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MEDEX, INC.
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NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
DECEMBER 13, 1996
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To the Shareholders:
A special meeting of shareholders of Medex, Inc. (the "Company"), called
pursuant to the requirements of Section 1701.831 of the Ohio Revised Code (the
"831 Special Meeting"), will be held on December 13, 1996 at [ ] a.m. at
[ ], Columbus, Ohio, solely for the following purpose:
to consider and vote upon a proposal to authorize the acquisition by FCY,
Inc. of a majority or more of the Company's outstanding common shares (and
the associated common share purchase rights), in accordance with Section
1701.831 of the Ohio Revised Code.
Shareholders of record at the close of business on November 12, 1996 will
be entitled to vote at the 831 Special Meeting and at any adjournment thereof.
The Proxy Statement of the Company accompanies this notice.
By Order of the Board of Directors
ROBERT E. BOYD, JR.
Secretary
VOTING YOUR PROXY IS IMPORTANT
Your prompt dating, signing and returning of the enclosed proxy card in the
enclosed envelope would be appreciated. Those who are eligible to do so (as
explained in the attached Proxy Statement) should also complete the
certification set forth therein. If you attend the 831 Special Meeting, you may
nevertheless vote in person should you desire. The return of proxies is
important, regardless of the number of shares owned.
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PRELIMINARY PROXY MATERIALS DATED NOVEMBER 15, 1996
THE INFORMATION INCLUDED HEREIN IS SUBSTANTIALLY AS IT IS EXPECTED TO BE WHEN
THE DEFINITIVE PROXY STATEMENT IS MAILED TO THE SHAREHOLDERS OF MEDEX, INC.
THIS PRELIMINARY PROXY STATEMENT WILL BE REVISED TO REFLECT ACTUAL FACTS AT
THE TIME OF MAILING OF THE DEFINITIVE PROXY STATEMENT.
PROXY STATEMENT
OF
MEDEX, INC.
FOR THE SPECIAL MEETING OF SHAREHOLDERS OF MEDEX, INC.
UNDER SECTION 1701.831 OF THE OHIO REVISED CODE
TO BE HELD ON DECEMBER 13, 1996
This Proxy Statement is being mailed on or about November , 1996 to the
shareholders of Medex, Inc., an Ohio corporation (the "Company"), in connection
with the solicitation by the Board of Directors of the enclosed form of proxy
for the Special Meeting of Shareholders (the "831 Special Meeting") under
Section 1701.831 (the "Ohio Control Share Acquisition Law" or "Section 831") of
the Ohio Revised Code to be held December 13, 1996, and at any and all
adjournments of the 831 Special Meeting. Pursuant to the Ohio General
Corporation Law, a shareholder may revoke a written proxy at any time prior to
the vote either by giving notice of revocation to the Company in writing or in
open meeting. The cost of soliciting the proxies will be borne by the Company.
The 831 Special Meeting will be held on December 13, 1996, at [
] a.m., local time, at [ ], Columbus, Ohio. The Board of
Directors has fixed the close of business on November 12, 1996 as the record
date for determining shareholders entitled to notice of the meeting and to vote
thereat (the "Record Date").
The voting power of Interested Shares of the Company (as defined on page [
] of this Proxy Statement) is not eligible to be counted in connection with the
Second Quorum and Second Majority (as defined on page [ ] of this Proxy
Statement). The Board of Directors of the Company has appointed an Inspector of
Election who has established procedures to determine, among other things, which
of the Company's common shares, par value $.01 per share (the "Common Shares"),
are Interested Shares, including a requirement that each shareholder certify to
the Company whether any (and, if so, how many) or all of the Common Shares being
voted are Interested Shares that are not eligible to be counted in respect of
the Second Quorum and Second Majority. See "Two Separate Quorums and Majorities
Required; Certain Voting Procedures at 831 Special Meeting" and "Shares to Be
Counted in Determining Quorums and Majorities" in this Proxy Statement and the
additional information set forth in Exhibit B to this Proxy Statement.
PURPOSE OF SPECIAL MEETING
The sole purpose of the 831 Special Meeting is for the shareholders of the
Company to consider and vote upon a proposal to authorize, in accordance with
the Ohio Control Share Acquisition Law, the acquisition by FCY, Inc., an Ohio
corporation ("FCY") and wholly-owned subsidiary of Furon Company, a California
corporation ("Furon"), of Common Shares that, when added to all other shares of
the Company in respect of which Furon and FCY may exercise or direct the
exercise of voting power in the election of the Company's directors, would
entitle Furon and FCY to exercise at least a majority of such voting power (such
acquisition hereinafter referred to as the "Control Share Acquisition"). Section
831 requires that, prior to any person acquiring any interest in shares that
would entitle such person directly or indirectly to control 20% or more of
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the voting power of an Ohio corporation in the election of its directors, such
person obtain the authorization of the shareholders of the corporation as
provided in that section. THE COMPANY'S BOARD OF DIRECTORS (THE "BOARD OF
DIRECTORS") HAS DETERMINED THAT THE OFFER (AS DEFINED BELOW) IS ADEQUATE AND IN
THE BEST INTERESTS OF THE COMPANY AND ITS SHAREHOLDERS. THE BOARD OF DIRECTORS
HAS INDEPENDENTLY RECOMMENDED THAT SHAREHOLDERS ACCEPT THE OFFER AND,
ACCORDINGLY, UNANIMOUSLY RECOMMENDS A VOTE FOR THE AUTHORIZATION OF THE CONTROL
SHARE ACQUISITION.
COMMON SHARES WILL NOT BE ACCEPTED FOR PAYMENT PURSUANT TO THE OFFER
UNLESS, AMONG OTHER THINGS, (1) THE ACQUISITION BY FCY OF COMMON SHARES PURSUANT
TO THE OFFER IS AUTHORIZED BY THE SHAREHOLDERS OF THE COMPANY AT THE SPECIAL
MEETING OR (2) FURON, IN ITS REASONABLE DISCRETION, IS SATISFIED THAT THE
PROVISIONS OF THE OHIO CONTROL SHARE ACQUISITION LAW ARE INVALID OR INAPPLICABLE
TO SUCH ACQUISITION. ACCORDINGLY, IF YOU WANT THE OPPORTUNITY TO RECEIVE $23.50
NET PER COMMON SHARE IN CASH PURSUANT TO THE OFFER, WE URGE YOU TO SIGN, DATE
AND MAIL PROMPTLY THE ENCLOSED PROXY IN FAVOR OF THE ACQUISITION PROPOSAL.
SHAREHOLDER AUTHORIZATION OF THE CONTROL SHARE ACQUISITION PROPOSAL WILL
NOT REQUIRE YOU TO TENDER YOUR COMMON SHARES TO FCY. CONSUMMATION OF THE OFFER,
HOWEVER, IS CONDITIONED UPON, AMONG OTHER THINGS, AUTHORIZATION BY SHAREHOLDERS
OF THE COMPANY OF THE CONTROL SHARE ACQUISITION PROPOSAL (OR FURON BEING
SATISFIED, IN ITS REASONABLE DISCRETION, THAT THE OHIO CONTROL SHARE ACQUISITION
LAW IS INVALID OR INAPPLICABLE TO SUCH ACQUISITION). ACCORDINGLY, IT IS
IMPORTANT THAT SHAREHOLDERS WHO WISH TO TENDER THEIR COMMON SHARES TO FCY
PURSUANT TO THE OFFER VOTE FOR THE AUTHORIZATION OF THE CONTROL SHARE
ACQUISITION PROPOSAL ON THE ENCLOSED PROXY CARD.
To authorize the Control Share Acquisition, Section 831 requires (i) the
presence, in effect, of two quorums at the 831 Special Meeting, (ii) the
affirmative vote of the majority of the voting power of the Company (entitled to
vote in the election of the directors), represented in person or by proxy at the
831 Special Meeting and (iii) the affirmative vote of the majority of such
voting power excluding the voting power of Interested Shares (as described
below). Section 831 provides that for quorum purposes both a majority of the
voting power, and a majority of the voting power excluding Interested Shares,
must be represented at the 831 Special Meeting.
On November 12, 1996, the Record Date, there were 6,216,601 Common Shares
outstanding. Subject to limitations imposed by the Ohio Control Share
Acquisition Law (as described below), each Common Share is entitled to one vote
on the matter to be presented at the 831 Special Meeting.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR AUTHORIZATION OF THE CONTROL
SHARE ACQUISITION OF COMMON SHARES BY FCY. Please promptly date, sign and return
the accompanying proxy card.
The three persons named in the enclosed proxy card have been selected by
the Board of Directors and will vote shares represented by valid Proxies
solicited pursuant to this Proxy Statement. Unless otherwise specified in the
proxy card, they intend to vote FOR the authorization of the Control Share
Acquisition.
If you have any questions or need assistance in voting, please contact
MacKenzie Partners, Inc. at 1-800 322-2885 (Toll-Free).
THE OFFER
On November 12, 1996, the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") providing for the acquisition of the Company by
Furon. Pursuant to the Merger Agreement, FCY, a subsidiary of Furon, has
commenced a tender offer (the "Offer") to purchase all of the outstanding
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Common Shares at a cash price of $23.50 per share. Following consummation of the
Offer, the Company and FCY will, assuming certain conditions are satisfied,
merge (the "Merger"), and the Company will continue as the surviving corporation
and a wholly-owned subsidiary of Furon. The Merger Agreement provides that each
share of the Company's Common Stock not acquired in the Offer will be converted
into the right to receive $23.50 in cash in the Merger.
The Offer and the Merger Agreement are discussed in detail in the Offer to
Purchase of FCY dated November 15, 1996 and related materials, including a
Letter of Transmittal, and in the Company's Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9") filed with the Securities and
Exchange Commission. Copies of these documents have been mailed separately to
the Company's shareholders and should be read by shareholders before any
decision is made with respect to voting on the authorization of the Control
Share Acquisition.
A copy of the Offer to Purchase may be obtained without charge from
, upon written or oral request directed to . A
copy of the Company's Schedule 14D-9 may be obtained without charge from
MacKenzie Partners, Inc., upon written or oral request directed to
. Such information will be provided by first class mail within
one business day of receipt of the request.
RECOMMENDATION BY THE COMPANY'S BOARD OF DIRECTORS
The Board of Directors of the Company at a special meeting held on November
12, 1996, by unanimous vote of the directors present, approved the Merger
Agreement, the Offer and the Merger, determining that the terms of the Offer and
the Merger are fair to, and in the best interests of, the Company's
shareholders, and recommended acceptance of the Offer and approval and adoption
of the Merger Agreement by the Company's shareholders (if such approval is
required by applicable law).
Prior to approving the Merger Agreement and the transactions contemplated
thereby, the Board of Directors of the Company received presentations and
reviewed the terms and conditions of the Offer and the Merger with the Company's
management, legal counsel and financial advisors. In reaching its conclusions,
the Board considered many factors, including those described in the Schedule
14D-9.
OHIO CONTROL SHARE ACQUISITION LAW
Section 831 provides, among other things, that, unless the articles of
incorporation or the regulations of an issuing public corporation provide
otherwise, any control share acquisition of such corporation shall be made only
with the prior authorization of its shareholders. An "issuing public
corporation" is defined as a corporation, organized for profit under the laws of
Ohio, with 50 or more shareholders, that has its principal place of business,
principal executive offices or substantial assets within Ohio, and as to which
no valid close corporation agreement is in existence. The Company is an "issuing
public corporation."
A "control share acquisition" is defined as the acquisition, directly or
indirectly, by any person of shares of an issuing public corporation that, when
added to all other shares of the issuing public corporation in respect of which
such person may exercise or direct the exercise of voting power, would entitle
such person, immediately after such acquisition, directly or indirectly, alone
or with others, to exercise or direct the exercise of the voting power of such
issuing public corporation in the election of directors of the following ranges
of such voting power: (a) one-fifth or more but less than one-third of such
voting power; (b) one-third or more but less than a majority of such voting
power; or (c) a majority or more of such voting power.
Section 831 provides that any person who proposes to make a control share
acquisition shall deliver an "acquiring person statement" to the issuing public
corporation. Such acquiring person statement shall include (i) the identity of
the acquiring person; (ii) a statement that the acquiring person statement is
given pursuant to Section 831; (iii) the number of shares of the issuing public
corporation owned, directly or indirectly, by the acquiring person; (iv) the
range of voting power in the election of directors under which the proposed
control share acquisition would, if consummated, fall; (v) a description in
reasonable detail of the terms of the proposed acquisition; and (vi)
representations of the acquiring person (together with a statement in reasonable
detail of the facts upon which the representations are based) that the proposed
control share acquisition, if
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consummated, will not be contrary to law, and that the acquiring person has the
financial capacity to make the proposed control share acquisition.
Within ten days of receipt of an acquiring person statement that complies
with Section 831, the directors of the issuing public corporation must call a
special meeting of shareholders of the issuing public corporation to vote on the
proposed control share acquisition. Such special meeting must be held within
fifty days of receipt of the acquiring person statement unless the acquiring
person agrees otherwise. If the acquiring person requests in writing at the time
of delivery of the acquiring person statement, such special meeting shall be
held no sooner than 30 days after receipt by the issuing public corporation of
the acquiring person statement.
The issuing public corporation is required to send a notice of the special
meeting to all shareholders of record as of the record date set for the meeting,
together with a copy of the acquiring person statement and a statement by the
issuing public corporation, authorized by its directors, of its position or
recommendation with respect to the proposed control share acquisition.
Pursuant to Ohio Revised Code Section 1701.831(E)(1), the acquiring person
may make the proposed control share acquisition only if (a)(i) two quorums are,
in effect, present at the special meeting, (ii) the acquisition is authorized by
an affirmative vote of a majority of the voting power entitled to vote in the
election
of directors and represented in person or by proxy at such meeting (the "First
Majority"), and (iii) by a majority of the portion of such voting power
excluding the voting power of "interested shares" (the "Second Majority"), as
defined below, and (b) such control share acquisition is consummated, in
accordance with the terms so authorized, no later than 360 days following such
shareholder authorization of the control share acquisition. For quorum purposes,
at least a majority of the voting power in the election of directors (the "First
Quorum") and a majority of the portion of such voting power excluding the voting
power of "interested shares" (the "Second Quorum") are required to be
represented at such meeting in person or by proxy.
Ohio Revised Code Section 1701.01(CC)(1) defines "interested shares" as the
shares of an issuing public corporation as to which any of the following persons
may exercise (or direct the exercise of) voting power of the corporation in the
election of directors: (i) the acquiring person; (ii) an officer of the issuing
public corporation elected or appointed by its directors; or (iii) any employee
of the issuing public corporation
who is also a director of such corporation. Ohio Revised Code Section
1701.01(CC)(2) also defines "interested shares" (the shares defined under either
Section 1701.01(CC)(1) and (2) hereinafter referred to as "Interested Shares")
to mean shares of the issuing public corporation acquired, directly or
indirectly, by any person for valuable consideration during the period beginning
with the date of the first public disclosure of a proposed control share
acquisition of the issuing public corporation or any proposed merger,
consolidation or other transaction which would result in a change in control of
the corporation or all or substantially all of its assets, and ending on the
date of any special meeting of the corporation's shareholders held thereafter
pursuant to Section 831 for the purpose of voting on a control share acquisition
proposed by an acquiring person, if either (i) the aggregate consideration paid
or otherwise given by the person who acquired the shares, and any other persons
acting in concert with such person, exceeds $250,000 or (ii) the number of
shares acquired by the person who acquired the shares, and any other persons
acting in concert with such person, exceeds one-half of 1% of the outstanding
shares of the corporation entitled to vote in the election of directors.
The Company and Furon understand that the constitutionality of the Section
1701.01(CC)(2) interested shares definition, as applied in Section 1701.831, has
been challenged in three lawsuits. In each case, the Court issued preliminary
rulings construing the Control Share Acquisition Law, but the litigation ended
before a final decision was rendered. For purposes of this transaction, the
Company and Furon have agreed to certain procedures outlined in this Proxy
Statement in an attempt to comply with the Control Share Acquisition Law, as
construed in those cases. The Company and Furon understand and agree that the
attempt to comply with the Control Share Acquisition Law does not waive their
rights to assert any arguments which may exist
concerning the constitutionality of the Control Share Acquisition Law, the
interpretation of the Law, or the application of the Law to this transaction.
The Company and Furon expressly reserve their rights to assert any such
arguments.
Furon first publicly disclosed the proposed control share acquisition that
is the subject of the 831 Special Meeting on November 13, 1996. Accordingly,
pursuant to the most recent court interpretation of Section
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1701.01(CC)(2), Common Shares will be deemed "Interested Shares" if such shares
were acquired by a person and any other persons acting in concert with him for
more than $250,000 during the period November 13, 1996 through the date of the
831 Special Meeting and such person continues to own such shares on the date of
the 831 Special Meeting.
THE AUTHORIZATION BY THE SHAREHOLDERS OF THE CONTROL SHARE ACQUISITION IS
INDEPENDENT OF ANY DECISION BY SHAREHOLDERS WHETHER OR NOT TO TENDER THEIR
SHARES PURSUANT TO THE OFFER. Consummation of the transactions described in the
Offer, however, is conditioned, among other things, upon shareholder
authorization of the Control Share Acquisition pursuant to Section 831.
The foregoing summary does not purport to be a complete statement of the
provisions of Section 831 and the related provisions of the Ohio Revised Code.
The foregoing summary is qualified in its entirety by reference to Section 831
and the Ohio Revised Code.
TWO SEPARATE QUORUMS AND MAJORITIES REQUIRED; CERTAIN VOTING PROCEDURES AT 831
SPECIAL MEETING
As discussed earlier, for the Control Share Acquisition to be authorized
under the Ohio Control Share Acquisition Law, the affirmative vote of two
separately determined majorities of the Common Shares at the 831 Special meeting
(the First Majority and Second Majority) must authorize the Control Share
Acquisition, and two separately determined quorums (the First Quorum and the
Second Quorum) must be present at the 831 Special Meeting.
The First Majority authorization is that of a majority of the voting power
of all of the Common Shares present or represented at the 831 Special Meeting;
all of the outstanding Common Shares of the Company as of the Record Date are
eligible to vote in determining the approval of this First Majority. The quorum
required for this authorization (the First Quorum) is a majority of the voting
power of all the outstanding Common Shares.
The Second Majority authorization is that of a majority of the Common
Shares present or represented at the 831 Special Meeting, excluding the voting
power of Common Shares that are Interested Shares; Interested Shares are
ineligible to vote in determining the authorization of this Second Majority. The
quorum required for the Second Majority authorization (the Second Quorum) is a
majority of the voting power of outstanding Common Shares excluding the voting
power of Interested Shares.
The Inspector of Election has established, with the concurrence of the
Company and Furon, procedures to determine, among other things, which Common
Shares are Interested Shares, including a requirement that each shareholder
certify to the Company whether any (and, if so, how many) or all of the Common
Shares being voted are Interested Shares. See "Shares to be Counted in
Determining Quorums and Majorities" in this Proxy Statement and the additional
information set forth in Exhibit B to this Proxy Statement.
In the event that a quorum is not present at the 831 Special Meeting for
one or both of the votes to be taken on the Control Share Acquisition, that vote
could not be taken under the Ohio Control Share Acquisition Law, and the Control
Share Acquisition would not be authorized. The holders of a majority of Common
Shares represented at the 831 Special Meeting, whether or not a quorum is
present, could vote to adjourn the 831 Special Meeting, at which time another
determination would be made as to whether the required quorum was present.
If the Control Share Acquisition is not authorized by both of the majority
votes required, Furon and FCY may not make the Control Share Acquisition unless,
in their reasonable discretion, they are satisfied that the Control Share
Acquisition Law is invalid or inapplicable to such acquisition. If the Control
Share Acquisition is authorized by both of the required majorities, the Offer
would be permitted by the Ohio Control Share Acquisition Law. However,
authorization of the Control Share Acquisition for purposes of the Ohio Control
Share Acquisition Law would not require any shareholder to accept the Offer or
to tender shares to FCY.
If a shareholder abstains from voting on the Control Share Acquisition
(marking "abstain" on the form of proxy), those Common Shares will be considered
as present at the 831 Special Meeting for quorum purposes,
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but the abstention will have the practical effect of a "no" vote. If a broker
indicates on the form of proxy that it does not have discretionary authority as
to certain Common Shares to vote on the Control Share Acquisition, those Common
Shares will be considered as present at the 831 Special Meeting for quorum
purposes but not entitled to vote with respect to the 831 Special Meeting and
thus will also have the practical effect of a "no" vote. If the accompanying
proxy is properly signed and returned without specifying a choice, the Common
Shares represented thereby will be voted FOR the Control Share Acquisition.
SHARES TO BE COUNTED IN DETERMINING QUORUMS AND MAJORITIES
As discussed above, Common Shares are the only shares entitled to be voted
at the 831 Special Meeting. The Common Shares are each entitled to one vote. On
November 12, 1996, the Record Date for the 831 Special Meeting, there were
6,216,601 Common Shares outstanding, all of which are eligible to be voted in
determining whether the Control Share Acquisition has been approved by the First
Majority required under the Ohio Control Share Acquisition Law.
The number of Common Shares eligible to be counted in determining whether
the Second Quorum is present and to be voted in determining whether the Control
Share Acquisition has been approved by the Second Majority required under the
Ohio Control Share Acquisition Law, consisting of the voting power of all the
outstanding Common Shares excluding the voting power of Interested Shares, will
be determined as of the time of the 831 Special Meeting in the manner described
in this Proxy Statement. The categories of Interested Shares that will be
excluded from determining the Second Quorum and Second Majority are as follows:
(a) Shares owned by the acquiring person (Furon and FCY). According to
the Schedule 14D-1 filed by Furon and FCY on November 15, 1996, Furon and
FCY and their respective affiliates did not own any Common Shares.
(b) Shares owned by officers of the Company elected or appointed by
its Board of Directors (ten persons) and by any employee of the Company who
is also a director of the Company (one person). These individuals own, in
the aggregate, 54,074 Common Shares, which are, for this purpose,
Interested Shares. As such, these Common Shares will not be counted in
determining the Second Quorum and the Second Majority. To the best of the
Company's knowledge, these individuals intend to vote their Common Shares
for the Control Share Acquisition in determining the First Majority.
(c) The Ohio Control Share Acquisition Law also excludes from the
determination of the Second Quorum and the Second Majority the voting power
of "any shares . . . acquired, directly or indirectly, by any person from
the holder or holders thereof for a valuable consideration during any
period beginning with the date of the first public disclosure of a proposed
control share acquisition . . . and ending on the date of the [831 Special
Meeting], for the purpose of voting on a control share
acquisition . . . if . . . the following [applies]: (a) the aggregate
consideration paid or given by the person who acquired the shares, and any
other persons acting in concert with him, for all such shares exceeds two
hundred fifty thousand dollars . . ." Such Shares are Interested Shares for
this purpose. It is the Company's position that, pursuant to Section
1701.01(CC)(2) of the Ohio Revised Code, any Common Shares acquired
(directly or indirectly) during the period beginning on November 13, 1996,
the date Furon first publicly disclosed its proposal to purchase all of the
Company's Common Shares, through the date of the 831 Special Meeting and
that are held on the date of the 831 Special Meeting are Interested Shares,
if the aggregate consideration paid or given by a holder of such shares (or
any person acting in concert with such holder) during that time period
exceeds $250,000.
Under the Ohio Control Share Acquisition Law, Common Shares owned by
directors who are not employees of the Company, and who do not fall into any
other category described in subparagraph (a), (b) or (c) immediately above,
would not be Interested Shares. The Company's directors (excluding
director/officers) owned an aggregate of 472,030 Common Shares as of November
12, 1996, and, to the best of the Company's knowledge, none of these Common
Shares is an Interested Share. To the best of the Company's knowledge, these
directors intend to vote their Common Shares for approval of the Control Share
Acquisition in determining the First and the Second Majorities.
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The Board of Directors has appointed an Inspector of Election who has
established, with the concurrence of the Company and Furon, procedures to
determine, as of the time of the 831 Special Meeting, how many and which of the
outstanding Common Shares of the Company will be Interested Shares under the
definition quoted in subparagraph (c) immediately above. Under these procedures:
1(a) All proxy cards solicited by the Company for use at the 831
Special Meeting contain a certification for signature by the shareholder
with respect to the number of the Common Shares, if any, which are
Interested Shares. See Exhibit B to this Proxy Statement for specific
information with respect to the certification. Banks, brokerage houses,
other institutions, nominees, and fiduciaries holding shares beneficially
owned by other parties will be requested to include this certification on
all materials distributed to such beneficial owners seeking instructions
from the beneficial owners as to how to vote such Common Shares. A similar
certification will appear on each ballot used by shareholders voting in
person.
(b) Each such proxy card also contains a statement to the effect that
the person submitting the proxy card undertakes to advise the Company of
any changes in respect of the Common Shares represented by the proxy card,
between the date the certification is originally signed and the time of the
831 Special Meeting, known to such shareholder to have caused such Common
Shares to have become Interested Shares or to have ceased to be Interested
Shares. If the certification signed by the shareholder does not expressly
specify that all or a portion of the Common Shares are Interested Shares
and no such additional information is received, the uncertified Common
Shares represented by the proxy card will be presumed not to be Interested
Shares and, therefore, will be eligible to be counted in determining
whether the Second Quorum is present and whether the Control Share
Acquisition has been approved by the Second Majority.
2(a) The Company will submit to the Inspector of Election:
(i) information from publicly available sources, such as filings
with the Securities and Exchange Commission;
(ii) information made available to the Company by its transfer
agent, its proxy soliciting firm, The Depository Trust Company, and
similar sources; and
(iii) any other information that may assist in identifying which
Common Shares are Interested Shares for purposes of challenging any
certification or eligibility made on a proxy card or ballot that the
Company, on the basis of such information, may believe to be incorrect.
Under procedures established by the Inspector of Elections, such
challenges are to be made as soon as possible.
(b) All such challenges will be resolved by the Inspector of Election
pursuant to an agreement among the Company, Furon and the Inspector
specifying the procedures and regulations for challenges and other
activities of the Inspectors. Each ruling by the Inspector is to be made on
the basis of the information presented to the Inspector in a challenge, or
in a rebuttal to a challenge, as the Inspector shall find, in his sole
judgment, to be probative on a basis consistent with the conduct of a vote
at the 831 Special Meeting which is fair to all shareholders.
All Common Shares as to which a signed certification, as described above,
has been provided on the proxy card or ballot relating to such Common Shares
will be presumed by the Inspector of Election to be eligible to be voted in
determining whether the Second Quorum is present and whether the Control Share
Acquisition is approved by the Second Majority, except to the extent that all or
a portion of such Common Shares are certified to be Interested Shares. This
presumption may be rebutted if a shareholder signing the proxy card or ballot
provides subsequent information indicating that some or all of the Common Shares
represented by the original proxy card or ballot have become, or lost their
status as, Interested Shares or a successful challenge is made to such
certification on the basis of information presented to the Inspector of
Election.
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VOTING, SOLICITATION AND REVOCATION OF PROXIES
Proxy cards solicited by the Board of Directors of the Company accompany
this Proxy Statement. A shareholder may use that proxy card if he or she is
unable to attend the 831 Special Meeting in person. The proxy may be revoked in
writing by the person giving it at any time before it is exercised by notice of
such revocation to the Secretary of the Company, 3637 Lacon Road, Hilliard, Ohio
43026, or by submitting a proxy card having a later date, or by such person at
the 831 Special Meeting.
All proxies validly submitted and not revoked will be counted in
determining the First Quorum and will be voted in the manner specified therein
in determining whether the Control Share Acquisition has been approved by the
First Majority. All Common Shares represented by proxy cards validly submitted
will, in accordance with the certification thereon, be counted in determining
the Second Quorum and will be voted in the manner specified therein in
determining whether the Control Share Acquisition has been approved by the
Second Majority, except to the extent that the presumption with respect to the
status of the Common Shares as Interested Shares or non-Interested Shares
created by the certification is rebutted. See "Shares to be Counted in
Determining Quorums and Majorities." If no specification is made on the proxy
card, the Common Shares represented by a proxy card solicited pursuant to this
Proxy Statement will be voted FOR approval of the Control Share Acquisition.
Neither abstentions nor broker non-votes will be counted as voting in favor of
the Control Share Acquisition. As a consequence, abstentions and broker
non-votes will have the same effect as votes against approval of the Control
Share Acquisition.
The costs of solicitation will be borne by the Company. In addition to
solicitation by mail, directors, officers and regular employees of the Company
may solicit proxies in person, by telephone, by personal interview, e-mail, or
by telecopier, none of whom will receive additional compensation for such
solicitations. The Company has requested banks, brokerage houses and other
custodians, nominees and fiduciaries to forward its solicitation materials to
the beneficial owners of the Common Shares they hold of record and obtain
authorization for, and appropriate certification in connection with, the
execution of proxy cards. The Company will reimburse these record holders for
customary mailing expenses incurred by them in forwarding these materials. The
Company also has retained MacKenzie Partners, Inc. to assist the Company in
connection with communications with shareholders and to provide other services
in connection with the solicitation and the Offer. The fee of MacKenzie
Partners, Inc. is estimated to be [ ] plus reasonable out-of-pocket costs
and expenses.
Except as described above, neither the Company nor, to the best of the
Company's knowledge, any person acting on its behalf has retained any other
person to make solicitations or recommendations to security holders on its
behalf in connection with the transactions contemplated by the Offer.
OTHER MATTERS
No matter other than the Control Share Acquisition is to be considered at
the 831 Special Meeting. However, the proxies also confer authority on the
persons named in the accompanying proxy to vote the Common Shares to which the
proxy relates on any adjournment or adjournments of the 831 Special Meeting.
The Acquiring Person Statement delivered to the Company by Furon and FCY,
attached as Exhibit A to this Proxy Statement, and the Offer to Purchase contain
important information and should be read by shareholders before any decision is
made with respect to voting on the Control Share Acquisition.
Only holders of record of the Common Shares as of the close of business on
the Record Date will be entitled to vote at the 831 Special Meeting or any
adjournment thereof. Shareholders of record on the Record Date will retain their
voting rights for the 831 Special Meeting even if such Common Shares are sold
after the Record Date or are tendered pursuant to the Offer, whether before or
after the Record Date. The tender of Common Shares pursuant to the Offer does
not constitute the grant to Furon or FCY of a proxy or any voting rights with
respect to the tendered Common Shares until such time as such Common Shares are
accepted for payment by FCY.
Proxies representing any Common Shares held in the names of a brokerage
firm, bank, bank nominee or other institution on the Record Date can only be
executed upon receipt of specific instructions by such
8
<PAGE> 10
brokerage firm, bank, bank nominee or other institution. Accordingly, please
contact the person responsible for your account and instruct that person to
execute the proxy card with respect to Common Shares you own beneficially.
PLEASE SIGN, DATE AND MAIL THE ACCOMPANYING PROXY CARD PROMPTLY.
INTERESTS OF CERTAIN PERSONS
9
<PAGE> 11
Board Representation. In the Merger Agreement, the Company agreed that,
subject to Section 14(f) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and Rule 14f-1 promulgated thereunder, upon the acceptance for
payment of, and payment for, any shares by the Purchaser pursuant to the Offer
which, when taken together with the shares which the purchaser beneficially owns
(as such term is defined under the Exchange Act) represent at least sixty
percent of the then outstanding shares, the Purchaser shall be entitled to
require and receive resignations of up to but not exceeding five directors on
the Board of Directors of the Company and to designate new directors to fill the
resulting vacancies. Any number of directors requested to resign by the
Purchaser shall resign in reverse order of seniority on the Board of Directors.
Stock Options. As soon as practicable, the Company and Furon will take
such actions as are required to provide that at the earlier of the purchase of
Shares pursuant to the Offer and the Effective Time, each holder of a then
outstanding Stock Option whether or not exercisable or subject to Shareholder
approval will receive, upon surrender of such stock option to the Company, from
the Company the difference between the Offer Price and the exercise price of
such Stock Option, net of any applicable tax withholding.
Officers' and Directors' Insurance; Indemnification. Furon will cause the
Surviving Corporation to (i) purchase and maintain a directors' and officers'
insurance and indemnification policy substantially equivalent to the Company's
current policy for all of the Company's current officers and directors for six
years after the Effective Time or for such lesser period as can be purchased for
a premium not exceeding 200% of the last annual premium paid by the Company for
such insurance, (ii) assume the indemnification agreements currently in effect
between the Company and each of its directors and certain executive officers;
and (iii) maintain in effect the current provisions of the Articles relating to
the rights to indemnification for acts and omissions occurring prior to the
Effective Time. Furon will indemnify each officer and director of the Company
who surrenders Stock Options for cancellation pursuant to the Merger Agreement
against any cost of defense arising from claims made against such officer or
director under Section 16(b) of the Exchange Act alleging liability to the
Company thereunder as a result of the transactions contemplated by the Merger
Agreement. Furon will not, and will cause the Surviving Corporation not to,
bring any action alleging liability to the Company under Section 16(b) of the
Exchange Act as a result of the transactions contemplated by the Merger
Agreement against any of the Company's officers and directors who surrender
Stock Options for cancellation pursuant to the Merger Agreement.
Directors' Pensions. Upon Furon's acceptance for payment of Shares
pursuant to the Offer, the Company will pay to each of its non-employee
directors, in full satisfaction of such director's rights under the Company's
Non-Employee Directors Retirement Plan, an amount equal to the retirement
benefit earned by such director under such Plan. The non-employee directors as a
group (six persons) would receive approximately $126,500 under such plan.
Employment Agreements. Furon shall cause the Surviving Corporation to
assume and continue to be bound by (a) the employment agreements, as amended,
between the Company and each of Bradley P. Gould, President and Chief Executive
Officer, and Michael J. Barilla, Senior Vice President and Chief Financial
Officer, and (b) the executive employment agreements approved by the Board of
Directors of the Company on November 12, 1996, and to be effective upon purchase
of Shares by Purchaser pursuant to the Offer, between the Company and each of
Georg W. Landsberg, Terry L. Sanborn, Kevin L. Barnett, Alan M. Fermier, Clint
R. Lawson, David G. Musgrove, Nigel S. Perry, Alan Upton and Julie A. Reichert.
Employee Benefits. Furon and the Company agree that (i) the Company's
employees immediately prior to the Effective Time will be employed by the
Surviving Corporation after the Effective Time, except that with respect to
employees with employment agreements, Furon will not be obligated to continue
employing such employees for any length of time; (ii) the Company's employees
will be entitled to the same benefits currently provided to them under the
Company's existing benefit plans including its existing severance practices for
a period of six months from the date of any purchase pursuant to the Offer; and
(iii) thereafter, the Company's employees will be eligible to participate in
Furon's retirement plans on terms similar to the benefits provided to Furon's
similarly situated employees, with credit granted for purposes of eligibility
and vesting for prior service with the Company.
<PAGE> 12
DIRECTOR AND OFFICER AGREEMENTS
Purchaser and Furon have entered into agreements (the "Director and Officer
Agreements") with each of the directors and officers of the Company with respect
to an aggregate of 526,104 Shares owned by them, together with Stock Options to
purchase an aggregate of 971,501 shares of the Company's Common Stock. The
following is a summary of the material terms contained in each of the Director
and Officer Agreements.
Tender of Shares. Pursuant to the Director and Officer Agreements, each
director and officer is required to tender and not withdraw all Shares owned by
him or her or to cause such Shares to be sold to the Company promptly after the
consummation of the Offer (but not before January 2, 1997). The Company has been
advised and expect that the directors and officers will sell their Shares to the
Company after the consummation of the Offer and therefore will not tender their
Shares in the Offer. Each director and officer also has agreed to tender all of
his or her Stock Options to the Purchaser or the Company as provided in the
Merger Agreement. The Director and Officer Agreement with Mr. C. Craig
Waldbillig, the Chairman of the Board of the Company, provides that any Option
Shares acquired by Mr. Waldbillig within two years prior to November 12, 1996
will be tendered by him to the Purchaser (or the Company if such tender would
not otherwise violate the Articles) at the Effective Time.
Because officers and directors are permitted to sell their shares (and
surrender their stock options) to the Company, rather than selling to the
Purchaser in the Offer, (i) the sale of shares and surrender of options to the
Company are believed to be exempt from the short-swing profit recovery
provisions of Section 16(b) of the Exchange Act, and (ii) officers and directors
will be able to defer their sales until 1997, if they elect to do so (for tax or
other reasons), without having to hold their shares until such time (if ever)
that the Merger is consummated. If the directors and officers sell all their
shares and surrender all their options to the Company (except for options to
purchase 15,000 shares granted to Craig Wallbillig which cannot be tendered back
to the Company), the Company would pay to the officers and directors $12,363,444
for 526,104 shares of Common Stock and $13,027,600 for options to purchase
956,501 shares of Common Stock.
Restrictions on Transfer; No Solicitation. The Director and Officer
Agreements also prohibit, among other things, and subject to certain exceptions,
certain transfers of the Shares and Stocks Options owned by the director or
officer and the solicitation of an acquisition proposal from a third party.
Option. Each director or officer has granted to Purchaser an exclusive and
irrevocable option to purchase all, but not less than all, of such director's or
officer's Shares at an exercise price equal to the Offer Price. The Option may
be exercised from and after the occurrence of a Purchase Event.
Additional Payment Under Certain Circumstances. If the Purchaser disposes
of any of the Shares acquired upon exercise of the Option (other than in the
Merger or the Offer), then the Purchaser must pay to the director or officer the
amount, if any, by which the aggregate net proceeds received by the Purchaser
exceeds the aggregate price paid by the Purchaser to the director or officer. If
the Purchaser has not sold or disposed of all such Shares by November 11, 1997,
then the fair market value of the remaining shares will be determined and the
Purchaser will pay the amount, if any, by which such fair value exceeds
Purchaser's purchase price.
Termination. The Director and Officer Agreements will terminate upon the
earliest to occur of (i) the purchase by the Purchaser or the Company of the
owned shares and the option shares pursuant to the Directors and Officers
Agreement and the Merger Agreement, (ii) 12 months after the first occurrence of
a Purchase Event and (iii) termination of the Merger Agreement under certain
cercumstances).
AMENDMENT TO THE RIGHTS AGREEMENT
In connection with and prior to the Company's entering into the Merger
Agreement, on November 12, 1996, the Company amended its Rights Agreement to
ensure that neither Furon nor any of its Affiliates or Associates, as defined
under Rule 12b-2 of the Exchange Act, shall be deemed to be the "Beneficial
Owner" of, or to "beneficially own," any securities which such person may,
directly or indirectly, acquire or have the right to vote or dispose of, or may
be deemed to have the right to acquire, to vote or dispose of, as a result of
any of the transactions contemplated by the Merger Agreement, including without
limitation securities
2
<PAGE> 13
acquired from officers and directors of the Corporation as contemplated by the
Merger Agreement and securities acquired pursuant to the Company Option
Agreement. If the Rights Agreement had not been so amended and if the Offer, the
Merger Agreement or any of the respective transactions contemplated thereby had
resulted in Furon being deemed the Beneficial Owner of 15% or more of the shares
of Common Stock outstanding, Furon would have been deemed an Acquiring Person
(as defined in the Rights Agreement) which may have resulted in a distribution
to the Company's Shareholders (other than Furon) of rights certificates separate
from the Common Stock.
CONFIDENTIALITY AGREEMENT
On September 17, 1996, Furon and the Company entered into a letter
agreement, as amended (the "Confidentiality Agreement"), pursuant to which Furon
agreed, among other things, to (a) keep confidential certain information
concerning the Company to be provided to Furon in connection with its evaluation
of a possible transaction involving the Company and (b) customary "standstill"
provisions limiting Furon's freedom of action with respect to proposals to
acquire shares of Common Stock of the Company and certain other actions that
would affect control of the Company.
POTENTIAL OR ACTUAL CONFLICTS OF INTEREST
Stock Option Plans. The Merger Agreement provides that, immediately after
the purchase of shares pursuant to the Offer, but not required sooner than
January 2, 1997, each holder of Company Options whether or not then exercisable
or subject to shareholder approval shall, upon surrender thereof to the Company,
receive from the Company the difference between the Merger Consideration and the
exercise price for each share of Company Common Stock covered by each Company
Option. The holders of the Company Options shall be entitled to enforce such
agreements against the Surviving Corporation and Furon. As of November 12, 1996,
employees (or former employees) and non-employee directors of the Company held
Company Options to purchase an aggregate of 1,157,091 shares of Company Common
Stock at a weighted average exercise price of $12.45 per share (based on
exercise prices ranging from $5.63 to $33.00 per share). During August and
September 1996, the Board of Directors granted additional options to purchase a
total of 145,520 shares under the Employee Plans as defined below. In August
1996, the Board of Directors of the Company adopted the Medex, Inc. Non-Employee
Director Plan IV (the "Director Plan"), pursuant to which options to purchase
120,000 shares of Common Stock of the Company were granted to eight non-employee
directors. The Board of Directors also adopted amendments to the Medex, Inc. Key
Employee Nonstatutory Stock Option Plan, the Medex, Inc. 1994 Executive Stock
Option Plan, and the Medex, Inc. Employees Stock Purchase Plan (collectively,
the "Employee Plans"). The Director Plan and two of the Employee Plans provide
that all options will become fully exercisable upon a change of control, which
occurred when the Company entered into the Merger Agreement. The Board of
Directors directed that approval of the Director Plan and the Employee Plans be
submitted to the shareholders at the 1996 Annual Meeting of Shareholders (the
"Shareholders Meeting") to be held November 13, 1996 for their approval. On
November 13, 1996, after the announcement of the Merger Agreement, the
Shareholders Meeting was adjourned and no action was taken on the Director Plan
or the Employee Plans. The options granted in August under the Director Plan and
the Employee Plans remain outstanding.
Employment Agreements. The Company has entered into employment agreements
(the "Employment Agreements") with, among others, its executive officers
(including the executive officers named in the summary compensation table which
appears in Annex II hereto). Each Employment Agreement becomes operative only
upon a Change in Control, as defined in each agreement, that occurs when the
officer is in the employ of the Company. If a Change in Control occurs and the
employee's employment with the Company is involuntarily terminated within one
year thereafter, the employee becomes entitled to the severance benefits
described below. Likewise, the employee shall be entitled to the severance
benefits if he/she in good faith believes that his/her status or
responsibilities with the Company have been diminished subsequent to a Change in
Control and for that reason shall resign within one year after such Change in
Control. Upon such termination the employee shall be entitled to receive (i)
cash equal to two times his/her annual salary paid in equal installments over a
24 month period, (ii) cash in the amount equal to two times his/her previous
year's
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<PAGE> 14
incentive compensation benefit, (iii) 24 months of continued coverage under the
Company's hospital, medical, accident, disability and life insurance plans, or
the cash equivalent thereof, and (iv) a paid-up annuity equal to what the
officer would have received under the Company's defined contribution profit
sharing plan. The employee is not required to mitigate the amount of any
payments by seeking other employment. The Company must pay all legal fees, up to
$500,000, incurred by the employee as a result of such employee's seeking to
enforce the agreement. The Employment Agreement also obligates the Company upon
a Change in Control to purchase a $500,000 letter of credit to secure its
obligations. For each officer other than Messrs. Gould and Barilla the
Employment Agreements define "Change in Control" to exclude any transaction
approved by the vote of two-thirds of the directors of the Company. In
connection with the Merger Agreement, the Employment Agreements for Messrs.
Gould and Barilla were amended to delete the letter of credit requirement.
The Company has entered into an additional employment agreement with Mr.
Gould which provides for severance payments, upon involuntary termination other
than for cause, equivalent to one year of salary and bonus.
A Change of Control of the Company as defined in these agreements would not
occur upon completion of the offering except in the case of Messrs. Gould and
Barilla. In the event that the agreements with Messrs. Gould and Barilla are
triggered, Messrs. Gould and Barilla would receive approximately $1,250,000.
New Employment Agreements.
On November 12, 1996, the Board of Directors of the Company authorized and
approved new executive employment agreements ("New Agreements") with eight
executive officers which provide that in the event the executive is
involuntarily terminated other than for cause as described in the agreement by
the Company within one year from the date of the New Agreement, other than after
a Change in Control as defined in the Employment Agreements (described above),
the executive shall be entitled to the greater of (i) one year of salary and
bonus; or (ii) the amount which they would be entitled to under the Company's
current severance practices. The Board of Directors also authorized the New
Agreement with Georg W. Landsberg which is similar, except that Mr. Landsberg
would be entitled to two years of salary and bonus.
Limited Director Liability and Indemnification of Officers and
Directors. The Company's Articles of Incorporation (the "Articles") provide
that the Company will, to the fullest extent and under the circumstances
permitted by Ohio law, as amended from time to time, indemnify any person
serving or who has served as a director, trustee or officer of the Company or at
the Company's request as a director, trustee or officer of another corporation,
partnership, joint venture, trust or other enterprise, and his heirs, executors
and administrators shall be and employees or agents may be indemnified by the
Company against liabilities. The right of indemnification provided in the
Articles is not exclusive of, nor does it affect, any other rights to which any
such person may be entitled. Nothing contained in the applicable provision of
the Articles affects any other rights to indemnification to which any such
person may be entitled by contract or otherwise under law.
In addition, pursuant to Ohio law, a director shall be liable in damages
for any action he takes or fails to take as a director only if it is proved by
clear and convincing evidence in a court of competent jurisdiction that his
action or failure to act involved an act or omission undertaken with deliberate
intent to cause injury to the Company or undertaken with reckless disregard for
the best interests of the Company.
Indemnification Agreements. The Company is party to an indemnity agreement
(the "Indemnity Agreement") with each of the Directors and with Bradley P.
Gould, as Chief Executive Officer, which provides that the indemnitee will be
entitled to receive indemnification, including advancement of expenses, to
the full extent permitted by law for all expenses, judgments, fines, penalties
and settlement payments incurred by the indemnitee in actions brought against
the indemnitee in connection with any act taken in the indemnitee's capacity as
a director or executive officer of the Company. In the event of a change of
control, the Indemnity Agreement provides for the appointment of independent
legal counsel to determine whether a director or executive officer is entitled
to indemnity. It also requires the Company to maintain its current level of
directors' and officers' liability insurance for so long as the indemnitee may
be subject to any possible, threatened or pending action, unless the cost of
such insurance is more than 150% of the annualized rate of
4
<PAGE> 15
premiums paid by the Company in fiscal 1996. Additionally, pursuant to the
Indemnity Agreement, the Company retains subrogation rights to recover any
payments paid by a third party to the indemnitee. The Indemnity Agreement is
binding on the Company and any successors thereto and the Merger Agreement
requires that it be continued in effect after the Merger.
BENEFICIAL OWNERSHIP OF THE COMPANY'S COMMON STOCK
The following tables, together with the accompanying footnotes, describe
the beneficial ownership of the Company's Common Shares as of November 1, 1996,
of each person who at such date was known to be the beneficial owner of more
than five percent of the total shares of Common Stock then issued and
outstanding, each director, each of the executive officers who were employed by
the Company as of the above date, and all officers and directors of the Company
as a group. The share figures shown below are based principally upon information
supplied by the named individuals and group members described in the tables.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
<TABLE>
<CAPTION>
PERCENT
OF
BENEFICIALLY NAME AND ADDRESS OWNED CLASS
- -------------------------------------------------------------------------- ------- -------
<S> <C> <C>
Kennedy Capital Management, Inc........................................... 521,340(1) 8.40%
10829 Olive Boulevard
St. Louis, Missouri 63141
SAFECO Corporation........................................................ 464,600(2) 7.48%
SAFECO Plaza
Seattle, Washington 96185
C. Craig Waldbillig....................................................... 427,348(3) 6.87%
1650 Dolphin Court
Naples, Florida 33962
Dimensional Fund Advisors, Inc............................................ 312,623(4) 5.03%
1299 Ocean Avenue, 11th Floor
Santa Monica, California 90401
</TABLE>
SECURITY OWNERSHIP OF MANAGEMENT
<TABLE>
<CAPTION>
PERCENT
BENEFICIALLY OF
NAME AND ADDRESS OWNED CLASS
- -------------------------------------------------------------------- ------------ -------
<S> <C> <C>
Michael J. Barilla.................................................. 79,150(5) 1.26%
Robert E. Boyd, Jr.................................................. 84,870(6)(7) 1.36%
James L. Ginter..................................................... 38,383(6) *
Bradley P. Gould.................................................... 196,700(8) 3.07%
Thomas A. Helmrath, M.D............................................. 26,857(6) *
John N. Holscher.................................................... 33,000(6) *
Thomas M. Jordan, Jr................................................ 29,000(6) *
John B. Joyce, Jr................................................... 37,321(6) *
Georg W. Landsberg.................................................. 26,350(9) *
Clint R. Lawson..................................................... 21,718(10) *
J. David Martino, M.D............................................... 34,514(6)(11) *
Terry L. Sanborn.................................................... 65,427(12) 1.05%
C. Craig Waldbillig................................................. 427,348(3) 6.87%
All Directors and Officers
as a group (19 persons)........................................... 1,172,855(13) 17.11%
</TABLE>
- ---------------
* less than 1%
(1) All information related to this shareholder is based upon a report on Form
13F filed with the SEC as of July 10, 1996. This figure includes 124,750
shares over which the holder has no voting power.
5
<PAGE> 16
(2) All information related to this shareholder is based upon a report on Form
13F filed with the SEC as of September 10, 1996. This figure includes
464,600 shares over which the holder has shared investment power.
(3) Includes 15,000 shares which Mr. Waldbillig has the right to acquire within
sixty (60) days following September 23, 1996, upon the exercise of stock
options. Includes 8,476 shares which Mr. Waldbillig has sole voting and
investment power; 9,116 shares which Mr. Waldbillig shares such power with
his wife; 344,439 shares held by the Charles Craig Waldbillig Trust; and
50,317 shares held by Mr. Waldbillig's wife's trust.
(4) All information related to this shareholder is based upon a report on Form
13F-E dated July 25, 1996. This figure includes 89,400 shares over which
the holder has no voting power.
(5) Includes 460 shares of which Mr. Barilla is custodian for his minor
children; also includes 74,875 shares which Mr. Barilla has the right to
acquire within sixty (60) days following September 23, 1996, upon the
exercise of stock options.
(6) Includes shares in the following amounts which the following Non-Employee
Directors have a right to acquire within sixty (60) days following
September 23, 1996 pursuant to the Non-Employee Director Restricted Stock
Option Plans: Mr. Boyd 41,088; Mr. Ginter 30,000; Dr. Helmrath 21,000; Mr.
Holscher 33,000; Mr. Jordan 29,000; Mr. Joyce 35,775; and Dr. Martino
34,400.
(7) Includes 8,258 shares owned by Mr. Boyd's wife.
(8) Includes 193,200 shares which Mr. Gould has the right to acquire within
sixty (60) days following September 23, 1996, upon the exercise of stock
options.
(9) Includes 26,350 shares which Dr. Landsberg has the right to acquire within
sixty (60) days following September 23, 1996, upon the exercise of stock
options.
(10) Includes 17,000 shares which Mr. Lawson has the right to acquire within
sixty (60) days following September 23, 1996, upon the exercise of stock
options.
(11) Includes 114 shares of which Dr. Martino is custodian for his minor
children.
(12) Includes 32,850 shares which Mr. Sanborn has the right to acquire within
sixty (60) days following September 23, 1996, upon the exercise of stock
options; also includes 3,231 shares in which Mr. Sanborn shares voting and
investment power with his wife.
(13) Includes 646,751 shares which the directors and officers have the right to
acquire within sixty (60) days following September 23, 1996, upon the
exercise of stock options.
Unless otherwise indicated each person named above has sole voting and
investment power over the listed shares.
NO DISSENTERS RIGHTS
Dissenters rights are not available to the shareholders of an "issuing
public corporation" in connection with the authorization of a "control share
acquisition" under the Ohio Control Share Acquisition Law.
6
<PAGE> 17
SHAREHOLDER PROPOSALS
Any shareholder of the Company who wishes to submit a proposal for
presentation to the 1997 Annual Meeting of Shareholders, if the Merger has not
been consummated prior to the date the meeting is to be held and if such meeting
is to be held, must submit the proposal to the Company at its principal
executive offices not later than June 19, 1997 for inclusion, if appropriate, in
the Company's proxy statement and the form of proxy relating to the 1997 Annual
Meeting.
Medex, Inc.
By Order of the Board of Directors
Robert E. Boyd, Jr.
Secretary
Columbus, Ohio
November , 1996
7
<PAGE> 18
[FORM OF PROXY]
[FRONT]
MEDEX, INC.
THIS PROXY FOR THE SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON DECEMBER 13, 1996 IS SOLICITED BY THE BOARD OF DIRECTORS
At the Special Meeting of Shareholders of MEDEX, INC. to be held on
December 13, 1996, and at any adjournment thereof, [
], [ ], and [
], and each of them, with full power of substitution, are hereby
authorized to represent me and vote my shares upon the proposal to authorize as
required by Section 1701.831 of the Ohio Revised Code the proposed control share
acquisition by FCY, Inc., as more fully described in the proxy statement of the
Company dated November , 1996 (the "Proxy Statement"):
Proposed Control Share Acquisition by FCY, Inc. [ ] FOR [
] AGAINST [ ] ABSTAIN
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE PROPOSAL.
THE COMMON SHARES REPRESENTED BY THIS PROXY CARD WILL BE VOTED AS DIRECTED,
OR IF NO DIRECTION IS SPECIFIED, WILL BE VOTED FOR THE PROPOSAL.
In addition, the proxies are authorized to vote in their discretion upon
such other procedural matters as may properly come before the meeting and on any
adjournment or adjournments thereof.
[REVERSE]
[CERTIFICATION OF STATUS OF COMMON SHARES]
UNLESS BOX 1, 2 OR 3 OF THE CERTIFICATION IS CHECKED, THE UNDERSIGNED WILL
BE DEEMED TO HAVE CERTIFIED THAT NONE OF THE COMMON SHARES REPRESENTED BY THIS
PROXY CARD ARE INTERESTED SHARES AND THAT ALL SUCH SHARES ARE ELIGIBLE TO BE
COUNTED IN DETERMINING WHETHER THE SECOND QUORUM IS PRESENT AND WHETHER THE
PROPOSED CONTROL SHARE ACQUISITION HAS BEEN APPROVED BY THE SECOND MAJORITY.
As of the date upon which the undersigned signs and delivers this Proxy
Card, the undersigned certifies (CHECK ONE BOX ONLY):
1. [ ] None of the Common Shares represented by this Proxy Card are
"Interested Shares" (as defined in the Proxy Statement), and all of
such shares are eligible to be counted in determining whether the
"Second Quorum" (as defined in the Proxy Statement) is present and
whether the proposed control share acquisition has been approved by
the "Second Majority" (as defined in the Proxy Statement).
Instruction: Check the above box if none of the Common Shares
represented by this proxy meet the criteria of Interested Shares stated
in Exhibit B of the Proxy Statement. If you check the above box, do not
check Box 2 or Box 3 below.
OR
2. [ ] All of the Common Shares represented by this Proxy Card are
Interested Shares, and none of such shares are eligible to be
counted in determining whether the Second Quorum is present or
whether the proposed control share acquisition has been approved by
the Second Majority.
Instruction: Check the above box if all of the Common Shares represented
by this proxy meet the criteria of Interested Shares stated in Exhibit B
of the Proxy Statement.
<PAGE> 19
OR
3. [ ]
----------------- (insert number) of the Common Shares represented by this
Proxy Card are Interested Shares and are not eligible to be counted
in determining whether the Second Quorum is present or whether the
proposed control share acquisition has been approved by the Second
Majority.
Instruction: Check the above box if some, but not all, of the Common
Shares represented by this proxy meet the criteria of Interested Shares
stated in Exhibit B of the Proxy Statement and fill in the blank with
the number of Common Shares that are Interested Shares.
By signing below, you (a) instruct that this Proxy Card be voted as marked;
(b) certify the status of your Common Shares to be voted as indicated above; AND
(C) UNDERTAKE TO NOTIFY THE COMPANY IF, AT ANY TIME ON OR AFTER THE DATE YOU
SIGN THIS PROXY CARD AND ON OR BEFORE THE DATE OF THE SPECIAL MEETING OF
SHAREHOLDERS (THE "831 SPECIAL MEETING"), any of the following should occur:
(1) you, or any other person acting in concert with you, acquire additional
Common Shares and the aggregate consideration paid or given by you, and any
other persons acting in concert with you, for all Common Shares acquired,
directly or indirectly, by you, and any persons acting in concert with you,
on or after November 13, 1996 exceeds $250,000;
(2) you transfer Common Shares to another person, and, to your knowledge, after
giving effect to the transfer, all or a portion of such Common Shares will
be Interested Shares; or
(3) to your knowledge, the status as Interested Shares of any of the Common
Shares to which this Certificate relates otherwise changes.
<TABLE>
<S> <C>
SIGNATURE(S) DATE
- --------------------------------------------- ---------------------------------------------
SIGNATURE(S) DATE
- --------------------------------------------- ---------------------------------------------
</TABLE>
NOTE: Please sign your name exactly as it appears in print and, in case of
multiple or joint ownership, all should sign. When signing as attorney,
executor, administrator, trustee or guardian, please give full title as such.
<PAGE> 20
EXHIBIT A
ACQUIRING PERSON STATEMENT
PURSUANT TO SECTION 1701.831 OF
THE OHIO REVISED CODE*
---------------------
MEDEX, INC.
(Name of Issuing Public Corporation)
3637 LACON ROAD
HILLIARD, OHIO 43026
(Address of Principal Executive Offices)
---------------------
FCY, INC.
AND
FURON COMPANY
(Acquiring Persons)
---------------------
This Acquiring Person Statement is being delivered to Medex, Inc., an Ohio
corporation (the "Company"), pursuant to Section 1701.831 of the Ohio Revised
Code by Furon Company, a California corporation ("Parent"), and FCY, Inc., an
Ohio corporation and a wholly-owned subsidiary of Parent (the "Purchaser"), and
relates to the transactions contemplated by the tender offer by the Purchaser to
purchase all outstanding common shares, par value $.01 per share, of the Company
("Common Shares"), upon the terms and subject to the conditions set forth in the
Agreement and Plan of Merger by and among the Company, Parent and the Purchaser
and in the Offer to Purchase to be filed as an Exhibit to the Schedule 14D-1 (as
the same may hereafter be amended from time to time, the "Offer to Purchase"),
which shall be substantially in the form previously provided to the Company.
ITEM 1. IDENTITY OF THE ACQUIRING PERSON.
The acquiring persons are Furon Company ("Parent") and FCY, Inc. (the
"Purchaser"). The address of the principal executive offices of both the
Purchaser and Parent is 29982 Ivy Glenn Drive, Laguna Niguel, CA 92677.
The information set forth in the "Introduction" and in the section entitled
"Certain Information Concerning Purchaser and the Parent" of the Offer to
Purchase is incorporated herein by reference.
ITEM 2. DELIVERY OF ACQUIRING PERSON STATEMENT.
This Acquiring Person Statement is given pursuant to Section 1701.831 of
the Ohio Revised Code.
ITEM 3. OWNERSHIP OF SHARES BY ACQUIRING PERSON.
On the date of this Acquiring Person Statement, neither the Purchaser nor
the Parent owns any Common Shares.
- ---------------
* Notwithstanding the making and delivery of this Statement, all rights are
reserved (i) to challenge the constitutionality, validity and/or legality of
all or any part of Section 1701.831 and related provisions of the Ohio Revised
Code and their application to the Offer to Purchase and/or (ii) to seek an
amendment to the Articles of Incorporation or the Code of Regulations of the
Company to provide that Section 1701.831 and related provisions of the Ohio
Revised Code do not apply to control share acquisitions of Common Shares,
including pursuant to the Offer to Purchase.
A-1
<PAGE> 21
ITEM 4. RANGE OF VOTING POWER.
The Purchaser proposes to acquire all of the outstanding Common Shares in
accordance with and as contemplated by the terms of the Offer to Purchase. The
proposed control share acquisition, if consummated, would result in the
acquisition of a majority or more of the voting power as described in
subparagraph (c) of paragraph (Z)(1) of Section 1701.01 of the Ohio Revised
Code.
ITEM 5. TERMS OF THE PROPOSED CONTROL SHARE ACQUISITION.
The offer price is $23.50 per Common Share (including the associated common
share purchase right), net to the seller in cash without interest thereon,
subject to change as described in the section entitled "Terms of the Offer;
Expiration Date" of the Offer to Purchase incorporated herein by reference.
Other information as set forth in the Offer to Purchase is incorporated herein
by reference. For a description of the terms of the proposed control share
acquisition, reference is made in particular to the information set forth in the
Introduction, and in the sections entitled "Terms of the Offer; Expiration
Date", "Procedures for Tendering Shares", "Withdrawal Rights", "Financing of the
Offer and the Merger", "Background of the Offer, Contacts with the Company; The
Merger Agreement", "Purpose of the Offer and the Merger; Plans for the Company;
Other Matters", "Dividends and Distributions", "Certain Conditions of the Offer"
and "Certain Legal Matters and Regulatory Approvals" of the Offer to Purchase.
ITEM 6. REPRESENTATIONS OF LEGALITY; FINANCIAL CAPACITY.
The Purchaser and Parent represent that the proposed control share
acquisition will not be contrary to law and that they have the financial
capacity to make such proposed control share acquisition. The facts upon which
these representations are based are set forth in reasonable detail in the
sections entitled "Certain Information Concerning Purchaser and the Parent",
"Certain Legal Matters and Regulatory Approval" and "Financing of the Offer and
the Merger" of the Offer to Purchase and such information is incorporated herein
by reference.
<TABLE>
<S> <C>
FCY, INC.
By /s/ DONALD D. BRADLEY
-----------------------------------------------
Donald D. Bradley
Secretary
FURON COMPANY
By /s/ MONTY A. HOUDESHELL
-----------------------------------------------
Dated: November 12, 1996 Monty A. Houdeshell
Vice President
</TABLE>
A-2
<PAGE> 22
EXHIBIT B
PROXY CARD INSTRUCTIONS
CERTIFICATION OF STATUS OF COMMON SHARES
The Company and Furon have agreed that a shareholder must sign the
certification on the Proxy Card or a separate certification in the form provided
to shareholders by the Company in order to be counted in determining whether the
"Second Quorum" (as defined in the attached Proxy Statement) is present and
whether the Control Share Acquisition has been approved by the "Second Majority"
(as defined in the attached Proxy Statement). IT IS ALSO THE COMPANY'S POSITION
THAT COMMON SHARES REPRESENTED BY A PROXY CARD ON WHICH BOX 1, 2 OR 3 OF THE
CERTIFICATION HAS NOT BEEN CHECKED SHALL BE PRESUMED NOT TO BE INTERESTED SHARES
(AS DEFINED IN THE ATTACHED PROXY STATEMENT) AND SHALL BE PRESUMED ELIGIBLE TO
BE COUNTED IN CONNECTION WITH THE SECOND QUORUM AND THE SECOND MAJORITY
AUTHORIZATION AS DESCRIBED ON PAGE OF THE ATTACHED PROXY STATEMENT.
If the following circumstance applies to Common Shares represented by the
Proxy Card, the shareholder is entitled to complete Box 1 of the Certification
or leave Boxes 1, 2 and 3 blank as to such Common Shares:
The Common Shares were purchased by the shareholder before November 13,
1996, and the shareholder is not Furon, FCY, an officer of the Company elected
or appointed by its Board of Directors, or an employee of the Company who is
also a director of the Company.
If, however, either of the following circumstances are known by the
shareholder to apply to any of the Common Shares represented by the Proxy Card,
the shareholder must complete Box 2 or Box 3 of the certification as to such
Common Shares:
(1) The shareholder is Furon, FCY, an officer of the Company elected
or appointed by its Board of Directors, or an employee of the Company who
is also a director of the Company; or
(2) The shareholder sold any of the Common Shares to a person who,
individually or together with anyone acting in concert with him, purchased
Common Shares for total consideration exceeding $250,000 after November 12,
1996.
In addition, a shareholder must complete Box 2 or Box 3 of the
certification with respect to Common Shares that he sold after November 12, 1996
to a third person (the "Buyer") known to the shareholder to meet the test of
Paragraph (1) above.
IF THE SHAREHOLDER SIGNS THE CERTIFICATION BUT LATER LEARNS THAT THE
CIRCUMSTANCES IN EITHER (1) OR (2) ABOVE APPLY TO THE COMMON SHARES, OR THE
SHAREHOLDER LATER TRANSFERS COMMON SHARES TO ANOTHER PERSON AND, AFTER GIVING
EFFECT TO THE TRANSFER, LEARNS THAT ALL OR ANY OF THE SHARES HAVE BECOME
INTERESTED SHARES, OR THE SHAREHOLDER LATER LEARNS OTHER FACTS THAT CHANGE THE
STATUS OF THE COMMON SHARES AS INTERESTED SHARES, THE SHAREHOLDER SHOULD (AND BY
SIGNING THE CERTIFICATION UNDERTAKES TO) SO NOTIFY THE COMPANY BY SIGNING AND
DELIVERING A NEW PROXY CARD WHICH CAN BE OBTAINED BY CALLING [ ]
AT [ ].
BROKERS AND NOMINEES ARE NOT CERTIFYING THE STATUS OF COMMON SHARES, BUT
WILL VOTE THE COMMON SHARES IN THE STATUS CERTIFIED TO THEM BY BENEFICIAL
OWNERS.
November , 1996
<PAGE> 23
[FORM OF BROKER'S AND NOMINEE'S PROXY CARD]
MEDEX, INC.
BROKER'S AND NOMINEE'S PROXY
THIS PROXY FOR THE SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON DECEMBER 13, 1996 IS SOLICITED BY THE BOARD OF DIRECTORS
At the Special Meeting of Shareholders of MEDEX, INC. to be held on
December 13, 1996, and at any adjournment thereof, [ ], [ ],
and [ ], and each of them, with full power of substitution, are hereby
authorized to represent me and vote my shares upon the proposal to authorize as
required by Section 1701.831 of the Ohio Revised Code the proposed control share
acquisition by FCY, Inc., as more fully described in the Company's Proxy
Statement dated November , 1996 (the "Proxy Statement"):
Common Shares eligible to be counted in determining Second Quorum and Second
Majority
- --------------- [ ] FOR
(INSERT NUMBER)
- --------------- [ ] AGAINST
(INSERT NUMBER)
- --------------- [ ] ABSTAIN
(INSERT NUMBER)
Common Shares not eligible to be counted in determining Second Quorum and Second
Majority
- --------------- [ ] FOR
(INSERT NUMBER)
- --------------- [ ] AGAINST
(INSERT NUMBER)
- --------------- [ ] ABSTAIN
(INSERT NUMBER)
THE COMMON SHARES REPRESENTED BY THIS PROXY WILL BE VOTED AS DIRECTED OR,
IF NO DIRECTION IS SPECIFIED, WILL BE VOTED FOR THE PROPOSAL AND WILL BE VOTED
IN THE DISCRETION OF THE PROXIES ON PROCEDURAL MATTERS THAT MAY PROPERLY COME
BEFORE THE MEETING AND ON ANY ADJOURNMENT OR ADJOURNMENTS THEREOF. ALL COMMON
SHARES ARE ELIGIBLE TO BE COUNTED IN DETERMINING THE FIRST QUORUM AND THE FIRST
MAJORITY.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE PROPOSAL.
The undersigned confirms that the Common Shares reflected in the above
tabulation are based upon actual votes and certifications of beneficial holders
and applicable presumptions, if any.
<TABLE>
<S> <C>
SIGNATURE(S) DATE
- --------------------------------------------- ---------------------------------------------
SIGNATURE(S) DATE
- --------------------------------------------- ---------------------------------------------
</TABLE>
<PAGE> 24
SPECIAL MEETING VOTING INSTRUCTIONS
MEDEX, INC.
VOTING PROCEDURES FOR BENEFICIAL OWNERS OF
COMMON SHARES OF MEDEX, INC.
To all Banks, Brokers and Nominees:
Medex, Inc. (the "Company") shareholders who were holders of record on
November 12, 1996 are required to certify under the criteria set forth in
Exhibit B to the Proxy Statement of the Company dated November , 1996 (the
"Proxy Statement") for the Special Meeting of Shareholders to be held on
December 13, 1996 (the "Special Meeting") whether any or all of their Common
Shares are "Interested Shares" (as defined in the Proxy Statement). Common
Shares which are not Interested Shares will be eligible to be counted in
determining whether the "Second Quorum" (as defined in the Proxy Statement) is
present and whether the "Control Share Acquisition" (as defined in the Proxy
Statement) has been approved by the "Second Majority" (as defined in the Proxy
Statement) as required by Section 1701.831 of the Ohio Revised Code.
To enable the Inspector of Election to tabulate the voting of Common Shares
held in your name but beneficially owned by others, a special proxy and related
certification have been devised for use in determining the number of such shares
that are eligible to be counted in the Second Quorum and whether the Control
Share Acquisition has been approved by the Second Majority. On the certification
form, the beneficial owner must certify the status of his Common Shares to be
voted and give undertakings to advise you of information that would affect the
status of the beneficially owned shares with respect to the Second Quorum and
the Second Majority so that you, in turn, can, if necessary, submit a new proxy
reflecting such information .
IF THE BENEFICIAL OWNER (I) CHECKS BOX 1 OF THE CERTIFICATION OR (II) DOES
NOT CHECK ANY OF BOX 1, 2 OR 3 OF THE CERTIFICATION, YOU ARE TO VOTE SUCH
OWNER'S COMMON SHARES AS NON-INTERESTED SHARES.
IF THE BENEFICIAL OWNER CHECKS BOX 2 OF THE CERTIFICATION, YOU ARE TO VOTE
ALL OF SUCH OWNER'S COMMON SHARES AS INTERESTED SHARES.
IF THE BENEFICIAL OWNER CHECKS BOX 3 OF THE CERTIFICATION, YOU ARE TO VOTE,
AS INTERESTED SHARES, THE NUMBER OF SHARES SPECIFIED BY SUCH OWNER AS INTERESTED
AND TO VOTE THE REST OF HIS SHARES AS NON-INTERESTED SHARES.
<PAGE> 25
MEDEX, INC.
CERTIFICATION OF STATUS OF COMMON SHARES
AT THE SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON DECEMBER 13, 1996
THIS CERTIFICATION IS NOT A PROXY CARD. TO HAVE YOUR COMMON SHARES COUNTED
AT THE SPECIAL MEETING IN DETERMINING THE SECOND QUORUM AND THE SECOND MAJORITY,
YOU MUST EITHER (I) SIGN AND RETURN A PROXY CARD INSTRUCTING HOW YOUR SHARES ARE
TO BE VOTED IN ADDITION TO SIGNING AND RETURNING THIS CERTIFICATION OR (II) SIGN
AND RETURN A PROXY CARD THAT INCLUDES A CONFORMING CERTIFICATION.
As of the date upon which the undersigned signs and delivers this
certification, the undersigned certifies (CHECK ONE BOX ONLY):
1. [ ] None of the Common Shares beneficially owned by the undersigned are
"Interested Shares" (as defined in the Proxy Statement), and all of such
shares are eligible to be counted in determining whether the "Second
Quorum" (as defined in the Proxy Statement) is present and whether the
proposed control share acquisition has been approved by the "Second
Majority" (as defined in the Proxy Statement).
Instruction: Check the above box if none of the Common Shares meet the
criteria of Interested Shares stated in Exhibit B of the Proxy Statement.
If you check the above box, do not check Box 2 or Box 3 below.
OR
2. [ ] All of the Common Shares beneficially owned by the undersigned are
Interested Shares, and none of such shares are eligible to be counted in
determining whether the Second Quorum is present or whether the proposed
control share acquisition has been approved by the Second Majority.
Instruction: Check the above box if all of the Common Shares meet the
criteria of Interested Shares stated in Exhibit B of the Proxy Statement.
OR
3. [ ] ____(insert number) of the Common Shares beneficially owned by the
undersigned are Interested Shares and are not eligible to be counted in
determining whether the Second Quorum is present or whether the proposed
control share acquisition has been approved by the Second Majority.
Instruction: Check the above box if some, but not all, of the Common
Shares meet the criteria of Interested Shares stated in Exhibit B of the
Proxy Statement and fill in the blank with the number of Common Shares
that are Interested Shares.
UNLESS BOX 1, 2 OR 3 OF THE CERTIFICATION IS CHECKED, THE UNDERSIGNED WILL
BE DEEMED TO HAVE CERTIFIED THAT NONE OF THE COMMON SHARES ARE INTERESTED SHARES
AND THAT ALL SUCH SHARES ARE ELIGIBLE TO BE COUNTED IN DETERMINING WHETHER THE
SECOND QUORUM IS PRESENT AND WHETHER THE PROPOSED CONTROL SHARE ACQUISITION HAS
BEEN APPROVED BY THE SECOND MAJORITY.
By signing below, you (a) certify the status of your Common Shares to be
voted as indicated above; and (b) undertake to notify your nominee if, at any
time on or after the date you sign this Certification and on or before the date
of the Special Meeting of Shareholders (the "831 Special Meeting"), any of the
following should occur:
(1) you, or any other person acting in concert with you, acquire
additional Common Shares and the aggregate consideration paid or given by
you, and any other persons acting in concert with you, for all Common
Shares acquired, indirectly or indirectly, by you, and any persons acting
in concert with you, on or after November 13, 1996 exceeds $250,000;
(2) you transfer Common Shares to another person, and, to your
knowledge, after giving effect to the transfer, all or a portion of such
Common Shares will be Interested Shares; or
<PAGE> 26
(3) to your knowledge, the status as Interested Shares of any of the
Common Shares to which this Certificate relates otherwise changes.
<TABLE>
<S> <C>
SIGNATURE(S) DATE
- -------------------------------------------- --------------------------------------------
SIGNATURE(S) DATE
- -------------------------------------------- --------------------------------------------
</TABLE>
NOTE: Please sign your name exactly as it appears in print and, in case of
multiple or joint ownership, all should sign. When signing as attorney,
executor, administrator, trustee or guardian, please give full title as such.
