
written notice of said breach is given by Parent to the Company and (ii) would
have a Company Material Adverse Effect, or (b) there has been a material breach
of any of the covenants or agreements set forth in the Agreement on the part of
the Company, which breach is not curable or, if curable, is not cured within 30
days after written notice of such breach is given by Parent to the Company, or
(c) the Company Board or the Special Committee shall have withdrawn or modified
in a manner adverse to Parent or Parent Sub its authorization, approval or
recommendation of the transactions contemplated by this Agreement or recommended
another Acquisition Proposal for the Company or shall have resolved to do any of
the foregoing or (d) if the Company or any of its Subsidiaries (or the Company
Board or any committee thereof) shall have approved, recommended authorized,
proposed, publicly announced its intention to enter into an Acquisition
Transaction (other than the Offer and the Merger) or filed a Schedule 14D-9 not
opposing any tender offer made by a party other than Parent or Parent Sub or any
of their affiliates; PROVIDED, HOWEVER, that the right to terminate this
Agreement pursuant to Section 9.4(a) or (b) shall not be available to Parent if
it, at such time, is in material breach of any representation, warranty,
covenant or agreement set forth in this Agreement.
9.5. EFFECT OF TERMINATION AND ABANDONMENT.
(a) In the event that this Agreement is terminated (i) pursuant
to Section 9.3(a) or Section 9.4(c) or 9.4(d) or (ii) pursuant to any provision
of Section 9.1 or 9.2(a) or any other provision of Section 9.3(b) or 9.4
(regardless of whether such termination is by Parent or the Company) and (in the
case of clause (ii) only) either (y) an Acquisition Proposal shall have been
received by the Company after the date hereof and prior to such termination or
(z) prior to such termination the Offer shall have expired without the purchase
of any Shares by Parent Sub pursuant thereto and within twelve months from the
date of such expiration an Acquisition Event (as such term is defined below)
other than with Parent or Parent Sub or any of their affiliates has occurred,
then the Company shall pay to Parent a fee of $40,000,000.00 (the "Termination
Fee"). The Termination Fee shall be payable in immediately available funds at
the time of termination if such fee becomes payable pursuant to clause (i) or
clause (ii)(y) above, or
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on the second business day following the occurrence of the Acquisition Event if
such fee becomes payable in the circumstances described in clause (ii)(z) above.
As used herein, "Acquisition Event" shall mean the consummation
of any (i) Acquisition Transaction or (ii) series of transactions that results
in any person, entity or "group" (other than Parent or Parent Sub or any of
their affiliates) acquiring more than 50% of the outstanding Shares or assets of
the Company (through any open market purchases, merger, consolidation,
recapitalization reorganization or other business combination).
(b) In the event of termination of this Agreement and the
abandonment of the Merger pursuant to this Article 9, all obligations of the
parties hereto shall terminate, except the obligations of the parties pursuant
to this Section 9.5 and Section 7.7 and except for the provisions of Sections
10.3, 10.4, 10.6, 10.8, 10.9, 10.12, 10.13 and 10.14. Moreover, in the event of
termination of this Agreement pursuant to Section 9.2(a), 9.3 or 9.4, nothing
herein shall prejudice the ability of the non-breaching party from seeking
damages from any wilful other party for any breach of this Agreement, including,
without limitation, attorneys' fees and the right to pursue any remedy at law or
in equity. In the event Parent accepts any fee pursuant to Section 9.5(a) it
shall not (i) assert or pursue in any manner, directly or indirectly, any claim
or cause of action based in whole or in part upon alleged tortious or other
interference with rights under this Agreement against any entity or person
submitting an Acquisition Proposal with respect to the Company or (ii) assert or
pursue in any manner, directly or indirectly, any claim or cause of action
against the Company or any of its officers or directors based in whole or in
part upon its or their receipt, consideration, recommendation, or approval of an
Acquisition Proposal or the exercise by the Company of its right of termination
under Section 9.3(a).
9.6. EXTENSION; WAIVER. At any time prior to the Effective Time, each
party may by action taken by its Board of Directors, to the extent legally
allowed, (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
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ARTICLE 10
10. GENERAL PROVISIONS.
10.1. NONSURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
All representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall not survive the Merger,
PROVIDED, HOWEVER, that the agreements contained in Article 4 and in Sections
7.7, 7.8, 7.11, and 7.12 and this Article 10 shall survive the Merger.
10.2. NOTICES. Any notice required to be given hereunder shall be
sufficient if in writing, and sent by facsimile transmission and by courier
service (with proof of service), hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid), addressed as
follows:
If to Parent or Parent Sub: If to the Company:
Henkel KGaA Robert W. Fiondella
Henkelstrasse 67 Chairman of the Special Committee
D-40191 Dusseldorf of the Board of Directors of
Germany Loctite Corporation
Attention: Karl Gruter Hartford Square North
Ten Columbus Boulevard
Hartford, Connecticut 06106
Facsimile: 49-211-798-6660 Facsimile: (860) 403-5543
With a copy to: With a copy to:
HC Investments, Inc. Arthur Fleischer, Jr., Esq.
2200 Renaissance Boulevard, Suite 200 Fried, Frank, Harris,
Gulph Mills, PA 19406 Shriver & Jacobson
Attention: Ernest G. Szoke One New York Plaza
Facsimile: (610)-270-8219 New York, NY 10004
Facsimile: (212) 859-4000
and to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: William A. Groll, Esq.
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Facsimile: (212)-225-3999
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
10.3. ASSIGNMENT; BINDING EFFECT; BENEFIT. 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. Subject to the preceding sentence,
this Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, except for the provisions
of Article 4 and Section 7.8 (collectively, the "Third Party Provisions"),
nothing in this Agreement, expressed or implied, is intended to confer on any
person other than the parties hereto or their respective heirs, successors,
executors, administrators and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement. The Third Party Provisions
may be enforced by the beneficiaries thereof.
10.4. ENTIRE AGREEMENT. This Agreement, the Exhibits, the Company
Disclosure Letter, the Parent Disclosure Letter, and any documents delivered by
the parties in connection herewith constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
10.5. AMENDMENT. This Agreement may be amended by the parties
hereto, by action taken by their Boards of Directors, at any time before or
after approval of matters presented in connection with the Merger by the holders
of Shares, but after any such approval, no amendment shall be made which by law
requires the further approval of holders of Shares without obtaining such
further approval. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
10.6. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company and Parent hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of Delaware and of the United States of America
located in the State of Delaware (the "Delaware Courts") for any litigation
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such
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litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in an
inconvenient forum.
10.7. COUNTERPARTS. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument. Each counterpart may consist of a number of copies
hereof each signed by less than all, but together signed by all of the parties
hereto.
10.8. HEADINGS. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretative effect whatsoever.
10.9. INTERPRETATION. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations and partnerships
and vice versa. In this agreement, the phrase (i) "to the knowledge of" and
similar phrases relating to knowledge of the Company or Parent, as the case may
be, shall mean the actual knowledge of its executive officers and (ii)
"transactions contemplated by this Agreement" and similar phrases shall include
the Offer and the Merger.
10.10. WAIVERS. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
10.11. INCORPORATION OF EXHIBITS. The Company Disclosure Letter,
the Parent Disclosure Letter, Annex A and all Exhibits attached hereto and
referred to herein are hereby incorporated herein and made a part hereof for all
purposes as if fully set forth herein.
10.12. SEVERABILITY. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
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10.13. ENFORCEMENT OF AGREEMENT. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware Court, this
being in addition to any other remedy to which they are entitled at law or in
equity.
10.14. OBLIGATION OF PARENT. Whenever this Agreement requires
Parent Sub to take any action, such requirement shall be deemed to include an
undertaking on the part of Parent to cause Parent Sub to take such action and a
guarantee of the performance thereof.
10.15. SUBSIDIARIES. As used in this Agreement, the word
"Subsidiary" when used with respect to any party means any corporation or other
organization, whether incorporated or unincorporated, of which such party
directly or indirectly owns or controls at least a majority of the securities or
other interests having by their terms ordinary voting power to elect a majority
of the board of directors or others performing similar functions with respect to
such corporation or other organization, or any organization of which such party
is a general partner. When a reference is made in this Agreement to Significant
Subsidiaries, the words "Significant Subsidiaries" shall refer to Subsidiaries
(as defined above) which constitute "significant subsidiaries" under Rule 405
promulgated by the SEC under the Securities Act.
IN WITNESS WHEREOF, the parties have executed this Agreement and caused the same
to be duly delivered on their behalf on the day and year first written above.
HENKEL KGaA
By:/s/ Hans - Dietrich Winkhaus
--------------------------------------------
Name: Hans - Dietrich Winkhaus
Title: CEO
By:/s/ Karl Gruter
--------------------------------------------
Name: Karl Gruter
Title: General Counsel
33
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HC INVESTMENTS, INC.
By:/s/ Karl Gruter
--------------------------------------------
Name: Karl Gruter
Title: Chairman of the Board
LOCTITE CORPORATION
By:/s/ David Freeman
--------------------------------------------
Name: David Freeman
Title: CEO
34
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ANNEX A
CONDITIONS TO THE OFFER
Capitalized terms used in this Annex A and not otherwise defined
herein shall have the meanings assigned to them in the Agreement to which it is
attached (the "MERGER AGREEMENT").
Notwithstanding any other term or provision of the Offer, Parent Sub
will not be required to accept for payment, purchase or, subject to any
applicable rules and regulations of the SEC, including Rule 14e-1(c) under the
Exchange Act (relating to Parent Sub's obligation to pay for or return tendered
Shares promptly after termination or withdrawal of the Offer), pay for and may
delay the acceptance for payment of or, subject to the restriction referred to
above, the payment for any tendered Shares and may terminate the Offer as to any
Shares not then paid for, if (1) there are not validly tendered (and not
withdrawn) prior to the Expiration Date of the Offer that number of Shares that
would, when aggregated with the Shares already owned by Parent Sub, represent a
majority of all outstanding Shares on a fully diluted basis on the date of
purchase (the "MINIMUM CONDITION"), or (2) at any time on or after the date of
the Offer to Purchase, and prior to the time of acceptance for payment of or
payment for any such Shares, any of the following events or conditions exist:
(a) there shall be instituted or pending any action, proceeding,
application or counterclaim by any government or governmental, regulatory
or administrative authority, agency or instrumentality, domestic, foreign
or supranational (each, a "GOVERNMENTAL ENTITY"), or by any other person,
domestic or foreign, before any court or Governmental Entity, (i)(A) which
is reasonably likely to make illegal, delay or otherwise directly or
indirectly restrain or prohibit, or which is reasonably likely to impose
price or other requirements, in addition to those required by the Federal
securities laws (as in effect on the date of the Offer to Purchase), in
connection with, the making of the Offer, the acceptance for payment of, or
payment for, some of or all the Shares by Parent Sub, Parent or any other
affiliate of Parent, or the consummation by Parent Sub or any other
affiliate of Parent of the Merger or other similar business combination
with the Company or (B) which is reasonably likely to result in material
damages, (ii) which is reasonably likely to impose limitations on the
ability of Parent Sub, Parent or any other affiliate of Parent effectively
to exercise full rights of ownership of the Shares, including, without
limitation, the right to vote any Shares acquired or owned by Parent Sub,
Parent or any other affiliate of Parent on all matters properly presented
to the Company's stockholders, (iii) which is reasonably likely to require
divestiture by Parent Sub, Parent or any other affiliate of Parent of any
Shares, (iv) which is reasonably likely to result in any material
diminution in the benefits
A-1
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expected to be derived by Parent Sub, Parent or any other affiliate of
Parent as a result of the transactions contemplated by the Offer, the
Merger or other similar business combination, or (v) materially adversely
affecting the business, assets, liabilities, financial condition or results
of operations of the Company and its Subsidiaries taken as a whole;
(b) there shall be any action taken or any statute, rule, regulation,
legislation, interpretation, judgment, order or injunction proposed,
enacted, enforced, promulgated, amended, issued or deemed applicable to (i)
Parent Sub, Parent or any other affiliate of Parent or the Company or any
of its Subsidiaries or (ii) the Offer, the Merger, or other similar
business combination by Parent Sub or any affiliate of Parent with the
Company, by any government, legislative body or court, domestic, foreign or
supranational, or Governmental Entity, that is reasonably likely, directly
or indirectly, to result in any of the consequences referred to in clauses
(i) through (v) of paragraph (a) above;
(c) any change shall have occurred or been threatened (or any
condition, event or development shall have occurred or been threatened
involving a prospective change) in the business, assets, liabilities,
financial condition or results of operations of the Company and its
Subsidiaries taken as a whole that is reasonably likely to be materially
adverse to the Company and its Subsidiaries taken as a whole;
(d) there shall have occurred or been threatened (i) any general
suspension of trading in, or limitation on prices for, securities on any
national securities exchange or in the over-the-counter market in the
United States, (ii) a decline of at least 15% in either the Dow Jones
Average of Industrial Stocks or the Standard & Poor's 500 Index from that
existing at the close of business on December 5, 1996, (iii) any change in
the general political, market, economic or financial conditions in the
United States or abroad that is reasonably likely to have a material
adverse effect upon the business, assets, liabilities, financial condition
or results of operations of the Company and its Subsidiaries taken as a
whole, (iv) any material change in currency exchange rates that is
reasonably likely to have a material adverse effect on the business,
assets, liabilities, financial condition or results of operations of the
Company and its Subsidiaries taken as a whole, (v) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States, (vi) any limitation (whether or not mandatory) by any
government, domestic, foreign or supranational, or Governmental Entity on,
or other event that is reasonably likely to have a material adverse affect
on, the extension of credit by banks or other lending institutions, which
is reasonably likely to have a material adverse effect on the business,
assets, liabilities, financial
A-2
<PAGE>
condition or results of operations of the Company and its Subsidiaries
taken as a whole, (vii) a commencement of a war involving the United States
or (viii) in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof;
(e) it shall have been publicly disclosed or Parent Sub shall have
learned that (i) any person or "group" (as defined in Section 13(d)(3) of
the Exchange Act) shall have acquired or proposed to acquire more than 50%
of any class or series of capital stock of the Company (including the
Shares) or shall have been granted any option or right to acquire more than
50% of any class or series of capital stock of the Company (including the
Shares) or (ii) any person or group shall have entered into a definitive
agreement or an agreement in principle with respect to a tender offer or
exchange offer or a merger, share exchange, consolidation or other business
combination or a sale of assets (other than in the ordinary course of
business) with the Company or any of its Subsidiaries;
(f) Parent Sub, Parent or another affiliate of Parent and the Company
shall have entered into an agreement that the Offer be terminated or
amended;
(g) the Company shall have breached or failed to comply in any
material respect with any of its obligations under the Merger Agreement or
the representations or warranties of the Company contained therein shall
have been inaccurate when made or at any time thereafter in any respect
that is reasonably likely to have a material adverse effect on the
business, assets, liabilities, financial condition or results of operations
of the Company and its Subsidiaries taken as a whole; or
(h) the Company Board shall have modified or amended in any manner
adverse to Parent Sub or shall have withdrawn its recommendation of the
Offer or the Merger
which, regardless of the circumstances (including any action or inaction by
Parent Sub or any affiliate of Parent Sub) giving rise to any such condition,
makes it inadvisable, in the reasonable good faith judgment of Parent Sub, to
proceed with the Offer and/or with such acceptance for payment or payment.
The foregoing conditions are for the sole benefit of Parent Sub and
may be asserted by Parent Sub regardless of the circumstances giving rise to any
such condition or may be waived by Parent Sub in whole or in part at any time
and from time to time in its sole discretion. The failure by Parent Sub at any
time to exercise any of the foregoing rights will not be deemed a waiver of any
such right, and the waiver of any such right
A-3
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with respect to particular facts and circumstances will not be deemed a waiver
with respect to any other facts and circumstances and each such right will be
deemed an ongoing right that may be asserted at any time and from time to time.
A-4
