<PAGE>
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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
TYLAN GENERAL, INC.
(NAME OF SUBJECT COMPANY)
MILLIPORE CORPORATION
AND
MCTG ACQUISITION CORP.
(BIDDERS)
COMMON STOCK, PAR VALUE $.001 PER SHARE (INCLUDING THE ASSOCIATED SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
902 169 101
(CUSIP NUMBER OF CLASS OF SECURITIES)
DAVID B. WALEK, ESQUIRE
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110
(617) 951-7000
(NAME, ADDRESS, AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
CALCULATION OF FILING FEE
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Transaction valuation: $125,975,856* Amount of filing fee: $25,200
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* For purposes of calculating fee only. This amount assumes the purchase of
7,873,491 outstanding shares of Common Stock (including the associated
Series A Junior Participating Preferred Stock Purchase Rights) of Tylan
General, Inc. at $16.00 in cash per share. The amount of the filing fee,
calculated in accordance with Rule 0-11 under the Securities Exchange Act
of 1934, as amended, equals 1/50 of one percent of the aggregate of the
cash offered by the bidder.
[_]Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: _________ Filing Party: _______________________
Form or Registration No.: _______ Date Filed: _________________________
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<PAGE>
CUSIP No. 715 271 10 2
______________
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1)Names of Reporting Persons: Millipore Corporation
S.S. or I.R.S. Identification Nos. of Above Persons: 04-2170233
__________
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2)Check the Appropriate Box if a Member of a Group (See Instructions)
[_] (a) ____________________________________________________________________
[_] (b) ____________________________________________________________________
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3)SEC Use Only ________________________________________________________________
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4)Sources of Funds (See Instructions) BK
_________________________________________
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5)[_] Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(e) or 2(f).
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6)Citizenship or Place of Organization Massachusetts
________________________________________
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7)Aggregate Amount Beneficially Owned by Each Reporting Person None
________________
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8)[_] Check if the Aggregate Amount in Row 7 Excludes Certain Shares (See
Instructions).
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9)Percent of Class Represented by Amount in Row 7 0%
_____________________________
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10)Type of Reporting Person (See Instructions) CO
_________________________________
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<PAGE>
SCHEDULE 14D-1
This Statement relates to a tender offer by MCTG Acquisition Corp., a
Delaware corporation (the "Purchaser"), a wholly-owned subsidiary of Millipore
Corporation, a Massachusetts corporation ("Parent"), to purchase all
outstanding shares of common stock, $.001 par value per share (the "Common
Stock"), together with the associated Series A Junior Participating Preferred
Stock Purchase Rights, (together with the Common Stock, the "Shares") of Tylan
General, Inc., a Delaware corporation (the "Company"), at $16.00 per Share,
net in cash to the seller, without interest thereon, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated December
20, 1996 (the "Offer to Purchase"), and in the related Letter of Transmittal
(which, as amended from time to time, collectively constitute the "Offer"),
which are attached to and filed with this Statement as Exhibits (a)(1) and
(a)(2), respectively.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The subject company to which this Statement relates is Tylan General,
Inc., which has its principal executive offices at 15330 Avenue of Science,
San Diego, California 92128.
(b) Reference is hereby made to the Introduction of the Offer to Purchase,
which Introduction is incorporated herein by reference.
(c) Reference is hereby made to Section 6, "Price Range of Shares", of the
Offer to Purchase, which Section is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
This Statement is being filed by the Purchaser and Parent. Reference is
hereby made to Section 8, "Certain Information Concerning Purchaser and
Parent", of the Offer to Purchase and to Schedule I to the Offer to Purchase,
which Section and Schedule are incorporated herein by reference.
(e) None of Purchaser, Parent or, to the best of their knowledge, any of
their executive officers or directors has, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(f) None of Purchaser, Parent or, to the best of their knowledge, any of
their executive officers or directors was, during the last five years, a party
to a civil proceeding of a judicial of administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
activities subject to, federal or state securities laws or finding any
violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a)-(b) Reference is hereby made to Section 8, "Certain Information
Concerning Purchaser and Parent", Section 9, "Background of the Merger and the
Offer", and Section 10 "Purpose of the Offer; the Merger Agreement; the Voting
Agreement; the Ferran Agreement; the Confidentiality Agreement" of the Offer
to Purchase, which Sections are incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(c) Reference is hereby made to Section 11, "Source and Amount of
Funds", of the Offer to Purchase, which Section is incorporated herein by
reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)-(g) Reference is hereby made to the Introduction, Section 9, "Background
of the Merger and the Offer," Section 10, "Purpose of the Offer; the Merger
Agreement; the Voting Agreement; the Ferran
3
<PAGE>
Agreement" and Section 12, "Certain Effects of the Offer", of the Offer to
Purchase, which Sections are incorporated herein by reference. Other than as
disclosed in the above-referenced Sections, neither Purchaser nor Parent has
any present plans or proposals which relate to, or would result in, any such
transaction, change or other occurrence with respect to the Company or the
Shares listed in any of paragraphs (a) through (g) of Item 5.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a)-(b) Reference is hereby made to the Introduction, Section 8, "Certain
Information Concerning Purchaser and Parent", Section 9, "Background of the
Merger and the Offer", and Section 10, "Purpose of the Offer; the Merger
Agreement; the Voting Agreement; the Ferran Agreement; the Confidentiality
Agreement", of the Offer to Purchase, which Introduction and Sections are
incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE SUBJECT COMPANY'S SECURITIES.
Reference is hereby made to the Introduction, Section 8, "Certain
Information Concerning Purchaser and Parent," Section 9, "Background of the
Merger and the Offer", and Section 10 "Purpose of the Offer; the Merger
Agreement; the Voting Agreement; the Ferran Agreement; the Confidentiality
Agreement" which Introduction and Sections are incorporated herein by
reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
Reference is hereby made to Section 15, "Fees and Expenses", of the Offer to
Purchase, which Section is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Reference is hereby made to Section 8, "Certain Information Concerning
Purchaser and Parent", of the Offer to Purchase, which Section is incorporated
herein by reference. The incorporation of this information does not constitute
an admission that such information is material to a decision by a security
holder of the Company whether to sell, tender or hold the Shares being sought
in the Offer.
ITEM 10. ADDITIONAL INFORMATION.
(a) Reference is hereby made to Section 9, "Background of the Merger and the
Offer", and Section 10, "Purpose of the Offer; the Merger Agreement; the
Voting Agreement; the Ferran Agreement; the Confidentiality Agreement", of the
Offer to Purchase, which Sections are incorporated herein by reference.
(b)-(c) Reference is hereby made to Section 14, "Certain Legal Matters;
Regulatory Approvals", of the Offer to Purchase, which Section is incorporated
herein by reference.
(d) Reference is hereby made to Section 12, "Certain Effects of the Offer",
of the Offer to Purchase, which Section is incorporated herein by reference.
(e) None.
(f) Reference is hereby made to the Offer to Purchase and the related Letter
of Transmittal, copies of which are attached as Exhibits (a)(1) and (a)(2)
hereto, which are incorporated herein by reference in their entirety.
4
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ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<C> <S>
(a)(1) Offer to Purchase.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
(a)(5) Letter from Brokers, Dealers, Commercial Banks, Trust Companies and
other Nominees to their Clients.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Newspaper advertisement dated December 20, 1996.
(a)(8) Press Release dated December 16, 1996.
(b) None.
(c)(1) Agreement and Plan of Merger, dated as of December 16, 1996, among
the Company, Parent and Purchaser.
(c)(2) Voting and Securities Purchase Agreement, dated as of December 16,
1996, by and among certain Securityholders (as defined therein) of
the Company, Parent and the Purchaser.
(c)(3) Letter Agreement, dated December 16, 1996, between Parent and David
J. Ferran.
(c)(4) Letter Agreement, dated August 29, 1996, between the Company and
Parent, and amendment thereto dated October 25, 1996.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
5
<PAGE>
SIGNATURE
AFTER DUE INQUIRY AND TO THE BEST OF MY KNOWLEDGE AND BELIEF, I CERTIFY THAT
THE INFORMATION SET FORTH IN THIS STATEMENT IS TRUE, COMPLETE AND CORRECT.
Millipore Corporation
/s/ Geoffrey Nunes
By __________________________________
MCTG Acquisition Corp.
/s/ Geoffrey Nunes
By __________________________________
December 20, 1996
6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
----------- ----------- ----
<C> <S> <C>
(a)(1) Offer to Purchase .........................................
(a)(2) Letter of Transmittal .....................................
(a)(3) Notice of Guaranteed Delivery .............................
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees ..............................
(a)(5) Letter from Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees to their Clients .............
(a)(6) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9 .............................
(a)(7) Newspaper advertisement dated December 20, 1996 ...........
(a)(8) Press Release dated December 16, 1996 .....................
(b) None ......................................................
(c)(1) Agreement and Plan of Merger, dated as of December 16,
1996, among the Company, Parent and Purchaser .............
(c)(2) Voting and Securities Purchase Agreement, dated as of
December 16, 1996, by and among certain Securityholders (as
defined therein) of the Company, Parent and the Purchaser
...........................................................
(c)(3) Letter Agreement, dated December 16, 1996, between Parent
and David J. Ferran........................................
(c)(4) Letter Agreement, dated August 29, 1996, between the
Company and Parent, and amendment thereto dated October 25,
1996.......................................................
(d) None ......................................................
(e) Not applicable ............................................
(f) None ......................................................
</TABLE>
7
<PAGE>
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(Including the Associated Series A Junior Participating Preferred Stock
Purchase Rights)
of
TYLAN GENERAL, INC.
at
$16.00 NET PER SHARE
by
MCTG ACQUISITION CORP.
a wholly owned subsidiary of
MILLIPORE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, JANUARY 21, 1997, UNLESS THE OFFER IS EXTENDED.
--------------
THE OFFER IS BEING MADE IN CONNECTION WITH THE AGREEMENT AND PLAN OF MERGER
DATED AS OF DECEMBER 16, 1996 AMONG THE COMPANY, MILLIPORE CORPORATION
("PARENT") AND PURCHASER, PURSUANT TO WHICH, FOLLOWING THE CONSUMMATION OF
THE OFFER, PURCHASER WILL BE MERGED WITH AND INTO THE COMPANY (THE
"MERGER") AND THE COMPANY WILL BECOME A WHOLLY OWNED SUBSIDIARY OF PARENT.
THE BOARD OF DIRECTORS OF THE COMPANY HAS, WITHOUT DISSENT, DETERMINED
THAT EACH OF THE OFFER AND THE MERGER IS FAIR TO, AND IN THE BEST
INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY AND HAS, WITHOUT DISSENT
APPROVED THE OFFER AND THE MERGER AND RECOMMENDS THAT THE STOCKHOLDERS
OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES. THE OFFER IS
BEING EFFECTED TO FACILITATE THE MERGER. SEE "RECOMMENDATION OF THE
COMPANY'S BOARD OF DIRECTORS."
--------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY AND
PROPERLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A
NUMBER OF SHARES OF COMMON STOCK (AND THE ASSOCIATED SERIES A JUNIOR
PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS) (COLLECTIVELY, THE "SHARES")
OF TYLAN GENERAL, INC. (THE "COMPANY") REPRESENTING AT LEAST A MAJORITY OF
THE OUTSTANDING SHARES ON A FULLY DILUTED BASIS AND AS WILL PERMIT MCTG
ACQUISITION CORP. ("PURCHASER") TO EFFECT THE MERGER (AS DEFINED BELOW)
WITHOUT THE VOTE OF ANY PERSON OTHER THAN PURCHASER (THE "MINIMUM
CONDITION"), AND (2) THE EXPIRATION OR TERMINATION OF ANY APPLICABLE
WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT
OF 1976, AS AMENDED (THE "HSR ACT"). THE OFFER IS ALSO SUBJECT TO
OTHER TERMS AND CONDITIONS CONTAINED IN THIS OFFER TO PURCHASE. SEE
INTRODUCTION AND SECTIONS 1 AND 13.
--------------
IMPORTANT
Any stockholder wishing to tender all or any portion of such stockholder's
shares of common stock, $.001 par value per share (the "Common Stock"), and
the associated Series A Junior Participating Preferred Stock Purchase Rights
(together with the Common Stock, the "Shares"), should either (1) complete and
sign the Letter of Transmittal (or a facsimile thereof) in accordance with the
instructions in the Letter of Transmittal and deliver it and any other
required documents to The First National Bank of Boston (the "Depositary") and
either deliver the certificate/s/ representing such Shares to the Depositary
along with the Letter of Transmittal or tender such Shares pursuant to the
procedure for book-entry transfer set forth in Section 3 or (2) request such
stockholder's broker, dealer, commercial bank, trust company or other nominee
to effect the transaction for such stockholder. Any stockholder whose Shares
are 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.
A stockholder who wishes to tender Shares and whose certificates
representing such Shares are not immediately available, or who cannot comply
with the procedure for book-entry transfer on a timely basis, may tender such
Shares by following the procedures for guaranteed delivery set forth in
Section 3.
Questions and requests for assistance or additional copies of this Offer to
Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent or the Dealer Manager at their respective
addresses and telephone numbers set forth on the back cover of this Offer to
Purchase. Additional copies of this Offer to Purchase, the Letter of
Transmittal and the Notice of Guaranteed Delivery may be obtained from the
Information Agent or from brokers, dealers, commercial banks or trust
companies.
--------------
The Dealer Manager for the Offer is:
Credit Suisse First Boston
December 20, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
INTRODUCTION.............................................................. 1
RECOMMENDATION OF THE COMPANY'S BOARD OF DIRECTORS........................ 2
THE TENDER OFFER.......................................................... 2
1. Terms of the Offer; Extension of Tender Period; Termination;
Amendment.............................................................. 2
2. Acceptance for Payment and Payment for Shares....................... 4
3. Procedure for Tendering Shares...................................... 5
4. Withdrawal Rights................................................... 7
5. Certain Federal Income Tax Consequences of the Offer and the
Merger................................................................. 7
6. Price Range of the Shares........................................... 8
7. Certain Information Concerning the Company.......................... 9
8. Certain Information Concerning Purchaser and Parent................. 11
9. Background of the Merger and the Offer.............................. 13
10. Purpose of the Offer; the Merger Agreement; the Voting Agreement;
the Ferran Agreement; the Confidentiality Agreement.................. 15
11. Source and Amount of Funds.......................................... 22
12. Certain Effects of the Offer........................................ 23
13. Certain Conditions of the Offer..................................... 23
14. Certain Legal Matters; Regulatory Approvals; Appraisal Rights....... 25
15. Fees and Expenses................................................... 27
16. Miscellaneous....................................................... 27
Schedule I--Information Concerning the Directors and Executive Officers of
Parent and Purchaser.....................................................
Annex I--Agreement and Plan of Merger.....................................
Annex II--Voting and Securities Purchase Agreement........................
</TABLE>
i
<PAGE>
To the Stockholders of Tylan General, Inc.:
INTRODUCTION
MCTG Acquisition Corp. a Delaware corporation ("Purchaser"), is a wholly
owned subsidiary of Millipore Corporation, a Massachusetts corporation
("Parent"). Purchaser hereby offers to purchase all of the outstanding shares
of common stock, $.001 par value per share (the "Common Stock"), together with
all associated Series A Junior Participating Preferred Stock Purchase Rights
(together with the Common Stock, the "Shares") of Tylan General, Inc., a
Delaware corporation (the "Company"), at a purchase price of $16.00 per Share
(the "Offer Price"), net to the seller in cash, without interest thereon, in
accordance with the terms and subject to the conditions set forth in this
Offer to Purchase and in the related Letter of Transmittal (which, as amended
from time to time, collectively constitute the "Offer").
The Offer is being made in connection with an Agreement and Plan of Merger
(the "Merger Agreement") dated as of December 16, 1996, among the Company,
Parent and the Purchaser. Pursuant to the Merger Agreement, and on the terms
and subject to the conditions set forth therein, Purchaser will merge with and
into the Company (the "Merger"), with the Company to be the surviving
corporation in such Merger, and each outstanding Share of the Company (other
than Shares held by Parent, the Company, Purchaser or any other subsidiary of
Parent, which will be cancelled, and Shares held by stockholders who properly
exercise appraisal rights under Delaware law) will be converted into the right
to receive an amount in cash equal to the Offer Price. Following the
consummation of the Merger, the Company will continue as the surviving
corporation and will be a wholly owned subsidiary of Parent. See Section 10. A
copy of the Merger Agreement is attached as Annex I.
THE BOARD OF DIRECTORS OF THE COMPANY HAS DETERMINED, WITHOUT DISSENT, THAT
EACH OF THE OFFER AND THE MERGER IS FAIR TO AND IN THE BEST INTERESTS OF THE
STOCKHOLDERS OF THE COMPANY AND HAS, WITHOUT DISSENT, APPROVED THE OFFER AND
THE MERGER AND RECOMMENDS THAT STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER
AND TENDER THEIR SHARES. SEE "RECOMMENDATION OF THE COMPANY'S BOARD OF
DIRECTORS."
Tendering stockholders who have Shares registered in their own name will not
be charged brokerage fees or commissions or, except as set forth in
Instruction 6 of the Letter of Transmittal, transfer taxes on the transfer and
sale of Shares pursuant to the Offer. Purchaser will pay all fees and expenses
incurred in connection with the Offer by Credit Suisse First Boston
Corporation, which is acting as Dealer Manager for the Offer (in such
capacity, the "Dealer Manager"), the Depositary and MacKenzie Partners, Inc.
(the "Information Agent"). See Section 15.
The purpose of the Offer is for Parent, through Purchaser, to acquire any
and all outstanding Shares and to facilitate the Merger. As of December 13,
1996, the last full trading day prior to public announcement of the execution
of the Merger Agreement, each Share had a value of $11.50, based on the
closing market price of the Shares as reported in The Wall Street Journal. The
Offer provides an opportunity to existing stockholders of the Company to sell
Shares at a premium over recent trading prices. See Section 6.
THE OFFER IS CONDITIONED, AMONG OTHER THINGS, UPON SATISFACTION, IN
PURCHASER'S SOLE DISCRETION, OF THE FOLLOWING CONDITIONS: (1) THAT THERE SHALL
HAVE BEEN VALIDLY AND PROPERLY TENDERED AND NOT WITHDRAWN PRIOR TO THE
EXPIRATION OF THE OFFER A NUMBER OF SHARES REPRESENTING NOT LESS THAN A
MAJORITY OF THE COMPANY'S TOTAL SHARES OUTSTANDING ON A FULLY DILUTED BASIS
AND AS WILL PERMIT PURCHASER TO EFFECT THE MERGER WITHOUT THE VOTE OF ANY
PERSON OTHER THAN PURCHASER (THE "MINIMUM CONDITION"), AND (2) THE EXPIRATION
OR TERMINATION OF ANY APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED (THE "HSR ACT"). CERTAIN OTHER
CONDITIONS TO THE OFFER ARE DESCRIBED IN SECTION 13.
As of December 16, 1996, there were outstanding 7,873,491 Shares. As of
December 16, 1996, options covering a total of 1,105,073 Shares were
outstanding under the Company's stock option plans and other option grants.
For purposes of this Offer, "fully diluted basis" assumes that all outstanding
stock options are exercised.
<PAGE>
THIS OFFER TO PURCHASE DOES NOT CONSTITUTE A SOLICITATION OF A PROXY,
CONSENT OR AUTHORIZATION FOR OR WITH RESPECT TO AN ANNUAL MEETING OR ANY
SPECIAL MEETING OF THE COMPANY'S STOCKHOLDERS OR ANY ACTION IN LIEU THEREOF.
ANY SUCH SOLICITATION WILL BE MADE ONLY PURSUANT TO SEPARATE PROXY MATERIALS
IN COMPLIANCE WITH THE REQUIREMENTS OF SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED (THE "EXCHANGE ACT").
* * * * *
Purchaser expressly reserves the right to waive any one or more of the
conditions of the Offer other than the Minimum Condition which may only be
waived with the consent of the Company. See Sections 1 and 13.
Stockholders are urged to read this Offer to Purchase and the related Letter
of Transmittal carefully before deciding whether to tender their Shares.
RECOMMENDATION OF THE COMPANY'S BOARD OF DIRECTORS
The Board of Directors of the Company has, without dissent, determined that
each of the Offer and the Merger are fair to, and in the best interests of,
the stockholders of the Company and has, without dissent, approved the Offer
and the Merger and recommends that the stockholders of the Company accept the
Offer and tender their Shares. The Offer is being effected to acquire any and
all outstanding Shares and to facilitate the Merger. The Board of Directors of
the Company believes that a business combination of the Company and Parent is
in the best long-term interests of the Company and its stockholders. The Offer
allows stockholders to receive cash at a premium over recent trading prices
for the Shares. See Sections 6 and 9.
THE TENDER OFFER
1. TERMS OF THE OFFER; EXTENSION OF TENDER PERIOD; TERMINATION; AMENDMENT
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 accept for payment and pay for all Shares
validly tendered and not properly withdrawn on or prior to the Expiration Date
(as hereinafter defined) at a price of $16.00 per share, net to the seller in
cash, without interest thereon. The term "Expiration Date" means 12:00
Midnight, New York City time, on Tuesday, January 21, 1997, unless Purchaser
shall have extended the period during which the Offer is open, in which event
the term "Expiration Date" shall mean the latest time and date at which the
Offer, as so extended by Purchaser, shall expire.
The Offer is conditioned upon, among other things, satisfaction of the
Minimum Condition, and the expiration or termination of any waiting period
under the HSR Act. The Offer is also subject to certain other conditions set
forth in Section 13 below. Purchaser expressly reserves the right, in its sole
discretion, to waive, in whole or in part, any or all of the conditions of the
Offer (other than the Minimum Condition, which may not be waived without the
prior written consent of the Company).
Subject to the satisfaction of the conditions set forth in Section 13 below,
Purchaser has agreed to accept for payment and pay for Shares which have been
validly tendered and not withdrawn pursuant to the Offer as soon as it is
permitted to do so under applicable law. Notwithstanding the foregoing, if the
number of Shares tendered and not withdrawn represent less than 90% of the
Shares outstanding on a fully diluted basis, Purchaser may extend the Offer up
to the fifth business day following the date on which all conditions to the
Offer shall first have been satisfied or waived.
Subject to the terms of the Merger Agreement, Purchaser expressly reserves
the right, in its sole discretion, at any time or from time to time, to extend
the period during which the Offer is open for any reason, including the non-
satisfaction of any of the conditions specified in Section 13, by giving oral
or written notice of such
2
<PAGE>
extension to the Depositary. During any such extension, all Shares previously
tendered and not properly withdrawn will remain subject to the Offer, subject
to the rights of a tendering stockholder to withdraw such stockholder's
Shares. There can be no assurance that Purchaser will exercise its right to
extend the Offer.
Purchaser also expressly reserves the right, subject to applicable laws
(including applicable regulations of the Securities and Exchange Commission
("Commission")), in its sole discretion, at any time or from time to time, to
(i) delay acceptance for payment of or payment for any Shares in order to
comply, in whole or in part, with any applicable law, government regulation or
any other condition referred to in Sections 13 or 14 prior to the Expiration
Date, (ii) terminate the Offer prior to the Expiration Date if any of the
conditions referred to in Section 13 have not been satisfied or upon the
occurrence of any of the events specified in Section 13 and (iii) waive any
condition or otherwise amend the Offer in any respect; in each case by giving
oral or written notice of such delay, termination, waiver or amendment to the
Depositary. Purchaser acknowledges that (a) Rule 14e-1(c) under the Exchange
Act requires Purchaser to pay the consideration offered or return the Shares
tendered promptly after the termination or withdrawal of the Offer and (b)
Purchaser may not delay acceptance for payment of, or payment for (except as
provided by clause (i) of the preceding sentence), any Shares upon the
occurrence of any of the conditions referred to in Section 13 without
extending the period of time during which the Offer is open.
Any such extension, delay, termination, waiver or amendment will be followed
as promptly as practicable by public announcement thereof, and such
announcement in the case of an extension will be made no later than 9:00 a.m.,
New York City time, on the next business day after the previously scheduled
Expiration Date. Without limiting the manner in which Purchaser may choose to
make any public announcement, except as provided by applicable law (including
Rules 14d-4(c) and 14d-6(d) under the Exchange Act, which require that
material changes be promptly disseminated to holders of Shares), Purchaser
shall have no obligation to publish, advertise or otherwise communicate any
such announcement other than by issuing a release to the Dow Jones News
Service or as otherwise may be required by law.
Purchaser may increase the Offer Price and may make any other changes in the
terms and conditions of the Offer, provided that, unless previously approved
by the Company in writing, no change may be made that decreases the price per
Share payable in the Offer Price, reduces the Minimum Condition, changes the
form of consideration payable in the Offer, reduces the maximum number of
Shares to be purchased in the Offer, imposes conditions to the Offer in
addition to the conditions set forth in Section 13 or amends or modifies such
conditions in any manner adverse to the holders of Shares.
If Purchaser makes a material change in the terms of the Offer or if
Purchaser waives a material condition of the Offer, Purchaser will extend the
Offer to the extent required by Rule 14d-4(c), 14d-6(d) and 14e-1(b) under the
Exchange Act. The minimum period during which the Offer must remain open
following material changes in the terms of the Offer, other than a change in
price or a change in the percentages of securities sought, will depend on the
facts and circumstances, including the materiality, of the changes. With
respect to a change in price or, subject to certain limitations, a change in
the percentage of securities sought, a minimum ten business day period from
the day of such change is generally required to allow for adequate
dissemination to stockholders. Accordingly, if prior to the Expiration Date,
Purchaser decreases the number of Shares being sought or increases or
decreases the consideration offered pursuant to the Offer and if the Offer is
scheduled to expire at any time earlier than the period ending on the tenth
business day from the date on which that notice of such increase or decrease
is first published, sent or given to stockholders, then the Offer will be
extended at least until the expiration of such ten business day period.
The Company has provided Purchaser with the Company's stockholder list and
security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal
and other relevant materials will be mailed 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
Company's stockholder list or, if applicable, who are listed as participants
in a clearing agency's security position listing for subsequent transmittal to
beneficial owners of Shares.
3
<PAGE>
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension
or amendment), Purchaser will accept for payment and will pay for all Shares
validly tendered and not properly withdrawn on or prior to the Expiration Date
as soon as practicable after the later to occur of: (i) the Expiration Date
and (ii) the date of satisfaction or waiver of the conditions related to
regulatory approvals referred to in the first paragraph of Section 13. In
addition, Purchaser reserves the right, in its sole discretion and subject to
applicable law, to delay acceptance for payment of, or payment for, Shares in
order to comply, in whole or in part, with any applicable law, government
regulation or any other condition contained herein. See Section 13 below.
For purposes of the Offer, Purchaser shall be deemed to have accepted for
payment and thereby purchased tendered Shares if, as and when Purchaser gives
oral or written notice to the Depositary of its acceptance of such Shares for
payment pursuant to the Offer. Payment for Shares accepted for payment
pursuant to the Offer will be made by deposit by Purchaser of the purchase
price to be paid by it with the Depositary, which Depositary will act as agent
for the tendering stockholders for the purpose of receiving payments from
Purchaser and transmitting such payments to tendering stockholders. Under no
circumstances will interest be paid by Purchaser on the consideration paid for
the Shares pursuant to the Offer, regardless of any delay in making such
payment. Purchaser will pay all stock transfer taxes, if any, payable on the
transfer of Shares purchased by it pursuant to the Offer, except as set forth
in Instruction 6 of the Letter of Transmittal.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of (i) a
certificate(s) for such Shares or a timely confirmation of a book-entry
transfer of such Shares into the Depositary's account at The Depository Trust
Company (the "Book-Entry Transfer Facilities"), (ii) a Letter of Transmittal
(or a facsimile thereof), properly completed and duly executed, with any
required signature guarantees or Agent's Message (as defined in Section 3
below) and (iii) any other documents required by the Letter of Transmittal.
For a description of the procedure for tendering Shares pursuant to the Offer,
see Section 3.
If, for any reason, acceptance for payment of any Shares tendered pursuant
to the Offer is delayed, or Purchaser is unable to accept for payment Shares
tendered pursuant to the Offer, then, without prejudice to Purchaser's rights
under the Offer (but subject to Rule 14e-1(c) under the Exchange Act), the
Depositary may, nevertheless, on behalf of Purchaser, retain tendered Shares,
and such Shares may not be withdrawn, except to the extent that the tendering
stockholders of the Company are entitled to exercise, and duly exercise,
withdrawal rights as described in Section 4 below. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE OFFER PRICE TO BE PAID BY PURCHASER, REGARDLESS OF ANY
EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
If any tendered Shares are not accepted for payment for any reason or if
certificates are submitted for more Shares than are tendered, certificates
evidencing unpurchased or untendered Shares will be returned without expense
to the tendering stockholder (or, in the case of Shares tendered by book-entry
transfer into the Depositary's account at a Book-Entry Transfer Facility
pursuant to the procedures set forth in Section 3, such Shares will be
credited to an account maintained at such Book-Entry Transfer Facility) as
promptly as practicable following the expiration, termination or withdrawal of
the Offer.
If, prior to the Expiration Date, Purchaser increases the consideration
offered to stockholders pursuant to the Offer, such increased consideration
will be paid to all stockholders whose Shares are purchased pursuant to the
Offer, whether or not such Shares were tendered or accepted for payment prior
to such increase in consideration.
Purchaser reserves the right to assign, in whole or from time to time in
part, to Parent or a direct or indirect subsidiary of Parent, the right to
purchase all or any portion of the Shares tendered pursuant to the Offer, but
any
4
<PAGE>
such assignment will not relieve Purchaser of its obligations under the Offer
nor will any such assignment prejudice in any way the rights of tendering
stockholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer.
3. PROCEDURE FOR TENDERING SHARES
Valid Tender of Shares. Except as set forth below, in order for Shares to be
validly tendered pursuant to the Offer, either (i) the Letter of Transmittal
(or a facsimile thereof), properly completed and duly executed, together with
any required signature guarantees, or an Agent's Message (as defined below) in
connection with a book-entry delivery of Shares as described below, and any
other documents required by the Letter of Transmittal, must be received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase on or prior to the Expiration Date and either (a) certificates
evidencing tendered Shares must be received by the Depositary at any such
address or (b) such Shares must be tendered pursuant to the procedure for book-
entry transfer (and a confirmation of receipt of such delivery must be received
by the Depositary), in each case, on or prior to the Expiration Date or (ii)
the guaranteed delivery procedures set forth below must be complied with. 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 which are the subject of such Book-Entry
Confirmation, that such participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that Purchaser may enforce such
agreement against such participant.
Book-Entry Transfer. The Depositary will establish an account with respect to
the Shares at the Book-Entry Transfer Facilities for purposes of the Offer
within two business days after the date of this Offer to Purchase. Any
financial institution that is a participant in the system of any Book-Entry
Transfer Facility may make book-entry delivery of Shares by causing a Book-
Entry Transfer Facility to transfer such Shares into the Depositary's account
in accordance with that Book-Entry Transfer Facility's procedures for such
transfer. Although delivery of Shares may be effected through book-entry
transfer at a Book-Entry Transfer Facility, the Letter of Transmittal (or a
facsimile thereof), properly completed and duly executed, together with any
required signature guarantees, or an Agent's Message in connection with a book-
entry transfer, and any other required documents, must, in any case, be
received by the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase on or prior to the Expiration Date, or the guaranteed
delivery procedures described below must be complied with.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH
SUCH BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO
THE DEPOSITARY.
Signature Guarantees. Except as otherwise provided below, signatures on
Letters of Transmittal must be guaranteed by a financial institution (including
most banks, savings and loan associations and brokerage houses) which is a
participant in the Securities Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program (each of the foregoing constituting an "Eligible
Institution"). Signatures on Letters of Transmittal need not be guaranteed (i)
if the Letter of Transmittal is signed by the registered holder of Shares
tendered and such holder has not completed either the box entitled "Special
Delivery Instructions" or the box entitled "Special Payment Instructions" on
the Letter of Transmittal, or (ii) if such Shares are tendered for the account
of an Eligible Institution. See Instructions 1 and 5 of the Letter of
Transmittal.
If the certificates representing Shares are registered in the name of a
person other than the signer of the Letter of Transmittal, or if payment is to
be made or certificates for Shares not accepted for payment or not tendered are
to be returned to a person other than the registered holder, then the tendered
certificates must be endorsed or accompanied by appropriate stock powers, in
either case signed exactly as the name(s) of the registered holder(s) appear(s)
on the certificates, with the signatures on the certificates or stock powers
guaranteed as described above. See Instructions 1 and 5 of the Letter of
Transmittal.
5
<PAGE>
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates are not immediately available, or
such stockholder cannot deliver the certificates and all other required
documents to reach the Depositary on or prior to the Expiration Date, or such
stockholder cannot complete the procedure for book-entry transfer on a timely
basis, such Shares may nevertheless be tendered if the following guaranteed
delivery procedures are satisfied:
(i) such tender is 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, is received by
the Depositary as provided below on or prior to the Expiration Date; and
(iii) the certificates (or a book-entry transfer confirmation)
representing all tendered Shares, in proper form for transfer, in each case
together with the Letter of Transmittal (or a facsimile thereof) properly
completed and duly executed, with any required signature guarantees (or, in
the case of a book-entry transfer, an Agent's Message) and any other
documents required by the Letter of Transmittal are received by the
Depositary within three Nasdaq Stock Market ("Nasdaq") trading days after
the date of execution of such Notice of Guaranteed Delivery.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, telex, facsimile transmission or mail to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF 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 INSURE TIMELY
DELIVERY.
Backup Federal Income Tax Withholding. To prevent backup federal income tax
withholding on payments made to stockholders with respect to the purchase price
of Shares purchased pursuant to the Offer, each such stockholder must provide
the Depositary with such stockholder's correct taxpayer identification number
and certify that such stockholder is not subject to backup federal income tax
withholding by completing the substitute Form W-9 included in the Letter of
Transmittal. See Instruction 8 of the Letter of Transmittal.
Appointment as Proxy. By executing a Letter of Transmittal, a tendering
stockholder irrevocably appoints designees of Purchaser as such stockholder's
proxies in the manner set forth in the Letter of Transmittal to the full extent
of such stockholder's rights with respect to the Shares tendered by such
stockholder and accepted for payment by Purchaser (and with respect to any and
all other Shares or other securities issued or issuable in respect of such
Shares on or after the date of this Offer to Purchase). All such proxies shall
be irrevocable and coupled with an interest in the tendered Shares. Such
appointment will be effective when, and only to the extent that, Purchaser
accepts such Shares for payment. Upon such acceptance for payment, all prior
proxies and consents granted by such stockholder with respect to such Shares
and other securities will be revoked without further action, and no subsequent
proxies may be given nor subsequent written consents executed (and, if given or
executed, such proxies or consents will not be deemed effective). The designees
of Purchaser (or any of them) will be empowered to exercise all voting and
other rights of such stockholder as they, in their sole discretion, may deem
proper at any annual, special or adjourned meeting of the Company's
stockholders, by written consent or otherwise. Purchaser reserves the right to
require that, in order for Shares to be deemed validly tendered, immediately
upon Purchaser's payment for such Shares, Purchaser must be able to exercise
full voting rights with respect to such Shares, including voting at any meeting
of stockholders scheduled or acting by written consent without a meeting.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tender of Shares will be determined by Purchaser in its sole discretion, which
determination shall be final and binding. Purchaser reserves the absolute right
to reject any and all tenders of
6
<PAGE>
Shares determined by it not to be in proper form or the acceptance for payment
of which may, in the opinion of Purchaser's counsel, be unlawful. Purchaser
reserves the absolute right to waive any defect or irregularity in any tender
of Shares of any particular stockholder. Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and the
Instructions thereto) will be final and binding. None of Purchaser, Parent,
any of their affiliates or assigns, the Dealer Manager, the Depositary, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any
liability for failure to give any such notification.
4. WITHDRAWAL RIGHTS
Tenders of Shares pursuant to the Offer may be withdrawn at any time on or
prior to the Expiration Date. Thereafter, such tenders are irrevocable, except
that they may be withdrawn after February 17, 1997 unless theretofore accepted
for payment as provided in this Offer to Purchase. If Purchaser extends the
Offer, is delayed in accepting for payment or paying for Shares or is unable
to accept for payment or pay for Shares pursuant to the Offer for any reason,
then, without prejudice to Purchaser's rights under the Offer, the Depositary
may, on behalf of Purchaser, retain all Shares tendered, and such Shares may
not be withdrawn except to the extent that tendering stockholders are entitled
to withdrawal rights as set forth in this Section 4.
For a withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase.
Any notice of withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name of
the registered holder, if different from that of the person who tendered such
Shares. If certificates evidencing Shares to be withdrawn have been delivered
or otherwise identified to the Depositary, then prior to the physical release
of such certificates, the serial numbers shown on such certificates must be
submitted to the Depositary, and the signatures on the notice of withdrawal
must be guaranteed by an Eligible Institution unless such Shares have been
tendered for the account of an Eligible Institution. If Shares have been
tendered pursuant to the procedure for book-entry transfer set forth in
Section 3, the notice of withdrawal must specify the name and number of the
account at the Book-Entry Transfer Facility to be credited with the withdrawn
Shares.
Withdrawals may not be rescinded, and Shares withdrawn will thereafter be
deemed not validly tendered for purposes of the Offer. However, withdrawn
Shares may be retendered at any time prior to the Expiration Date by again
following one of the procedures described in Section 3.
All questions as to the form and validity (including time of receipt) of any
notice of withdrawal will be determined by Purchaser, in its sole discretion,
whose determination shall be final and binding. None of Purchaser, Parent, any
of their affiliates or assigns, the Dealer Manager, the Depositary, the
Information Agent or any other person will be under any duty to give
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give such notification.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER AND THE MERGER
The following discussion is a summary of the principal federal income tax
consequences of the Offer and the Merger to holders whose Shares are purchased
pursuant to the Offer or the Merger (including any cash amounts received by
dissenting stockholders pursuant to the exercise of appraisal rights). The
discussion applies only to holders of Shares in whose hands Shares are capital
assets, and may not apply to Shares received pursuant to the exercise of
employee stock options or otherwise as compensation, or to holders of Shares
who are not citizens or residents of the United States.
THE FEDERAL INCOME TAX CONSEQUENCES SET FORTH BELOW ARE INCLUDED FOR GENERAL
INFORMATIONAL PURPOSES ONLY AND ARE BASED UPON CURRENT LAW. BECAUSE INDIVIDUAL
CIRCUMSTANCES MAY DIFFER, EACH HOLDER OF SHARES IS URGED TO CONSULT SUCH
HOLDER'S OWN TAX ADVISOR TO DETERMINE THE APPLICABILITY OF THE RULES DISCUSSED
BELOW TO SUCH STOCKHOLDER AND THE PARTICULAR TAX EFFECTS OF THE OFFER AND THE
MERGER, INCLUDING THE APPLICATION AND EFFECT OF STATE, LOCAL AND OTHER TAX
LAWS.
7
<PAGE>
The receipt of cash pursuant to the Offer or the Merger (including any cash
amounts received by dissenting stockholders pursuant to the exercise of
appraisal rights) will be a taxable transaction for federal income tax
purposes under the Internal Revenue Code of 1986 (the "Code") and also may be
a taxable transaction under applicable state, local and other income tax laws.
In general, for federal income tax purposes, a tendering stockholder will
recognize gain or loss equal to the difference between the cash received by
the stockholder pursuant to the Offer or the Merger and the stockholder's
adjusted tax basis in the Shares tendered by the stockholder and purchased
pursuant to the Offer or the Merger. Gain or loss must be determined
separately for each block of Shares (i.e., Shares acquired at the same cost in
a single transaction) tendered pursuant to the Offer or the Merger. Such gain
or loss will be capital gain or loss and will be long-term gain or loss if, on
the date Purchaser accepts the Shares for payment pursuant to the Offer or, if
applicable, the effective date of the Merger, the Shares were held for more
than one year. There are limitations on the deductibility of capital losses.
Payments in connection with the Offer or the Merger may be subject to
"backup withholding" at a 31% rate. Backup withholding generally applies if
the stockholder fails to furnish such stockholder's social security number or
other taxpayer identification number ("TIN"), or furnishes an incorrect TIN.
Backup withholding is not an additional tax but merely an advance payment,
which may be refunded to the extent it results in an overpayment of tax.
Certain persons generally are exempt from backup withholding, including
corporations and financial institutions. Certain penalties apply for failure
to furnish correct information and for failure to include the reportable
payments in income. Stockholders should consult with their own tax advisors as
to the qualification for exemption from withholding and the procedure for
obtaining such exemption.
6. PRICE RANGE OF THE SHARES
The Shares are listed and principally traded on Nasdaq under the symbol
TYGN. The following table sets forth, for the periods indicated, the high and
low sale prices per Share as reported in The Wall Street Journal for the
periods indicated.
<TABLE>
<CAPTION>
COMMON STOCK
---------------
HIGH LOW
------- -------
<S> <C> <C>
Fiscal Year Ended October 29, 1995:
First Quarter (from January 28, 1995 through January 31,
1995)................................................... $ 7.500 $ 6.500
Second Quarter........................................... 13.250 7.000
Third Quarter............................................ 19.750 11.250
Fourth Quarter........................................... 21.500 12.500
Fiscal Year Ended October 27, 1996:
First Quarter............................................ $17.000 $11.250
Second Quarter........................................... 14.750 7.750
Third Quarter............................................ 13.750 8.500
Fourth Quarter........................................... 14.500 10.000
Fiscal Year Ending October 26, 1997:
First Quarter (through December 19, 1996)................ $16.000 $11.500
</TABLE>
On December 13, 1996, the last full trading day prior to public announcement
of the execution of the Merger Agreement, the closing sale price of the Shares
on Nasdaq was $11.500 per Share. On December 19, 1996, the last full trading
day prior to the commencement of the Offer, such closing sales price was
$15.750 per share. STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION
FOR THE SHARES.
The purchase of Shares pursuant to the Offer will reduce the number of
Shares that might otherwise trade publicly and the number of holders of
Shares, which would adversely affect the liquidity and market value of the
remaining Shares held by holders other than the Purchaser. The Purchaser
cannot predict whether the reduction in the number of Shares that might
otherwise trade publicly would have an adverse or beneficial effect on the
market price for, or marketability of, the Shares or whether such reduction
would cause future market prices to be greater or less than the Offer Price.
8
<PAGE>
The Shares are currently registered under the Exchange Act. The purchase of
the Shares pursuant to the Offer may result in the Shares becoming eligible
for deregistration under the Exchange Act. Termination of registration of the
Shares under the Exchange Act would reduce substantially the information
required to be furnished by the Company to its Stockholders and to the
Commission and would make certain provisions of the Exchange Act no longer
applicable to the Company.
The Shares are currently "margin securities" under the regulations of the
Board of Governors of the Federal Reserve System (the "Federal Reserve
Board"), which has the effect, among other things, of allowing brokers to
extend credit on the collateral of the Shares. Depending upon the factors
similar to those described above regarding listing and market quotations,
following the Offer it is possible that the Shares would no longer constitute
"margin securities" for the purpose of the margin regulations of the Federal
Reserve Board and therefore could no longer be used as collateral for loans
made by brokers. In addition, if registration of the Shares under the Exchange
Act were terminated, the Shares would no longer constitute "margin
securities."
7. CERTAIN INFORMATION CONCERNING THE COMPANY
General. The Company is a Delaware corporation with its principal offices
currently located at 15330 Avenue of Science, San Diego, California. The
Company is a leading supplier to the microelectronics industry of precision
mass flow controllers, pressure and vacuum measurement and control equipment
and ultraclean gas panels.
Financial Information. Set forth below is certain summary consolidated
financial information with respect to the Company and its subsidiaries. More
comprehensive financial information (other than with respect to the Fiscal
Year ended October 27, 1996) is included in reports and other documents filed
by the Company with the Commission, and the following summary is qualified in
its entirety by reference to such reports and other documents and all of the
financial information (including any related notes) contained therein. Such
reports and other documents are available for inspection and copies thereof
are obtainable in the manner set forth below under "Available Information."
9
<PAGE>
TYLAN GENERAL, INC.
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
--------------------------------------------------
OCTOBER 27, OCTOBER 29, OCTOBER 30,
1996* 1995 1994
--------------- --------------- --------------
(DOLLARS IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
STATEMENT OF INCOME DATA:
Net Sales................ $ 148,339 $ 118,268 $ 75,373
Income Before Extraordi-
nary Item............... 795 5,928 2,950
Net Income............... 571 5,233 2,950
Net Income Per Common
Share................... 0.07 0.80 0.56
BALANCE SHEET DATA:
Total Assets............. $ 91,356 $ 87,402 $ 44,522
Total Indebtedness....... 22,604 17,663 16,677
Shareholders' Equity..... 47,149 46,224 14,513
Weighted Average Number
of Common Shares
Outstanding (in
thousands).............. 8,048 6,506 5,300
</TABLE>
- --------
* Financial information for the fiscal year ended October 27, 1996 was
derived from information provided by the Company to Parent in connection
with the Offer and not from any document filed by the Company with the
Commission.
Available Information. The Company is registered under the Exchange Act,
and, accordingly, is subject to the informational filing requirements of the
Exchange Act. In accordance therewith the Company files periodic reports,
proxy statements and other information with the Commission under the Exchange
Act relating to its business, financial condition and other matters. The
Company is required to disclose in such proxy statements certain information,
as of particular dates, concerning the Company's directors and officers, their
remuneration, stock options granted to them, the principal holders of the
Company's securities and any material interest of such persons in transactions
with the Company. Such reports, proxy statements and other information may be
inspected at the Commission's office at 450 Fifth Street, N.W., Washington,
D.C. 20549, and also should be available for inspection and copying at the
regional offices of the Commission located at 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511; and 7 World Trade Center, 13th Floor, New
York, New York 10048. Copies may be obtained by mail from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission also maintains a web site on the World Wide
Web at http://www.sec.gov that contains reports, proxy statements and other
information regarding registrants that file electronically with the
Commission. In addition, such material should also be available for inspection
at the library of Nasdaq.
Certain Projected Financial Information. In the course of its discussions
with Parent described in Section 9, the Company provided Parent and its
financial advisors with certain business and financial information which
Parent believes was not publicly available. Such information included, among
other things, certain financial projections for the fiscal years of the
Company ending in October 1997 through 2001 (the "Company Projections")
prepared by management of the Company. The Company Projections do not take
into account any of the potential effects of the transactions contemplated by
the Offer and the Merger. The Company and Parent do not as a matter of course
publicly disclose internal projections as to future revenues, earnings or
financial condition.
10
<PAGE>
Set forth below is a summary of the Company projections.
<TABLE>
<CAPTION>
FISCAL YEAR ENDING OCTOBER 31,
--------------------------------------------
1997 1998 1999 2000 2001
-------- -------- -------- -------- --------
(AMOUNTS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Net Sales......................... $130,978 $203,941 $311,324 $421,107 $528,908
Income From Operations............ 5,651 28,483 53,429 79,709 106,279
Interest Expense.................. 1,585 589 196 51 0
-------- -------- -------- -------- --------
Income Before Taxes............... $ 3,866 $ 27,687 $ 53,493 $ 81,122 $109,703
Taxes............................. 1,430 10,106 19,525 29,204 39,493
-------- -------- -------- -------- --------
Net Income........................ $ 2,436 $ 17,581 $ 33,968 $ 51,918 $70,210
======== ======== ======== ======== ========
</TABLE>
THE COMPANY PROJECTIONS WERE NOT PREPARED WITH A VIEW TO PUBLIC DISCLOSURE
OR COMPLIANCE WITH PUBLISHED GUIDELINES OF THE COMMISSION OR THE GUIDELINES
ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS. THE
PROJECTIONS ARE INCLUDED IN THIS OFFER TO PURCHASE ONLY BECAUSE SUCH
INFORMATION WAS PROVIDED TO PARENT. NONE OF PARENT, PURCHASER OR ANY PARTY TO
WHOM THE PROJECTIONS WERE PROVIDED ASSUMES ANY RESPONSIBILITY FOR THE ACCURACY
OF SUCH INFORMATION. WHILE PRESENTED WITH NUMERICAL SPECIFICITY, THESE
PROJECTIONS ARE BASED UPON A VARIETY OF ASSUMPTIONS RELATING TO THE BUSINESS
OF THE COMPANY (INCLUDING SUCCESSFUL INTRODUCTION OF NEW PRODUCTS AND
INCREASES IN MARKET SHARE IN INTERNATIONAL MARKETS) WHICH, THOUGH PARENT HAS
BEEN ADVISED WERE CONSIDERED REASONABLE BY THE COMPANY AT THE TIME THEY WERE
FURNISHED TO PARENT, MAY NOT BE REALIZED AND ARE SUBJECT TO SIGNIFICANT
UNCERTAINTIES AND CONTINGENCIES, MANY OF WHICH ARE BEYOND THE CONTROL OF THE
COMPANY. THERE CAN BE NO ASSURANCE THAT THE PROJECTIONS WILL BE REALIZED, AND
ACTUAL RESULTS MAY VARY MATERIALLY FROM THOSE SHOWN. THE PROJECTIONS HAVE NOT
BEEN EXAMINED OR COMPILED BY THE COMPANY'S INDEPENDENT PUBLIC ACCOUNTANTS. FOR
THESE REASONS, AS WELL AS THE BASES ON WHICH SUCH PROJECTIONS WERE COMPILED,
THERE CAN BE NO ASSURANCE THAT SUCH PROJECTIONS WILL BE REALIZED, OR THAT
ACTUAL RESULTS WILL NOT BE HIGHER OR LOWER THAN THOSE ESTIMATED. THE INCLUSION
OF THESE PROJECTIONS HEREIN SHOULD NOT BE REGARDED AS AN INDICATION THAT
PARENT, PURCHASER OR ANY OTHER PARTY WHO RECEIVED SUCH INFORMATION CONSIDERS
SUCH PROJECTIONS AN ACCURATE PREDICTION OF FUTURE EVENTS.
8. CERTAIN INFORMATION CONCERNING PURCHASER AND PARENT
General. Purchaser, a Delaware corporation and a wholly owned subsidiary of
Parent, recently was organized for the purpose of effecting the Offer and the
Merger and has not carried on any activities except in connection with the
Offer and the Merger. The principal executive offices of Purchaser are located
at 80 Ashby Road, Bedford, Massachusetts. All the outstanding capital stock of
Purchaser is owned by Parent.
Parent is a Massachusetts corporation with its principal offices located at
80 Ashby Road, Bedford, Massachusetts. Parent's principal business is the
analysis, identification, monitoring and purification of fluids using
separations technology. Parent is a public company whose stock is traded on
the New York Stock Exchange.
Financial Information. Set forth below is certain selected consolidated
financial information with respect to Parent and its subsidiaries as of its
fiscal years ended December 31, 1993, 1994 and 1995 and the interim periods
ended September 30, 1996 and 1995. More comprehensive financial information is
included in reports and in documents filed by Parent with the Commission, and
the following summary is qualified in its entirety by
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reference to such reports and other documents and all of the financial
information (including any related notes) contained therein. Such reports and
other documents should be available for inspection and copies thereof should
be obtainable in the manner set forth below under "Available Information."
MILLIPORE CORPORATION AND SUBSIDIARIES
SUMMARY CONSOLIDATED FINANCIAL INFORMATION
<TABLE>
<CAPTION>
NINE MONTHS FISCAL YEAR ENDED
ENDED NINE MONTHS ENDED DECEMBER 31,
------------------ ------------------ --------------------------
SEPTEMBER 30, 1996 SEPTEMBER 30, 1995 1995 1994 1993
------------------ ------------------ -------- -------- --------
(DOLLARS IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS
DATA:
Net Sales............... $467,317 $439,482 $594,466 $497,252 $445,366
Earnings Before
Extraordinary Items.... 72,095 62,774 85,354 56,209 38,147
Net Earnings............ 72,095 62,774 85,354 56,209 34,603
PER SHARE DATA:
Net Earnings Per Common
Share.................. $ 1.65 $ 1.39 $ 1.90 $ 1.03 $ 0.62
Net Earnings Per Share
on a Fully Diluted
Basis.................. 1.62 1.36 1.86 1.01 0.62
BALANCE SHEET DATA:
Total Assets............ $559,605 $547,930 $530,945 $536,980 $720,553
Total Liabilities....... 314,491 338,209 304,470 315,703 259,399
Shareholders' Equity.... 245,114 209,721 226,475 221,277 461,154
Average Number of Common
Shares Outstanding (in
thousands)............. 43,714 45,200 44,985 54,726 55,902
</TABLE>
On November 18, 1996, Parent announced that it had entered into an agreement
to acquire the net assets of the Amicon Separations Business of W.R. Grace &
Co. for $125 million in cash, with the acquisition (the "Amicon Acquisition")
expected to be completed within 60 days of that date. The summary consolidated
financial information set forth above does not give effect to the Amicon
Acquisition. See Item 11 below.
Available Information. Parent is registered under the Exchange Act, and,
accordingly, is subject to the informational filing requirements of the
Exchange Act. In accordance therewith, Parent files periodic reports, proxy
statements and other information with the Commission under the Exchange Act
relating to its business, financial condition and other matters. Parent is
required to disclose in such proxy statements certain information, as of
particular dates, concerning Parent's directors and officers, their
remuneration, stock options granted to them, the principal holders of Parent's
securities and any material interest of such persons in transactions with
Parent. Such reports, proxy statements and other information may be inspected
at the Commission's office at 450 Fifth Street, N.W., Washington, D.C. 20549,
and also should be available for inspection and copying at the regional
offices of the Commission located at 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511; and 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies may be obtained by mail from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates. The Commission also maintains a web site on the World Wide
Web at http://www.sec.gov that contains reports, proxy statements and other
information regarding registrants that file electronically with the
Commission. Such reports, proxy statements and other information concerning
Parent also can be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
Except as described in this Offer to Purchase, (i) none of Purchaser or
Parent or, to the best knowledge of Purchaser or Parent, any of the persons
listed in Schedule I or any associate or majority owned subsidiary of any
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such persons, beneficially owns or has a right to acquire any equity security
of the Company and (ii) none of Purchaser or Parent or, to the best knowledge
of Purchaser or Parent, any of the other persons referred to above, or any of
the respective directors, executive officers or subsidiaries of any foregoing,
has effected any transaction in any equity security of the Company during the
past 60 days.
Except as described in this Offer to Purchase, (i) none of Purchaser, Parent
or, to the best knowledge of Purchaser or Parent, any of the persons listed in
Schedule I has any contract, arrangement, understanding or relationship
(whether or not legally enforceable) with any other person with respect to any
securities of the Company, including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer of the
voting of any such securities, joint ventures, loan or option arrangements,
puts or calls, guarantees of loans, guarantees against loss, or the giving or
withholding of proxies; (ii) there have been no contacts, negotiations or
transactions between Purchaser, Parent or any of their respective subsidiaries
or, to the best knowledge of Purchaser or Parent, any of the persons listed on
Schedule I, on the one hand, and the Company or any of its directors, officers
or affiliates, on the other hand, concerning a merger, consolidation or
acquisition, tender offer or other acquisition of securities, election of
directors, a sale or other transfer of a material amount of assets or
concerning any other transactions with the Company that are required to be
disclosed pursuant to the rules and regulations of the Commission.
9. BACKGROUND OF THE MERGER AND THE OFFER
During recent years, officers of the Company and employees of Parent's
Microelectronics Division have periodically discussed areas of mutual
strategic business interest. David J. Ferran, the President and Chief
Executive Officer of the Company, has served on an advisory committee of
Parent's Microelectronics Division since December 1995. Accordingly, when the
Company's Board of Directors announced that it was evaluating the sale of the
Company, employees of Parent were already acquainted with Company personnel.
On August 29, 1996, Parent and the Company entered into a confidentiality
agreement providing for the mutual non-disclosure of confidential information
exchanged by Parent and the Company and also providing for a one-year
standstill by Parent.
On September 23, 1996, Goldman Sachs & Co. ("Goldman Sachs"), acting on
behalf of a Special Committee of the Company's Board of Directors, distributed
a Confidential Offering Memorandum to Parent; supplemental confidential
information was supplied to Parent by Goldman Sachs on October 11, 1996.
On October 1, 1996, Goldman Sachs wrote to Parent inviting Parent to submit
a non-binding proposal to acquire the Company and setting forth the timing and
procedures for submitting such a proposal. On October 16, 1996, Parent
transmitted a letter to Goldman Sachs expressing Parent's non-binding interest
in acquiring the Company. On October 25, 1996, Parent entered into an
amendment to the above-mentioned confidentiality agreement with the Company
which shortened the duration of the standstill agreement to 120 days
commencing on October 18, 1996.
On November 5 and 6, 1996, certain employees of Parent and Parent's
financial advisor met with David J. Ferran, Don Whitson and certain other
employees of the Company and the Company's financial advisor. At such
meetings, employees of the Company made a financial presentation to Parent's
employees and financial advisor and discussed various aspects of the Company's
business.
During the period from November 7, 1996 through December 10, 1996, employees
of Parent met with Company officers and employees and representatives of
Goldman Sachs, visited Company facilities, and exchanged numerous telephone
calls with respect to Parent's due diligence inquiry into the Company's
business and other matters.
On November 12, 1996, Parent was invited by Goldman Sachs, on behalf of a
Special Committee of the Board of Directors of the Company, to submit to the
Company a definitive acquisition proposal on or before
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<PAGE>
November 26, 1996. Following discussions between Goldman Sachs and Parent's
counsel, the deadline for Parent to submit such acquisition proposal was
extended through December 12, 1996.
On December 5, 1996, Gerald Walle, the General Manager of Parent's
Microelectronics Division, met with David J. Ferran to clarify the Company's
obligations to Mr. Ferran in the event of a change of control of the Company.
On December 10 through 16, 1996, Parent and its advisors and representatives
engaged in negotiations with the Company and its advisors and representatives
with respect to the Merger Agreement.
On December 12, 1996, Parent's Board of Directors, at a regular meeting,
discussed the proposed transaction, and received presentations from Parent's
management and financial advisors concerning the Company's business and
prospects. Parent's Board then authorized Parent's management to negotiate a
definitive merger agreement with the Company. On December 13, 1996, Parent
made a definitive offer to acquire the Company at a per share cash price of
$16.00, subject to the satisfaction of certain conditions.
On December 16, 1996, after the Board of Directors of the Company had met
and voted to enter into the Merger Agreement and to recommend that
stockholders accept the Offer, the Merger Agreement was executed and delivered
by the Company, Parent and Purchaser. The Company and Parent then issued the
following joint press release:
MILLIPORE TO ACQUIRE TYLAN GENERAL
Bedford, Massachusetts, December 16, 1996--Millipore Corporation
(NYSE/MIL) and Tylan General (NASDAQ/TYGN) announced today that Millipore
has entered into a definitive agreement to acquire Tylan General for $16.00
per share in cash, or approximately $133 million, plus the assumption of
Tylan's outstanding debt. Completion of this transaction is expected in the
first quarter of 1997.
Tylan General is a leading supplier to the microelectronics industry of
precision mass flow controllers, pressure and vacuum measurement and
control equipment and ultraclean gas panels. The Company has been a leading
developer of measurement and control products and technologies to measure
and control the flow of process gases used in the manufacturing of
semiconductor devices, including introducing the first mass flow
controllers for semiconductor applications and the first adaptive pressure
control system. Headquartered in San Diego, California, Tylan had 1996
sales of approximately $150 million.
C. William Zadel, Millipore's Chairman and CEO, commented: "The
acquisition of Tylan General significantly strengthens Millipore's
competitive position in microelectronics, the Company's fastest growing
market over the past three years. It expands our product and service
offering to our microelectronics customers, accelerates our R&D program in
gas monitoring, and adds excellent software and electronic skills to our
core competencies. The acquisition also combines two breakthrough
technology platforms: Tylan's intelligent gas panels and Millipore's smart
purifiers, which will allow us to develop integrated products for the gas
market that offer greater reliability and lower cost. We will also continue
to serve our existing customers with separate components as well as
integrated systems that combine Millipore and Tylan technologies. Together
we will be able to help the microelectronics industry sustain its
incredible pace of performance improvements and cost reduction in
manufacturing integrated circuit devices."
Zadel continued: "This acquisition and our recent purchase of Amicon fit
perfectly into our recently completed long-range strategic plan, and both
present unique opportunities to strengthen Millipore for the future.
Biotechnology-derived drugs and increasingly powerful semiconductor devices
require new purification tools for discovery and manufacturing; these
acquisitions help us meet that technical and market need."
Arthur C. Spinner, Chairman of the Special Committee of the Board of
Directors of Tylan General that supervised the process of soliciting bids
for the acquisition of Tylan General, commented: "This
14
<PAGE>
transaction represents the culmination of an extensive auction process that
we believed was designed to provide the best financial opportunity for the
stockholders of Tylan General."
David J. Ferran, Chairman and Chief Executive Officer of Tylan General,
added, "I am very enthusiastic about this transaction and the prospects
offered by a combination of our business with that of Millipore. This
transaction will be beneficial for Tylan General's employees, customers and
suppliers, as well as for its stockholders."
Millipore intends to finance the acquisition of Tylan General with bank
borrowings and expects the acquisition to be accretive to earnings by the
second half of 1997 and to significantly enhance the long-term growth of
Millipore's revenues and profits. Millipore will, within five business
days, commence a tender offer at $16.00 per share for all the shares of
Tylan General. The offer is subject to the condition that a majority of the
shares are tendered. The tender offer, if successful, will be followed as
promptly as possible by a merger in which any remaining shares of Tylan
General stock will be converted into the right to receive $16.00 per share
in cash.
Millipore was advised in the acquisition by Credit Suisse First Boston;
Tylan General was advised by Goldman, Sachs & Co.
Millipore is a multinational company that applies its purification
technology to critical research and manufacturing problems in the
microelectronics, biopharmaceutical and analytical laboratory markets.
More information on Millipore can be found at www.millipore.com; and on
Tylan at www.tylangeneral.com.
Certain statements discussed in this news release are forward-looking
statements that involve a number of risks and uncertainties. In addition to
the factors discussed above, among the other factors that could cause
actual results to differ materially are the following: changes in foreign
exchange rates; increased regulatory concerns on the part of the
biopharmaceutical industry; swings in demand for microelectronics products;
competitive factors such as new membrane technology and/or a new method of
chip manufacture which relies less heavily on purified chemicals and gases;
and other risk factors listed from time to time in the Company's SEC
reports, including but not limited to the report on the Form 10-K for the
year ended December 31, 1995.
* * *
On December 16, 1996, Parent entered into a letter agreement with David J.
Ferran, Chairman of the Board, President and Chief Executive Officer of the
Company, which is described in Item 10.
The Purchaser commenced the Offer on December 20, 1996.
Following the Offer and the Merger, the Parent intends to operate the
Company on a basis generally consistent with the Company's existing plans and
programs while at the same time integrating operations with the gas strategic
business unit of Parent's Microelectronics Division.
10. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; THE VOTING AGREEMENT; THE
FERRAN AGREEMENT; THE CONFIDENTIALITY AGREEMENT
PURPOSE OF THE OFFER
The purpose of the Offer is to acquire any and all outstanding Shares and to
facilitate the Merger, which the Board of Directors of the Company believes is
in the best interest of the Company's stockholders. The Offer also provides an
opportunity to existing stockholders of the Company to sell Shares of the
Company for cash at a premium over recent trading prices. See Section 6.
THE MERGER AGREEMENT
The following is a brief summary of certain provisions of the Merger
Agreement, a copy of which is attached as Annex I to this Offer to Purchase
and is incorporated herein by reference. This summary does not
15
<PAGE>
purport to be complete and is qualified in its entirety by reference to the
Merger Agreement. ALL STOCKHOLDERS OF THE COMPANY ARE URGED TO READ THE MERGER
AGREEMENT IN ITS ENTIRETY. Capitalized terms not defined herein have the
meanings set forth in the Merger Agreement.
The Offer. Pursuant to the Merger Agreement, Purchaser has made an offer to
purchase all the outstanding Shares at a price of $16.00 per Share in cash,
without interest thereon, upon the terms and subject to the conditions set
forth in the Offer Documents (as defined in the Merger Agreement).
The Merger. The Merger Agreement provides that, upon the terms and subject
to the conditions of the Merger Agreement, and in accordance with Delaware
Law, Purchaser will be merged with and into the Company. Following the
effective time of the merger (the "Effective Time"), the separate corporate
existence of Purchaser will cease and the Company will continue as the
surviving corporation (sometimes referred to hereinafter as the "Surviving
Corporation"), and will succeed to and assume all the rights and obligations
of Purchaser in accordance with Delaware Law. The Certificate of Incorporation
of Purchaser (the "Certificate"), in effect at the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation, until duly amended
in accordance with the terms thereof and the Delaware General Corporation Law
(the "DGCL"); provided, however, that at the Effective Time, the Certificate
shall be amended to change the name of the Surviving Corporation to "Tylan
General, Inc." The Bylaws of Purchaser in effect at the Effective Time shall
be the Bylaws of the Surviving Corporation, until duly amended in accordance
with the terms thereof and the DGCL.
Conversion of Shares. At the Effective Time, each Share issued and
outstanding immediately prior to the Effective Time (other than Shares owned
by Parent, the Company, Purchaser or any other subsidiary of Parent 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 $16.00
or such greater amount which may be paid pursuant to the Offer (the "Merger
Consideration").
Conditions to the Merger. The Merger Agreement provides that the
consummation of the Merger is subject to the satisfaction of the following
conditions: (a) if approval of the Merger by the holders of Shares is required
by applicable law, the Merger shall have been approved by the requisite vote
of such holders; (b) no injunction or other order shall have been issued or
any law enacted which prohibits the consummation of the Merger or makes such
consummation illegal; provided, however, that prior to either party invoking
this provision, such party shall have used its reasonable best efforts to have
any such injunction lifted; and (c) the waiting period applicable to the
consummation of the Merger under the HSR Act shall have expired or been
terminated and all consents, approvals and authorizations required to be
obtained prior to the Effective Time by the Company from any governmental
entity in connection with the execution and delivery of the Merger Agreement
by the Company and the consummation of the transactions contemplated thereby
by the Company, Parent and Purchaser shall have been made or obtained (as the
case may be) except where the failure to obtain the same would not have a
material adverse effect on the financial condition, properties, businesses or
results of operations of the Company and its subsidiaries taken as a whole.
Representations and Warranties. Pursuant to the Merger Agreement, the
Company has made customary representations and warranties to Parent relating
to the Company and each of its subsidiaries, including, among other things,
with respect to organization and qualification, certificates of incorporation
and bylaws, capitalization, authority relative to the Merger Agreement,
consents and approvals, filings with the Commission, financial statements,
absence of certain changes or events, absence of litigation, employee benefit
plans, taxes, proprietary rights, opinions of financial advisors, brokers,
compliance with environmental laws, and the Rights Agreement.
Parent and Purchaser have also made customary representations and warranties
to the Company relating to Parent and each of its subsidiaries and Purchaser,
including, among other things, with respect to organization and qualification,
authority relative to the Merger Agreement, consents and approvals, filings
with the Commission, brokers, financing for the Offer and the Merger, and
prior activities.
16
<PAGE>
Conduct of Business by the Company. The Merger Agreement provides that,
prior to the Effective Time (unless Parent shall otherwise agree in writing
and except as otherwise contemplated by the Merger Agreement): (a) the
business of the Company and its subsidiaries shall be conducted only in the
ordinary and usual course and, to the extent consistent therewith, each of the
Company and its subsidiaries shall use its reasonable best efforts to preserve
its business organization intact and maintain satisfactory relations with
customers, suppliers, employees and business associates, in each case in all
material respects; (b) the Company shall not (i) sell, pledge, dispose of or
encumber or agree to sell or pledge any stock owned by it in any of its
subsidiaries; (ii) amend its Certificate or Bylaws or increase or propose to
increase the number of directors of the Company; (iii) split, combine or
reclassify the outstanding Shares; or (iv) declare, set aside or pay any
dividend payable in cash, stock or property with respect to the Shares; (c)
neither the Company nor any of its subsidiaries shall (i) issue, sell, pledge,
dispose of or encumber any additional shares of, or securities convertible or
exchangeable for, or options, warrants, calls, commitments or rights of any
kind to acquire, any shares of its capital stock other than, in the case of
the Company, Shares issuable pursuant to options outstanding on the date of
the Merger Agreement under any stock option plan of the Company; (ii)
transfer, lease, license, guarantee, sell, mortgage, pledge, dispose of or
encumber any assets or incur or modify any indebtedness or other liability
involving an amount in excess of $100,000 in the aggregate other than in the
ordinary and usual course of business; (iii) acquire directly or indirectly by
redemption or otherwise any shares of the capital stock of the Company; (iv)
incur any indebtedness for borrowed money (except for working capital under
the Company's existing credit facilities and refinancings of existing debt
that permit prepayment of such debt without penalty) in excess of $100,000 in
the aggregate, or assume or endorse the obligations of any other person or
entity; (v) make any acquisition of, or investment in, assets or stock of any
other person or entity involving an amount in excess of $100,000 in the
aggregate other than in the ordinary course of business or (vi) make or
authorize any capital expenditure in excess of $500,000 in the aggregate; (d)
except for normal increases in the ordinary course of business that are
consistent with past practices and that, in the aggregate, do not result in a
material increase in benefits or compensation expense, adopt or amend (except
as may be required by law or as provided in the Merger Agreement) any bonus,
profit sharing, compensation, severance, termination, stock option, stock
appreciation right, restricted stock, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreements,
trusts, plans, funds or other arrangements for the benefit or welfare of any
director, officer or employee, or increase in any manner the compensation or
fringe benefits of any director, officer or employee or pay any benefit not
required by any existing plan or arrangement (including, without limitation,
the granting of stock options, stock appreciation rights, shares of restricted
stock or performance units) or enter into any contract, agreement, commitment
or arrangement to do any of the foregoing; (e) neither the Company nor any of
its subsidiaries shall, except in the ordinary and usual course of business,
enter into any material agreement or modify, amend or terminate any of its
material agreements or waive, release or assign any material rights or claims
thereunder; and (f) neither the Company nor any of its subsidiaries will
authorize or enter into an agreement to do any of the foregoing.
Acquisition Proposals. Pursuant to the Merger Agreement, the Company has
agreed that neither the Company nor any of its subsidiaries nor any of the
respective officers and directors of the Company or its subsidiaries shall,
and the Company shall direct and use its best efforts to cause its employees,
agents and representatives (including, without limitation, any investment
banker, attorney or accountant retained by the Company or any of its
subsidiaries) not to, initiate, continue, solicit or encourage, directly or
indirectly, any inquiries or the making of any proposal or offer (including,
without limitation, any proposal or offer to stockholders of the Company), or
furnish any non-public information to any third party, with respect to a
merger, consolidation, business combination or similar transaction involving,
or any tender offer, exchange offer or other purchase of all or any
significant portion of the assets or any equity securities of, the Company or
any of its subsidiaries (any such proposal or offer being hereinafter referred
to as an "Acquisition Proposal") or, unless the Board receives an unsolicited
written offer with respect to a merger, consolidation or sale of all or
substantially all of the Company's assets, or an unsolicited tender or
exchange offer for the Shares is commenced, which the Board determines in good
faith (after receiving advice of independent legal counsel that such action is
required for the discharge of their fiduciary duties) is more favorable to the
stockholders of the Company than the Offer (an "Alternative Transaction"),
engage in any negotiations concerning, or provide any confidential
17
<PAGE>
information or data to, or have any discussions with, any person relating to
an Acquisition Proposal, or otherwise facilitate any effort or attempt to make
or implement an Acquisition Proposal. The Company will immediately cease and
cause to be terminated any existing activities, discussions or negotiations
with any parties conducted prior to the execution of the Merger Agreement with
respect to any of the foregoing. The Company will as promptly as reasonably
practicable (and in any event within 24 hours) notify Parent (i) if any such
inquiries or proposals are received by, any such information is requested
from, or any such negotiations or discussions are sought to be initiated with
the Company, (ii) of its receipt of an Acquisition Proposal or (iii) of the
existence of an Alternative Transaction. Prior to furnishing non-public
information to, or entering into discussions or negotiations with, any other
persons or entities, the Company shall obtain from such person or entity an
executed confidentiality agreement with terms no less favorable, taken as a
whole, to the Company than those contained in the Confidentiality Agreement,
but which confidentiality agreement shall not include any provision calling
for an exclusive right to negotiate with the Company, and the Company shall
advise Parent of all such nonpublic information delivered to such person
concurrently with its delivery to the requesting party.
Termination of the Merger Agreement. The Merger Agreement may be terminated
and the Merger may be abandoned at any time prior to the Effective Time of the
Merger, whether before or after the approval of the terms of the Merger
Agreement by the shareholders of the Company:
(1) by mutual consent of Parent and the Company, by action of their
respective Boards of Directors;
(2) by either Parent or the Company, if (a) without fault of the
terminating party, the Merger shall not have been consummated by June 30,
1997 whether or not such date is before or after the approval by holders of
Shares; or (b) any court of competent jurisdiction or other governmental
body located or having jurisdiction within the United States or any country
or economic region in which the Company or any of its subsidiaries or the
Parent or any of its affiliates, directly or indirectly, has material
assets or operations, shall have issued an order, decree or ruling or taken
any other action restraining, enjoining or otherwise prohibiting the Offer
or the Merger and such order, decree, ruling or other action shall have
become final and non-appealable;
(3) until any Shares have been purchased pursuant to the Offer, by Parent
if (x) the Company shall have failed to comply in any material respect with
the convenants or agreements contained in the Merger Agreement to be
complied with or performed by the Company at or prior to such date of
termination and, with respect to any such failure that can be remedied, the
failure is not remedied within fifteen days after Parent has furnished the
Company with written notice of such failure, or (y) the Board of Directors
of the Company shall have withdrawn or modified in a manner materially
adverse to Parent or Purchaser its approval or recommendation of the Offer,
the Merger Agreement or the Merger or shall have resolved to do any of the
foregoing;
(4) by the Company, if Parent or Purchaser (or another subsidiary of
Parent) (i) shall have failed to comply in any material respect with the
covenants or agreements contained in the Merger Agreement to be complied
with or performed by Parent or Purchaser at or prior to such date of
termination and, with respect to any such failure that can be remedied, the
failure is not remedied within fifteen days after the Company has furnished
Parent with written notice of such failure, (ii) shall have failed to
commence the Offer within the time required or (iii) shall have terminated
or withdrawn the Offer or amended the Offer in any manner not expressly
permitted by the Merger Agreement; or
(5) (a) by either Parent or the Company, if that entity is not in
material breach of any of the terms of the Merger Agreement, not sooner
than the third business day after the Company's notice to Parent (or
Parent's becoming aware) that the Company has entered into an agreement
providing for an Alternative Transaction; or (b) by Parent, if the Board of
Directors of the Company shall have withdrawn or modified in any manner
adverse to Parent or Purchaser its approval of the Offer, the Merger
Agreement and the Merger or its recommendation that the Company's
stockholders accept the Offer.
In the event of termination and abandonment of the Merger Agreement, the
Merger Agreement shall forthwith become void and have no further effect, other
than certain limited provisions. No such termination and abandonment shall
relieve any party from liability for any breach of the Merger Agreement, and,
if the Merger
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Agreement is terminated for any reason set forth in clause (5) above, the
Company will be obligated to pay Parent a non-refundable fee of $5,000,000.
If the Merger Agreement is terminated as a result of the Company's failure
to provide to Parent audited financial statements for the fiscal year ended
October 27, 1996 prior to the Expiration Date (subject to specified
exceptions) that are the same in all material respects as the preliminary
financial statements for such fiscal year previously furnished to Parent and
contain notes that do not include any information that is different from that
provided to Parent under or pursuant to the Merger Agreement (to the extent
that such difference constitutes a Company Material Adverse Effect), the
Company must pay Parent a non-refundable fee of $75,000.
Expenses. Except as provided above, whether or not the Merger is
consummated, each party shall pay its own expenses incident to preparing for,
entering into and carrying out the Merger Agreement and the consummation of
the Merger.
Board of Directors. The Merger Agreement provides that if requested by
Parent, the Company will, subject to compliance with applicable law and
immediately following the purchase by Purchaser of more than 50% of the
outstanding Shares pursuant to the Offer, take all actions necessary to cause
persons designated by Parent to become directors of the Company so that the
total number of such persons equals that number of directors, rounded up to
the next whole number, which represents the product of (x) the total number of
directors on the Board of Directors multiplied by (y) the percentage that the
number of Shares so purchased plus any Shares beneficially owned by Parent or
its Affiliates on the date of the Merger Agreement bears to the number of
shares outstanding at the time of such purchase; provided, however, that in no
event shall Parent be entitled to designate a majority of the Board of
Directors unless it is the beneficial owner of Shares entitling it to exercise
at least a majority of the voting power of the Company's outstanding shares
entitled to vote generally in the election of directors. In furtherance
thereof, the Company will use its reasonable best efforts to secure the
resignation of all but three directors, or will increase the size of the
Board, or both, as is necessary to permit Parent's designees to be elected to
the Company's Board of Directors; provided, however, that prior to the
Effective Time, the Company's Board of Directors shall always have at least
three Continuing Directors. Immediately following the purchase by Purchaser of
more than 50% of the outstanding shares pursuant to the Offer, the Company, if
so requested, will use its reasonable efforts to cause persons designated by
Parent to constitute the same percentage of each committee of such board, each
board of directors of each subsidiary of the Company and each committee of
each such board (in each case to the extent of the Company's ability to elect
such persons). The Company's obligations to appoint designees to the Board of
Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1
thereunder. The Company shall promptly take all actions required in order to
fulfill these obligations.
Following the election or appointment of Parent's designees, and prior to
the Effective Time, the approval of a majority of the Continuing Directors
shall be required to authorize (and such authorization shall constitute the
authorization of the Board of Directors of the Company and no other action on
the part of the Company, including any action by any other director of the
Company, shall be required to authorize) any termination of the Merger
Agreement by the Company, any amendment of the Merger Agreement requiring
action by the Board of Directors of the Company, any extension of time for the
performance of any of the obligations or other acts of Parent or Purchaser,
any waiver of compliance with any of the agreements or conditions contained in
the Merger Agreement for the benefit of the Company or any other rights of the
Company hereunder, and any amendment or withdrawal by the Board of Directors
of the Company of its recommendation of the Merger.
Stock Options. Pursuant to the Merger Agreement, Parent and the Company have
agreed that not later than the Effective Time and continuing for a period of
at least 120 days after the Effective Time, Parent shall offer in writing to
each holder of a Company Stock Option (whether or not such Company Stock
Option terminated effective as of the Effective Time by virtue of the Merger
or would have terminated thereafter) the opportunity to have such Company
Stock Option canceled and to receive an amount in cash equal to the excess of
the Merger Consideration over the exercise price per Share of such Company
Stock Option multiplied by the number of Shares previously subject to such
Company Stock Option, less all applicable withholding taxes. Whether or not
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vested, any Company Stock Options not tendered for cancellation pursuant to
such offer shall continue to be governed by the terms of such Company Stock
Option and the applicable Company Stock Option Plan. The Company will have the
right to amend the terms of any Company Stock Option outstanding on the date
of the Merger Agreement so that it would become vested immediately prior to
the Effective Time. The Company will have the right to cause all funds held in
the Company's Employee Stock Purchase Plan to be used to purchase Shares so
that such Shares will be converted into the right to receive cash in the
Merger; provided that the Employee Stock Purchase Plan is thereupon
terminated.
Employee Benefits. Pursuant to the Merger Agreement, Parent shall (i) cause
the Surviving Corporation to provide to employees of the Company and its
subsidiaries, who are employed by the Surviving Corporation or its
subsidiaries following the Effective Time ("Company Employees"), employee
benefits which in the aggregate are equal to benefits substantially comparable
to those currently provided by the Company to such employees, (ii) in the
event that Company Employees are or become eligible to participate in any
plans maintained by Parent or its subsidiaries (the "Parent Benefit Plans"),
Parent or its subsidiaries shall grant such eligible employees credit for
purposes of eligibility, vesting and benefit accrual, for all service credited
for such purposes under comparable Company Benefit Plans, provided, however,
that, with respect to Parent's retirement plans, such service with the Company
shall be credited with respect to eligibility and vesting only, and shall not
be recognized for purposes of determining the amount of retirement benefits,
if any, under Parent's retirement plans, and (iii) with regard to any pre-
existing condition exclusion under any Parent Benefit Plan providing medical
or dental benefits, the exclusion shall be no more restrictive for any Company
Employee who, immediately prior to commencing participation in such Parent
Benefit Plan, was participating in a Company Benefit Plan providing medical or
dental benefits and had satisfied any pre-existing condition provision under
such Company Benefit Plan. Any expenses that were taken into account under a
Company Benefit Plan providing medical or dental benefits in which the Company
Employee participated immediately prior to commencing participation in a
Parent Benefit Plan providing medical or dental benefits shall be taken into
account to the same extent under such Parent Benefit Plan, in accordance with
the terms of such Parent Benefit Plan, for purposes of satisfying applicable
deductible, coinsurance and maximum out-of-pocket provisions and lifetime
benefit limits.
Indemnification and Insurance. In the Merger Agreement, Parent and the
Company have agreed that (i) the Certificate of Incorporation of the Surviving
Corporation shall contain provisions with respect to indemnification not less
favorable to the directors and officers then those set forth in the
Certificate of Incorporation of the Company on the date of the Merger
Agreement, which provisions shall not be amended, repealed or otherwise
modified for a period of six years after the Effective Time in any manner that
would adversely affect the rights thereunder of individuals who at the
Effective Time were directors or officers of the Company in respect of actions
or omissions occurring at or prior to the Effective Time (including, without
limitation, the transactions contemplated by the Merger Agreement), unless
such modification is required by Law, (ii) Parent shall cause the Surviving
Corporation to use its reasonable best efforts to maintain in effect for six
years from the Effective Time, if available, the coverage provided by the
current directors' and officers' liability insurance policies maintained
(provided that the Surviving Corporation may substitute therefor policies of
at least the same coverage containing terms and conditions which are not
materially less favorable) with respect to matters occurring prior to the
Effective Time; provided, however, that Surviving Corporation is not required
to incur any annual premium in excess of 200% of the last annual aggregate
premium paid prior to the date of this Agreement for all current directors'
and officers' liability insurance policies maintained by the Company, which
the Company represents and warrants to be $150,000 (the "Current Premium");
and provided further that if premiums for such insurance would at any time
exceed 200% of the Current Premium, then the Surviving Corporation shall cause
to be maintained policies of insurance which, in the Surviving Corporation's
good faith determination, provide the maximum coverage available at an annual
premium equal to 200% of the Current Premium, and (iii) the indemnification
shall survive the Effective Time, and is intended to be for the benefit of,
and shall be enforceable by, the Indemnified Parties and shall be binding on
Parent and Purchaser and the Surviving Corporation and their respective
successors and assigns. Parent will guarantee the indemnification obligations
of the Surviving Corporation under the Merger Agreement.
Merger Approval. The Merger Agreement provides that, if approval by the
Company's stockholders is required by applicable law to consummate the Merger,
the Company will, as soon as practicable following the consummation of the
Offer, hold an annual or special meeting of its stockholders to consider and
take action upon the Merger Agreement, including in the proxy statement the
recommendation of the Board of Directors of
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the Company that stockholders vote in favor of the approval of adoption of the
Merger Agreement and the transactions contemplated thereby. At such meeting,
Parent and Purchaser will vote all Shares owned by them in favor of the Merger
Agreement and the transactions contemplated thereby.
VOTING AGREEMENT
On December 16, 1996, David J. Ferran and Don E. Whitson and certain related
persons (each individually, a "Securityholder" and collectively, the
"Securityholders") of the Company and Parent and Purchaser entered into a
Voting and Securities Purchase Agreement (the "Voting Agreement"). This brief
summary of the Voting Agreement does not purport to be complete and is
qualified in its entirety by reference to the Voting Agreement, a copy of
which is attached hereto as Annex II to this Offer to Purchase and is
incorporated herein by reference. Messrs. Ferran and Whitson own or control
189,309 and 734,103 Shares, respectively, and options to purchase an
additional 120,312 and 75,000 Shares, respectively. The other Securityholders
who are subject to the Voting Agreement own an aggregate of 405,649 Shares and
options to purchase an aggregate of 20,000 additional Shares. The Voting
Agreement shall terminate upon the earlier to occur of (i) the mutual consent
of Parent, Purchaser and each of the Securityholders, (ii) the termination of
the Merger Agreement or (iii) the Effective Time of the Merger.
Pursuant to the Voting Agreement, each Securityholder agreed that: (i) such
Securityholder would validly tender (and not withdraw) pursuant to and in
accordance with the terms of the Offer, all Shares owned by such
Securityholder; (ii) subject to the fiduciary duty of any Securityholder
serving as a director or officer of the Company, in its capacity as such, such
Securityholder shall assist and cooperate with the parties to the Merger
Agreement in doing all things necessary, proper or advisable under applicable
laws as promptly as practicable to consummate and make effective the Offer and
the Merger and the other transactions contemplated by the Merger Agreement;
and (iii) such Securityholder shall not, directly or indirectly, solicit,
initiate or continue or encourage or take other action to facilitate any
inquiries or the making of any proposal that constitutes or may reasonably be
expected to lead to an Acquisition Proposal or an Alternative Transaction from
any person other than Parent or Purchaser, or engage in any discussions or
negotiations relating thereto or in furtherance thereof or accept or enter
into any agreement with respect to any Acquisition Proposal; provided,
however, that notwithstanding any other provision of the Voting Agreement, if
such Securityholder is a director or officer of the Company, such
Securityholder may take any action, including casting a vote or signing a
written consent, in such person's capacity as a director or officer that the
Board of Directors of the Company would be permitted to take under the Merger
Agreement with respect to an Acquisition Proposal; (iv) it shall not, except
pursuant to the Merger Agreement or the Voting Agreement, sell, transfer,
pledge, hypothecate, encumber or otherwise dispose of (or enter into an
agreement to do the foregoing) any of such Securityholder's interest in his or
her Shares; and (v) except pursuant to the Voting Agreement, such
Securityholder shall not grant any proxies, deposit any Shares into a voting
trust or enter into any voting agreement with respect to any Shares.
Each Securityholder further agreed that, during the term of the Voting
Agreement, at any meeting of stockholders of the Company, and in any action by
written consent of the stockholders of the Company, to: (i) vote all Shares
then owned by such Securityholder in favor of adoption of the Merger Agreement
and each of the other transactions contemplated thereby and any action
required in furtherance thereof; (ii) vote such Shares against any action or
agreement that would result in a breach in any material respect of any
covenant, representation or warranty or any other obligation of the Company
under the Merger Agreement; and (iii) vote such Shares against any Acquisition
Proposal, Alternative Transaction or any other action or agreement that,
directly or indirectly, is inconsistent with or that would, or is reasonably
likely to, directly or indirectly, impede, interfere with or attempt to
discourage the Offer or the Merger or any other transaction contemplated by
the Merger Agreement; provided, however, that if such Securityholder is a
director or officer of the Company, nothing in the Voting Agreement shall be
construed to obligate such Securityholder to act, in such Securityholder's
capacity as a director or officer, in any manner which conflicts with such
person's fiduciary duties as a director or officer of the Company. In
furtherance of the foregoing, each Securityholder appointed Parent and the
officer of Parent, and each of them, with full power or substitution in the
premises, such Securityholder's proxies to vote all such Securityholder's
Shares at any meeting, general or special, of the
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stockholders of the Company, and to execute one or more written consents or
other instruments from time to time in order to take such action without the
necessity of a meeting of the stockholders of the Company, in accordance with
the provisions of this paragraph.
FERRAN AGREEMENTS
On December 16, 1996, Parent entered into a letter agreement with David J.
Ferran, Chairman of the Board, President and Chief Executive Officer of the
Company. Pursuant to the Letter Agreement, Parent has agreed to pay Mr. Ferran
a lump sum payment of $851,425 and to provide, at Parent's expense, certain
medical, dental and hospitalization benefits, following the consummation of
the Merger. Parent also agreed that it will accelerate the vesting schedule of
all stock options held by current participants in the Company's stock option
plans. In addition, Parent agreed to enter into a consulting agreement with
Mr. Ferran upon the termination of his employment following the Merger. Such
consulting agreement will require Parent to pay Mr. Ferran a lump sum in the
amount of $1,702,850 for his services thereunder. Mr. Ferran has agreed that
upon payment of the $851,425 and execution of the consulting agreement, all
prior agreements between the Company and Mr. Ferran relating to his employment
or the termination of his employment will be of no further force and effect.
CONFIDENTIALITY AGREEMENT
The following summary of the Confidentiality Agreement does not purport to
be complete and is qualified in its entirety by reference to the complete text
of the Confidentiality Agreement, which is filed as an exhibit to the Schedule
14D-1 and is incorporated herein by reference.
On August 29, 1996, the Company and Parent entered into a letter agreement
which was subsequently amended on October 25, 1996, providing for the non-
disclosure of certain confidential information to be provided by the Company
to Parent. The Confidentiality Agreement provides that for a period of 120
days commencing on October 18, 1996, Parent will not, without the written
invitation of a special committee comprised of independent members of the
Board of Directors of the Company (the "Special Committee") (a) effect or
seek, offer or propose (whether publicly or otherwise) to effect, or cause or
participate in or in any way assist any other person to effect or seek, offer
or propose (whether publicly or otherwise) to effect or paricipate in (i) any
acquisition of any securities (or beneficial ownership thereof) or assets of
the Company; (ii) any tender or exchange offer, merger or other business
combination involving the Company; (iii) any recapitalization, restructuring,
liquidation, dissolution or other extraordinary transaction with respect to
the Company; or (iv) any "solicitation" of "proxies" (as such terms are used
in the proxy rules of the Commission) or consents to vote any voting
securities of the Company; (b) form, join or in any way participate in a
"group" (as defined under the Securities Exchange Act of 1934, as amended);
(c) otherwise act, alone or in concert with others, to seek to control or
influence the management, Board of Directors or policies of the Company; (d)
take any action which might force the Company to make a public announcement
regarding any of the types of matters set forth in (a) above; or (e) enter
into any discussions or arrangements with any third party with respect to any
of the foregoing. Parent also agreed that during such 120-day period Parent
will not request the Special Committee, directly or indirectly, to amend or
waive any provision set forth in clauses (a) through (e) above, or in this
sentence.
Parent also agreed that for a period of two years commencing on August 29,
1996, neither Parent nor any of its affiliates will solicit to employ any of
the current officers or employees of the Company with whom Parent has had
contact or who was specifically identified to Parent during its investigation
of the Company, without obtaining the prior written consent of the Special
Committee.
11. SOURCE AND AMOUNT OF FUNDS
The total amount of funds required by Purchaser and Parent to consummate the
Offer and the Merger and to pay related fees and expenses is estimated to be
approximately $135 million. Purchaser will obtain all funds required by it
from Parent. Parent will cause the required funds to be made available to
Purchaser and Parent
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expects to obtain all required funds (together with all funds necessary to
complete the Amicon Acquisition (see Item 8) from unsecured short term bank
borrowings at market interest rates. Such borrowings may be repaid by Parent
from time to time, in whole or in part, from internally generated funds or
from the proceeds of other borrowings.
12. CERTAIN EFFECTS OF THE OFFER
Following the consummation of the Offer, Purchaser will own at least a
majority of the outstanding Shares of the Company. As a result of such
ownership, Purchaser will be in a position to control the outcome of any
matter voted upon at any annual or special meeting of the Company's
stockholders, including the election of directors and the approval of the
Merger and the adoption of the Merger Agreement. If at least 90% of the
outstanding Shares are purchased by Purchaser in the Offer, the Board of
Directors of Purchaser will have the ability to approve the Merger and adopt
the Merger Agreement without any action by the remaining stockholders of the
Company. If at least 90% of the Shares are purchased by Purchaser in the
Offer, Purchaser intends so to approve the Merger and adopt the Merger
Agreement without any action by the remaining stockholders of the Company.
Parent and Purchaser have agreed to vote all Shares held by them in favor of
the Merger Agreement and the transactions contemplated thereby. Approval of
the Merger requires the affirmative vote of a majority of the outstanding
Shares. Accordingly, if the Offer is consummated, the approval of the Merger
and the adoption of the Merger Agreement by the Company's stockholders will be
assured.
In the Merger, each remaining Share (other than Shares held by Parent, the
Company, Purchaser or any subsidiary of Parent or by any holders of Shares who
properly exercise their appraisal rights) will be cancelled and converted into
the right to receive $16.00 per Share in cash. Following the Merger, the
Company will be a wholly owned subsidiary of Parent.
Promptly upon the purchase by Purchaser of Shares pursuant to the Offer and
from time to time thereafter, Purchaser will be entitled to designate a number
of directors on the Company's Board of Directors equal to the product of (i)
the total number of directors on the Company's Board of Directors and (ii)
Purchaser's percentage ownership of the outstanding Shares of the Company. The
Company will either increase the size of the Company's Board of Directors or
secure the resignation of the necessary number of directors to enable
Purchaser's designees to be elected to the Company's Board of Directors, and
will cause such designees to be elected to the Company's Board of Directors.
See Item 10 above.
The Shares are currently "margin securities", as such term is defined under
the rules of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of
allowing brokers to extend credit on the collateral of such securities.
Following the Offer it is possible that the Shares might no longer constitute
"margin securities" for purposes of the margin regulations of the Federal
Reserve Board, in which event such Shares could no longer be used as
collateral for loans made by brokers.
13. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other provision of the Offer and provided that Purchaser
shall not be obligated to accept for payment any Shares until expiration of
all applicable waiting periods under the HSR Act, Purchaser shall not be
required to accept for payment or, subject to any applicable rules and
regulations of the Commission, including Rule 14e-1(c) promulgated under the
Exchange Act (relating to the Purchaser's obligation to pay for or return
tendered Shares promptly after termination or withdrawal of the Offer), pay
for, or may delay the acceptance for payment of or payment for, any tendered
Shares, or may, in its sole discretion, terminate or amend the Offer as to any
Shares not then paid for if a majority of the total Shares outstanding on a
fully diluted basis and as will permit Purchaser to effect the Merger without
the vote of any person other than Purchaser shall not have been properly and
validly tendered pursuant to the Offer and not withdrawn prior to the
expiration of the
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Offer, or, if on or after the date of the Agreement, and at or before the
Expiration Date, any of the following events shall occur:
(a) there shall have occurred (i) any general suspension of or limitation
on trading in securities on the NYSE or in the over-the-counter market
(other than a shortening of trading hours or any coordinated trading halt
triggered solely as a result of a specified increase or decrease in a
market index), (ii) a declaration of a banking moratorium or any suspension
of payments in respect of banks in the United States or (iii) a
commencement of a war or armed hostilities involving the United States and
continuing for at least three business days and which has a Company
Material Adverse Effect (as defined in the Merger Agreement);
(b) the Company shall have breached or failed to perform in any material
respect its obligations, covenants or agreements under the Agreement and,
with respect to any such failure that can be remedied, the failure is not
remedied on or before the Closing Date, or any representation or warranty
of the Company set forth in the Agreement shall have been inaccurate or
incomplete in any respect except as would not have a Company Material
Adverse Effect;
(c) there shall be instituted or pending any action, litigation,
proceeding, investigation or other application before any court of
competent jurisdiction or other governmental entity by any governmental
entity that is reasonably likely to: (i) result in a restriction or
prohibition on the consummation of the transactions contemplated by the
Offer or the Merger; (ii) prohibit, or impose any material limitations on
Parent's or Purchaser's ownership or operation of all or a material portion
of their or the Company's business or assets, or to compel Parent or
Purchaser to dispose of or hold separate all or a material portion of
Parent's or Purchaser's or the Company's business or assets; (iii) make the
acceptance for payment of, purchase of or payment for some or all of the
Shares illegal or rendering Parent or Purchaser unable to, or restricting
or prohibiting the ability of Parent or Purchaser to accept for payment,
purchase or pay for, some or all of the Shares; or (iv) impose material
limitations on the ability of Parent or Purchaser effectively to acquire or
hold or to exercise full rights of ownership of the Shares including,
without limitation, the right to vote the Shares purchased by them on an
equal basis with all other Shares on all matters properly presented to the
stockholders of the Company;
(d) any statute, rule, regulation, order or injunction shall be enacted,
promulgated, entered, enforced or deemed to be or become applicable to the
Offer or the Merger that results in any of the consequences referred to in
clauses (i) through (iv) of paragraph (c) above;
(e) any person, entity or group shall have entered into a definitive
agreement or an agreement in principle with the Company with respect to a
tender offer or exchange offer for some portion or all of the Shares or a
merger, consolidation or other business combination with or involving the
Company;
(f) the Board of Directors of the Company shall have withdrawn or
amended, or modified in a manner materially adverse to Parent or Purchaser,
its recommendation of the Offer or the Merger, or shall have approved or
recommended any other Acquisition Proposal; or
(g) the Merger Agreement shall have been terminated by the Company or
Purchaser or Purchaser Sub in accordance with its terms or Parent or
Purchaser shall have reached an agreement or understanding in writing with
the Company providing for termination or amendment of the Offer or delay in
payment for the Shares;
Parent shall not be required to accept for payment or pay for any Shares
tendered pursuant to the Offer if any of the above conditions occurs, which,
in the reasonable judgment of Parent in any such case, and regardless of the
circumstances (including any action or omission by Parent) giving rise to any
such condition, makes it inadvisable to proceed with such acceptance for
payment or payments for Shares.
The foregoing conditions are for the sole benefit of Parent and may be
asserted by Parent regardless of the circumstances giving rise to any such
condition or may be waived by Parent in whole or in part at any time or from
time to time in its sole discretion. The failure by Parent at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts or
circumstances shall not be deemed a waiver with respect to any other facts or
circumstances, and each such right shall be deemed an ongoing right that may
be asserted at any time or from time to time.
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14. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS; APPRAISAL RIGHTS
General
Except as described below, Purchaser is not aware of any governmental license
or regulatory permit that appears to be material to the business of the Company
and its subsidiaries, taken as a whole, that might be adversely affected by
Purchaser's acquisition of the Company's Shares as contemplated herein or of
any approval or other action by any governmental, administrative or regulatory
authority or agency, domestic or foreign, that would be required for the
acquisition or ownership of Shares by Purchaser as contemplated herein. Should
any such approval or other action be required, Purchaser and Parent currently
contemplate that such approval or other action will be sought. Except as
otherwise expressly described in this Section 14, Purchaser does not currently
intend to delay the acceptance for payment of or payment for Shares tendered
pursuant to the Offer pending the outcome of any such matter. Purchaser is
unable to predict whether it may determine that it is required to delay the
acceptance for payment of or payment for Shares tendered pursuant to the Offer
pending the outcome of any such matter. There can be no assurance that any such
approval or other action, if needed, would be obtained without substantial
conditions or that the failure to obtain any such approval or other action
might not result in consequences adverse to the Company's business or that
certain parts of the Company's business might not have to be disposed of, any
of which could cause Purchaser to decline to accept for payment or pay for any
Shares tendered. See Section 13 above for certain conditions to the Offer.
Appraisal Rights.
If the Merger is consummated, stockholders of the Company would have the
right to dissent and demand appraisal of their Shares under the DGCL. Under the
DGCL, dissenting stockholders who comply with the applicable statutory
procedures will be entitled to receive a judicial determination of the fair
value of their Shares and to receive payment of such fair value in cash. Any
such judicial determination of the fair value of the Shares could be based upon
considerations other than or in addition to the Offer Price and the market
value of the Shares. In Weinberger v. UOP, Inc., the Delaware Supreme Court
stated, among other things, that "proof of value by any techniques or methods
which are generally considered acceptable in the financial community and
otherwise admissible in court" should be considered in an appraisal proceeding.
Holders should recognize that the value so determined could be higher or lower
or the same as the Offer Price or the consideration per Share in the Merger.
Antitrust
Under the HSR Act and the rules that have been promulgated thereunder by the
Federal Trade Commission (the "FTC"), certain acquisition transactions may not
be consummated unless certain information has been furnished to the Antitrust
Division of the Department of Justice (the "Antitrust Division") and the FTC
and certain waiting period requirements have been satisfied. The purchase of
Shares of the Company by Purchaser pursuant to the Offer is subject to such
requirements.
Under the provisions of the HSR Act applicable to the Offer, the purchase of
Shares under the Offer may be consummated following the expiration of a 15-
calendar-day waiting period following the filing by Parent of a Notification
and Report Form with respect to the Offer, unless Parent receives a request for
additional information or documentary material from the Antitrust Division or
the FTC or unless early termination of the waiting period is granted. Parent
expects that such filing will be made on or about December 31, 1996 and such
waiting period will expire at 11:59 p.m. on or about January 15, 1997. If,
within the initial 15-day waiting period, either the Antitrust Division or the
FTC requests additional information or documentary material from Parent
concerning the Offer, the waiting period will be extended and would expire at
11:59 p.m., New York City time, on the tenth calendar day after the date of
substantial compliance by Parent with such request. Only one extension of the
waiting period pursuant to a request for additional information is authorized
by the HSR Act. Thereafter, such waiting period may be extended only by court
order or with the consent of Parent. In practice, complying with a request for
additional information or documentary material can take a significant amount of
time. In addition, if the Antitrust Division or the FTC raises substantive
issues in connection with a proposed transaction, the parties frequently engage
in negotiations with the relevant governmental agency concerning possible means
of addressing those issues and may agree to delay consummation of the
transaction while such negotiations continue.
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A request will be made pursuant to the HSR Act for early termination of the
waiting period applicable to the Offer. There can be no assurance, however,
that the 15 calendar day HSR Act waiting period will be terminated early.
Shares of the Company will not be accepted for payment or paid for pursuant to
the Offer until the expiration or earlier termination of the applicable
waiting period under the HSR Act. See Section 13. Any extension of the waiting
period will not give rise to any withdrawal rights not otherwise provided for
by applicable law. See Section 4. If Purchaser's acquisition of Shares is
delayed pursuant to a request by the Antitrust Division or the FTC for
additional information or documentary material pursuant to the HSR Act, the
Offer may, but need not, be extended.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the acquisition of Shares of the
Company by Purchaser pursuant to the Offer. At any time before or after
Purchaser's purchase of Shares pursuant to the Offer, the Antitrust Division
or the FTC could take such action under the antitrust laws as it deems
necessary or desirable in the public interest, including seeking to enjoin the
purchase of Shares pursuant to the Offer or the consummation of the Merger or
seeking the divestiture of Shares acquired by Purchaser or the divestiture of
substantial assets of Parent or its subsidiaries, or the Company or its
subsidiaries. Private parties may also bring legal action under the antitrust
laws under certain circumstances. Purchaser does not believe that the
consummation of the Offer will result in a violation of any applicable
antitrust laws. However, there can be no assurance that a challenge to the
Offer on antitrust grounds will not be made or, if such a challenge is made,
of the result thereof.
State Takeover Laws.
A number of states throughout the United States have enacted takeover
statutes that purport, in varying degrees, to be applicable to attempts to
acquire securities of corporations that are incorporated or have assets,
shareholders, executive offices or places of business in those states. In
Edgar v. MITE Corp., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS Corp.
v. Dynamics Corp. of America, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining shareholders, provided that the laws were applicable
only under certain conditions.
Section 203 of the DGCL limits the ability of a Delaware corporation to
engage in business combinations with "interested stockholders" (defined as any
beneficial owner of 15% or more of the outstanding voting stock of the
corporation) unless, among other things, the corporation's board of directors
has given its prior approval of either the business combination or the
transaction that resulted in the stockholder becoming an "interested
stockholder." The Company has represented in the Merger Agreement that it
approved the Merger Agreement and the transactions contemplated thereby,
including the Offer and the Merger, and has taken all necessary steps to
render Section 203 of the DGCL inapplicable to the Merger Agreement and the
transactions contemplated thereby, including the Offer and the Merger.
The Company, directly or through subsidiaries, conducts business in a number
of states throughout the United States, some of which have enacted takeover
laws. Purchaser does not know whether any of these laws will, by their terms,
apply to the Offer or the Merger and has not complied with any such laws.
Should any person seek to apply any state takeover law, Purchaser will take
such action as then appears desirable, which may include challenging the
validity or applicability of any such statute in appropriate court
proceedings. In the event it is asserted that one or more state takeover laws
is applicable to the Offer or the Merger, and an appropriate court does not
determine that it is inapplicable or invalid as applied to the Offer,
Purchaser might be required to file certain information with, or receive
approvals from, the relevant state authorities. In addition, if enjoined,
Purchaser might be unable to accept for payment any Shares tendered pursuant
to the Offer, or be delayed in continuing or consummating the Offer and the
Merger. In such case, Purchaser may not be obligated to accept for payment any
Shares tendered. See Section 13.
26
<PAGE>
15. FEES AND EXPENSES
Credit Suisse First Boston Corporation ("Credit Suisse First Boston") is
acting as Dealer Manager in connection with the Offer and is acting as
financial advisor to Parent in connection with the proposed acquisition of the
Company. Parent has agreed to pay Credit Suisse First Boston for its services
(i) an advisory fee of $150,000 (the "Advisory Fee") and (ii) a transaction
fee (against which the Advisory Fee will be credited), payable upon the
closing of the acquisition of 50% of more of the Company's stock or assets,
equal to 1.0% (the "Transaction Fee") of the aggregate consideration
(including indebtedness remaining on the Company's financial statements or
assumed by Parent) payable in connection with the Offer and the Merger. Parent
also has agreed to reimburse Credit Suisse First Boston for its out-of-pocket
expenses, including the fees and expenses of legal counsel and other advisors,
incurred in connection with its engagement, and to indemnify Credit Suisse
First Boston and certain related persons against certain liabilities and
expenses in connection with its engagement, including certain liabilities
under the federal securities laws. Credit Suisse First Boston has in the past
provided financial services to Parent unrelated to the proposed Offer and the
Merger, for which services Credit Suisse First Boston has received
compensation. In the ordinary course of business, Credit Suisse First Boston
and its affiliates may actively trade the debt and equity securities of Parent
and the Company for their own account and for the accounts of customers and,
accordingly, may at any time hold a long or short position in such securities.
Purchaser has retained MacKenzie Partners, Inc. to act as the Information
Agent, and The First National Bank of Boston to act as the Depositary, in
connection with the Offer. The Information Agent may contact holders of Shares
by mail, telephone, telex, telegraph and personal interview and may request
brokers, dealers and other nominee stockholders to forward the Offer materials
to beneficial owners. Each of the Information Agent and the Depositary will
receive reasonable and customary compensation for their respective services,
will be reimbursed for certain reasonable out-of-pocket expenses and will be
indemnified against certain liabilities and expenses in connection with the
Offer, including certain liabilities under the federal securities laws.
Except as set forth above, Purchaser will not pay any fees or commissions to
any broker or dealer or other person for soliciting tenders of Shares pursuant
to the Offer. Brokers, dealers, commercial banks and trust companies will,
upon request, be reimbursed by Purchaser for customary mailing and handling
expenses incurred by them in forwarding this Offer to Purchase and the related
Letter of Transmittal to their customers.
16. MISCELLANEOUS
The Offer is being made solely by this Offer to Purchase and the related
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 residing in any jurisdiction in which the making of the Offer or the
acceptance thereof would not be in compliance with the securities, blue sky or
other laws of such jurisdiction. However, Purchaser may, in its discretion,
take such action as it may deem necessary to make the Offer in any
jurisdiction and extend the Offer to holders of Shares in such jurisdiction.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer will be deemed to
be made on behalf of Purchaser by the Dealer Manager or one or more registered
brokers or dealers that are licensed under the laws of such jurisdiction.
Parent and Purchaser have filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act containing certain additional
information with respect to the Offer. Such Schedule and any amendments
thereto, including exhibits, may be examined and copies may be obtained from
the principal office of the Commission in the manner set forth in Section 8
above (except that they will not be available at the regional offices of the
Commission).
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF PURCHASER OR PARENT NOT CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
MCTG Acquisition Corp.
December 20, 1996
27
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each stockholder or his or
her broker, dealer, commercial bank, trust company or other nominee to the
Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
THE FIRST NATIONAL BANK OF BOSTON
By Mail: By Facsimile Transmission:
(617) 575-2232
The First National Bank of Boston (617) 575-2233
Shareholder Services Division (for Eligible Institutions Only)
P.O. Box 1889 Confirm by Telephone
Mail Stop 45-01-19 (617) 575-2700
Boston, Massachusetts 02105
By Hand: By Overnight Courier:
BancBoston Trust Company The First National Bank of Boston
of New York Shareholder Services Division
55 Broadway, Third Floor P.O. Box 1889
New York, New York Mail Stop: 45-01-19
Canton, Massachusetts 02021
Any questions or requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
listed below. Additional copies of this Offer to Purchase, the Letter of
Transmittal and the Notice of Guaranteed Delivery may be obtained from the
Information Agent or the Dealer Manger. . You may also contact your broker,
dealer, commercial bank or trust company for assistance concerning the Offer.
The Information Agent for the Offer is:
LOGO
156 Fifth Avenue
New York, N Y 10010
(212) 929-5500 (Call Collect)
or
CALL TOLL FREE (800) 322-2885
The Dealer Manager for the Offer is:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Call Toll Free (800) 323-2197
28
<PAGE>
SCHEDULE I
Set forth below is the name, business address, present principal occupation
or employment and five-year employment history of the directors and each
executive officer of Millipore Corporation, a Massachusetts corporation
("Parent"), and MCTG Acquisition Corp., a Delaware corporation ("Purchaser").
The principal executive offices of Parent and Purchaser are located at 80 Ashby
Road, Bedford, MA 01730. Purchaser was formed for the purpose of acquiring
Tylan General, Inc. (the "Company"). Each individual listed below is a citizen
of the United States. None of the individuals listed below beneficially owns
shares of the Company.
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION, DIRECTORSHIPS AND
NAME AND BUSINESS MATERIAL POSITIONS
TITLE ADDRESS DURING THE LAST FIVE YEARS
-------- -------- ---------------------------------------
<S> <C> <C>
C. William Zadel c/o Parent Mr. Zadel has served as Chairman
Chairman of the Board of 80 Ashby Road, of the Board, President and Chief
Directors, President and Bedford, MA 01730 Executive Officer of Parent since
Chief Executive Officer of April 1996. Mr. Zadel served as
Parent and a Director of President and Chief Executive
Purchaser Officer of Ciba Corning
Diagnostics Corp. from June 1986
to December 1995. Mr. Zadel is
also a director of Kulicke and
Soffo Industries, Inc.,
Matritech, Inc. and Zoll Medical
Corporation.
Geoffrey Nunes c/o Parent Mr. Nunes has served as Senior
Senior Vice President and 80 Ashby Road, Vice President of Parent since
General Counsel of Parent Bedford, MA 01730 October 1980, and as General
and President and a Director Counsel of Parent since 1976. Mr.
of Purchaser Nunes has served as President of
Purchaser since December 1996.
Michael P. Carroll c/o Parent Mr. Carroll has served as Vice
Vice President, Chief 80 Ashby Road, President, Chief Financial
Financial Officer and Bedford, MA 01730 Officer and Treasurer of Parent
Treasurer of Parent since February 1992. Mr. Carroll
served as Vice President of
Finance for Parent's Waters
Chromotography Division from
December 1990 to February 1992.
Douglas B. Jacoby c/o Parent Mr. Jacoby has served as a Vice
Vice President of Parent and 80 Ashby Road, President of Parent since
Executive Vice President, Bedford, MA 01730 December 1989. He assumed
Treasurer and a Director of responsibility for all of
Purchaser Parent's worldwide divisional
operations in July 1994. He has
been responsible for Parent's
process membrane business since
1987.
John E. Lary c/o Parent Mr. Lary was elected a Vice
Vice President of Parent 80 Ashby Road, President of Parent in September
Bedford, MA 01730 1994, and is responsible for
Parent's worldwide operations.
From May 1993 until November
1994, Mr. Lary served as Senior
Vice President and General
Manager of Parent's Americas
Operation. For the ten years
prior to that time he served as
Senior Vice President of Parent's
Membrane Operations Division.
</TABLE>
29
<PAGE>
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION, DIRECTORSHIPS AND
NAME AND BUSINESS MATERIAL POSITIONS
TITLE ADDRESS DURING THE LAST FIVE YEARS
-------- -------- ---------------------------------------
<S> <C> <C>
Hideo Takahashi c/o Parent Mr. Takahashi was elected as a
Vice President of Parent and 80 Ashby Road, Vice President of Parent in
President of Nihon Millipore Bedford, MA 01730 February 1996. He has served as
Ltd. President and Chief Executive
Officer of Parent's Japanese
subsidiary, Nihon Millipore Ltd.
since 1979.
Joanna Nikka c/o Parent Ms. Nikka has served as Vice
Vice President, Human 80 Ashby Road, President for Human Resources for
Resources of Parent Bedford, MA 01730 Parent since November 1996. Ms.
Nikka was Vice President of
Product Development at Fidelity
Investments from 1991 until
joining Parent in November 1996.
Prior to joining Fidelity in
1991, Ms. Nikka was Vice
President of Human Resources at
Symbolics, Inc.
Jeffrey Rudin c/o Parent Mr. Rudin has served as Vice
Vice President and General 80 Ashby Road, President and General Counsel of
Counsel of Parent and Vice Bedford, MA 01730 Parent since December 1996. Mr.
President and Secretary of Rudin was Senior Vice President
Purchaser and General Counsel of Ciba
Corning Diagnostics Corporation
from January 1993 until October
1996, and was Vice President and
General Counsel of that firm from
1988 until January 1993.
Charles D. Baker c/o Parent Mr. Baker has served as a
Director of Parent 80 Ashby Road, Director of Parent since 1979.
Bedford, MA 01730 Since 1985, Mr. Baker has been
Professor of Business
Administration at Northeastern
Uni-versity. He is also a
Director of American Medical
Response, Inc., the (Mass.) Group
Insurance Commission, and several
public interest organizations.
From 1984 to 1985, Mr. Baker
served as Under Secretary of the
United States Department of
Health and Human Services.
Samuel C. Butler c/o Parent Mr. Butler has served as a
Director of Parent 80 Ashby Road, Director of Parent since 1991.
Bedford, MA 01730 Since 1980, Mr. Butler has been
Presiding Partner of the New York
law firm of Cravath, Swaine &
Moore. Mr. Butler is a trustee
and Vice President of The Culver
Educational Foundation and a
member of the Board of Trustees
of the New York Public Library.
He is also a Director of Ashland
Inc. and U.S. Trust Corporation.
</TABLE>
30
<PAGE>
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION, DIRECTORSHIPS AND
NAME AND BUSINESS MATERIAL POSITIONS
TITLE ADDRESS DURING THE LAST FIVE YEARS
-------- -------- ---------------------------------------
<S> <C> <C>
Robert Caldwell c/o Parent Mr. Caldwell has served as a
Director of Parent 80 Ashby Road, Director of Parent since December
Bedford, MA 01730 1996. Since 1990, Mr. Caldwell
has served as Vice President and
General Manager of the Digital
Semiconductor Division of Digital
Equipment Corporation. From 1989
to 1990 Mr. Caldwell was Senior
Vice President and General
Manager of the Semiconductor
Group at Siemens Components, Inc.
Prior to that, Mr. Caldwell was
Senior Vice President and General
Manager of Mostek Corporation
from 1983 to 1986.
Maureen A. Hendricks c/o Parent Mrs. Hendricks has served as a
Director of Parent 80 Ashby Road, Director of Parent since
Bedford, MA 01730 September 1995. Since March 1996,
Mrs. Hendricks has served as
Managing Director in charge of
New Business Development of J.P.
Morgan & Co. From September 1993
to March 1996, Mrs. Hendricks
served as head of J.P. Morgan &
Co.'s Global Debt Capital
Markets. From September 1991 to
September 1993, Mrs. Hendricks
served as the senior manager of
J.P. Morgan & Co.'s European
Equities and Equity Derivatives
business and was a Director of
J.P. Morgan Securities Ltd. Mrs.
Hendricks is also a Director of
J.P. Morgan Securities, Inc., the
Young Women's Christian
Association (YWCA) of New York
and the New Jersey Shakespeare
Festival.
Mark Hoffman c/o Parent Mr. Hoffman has served as a
Director of Parent 80 Ashby Road, Director of Parent since 1976.
Bedford, MA 01730 Since 1984, Mr. Hoffman has acted
as an independent investor and
consultant. From 1982 until 1984,
Mr. Hoffman served as Managing
Director of Guinness Pear Group
p.l.c. From 1975 to 1981, Mr.
Hoffman was Senior Vice President
and Chief Financial Officer of
George Weston, Ltd., and was
appointed President of its
Resource Group in 1981. Mr.
Hoffman is currently Chairman of
Hamilton Lunn Holdings Limited
and of Cambridge Capital Group
Limited. Mr. Hoffman also serves
as a Director of George Weston
Limited, Advent International
Corp-oration and Guinness Flight
Global Asset Management Limited.
</TABLE>
31
<PAGE>
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION, DIRECTORSHIPS AND
NAME AND BUSINESS MATERIAL POSITIONS
TITLE ADDRESS DURING THE LAST FIVE YEARS
-------- -------- ---------------------------------------
<S> <C> <C>
Steven Muller c/o Parent Dr. Muller has served as a
Director of Parent 80 Ashby Road, Director of Parent since 1982.
Bedford, MA 01730 Since 1990, Dr. Muller has served
as President Emeritus of The
Johns Hopkins University. From
1972 until 1990, Dr. Muller
served as President of The Johns
Hopkins University and from 1972
until 1983, Dr. Muller also
served as President of The Johns
Hopkins Hospital. Dr. Muller also
serves as a Director of the Van
Kampen/American Capital Closed
End and Common Sense Funds,
Beneficial Corporation, the Law
Companies Group, Inc., Alex Brown
Inc. and Organization Resource
Counselors, Inc., and as Co-
Chairman of the American
Institute for Contemporary German
Studies, a Board Member of the
Atlantic Council and the German
Marshall Fund of the United
States, and Chairman of St.
Mary's College of Maryland.
Thomas O. Pyle c/o Parent Mr. Pyle has served as a Director
Director of Parent 80 Ashby Road, of Parent since 1987. Since
Bedford, MA 01730 September 1994, Mr. Pyle has
served as Senior Advisor to the
Boston Consulting Group, Inc.
From October 1993 to September
1994, Mr. Pyle served as Chief
Executive Officer of MetLife
Healthcare Management Corp., Inc.
From 1992 to October 1993, Mr.
Pyle served as Senior Advisor to
the Boston Consulting Group, Inc.
From 1978 to 1991, Mr. Pyle was
Chief Executive Officer and a
Director of Harvard Community
Health Plan, Inc. Mr. Pyle is
also a Director of Controlled
Risk Insurance Company Ltd., The
Codman Research Group, Employee
Managed Care Corp., Lincare
Holdings, Inc., Unilab
Corporation, Anisys Health
Systems, Inc. and Access
Radiology Corporation.
</TABLE>
32
<PAGE>
<TABLE>
<CAPTION>
PRINCIPAL OCCUPATION, DIRECTORSHIPS AND
NAME AND BUSINESS MATERIAL POSITIONS
TITLE ADDRESS DURING THE LAST FIVE YEARS
-------- -------- ---------------------------------------
<S> <C> <C>
John F. Reno c/o Parent Mr. Reno has served as a Director
Director of Parent 80 Ashby Road, of Parent since 1993. Since 1993,
Bedford, MA 01730 Mr. Reno has served as President
and Chief Executive Officer of
Dynatech Corp-oration, where he
served as President and Chief
Operating Officer from 1991 to
1993, Executive Vice President
from 1987 to 1991, Senior Vice
President for Corporate
Development from 1982 to 1987,
and Vice President for Corporate
Development from 1979 to 1982.
Mr. Reno is also a Director of
Dynatech Corporation, the
Massachusetts Business Roundtable
and the Massachusetts
Telecommunications Council. He is
also a trustee and Chairman of
the Finance Committee of the
Boston Museum of Science.
</TABLE>
33
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES
OF
COMMON STOCK (INCLUDING THE ASSOCIATED SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS)
OF
TYLAN GENERAL, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED DECEMBER 20, 1996
OF
MCTG ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
MILLIPORE CORPORATION
-------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, JANUARY 21, 1997, UNLESS THE OFFER IS EXTENDED.
-------------------------------------------------------------------------------
TO: THE FIRST NATIONAL BANK OF BOSTON, DEPOSITARY
By Mail: By Facsimile Transmission: By Hand:
(617) 575-2232 BancBoston Trust Company
Shareholder Services (617) 575-2233 of New York
Division (For Eligible
Institutions Only) 55 Broadway, Third Floor
P.O. Box 1889 New York, New York
Mail Stop 45-02-53
Boston, Massachusetts
02105
(800) 730-4001
Confirm Facsimile By Overnight Courier:
by Telephone: The First National Bank
(800) 730-4001 of Boston
(For Confirmation Only) Shareholder Services
Division
150 Royall Street
Mail Stop: 45-02-53
Canton, Massachusetts
02021
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION TO A NUMBER
OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
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 used by stockholders if certificates for
Shares (as defined below) are to be forwarded herewith or, unless an Agent's
Message (as defined in the Offer to Purchase) is utilized, if delivery of
Shares is to be made by book-entry transfer to the Depositary's account at The
Depository Trust Company (hereinafter referred to as the "Book-Entry Transfer
Facility") pursuant to the procedures set forth under "The Tender Offer--3.
Procedure for Tendering Shares" in the Offer to Purchase dated December 20,
1996. Stockholders who tender Shares by book-entry transfer are referred to
herein as "Book-Entry Stockholders."
Stockholders who cannot deliver their Shares and all other documents
required hereby to the Depositary on or prior to the Expiration Date (as
defined in the Offer to Purchase) or who cannot complete the procedures for
book-entry transfer on a timely basis, must tender their Shares pursuant to
the guaranteed delivery procedure set forth under
<PAGE>
"The Tender Offer -- 3. Procedure for Tendering Shares" in the Offer to
Purchase. See Instruction 2. Delivery of documents to the Book-Entry Transfer
Facility does not constitute delivery to the Depositary.
DESCRIPTION OF SHARES TENDERED -- COMMON STOCK (INCLUDING THE ASSOCIATED
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS)
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED
HOLDER(S) (PLEASE FILL IN, IF BLANK,
EXACTLY AS NAME(S) APPEAR(S) ON SHARE SHARES TENDERED
CERTIFICATES (ATTACH ADDITIONAL LIST IF NECESSARY)
- ------------------------------------------------------------------------------------------
TOTAL NUMBER
OF SHARES
CERTIFICATE REPRESENTED BY NUMBER OF
NUMBER(S)* CERTIFICATE(S)* SHARES TENDERED**
<S> <C> <C> <C>
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
TOTAL SHARES
-------------------------------------------------------
</TABLE>
- -------------------------------------------------------------------------------
* Need not be completed by stockholders tendering by book-entry transfer.
** Unless otherwise indicated, it will be assumed that all Shares
represented by any certificates delivered to the Depositary are being
tendered. See Instruction 4.
- -------------------------------------------------------------------------------
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. Except as otherwise provided below, all
signatures on this Letter of Transmittal must be guaranteed by a financial
institution (including most banks, savings and loan associations and brokerage
houses) which is a participant in the Securities Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program (each of the foregoing constituting an
"Eligible Institution"). Signatures on this Letter of Transmittal need not be
guaranteed (a) if this Letter of Transmittal is signed by the registered
holder(s) of the Shares (which term, for purposes of this document, shall
include any participant in the Book-Entry Transfer Facility whose name appears
on a security position listing as the owner of Shares) tendered herewith and
such holder(s) have not completed the instruction entitled "Special Delivery
Instruments" or "Special Payment Instructions" on this Letter of Transmittal or
(b) if such Shares are tendered for the account of an Eligible Institution. See
Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARES. This Letter of Transmittal
is to be used if certificates are to be forwarded herewith pursuant to the
procedures set forth in "The Tender Offer--3. Procedure for Tendering Shares"
in the Offer to Purchase. Certificates for all physically delivered Shares, or
a confirmation of a book-entry transfer into the Depositary's account at the
Book-Entry Transfer Facility of all Shares delivered electronically, as well
as a properly completed and duly executed Letter of Transmittal (or facsimile
thereof) (or, in the case of a book-entry delivery, an Agent's Message) 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 on or prior to the Expiration Date. Stockholders who
cannot deliver their Shares and all other required documents to the Depositary
on or prior to the Expiration Date must tender their Shares pursuant to the
guaranteed delivery procedure set forth in "The Tender Offer--3. Procedure for
Tendering Shares" in the Offer to Purchase. Pursuant to such procedure: (a) such
tender must be made by or through an Eligible Institution, (b) a properly
completed and duly executed Notice of Guaranteed Delivery, substantially in the
form provided by the Purchaser must be received by the Depositary on or prior to
the Expiration Date and (c) the certificates for all physically delivered
Shares, or a confirmation of a book-entry transfer into the Depositary's account
at the Book-Entry Transfer Facility of all Shares delivered electronically, as
well as a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) (or, in the case of a book-entry delivery, an
2
<PAGE>
delivery, an Agent's Message) and any other documents required by this Letter
of Transmittal, must be received by the Depositary within three Nasdaq Stock
Market trading days after the date of execution of such Notice of Guaranteed
Delivery, all as provided in "The Tender Offer--3. Procedure for Tendering
Shares." If Shares are forwarded separately to the Depositary, each must be
accompanied by a duly executed Letter of Transmittal (or facsimile thereof).
The method of delivering Shares, the Letter of Transmittal and all other
required documents, including delivery through the Book-Entry Transfer
Facility, is at the option and sole 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. By
executing this Letter of Transmittal (or facsimile thereof), the tendering
stockholder waives any right to receive any notice of the acceptance for
payment of the Shares.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of the Shares should be listed on a
separate schedule attached hereto and separately signed on each page thereof in
the same manner as this Letter of Transmittal is signed.
4. PARTIAL TENDERS (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER). If fewer than all the Shares represented by any certificate
delivered to the Depositary are to be tendered, fill in the number of Shares
which are to be tendered in the box entitled "Number of Shares Tendered." In
such case, a new certificate for the remainder of the Shares represented by the
old certificate will be sent to the person(s) signing this Letter of
Transmittal, unless otherwise provided in the appropriate box on this Letter of
Transmittal, as promptly as practicable following the expiration or termination
of the Offer. All Shares represented by certificates delivered to the
Depositary will be deemed to have been tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written
on the face of the certificates without alteration, enlargement or any change
whatsoever.
If any of the Shares tendered hereby are held of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in different names on
different certificates, it will be necessary to complete, sign and submit as
many separate Letters of Transmittal as there are different registrations of
certificates.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of certificates or separate stock
powers are required unless payment of the purchase price is to be made, or
Shares not tendered or not purchased are to be returned, in the name of any
person other than the registered holder(s). Signatures on any such certificates
or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered
holder(s) of the Shares tendered hereby, certificates must be endorsed or
accompanied by appropriate stock powers, in either case, signed exactly as the
name(s) of the registered holder(s) appear(s) on the certificates for such
Shares. Signature(s) on any such certificates or stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificate or stock power is signed by
a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory
to Purchaser of the authority of such person so to act must be submitted.
3
<PAGE>
6. STOCK TRANSFER TAXES. Purchaser will pay any stock transfer taxes with
respect to the sale and transfer of any Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or
Shares not tendered or not purchased are to be returned in the name of, any
person other than the registered holder(s), or if a transfer tax is imposed
for any reason other than the sale or transfer of Shares to Purchaser pursuant
to the Offer, then the amount of any stock transfer taxes (whether imposed on
the registered holder(s), such other person or otherwise) will be deducted
from the purchase price unless satisfactory evidence of the payment of such
taxes, or exemption therefrom, is submitted herewith.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If the check for the purchase
price of any Shares purchased is to be issued, or any Shares not tendered or
not purchased are to be returned, in the name of a person other than the
person(s) signing this Letter of Transmittal or if the check or any
certificates for Shares not tendered or not purchased are to be mailed to
someone other than the person(s) signing this Letter of Transmittal or to the
person(s) signing this Letter of Transmittal at an address other than that
shown above, the appropriate boxes on this Letter of Transmittal should be
completed. Stockholders tendering Shares by book-entry transfer may request
that Shares not purchased be credited to such account at the Book-Entry
Transfer Facility as such stockholder may designate under "Special Payment
Instructions." If no such instructions are given, any such Shares not
purchased will be returned by crediting the account at the Book-Entry Transfer
Facility designated above.
8. SUBSTITUTE FORM W-9. Under the federal income tax laws, the Depositary
will be required to backup withhold 31% of the amount of any payments made to
certain stockholders pursuant to the Offer. In order to avoid such backup
withholding, each tendering stockholder, and, if applicable, each other payee,
must provide the Depositary with such stockholder's or payee's correct
taxpayer identification number and certify that such stockholder or payee is
not subject to such backup withholding by completing the Substitute Form W-9
set forth above. In general, if a stockholder or payee is an individual, the
taxpayer identification number is the Social Security number of such
individual. If the Depositary is not provided with the correct taxpayer
identification number, the stockholder or payee may be subject to a $50
penalty imposed by the Internal Revenue Service ("IRS"). Certain stockholders
or payees (including, among others, all corporations and certain foreign
individuals) are not subject to these backup withholding and reporting
requirements. In order to satisfy the Depositary that a foreign individual
qualifies as an exempt recipient, such stockholder or payee must submit a
statement, signed under penalties of perjury, attesting to that individual's
exempt status. Such statements can be obtained from the Depositary. For
further information concerning backup withholding and instructions for
completing the Substitute Form W-9 (including how to obtain a taxpayer
identification number if you do not have one and how to complete the
Substitute Form W-9 if Shares are held in more than one name), consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
Failure to complete the Substitute Form W-9 will not, by itself, cause
Shares to be deemed invalidly tendered, but may require the Depositary to
withhold 31% of the amount of any payments made pursuant to the Offer. Backup
withholding is not an additional federal income tax. Rather, the federal
income tax liability of a person 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 provided that the required information is
furnished to the IRS.
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.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance or
additional copies of the Offer to Purchase and this Letter of Transmittal may
be obtained from the Information Agent or Dealer Manager at their respective
addresses or telephone numbers set forth below.
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. Instructions will then be given to what steps
must be taken to obtain a replacement certificate(s). The Letter of
Transmittal and related documents cannot be processed until the procedures for
replacing such missing certificate(s) have been followed.
4
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW PLEASE READ ACCOMPANYING INSTRUCTIONS
CAREFULLY
[_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO
THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER FACILITY AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution: _____________________________________________
Account No. _____________________________________________________________ at
The Depository Trust Company
Transaction Code No. _______________________________________________________
[_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Stockholder(s) _______________________________________
Window Ticket Number (if any) ______________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution which Guaranteed Delivery ______________________________
If delivery is by book entry transfer:
Name of Tendering Institution ___________________________________________
DTC Account No. _________________________________________________________
Transaction Code No. ____________________________________________________
5
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to MCTG Acquisition Corp., a Delaware
corporation ("Purchaser") and a wholly owned subsidiary of Millipore
Corporation, the above-described shares of common stock, par value $.001 per
share (the "Common Stock"), together with the associated Series A Junior
Participating Preferred Stock Purchase Rights (together with the Common Stock,
the "Shares") of Tylan General, Inc., a Delaware corporation (the "Company"),
pursuant to Purchaser's offer to purchase all of the outstanding Shares at a
price of $16.00 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 December 20, 1996, receipt of which is hereby acknowledged,
and in this Letter of Transmittal (which with any amendment or supplement
thereto, collectively together constitute the "Offer").
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 or orders the registration of such Shares
delivered by book-entry transfer and any and all other Shares or other
securities issued or issuable in respect thereof on or after December 20, 1996
and any or all dividends thereon or distributions with respect thereto
(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 certificates for such Shares (and all such other
shares or securities), or transfer ownership of such Shares (and all
Distributions) on the account books maintained by the Book-Entry Transfer
Facility, together, in any such case, with all accompanying evidences of
transfer and authenticity, to or upon the order of Purchaser upon receipt by
the Depositary, as the undersigned's agent, of the purchase price, (b) present
such Shares (and all Distributions) for transfer on the books of the Company
and (c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares (and all Distributions), all in accordance with the
terms of the Offer.
The undersigned hereby irrevocably appoints Geoffrey Nunes, Michael P.
Carroll and Douglas P. Jacoby, and each of them, the attorneys-in-fact and
proxies of the undersigned, each with full power of substitution, to exercise
all voting and other rights of the undersigned in such manner as each such
attorney and proxy or his substitute shall in his sole discretion deem proper,
with respect to all of the Shares tendered hereby which have been accepted for
payment by Purchaser prior to the time of any vote or other action at any
meeting of stockholders of the Company (whether annual or special and whether
or not an adjourned meeting), by written consent or otherwise. This power of
attorney and proxy is coupled with an interest and is irrevocable and is
granted in consideration of, and is effective upon, the acceptance for payment
of such Shares by Purchaser in accordance with the terms of the Offer. Such
acceptance for payment shall revoke, without any further action, any other
power of attorney or proxy granted by the undersigned at any time with respect
to such Shares, and no subsequent power of attorney or proxies will be given
or will be executed by the undersigned (and if given or executed, will not be
deemed to be effective). The undersigned understands that Purchaser reserves
the right to require that, in order for such Shares to be deemed validly
tendered, immediately upon Purchaser's acceptance for payment of such Shares,
Purchaser is able to exercise full voting rights with respect to such Shares
and other securities, including voting at any meeting of stockholders.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares and all
Distributions tendered hereby and that when the same are accepted for payment
by Purchaser, Purchaser will acquire good and marketable title and
unencumbered ownership thereto, free and clear of all liens, restrictions,
charges, security interests, and encumbrances and not subject to any adverse
claims. The undersigned will, upon request, execute and deliver any additional
documents deemed by the Depositary or Purchaser to be necessary or desirable
to complete the sale, assignment and transfer of the Shares and all
Distributions tendered hereby. In addition, the undersigned will promptly
remit and transfer to the Depositary for the account of Purchaser any and all
Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of transfer and, pending such remittance or
appropriate assurance thereof, Purchaser shall be entitled to all rights and
privileges as owner of any such Distributions, and may withhold the entire
purchase price or deduct from the purchase price of Shares tendered hereby,
the amount or value thereof, as determined by Purchaser in its sole
discretion.
6
<PAGE>
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned. Except as stated in the Offer, this
tender is irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described under "The Tender Offer -- 3. Procedure for Tendering
Shares" in the Offer to Purchase and in the instructions hereto will
constitute a binding agreement between the undersigned and Purchaser upon the
terms and subject to the conditions of the Offer.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, Purchaser may terminate or amend the Offer or may not
be required to accept for payment any of the Shares tendered herewith.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price and/or return any Shares not tendered
or accepted for payment in the name(s) of the undersigned. Similarly, unless
otherwise indicated under "Special Delivery Instructions," please mail the
check for the purchase price and/or return any Share certificates not tendered
or accepted for payment (and accompanying documents, as appropriate) to the
undersigned at the address shown below the undersigned's signature(s). In the
event that both "Special Payment Instructions" and "Special Delivery
Instructions" are completed, please issue the check for the purchase price
and/or return any Shares not tendered or accepted for payment in the name(s)
of, and deliver said check and/or return certificates to, the person or
persons so indicated. Stockholders tendering Shares by book-entry transfer may
request that any Shares not accepted for payment be returned by crediting such
account maintained at the Book-Entry Transfer Facility by making an
appropriate entry under "Special Payment Instructions." 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
thereof if Purchaser does not accept for payment any of such Shares.
7
<PAGE>
- ---------------------------------- ---------------------------------
SPECIAL PAYMENT INSTRUCTIONS (SEE SPECIAL DELIVERY INSTRUCTIONS
INSTRUCTIONS 1, 5, 6 AND 7) (SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the To be completed ONLY if the
check for the purchase price of check for the purchase price of
Shares purchased or stock certif- Shares purchased or stock certif-
icates for Shares not tendered or icates for Shares not tendered or
not purchased are to be issued in not purchased are to be mailed to
the name of someone other than someone other than the under-
the undersigned. signed or to the undersigned at
an address other than that shown
below the undersigned's signa-
ture(s).
Issue check and/or certificates
to:
Name _____________________________ Mail check and/or certificates
(PLEASE PRINT) to:
Address __________________________ Name______________________________
(PLEASE PRINT)
__________________________________ Address __________________________
(ZIP CODE)
__________________________________ __________________________________
(TAX IDENTIFICATION NO. OR SOCIAL (ZIP CODE)
SECURITY NO.)
(COMPLETE SUBSTITUTE FORM W-9)
- ---------------------------------- ---------------------------------
----------------------------------------------------------------
SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
X_________________________________________________________
(SIGNATURE(S) OF OWNER(S))
X_________________________________________________________
Dated: _______________________________________________ 19
Name(s)___________________________________________________
(PLEASE PRINT)
__________________________________________________________
Capacity (full title)_____________________________________
Address___________________________________________________
__________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone No._______________________________
Tax Identification or Social Security No._________________
(COMPLETE SUBSTITUTE W-9 ON REVERSE SIDE)
(Must be signed by registered holder(s) exactly as
name(s) appear(s) on stock certificate(s) or on a
security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents
transmitted herewith. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a
fiduciary or representative capacity, please set forth
full title and see Instruction 5.)
GUARANTEE OF SIGNATURE(S) (SEE INSTRUCTIONS 1 AND 5)
Name of Firm______________________________________________
Authorized Signature______________________________________
Name______________________________________________________
Address___________________________________________________
Area Code and Telephone Number____________________________
Dated ________________________________________________ 19
----------------------------------------------------------------
8
<PAGE>
TO BE COMPLETED BY ALL TENDERING STOCKHOLDERS
(SEE INSTRUCTION 8)
PAYER'S NAME: [ ]
- --------------------------------------------------------------------------------
SUBSTITUTE PART I--PLEASE PROVIDE YOUR ----------------------
FORM W-9 TIN IN THE BOX AT THE RIGHT Social security number
AND CERTIFY BY SIGNING AND
DATING BELOW.
or
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE ----------------------
PAYER'S REQUEST FOR TAXPAYER Employer identification
IDENTIFICATION NUMBER (TIN) number
- --------------------------------------------------------------------------------
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);
(2) I am not subject to backup withholding because (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to backup withholding as a
result of a failure to report all interest or dividends, or (c) the IRS
has notified me that I am no longer subject to backup withholding.
- --------------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS--You must cross out item (2) above if you have
been notified by the IRS that you are currently subject to backup withhold-
ing because of underreporting 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 are no longer sub-
ject to backup withholding, do not cross out such item (2).
SIGNATURE ________________________________________________ DATE ________, 19
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING A TAX
IDENTIFICATION NUMBER.
- --------------------------------------------------------------------------------
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 (1) 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 (2) I intend to mail or deliver an application in
the near future. I understand that if I do not provide a taxpayer
identification number by the time of payment, 31% of all reportable
payments made to me will be withheld, but that such amounts will be
refunded to me if I then provide a Taxpayer Identification Number within
sixty (60) days.
- --------------------------------------------------------------------------------
Signature _______________________________________________ Date ____________
9
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates of Shares
and any other required documents should be sent or delivered by each
stockholder of the Company of his broker, dealer, commercial bank, trust
company or other nominee to the Depositary at one of its addresses set forth
below:
The Depositary for the Offer is:
THE FIRST NATIONAL BANK OF BOSTON
By Mail: By Facsimile Transmission: By Hand or Overnight
(617) 575-2232 Courier:
Banc Boston Trust Company
Shareholder Services (617) 575-2233 of New York
Division (For Eligible
Institutions Only) 55 Broadway, Third Floor
P.O. Box 1889 New York, New York
Mail Stop 45-02-53
Boston, Massachusetts
02105
(800) 730-4001
Confirm Facsimile By Overnight Courier:
by Telephone: The First National Bank
(800) 730-4001 of Boston
(For Confirmation Only) Shareholder Services
Division
150 Royall Street
Mail Stop: 45-02-53
Canton, Massachusetts
02021
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone
numbers listed below. Additional copies of this Offer to Purchase, the Letter
of Transmittal and other tender offer materials may be obtained from the
Information Agent as set forth below, and will be furnished promptly at
Purchaser's expense. You may also contract the Dealer Manager or your broker,
dealer, commercial bank, trust company or other nominee for assistance
concerning this Offer.
The Information Agent is:
LOGO
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (call collect)
or
Call Toll Free (800) 322-2885
The Dealer Manager for the Offer is:
Credit Suisse First Boston
Eleven Madison Avenue
New York, NY 10010
December 20, 1996
10
<PAGE>
NOTICE OF GUARANTEED DELIVERY
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
PURCHASE RIGHTS)
OF
TYLAN GENERAL, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED DECEMBER 20, 1996
OF
MCTG ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
MILLIPORE CORPORATION
This Notice of Guaranteed Delivery, or one substantially equivalent to the
attached form, must be used to accept the Offer (as defined below) if (i)
certificates for shares of common stock, par value $.001 per share (the
"Common Stock"), together with all associated Series A Junior Participating
Preferred Stock Purchase Rights (together with the Common Stock, the
"Shares"), of Tylan General, Inc. and all other documents required by the
Letter of Transmittal cannot be delivered to the Depositary on or prior to the
Expiration Date the expiration of the Offer (as defined in the Offer to
Purchase) or (ii) the procedures for delivery of book-entry transfer cannot be
completed on a timely basis. This Notice of Guaranteed Delivery may be
delivered by hand or sent by facsimile transmission or mail to the Depositary.
See "The Tender Offer--3. Procedure for Tendering Shares" in the Offer to
Purchase.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME,
ON TUESDAY, JANUARY 21, 1997, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Depositary for the Offer is:
THE FIRST NATIONAL BANK OF BOSTON
By Mail: By Facsimile By Hand:
Transmission:
Shareholder Services BancBoston Trust Company
Division (for Eligible of New York
P.O. Box 1889 Institutions Only) 55 Broadway, Third Floor
Mail Stop 45-02-53 (617) 575-2232 New York, New York
Boston, Massachusetts (617) 575-2233
02105
By Overnight Courier:
Confirm Facsimile by The First National Bank
(800) 730-4001 Telephone: of Boston
(For Confirmation Only) Shareholder Services
(800) 730-4001 Division
150 Royall Street
Mail Stop: 45-02-53
Canton, Massachusetts
02021
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TRANSMISSION
TO A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID
DELIVERY.
This Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature of a Letter of Transmittal is required to be
guaranteed by an "Eligible Institution" under the instructions thereto, such
signature guarantee must appear in the applicable space provided in the
signature box on the Letter of Transmittal.
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to MCTG Acquisition Corp. ("Purchaser"), upon
the terms and subject to the conditions set forth in the Offer to Purchase
dated December 20, 1996 and the related Letter of Transmittal (which, together
with any amendments or supplements thereto, collectively constitute the
Offer), receipt of which is hereby acknowledged, the number (indicated below)
of Shares pursuant to the guaranteed delivery procedure set forth in "The
Tender Offer--3. Procedure for Tendering Shares" in the Offer to Purchase.
Number of Shares being tendered ___________ Shares of Common Stock
hereby: (including the associated Series A
Junior Participating Preferred Stock
Purchase Rights)
Certificate No(s).
(if available):
SIGN HERE:
- -------------------------------------
-------------------------------------
If Shares will be tendered by book- (NAME(S) OF RECORD HOLDERS
entry transfer: (PLEASE PRINT)
Name of Tendering Institution _______ -------------------------------------
(ADDRESS)
Account No. _____________________ at
-------------------------------------
The Depository Trust Company (ZIP CODE)
-------------------------------------
(AREA CODE AND TELEPHONE NO.)
-------------------------------------
(SIGNATURE(S))
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which is a member of registered national securities
exchange or the National Association of Securities Dealers, Inc., or a
commercial bank or trust company having an office, branch or agency in the
United States, hereby (a) represents that the above named person(s) "own(s)"
the Shares tendered hereby within the meaning of Rule 14e-4 under the
Securities Exchange Act of 1934, as amended, (b) represents that such tender
complies with Rule 14e-4 and (c) guarantees to deliver to the Depositary the
Shares tendered hereby, together with a properly completed and duly executed
Letter(s) of Transmittal (or facsimile(s) thereof) or an Agent's Message as
defined in the Offer to Purchase in the case of a book-entry delivery, and any
other required documents, all within three Nasdaq Stock Market trading days of
the date hereof.
- ------------------------------------- -------------------------------------
(NAME OF FIRM) (AUTHORIZED SIGNATURE)
- ------------------------------------- -------------------------------------
(ADDRESS) (NAME)
- ------------------------------------- -------------------------------------
(ZIP CODE) (TITLE)
- -------------------------------------
(AREA CODE AND TELEPHONE NO.)
Dated: _______________________ , 19 .
DO NOT SEND STOCK CERTIFICATES WITH THIS NOTICE OF GUARANTEED DELIVERY.
YOUR STOCK CERTIFICATES MUST BE SENT WITH THE LETTER OF TRANSMITTAL.
<PAGE>
CREDIT SUISSE FIRST BOSTON CORPORATION
ELEVEN MADISON AVENUE
NEW YORK, NY 10010
CALL TOLL FREE (800) 323-2197
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS)
OF
TYLAN GENERAL, INC.
AT
$16.00 NET PER SHARE
BY
MCTG ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
MILLIPORE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME,
ON TUESDAY, JANUARY 21, 1997, UNLESS THE OFFER IS EXTENDED.
December 20, 1996
To Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees:
We have been appointed by MCTG Acquisition Corp., a Delaware corporation
("Purchaser") and a wholly owned subsidiary of Millipore Corporation, to act
as Dealer Manager in connection with Purchaser's offer to purchase all of the
outstanding shares of common stock, $.001 par value per share (the "Common
Stock"), together with the associated Series A Junior Participating Preferred
Stock Purchase Rights (together with the Common Stock, the "Shares") of Tylan
General, Inc., a Delaware corporation (the "Company"), at a purchase price of
$16.00 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 December 20, 1996 (the "Offer to Purchase") and the related
Letter of Transmittal (which, together with any amendments or supplements
thereto, collectively constitute the "Offer").
THE OFFER IS SUBJECT TO SEVERAL CONDITIONS CONTAINED IN THE OFFER TO
PURCHASE INCLUDING, AMONG OTHER THINGS, (1) THERE BEING VALIDLY AND PROPERLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN THE
OFFER TO PURCHASE) A MAJORITY OF THE TOTAL SHARES OUTSTANDING ON A FULLY
DILUTED BASIS AND AS WILL PERMIT PURCHASER TO EFFECT THE MERGER (AS DEFINED IN
THE OFFER TO PURCHASE) WITHOUT THE VOTE OF ANY PERSON OTHER THAN PURCHASER AND
(2) THE EXPIRATION OR TERMINATION OF ANY APPLICABLE WAITING PERIOD UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED. THE OFFER IS
ALSO SUBJECT TO OTHER TERMS AND CONDITIONS CONTAINED IN THE OFFER TO PURCHASE.
SEE "THE TENDER OFFER--13. CERTAIN CONDITIONS OF THE OFFER" IN THE OFFER TO
PURCHASE.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are
enclosing the following documents:
1. Offer to Purchase, dated December 20, 1996.
2. Letter of Transmittal to tender Shares for your use and for the
information of your clients, together with Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 providing information
relating to backup federal income tax withholding (facsimile copies of the
Letter of Transmittal may be used to tender Shares);
<PAGE>
3. Notice of Guaranteed Delivery for Shares to be used to accept the
Offer if the certificates for the Shares being tendered and all other
required documents are not immediately available or cannot be delivered to
the Depositary on or prior to the Expiration Date or if procedures for
book-entry transfer cannot be completed by the Expiration Date;
4. A printed form of letter which may be sent to your clients for whose
accounts you hold Shares registered in your name or in the name of your
nominee, with space provided for obtaining such client's instructions with
regard to the Offer; and
5. A letter to stockholders of the Company from David J. Ferran, Chairman
of the Board, President and Chief Executive Officer of the Company,
together with a Solicitation/Recommendation Statement on Schedule 14D-9
filed with the Securities and Exchange Commission by the Company.
6. A return envelope addressed to The First National Bank of Boston, as
Depositary.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY, JANUARY 21, 1997
UNLESS THE OFFER IS EXTENDED.
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 accept for payment and pay for Shares which are
validly tendered and not theretofore properly withdrawn on or prior to the
Expiration Date. Payment for the Shares tendered and accepted for payment
pursuant to the Offer will in all cases be made only after timely receipt by
the Depositary of (i) certificates for the Shares or timely confirmation of a
book-entry transfer of such Shares into the Depositary's account at The
Depositary Trust Company, pursuant to the procedures described in "The Tender
Offer--3. Procedure for Tendering Shares" in the Offer to Purchase, (ii) a
properly completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) or an Agent's Message in connection with a book-entry
transfer, and (iii) all other documents required by the Letter of Transmittal.
If holders of Shares wish to tender their Shares, but it is impracticable
for them to forward their Share certificates or other required documents to
the Depositary on or prior to the Expiration Date or to comply with the book-
entry transfer procedure on a timely basis, a tender may be effected by
following the guaranteed delivery procedures specified in "The Tender Offer--
3. Procedure for Tendering Shares" in the Offer to Purchase.
Purchaser will not pay any fees or commissions to any broker or dealer or
other person (other than to the Dealer Manager and the Information Agent as
described in the Offer to Purchase) for soliciting tenders of the Shares
pursuant to the Offer. Purchaser will, however, upon request, reimburse you
for reasonable and necessary costs and expenses incurred by you in forwarding
Offer materials to your customers. Purchaser will pay or cause to be paid all
stock transfer taxes applicable to its purchase of Shares pursuant to this
Offer, subject to Instruction 6 of the Letter of Transmittal.
Any inquiries you have with respect to the Offer should be addressed to, and
additional copies of the enclosed materials may be obtained from, the
Information Agent or the undersigned at the addresses and telephone numbers
set forth on the back cover of the Offer to Purchase and the Letter of
Transmittal.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
CORPORATION
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY PERSON AS AN AGENT OF PURCHASER, THE COMPANY, ANY AFFILIATE OF THE
COMPANY, THE DEALER MANAGER, THE INFORMATION AGENT OR THE DEPOSITARY, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY
STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN
THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK (INCLUDING THE ASSOCIATED SERIES A
JUNIOR PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS)
OF
TYLAN GENERAL, INC.
AT
$16.00 NET PER SHARE
BY
MCTG ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
MILLIPORE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, JANUARY 21, 1997, UNLESS THE OFFER IS EXTENDED.
December 20, 1996
To Our Clients:
Enclosed for your consideration are the Offer to Purchase dated December 20,
1996 (the "Offer to Purchase") and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute
the "Offer") in connection with the offer by MCTG Acquisition Corp., a
Delaware corporation (the "Purchaser") and a wholly owned subsidiary of
Millipore Corporation, a Massachusetts corporation, to purchase all of the
outstanding shares of common stock, $.001 par value per share (the "Common
Stock") of Tylan General, Inc., a Delaware Corporation (the "Company"),
together with the associated Series A Junior Participating Preferred Stock
Purchase Rights (together with the Common Stock, the "Shares"), at a price of
$16.00 per Share, net to the seller in cash, without interest thereon, upon
the terms and conditions set forth in the Offer. We are (or our nominee is)
the holder of record of the Shares held for your account. A tender of such
Shares can be made only by us as the holder of record and pursuant to your
instructions. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR
YOUR ACCOUNT.
THE BOARD OF DIRECTORS OF TYLAN GENERAL, INC. (THE "COMPANY") HAS, WITHOUT
DISSENT, DETERMINED THAT EACH OF THE OFFER AND THE MERGER IS FAIR TO, AND IN
THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY AND HAS, WITHOUT
DISSENT, APPROVED THE OFFER AND THE MERGER AND RECOMMENDS THAT STOCKHOLDERS
ACCEPT THE OFFER AND TENDER THEIR SHARES.
We request instructions as to whether you wish us to tender any or all of
the Shares held by us for your account, upon the terms and subject to the
conditions set forth in the Offer.
Please note carefully the following:
1. The tender price is $16.00 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions set forth
in the Offer.
2. The Offer and withdrawal rights expire at 12:00 Midnight, New York City
time, on Tuesday, January 21, 1997, unless the Offer is extended.
3. The Offer is being made for all of the Shares.
4. THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING
VALIDLY AND PROPERLY TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION
OF THE OFFER A MAJORITY OF THE TOTAL SHARES OUTSTANDING ON A FULLY
DILUTED BASIS AND AS WILL PERMIT PURCHASER TO EFFECT THE MERGER (AS
DEFINED IN THE OFFER TO PURCHASE) WITHOUT THE VOTE OF ANY PERSON OTHER
THAN PURCHASER, AND (2) THE EXPIRATION OR
<PAGE>
TERMINATION OF ANY APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED. SEE "THE TENDER OFFER--
13. CERTAIN CONDITIONS OF THE OFFER" IN THE OFFER TO PURCHASE.
5. Any brokerage fees, commissions or stock transfer taxes applicable to
the sale of the Shares to Purchaser pursuant to the Offer will be paid
by such Purchaser, except as otherwise provided in Instruction 6 of the
Letter of Transmittal.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing, detaching and returning to us the instruction
form set forth below. An envelope to return your instructions to us is
enclosed. If you authorize tender of your Shares, all such Shares will be
tendered unless otherwise specified on the instruction form set forth below.
YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO
SUBMIT A TENDER ON YOUR BEHALF BY THE EXPIRATION OF THE OFFER. THE OFFER AND
WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON TUESDAY,
JANUARY 21, 1997, UNLESS THE PURCHASER EXTENDS THE OFFER.
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of the Shares in any jurisdiction in which the making of
the Offer or acceptance thereof would not be in compliance with the laws of
such jurisdiction. In those jurisdictions the laws of which require that the
Offer be made by a licensed broker or dealer, the Offer shall be deemed to be
made on behalf of the Purchaser by Credit Suisse First Boston Corporation or
one or more registered brokers or dealers licensed under the laws of such
jurisdiction.
<PAGE>
INSTRUCTIONS WITH RESPECT TO
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES
OF COMMON STOCK
(INCLUDING THE ASSOCIATED SERIES A JUNIOR
PARTICIPATING PREFERRED STOCK PURCHASE RIGHTS)
OF
TYLAN GENERAL, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase dated December 20, 1996 and the related Letter of Transmittal
(which collectively constitute the "Offer") in connection with the offer by
MCTG Acquisition Corp., a Delaware corporation and a wholly owned subsidiary
of Millipore Corporation, to purchase all of the outstanding shares of common
stock, par value $.001 per share (the "Common Stock"), together with the
associated Series A Junior Participating Preferred Stock Purchase Rights
(together with the Common Stock, the "Shares").
This will instruct you to tender the number of Shares indicated below held
by you for the account of the undersigned, upon the terms and subject to the
conditions set forth in the Offer to Purchase and the related Letter of
Transmittal.
Number of Shares to be Tendered/1/: ______ Shares of Common Stock (including
the associated Series A Junior
Participating Preferred Stock
Purchase Rights)
Account Number: ____________________________________
Dated: , 19
____________________________________________________________________________
SIGN HERE
Signature(s): _____________________________________________________________
____________________________________________________________________________
Print Name(s): ____________________________________________________________
____________________________________________________________________________
Print Address(es): ________________________________________________________
____________________________________________________________________________
Area Code and Telephone No.: ______________________________________________
Taxpayer ID No. or Social Security No.: ___________________________________
/1/Unless otherwise indicated, it will be assumed that all Shares held by us
for your account are to be tendered.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the Payor --
Social Security numbers have nine digits separated by two hyphens i.e.
000-00-0000. Employer identification numbers have nine digits separated by one
hyphen: i.e. 00-0000000. The table below will help determine the number to give
the payor.
<TABLE>
<CAPTION>
- ----------------------------------------------------------- -----------------------------------------------------------
For this type of account: Give the For this type of account: Give the EMPLOYER
SOCIAL SECURITY IDENTIFICATION
number of -- number of --
- ----------------------------------------------------------- -----------------------------------------------------------
<S> <C> <C> <C>
1. An individual's The individual
account 6. A valid trust, estate, The legal entity (Do
or pension trust not furnish the
2. Two or more The actual owner of identifying number
individuals (joint the account or, if of the personal
account) combined funds, the representative or
first individual on trustee unless the
the account/1/ legal entity itself is
not designated in the
3. Custodian account of The minor/2/ account title)/4/
a minor (Uniform
Gift to Minors Act) 7. Corporate account The corporation
4a. The usual revocable The grantor-trustee/1/ 8. Association, club, The organization
savings trust account religious, charitable,
(grantor is also educational or other
trustee) tax-exempt organization
b. So-called trust The actual owner/1/ 9. Partnership account The partnership
account that is not a
legal or valid trust 10. A broker or The broker or
under State Law registered nominee nominee
5. Sole proprietorship The owner/3/ 11. Account with the The public entity
account Department of
Agriculture in the
name of a public
entity (such as a
State or local
government, school
district or prison)
that receives
agricultural program
payments
- ----------------------------------------------------------- -----------------------------------------------------------
</TABLE>
/1/ List first and circle the name of the person whose number you furnish.
/2/ Circle the minor's name and furnish the minor's social security number.
/3/ Show the name of the owner.
/4/ List first and circle the name of the valid trust, estate, or pension trust.
Note: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER (TIN) ON SUBSTITUTE FORM W-9
(Section references are to the Internal Revenue Code)
Name
If you are an individual, generally provide the name shown on your
social security card. However, if you have changed your last name, for
instance, due to marriage, without informing the Social Security Administration
of the name change, please enter your first name and both the last name shown on
your social security card and your new last name.
Obtaining a Number
If you don't have a taxpayer identification number ("TIN"), apply for
one immediately. To apply, obtain Form SS-5, Application for a Social Security
Number Card, or Form SS-4, Application for Employer Identification Number, at
the local office of the Social Security Administration or the Internal Revenue
Service (the "IRS").
Payees and Payments Exempt from Backup Withholding
The following is a list of payees exempt from backup withholding and for
which no information reporting is required. For interest and dividends, all
listed payees are exempt except item (9). For broker transactions, payees
listed in (1) through (13), and a person registered under the Investment
Advisors Act of 1940 who regularly acts as a broker are exempt. Payments
subject to reporting under Sections 6041 and 6041A are generally exempt from
backup withholding only if made to payees described in items (1) through (7),
except that a corporation that provides medical and health care services or
bills and collects payments for such services is not exempt from backup
withholding or information reporting.
(1) A corporation.
(2) An organization exempt from tax under Section 501(a), or an individual
retirement plan ("IRA"), or a custodial account under Section 403(b)(7).
(3) The United States or any agencies or instrumentalities.
(4) A state, the District of Columbia, a possession of the United States,
or any of their political subdivisions or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies or
instrumentalities.
(6) An international organization or any of its agencies or
instrumentalities.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the U.S.
or a possession of the U.S.
(9) A futures commission merchant registered with the Commodity Futures
Trading Commission.
(10) A real estate investment trust.
(11) An entity registered at all times during the tax year under the
Investment Company Act of 1940.
(12) A common trust fund operated by a bank under Section 584(a).
(13) A financial institution.
(14) A middleman known in the investment community as a nominee or listed in
the most recent publication of the American Society of Corporate
Secretaries, Inc. Nominee List.
(15) A trust exempt from tax under Section 664 or described in Section 4947.
Payments of dividends generally not subject to backup withholding also
include the following:
. Payments to nonresident aliens subject to withholding under Section
1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
. Payment made by certain foreign organizations.
. Payments of interest generally not subject to backup withholding include
the following.
. Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this interest is $600
or more and is paid in the course of the payor's trade or business and you have
not provided your correct TIN to the payor.
. Payments of tax-exempt interest (including exempt-interest dividends
under Section 852).
. Payments described in Section 6049(b)(5) to nonresident aliens.
. Payments on tax-free covenant bonds under Section 1451.
. Payments made by certain foreign organizations.
. Mortgage interest paid by you.
Payments that are not subject to information reporting are also not
subject to backup withholding. For details, see Sections 6041, 6041A(a), 6042,
6044, 6045, 6049, 6050A, and 6050N, and the regulations under those sections.
Privacy Act Notice. - Section 6109 requires you to furnish your correct
TIN to persons who must file information returns with the IRS to report
interest, dividends, and certain other income paid to you, mortgage interest you
paid, the acquisition or abandonment of secured property, or contributions you
made to an IRA. The IRS uses the numbers for identification purposes and to help
verify the accuracy of your tax return. You must provide your TIN whether or not
you are qualified to file a tax return. Payors must generally withhold 31% of
taxable interest, dividend, and certain other payments to a payee who does not
furnish a TIN to a payor. Certain penalties may also apply.
Penalties
(1) Failure to Furnish TIN. - If you fail to furnish your correct TIN to a
payor, you are subject to a penalty of $50 for each such failure unless your
failure is due to reasonable cause and not to willful neglect.
(2) Civil Penalty for False Information With Respect to Withholding. - If you
make a false statement with no reasonable basis that results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) Criminal Penalty for Falsifying Information. - Willfully falsifying
certifications or affirmations may subject you to criminal penalties including
fines and/or imprisonment.
FOR ADDITIONAL INFORMATION
CONTACT YOUR TAX CONSULTANT OR THE IRS
<PAGE>
EXHIBIT (a)(7)
================================================================================
This announcement is neither an offer to purchase nor a solicitation of an
offer to sell Shares. The Offer is made solely by the Offer to Purchase dated
December 20, 1996 and the related Letter of Transmittal and any amendments or
supplements thereto, 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. In those
jurisdictions where securities, blue sky or other laws require the Offer to be
made by a licensed broker or dealer; the Offer shall be deemed to be made on
behalf of Purchaser by Credit Suisse First Boston Corporation ("Credit Suisse
First Boston"), or one or more registered brokers or dealers licensed under the
laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
OF
TYLAN GENERAL, INC.
AT
$16.00 NET PER SHARE
BY
MCTG ACQUISITION CORP.
A WHOLLY-OWNED SUBSIDIARY OF
MILLIPORE CORPORATION
MCTG Acquisition Corp., a Delaware corporation ("Purchaser") and a
wholly-owned subsidiary of Millipore Corporation, a Massachusetts corporation
("Parent"), is offering to purchase all outstanding shares of common stock, par
value $.001 per share (the "Common Stock"), together with all associated Series
A Junior Participating Preferred Stock Purchase Rights (together with the Common
Stock, the "Shares"), of Tylan General, Inc., a Delaware corporation (the
"Company"), at a purchase price of $16.00 per Share, net to the seller in cash,
without interest thereon (the "Offer Price"), in accordance with the terms and
subject to the conditions set forth in the Offer to Purchase dated December 20,
1996 (the "Offer to Purchase") and in the related Letter of Transmittal (which,
as amended from time to time, collectively constitute the "Offer"). Tendering
stockholders who have Shares registered in their names will not be charged
brokerage fees or commissions or, subject to Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer.
Following the consummation of the Offer, Purchaser intends to effect the merger
described below.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON TUESDAY, JANUARY 21, 1997, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Offer is conditioned upon, among other things, (1) there being
validly tendered and not properly withdrawn prior to the Expiration Date (as
defined below) a majority of the total Shares outstanding on a fully diluted
basis and as will permit Purchaser to effect the Merger (as defined below)
without the vote of any person other than Purchaser (the "Minimum Condition")
and (ii) the expiration or termination of any applicable waiting period under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. See
Introduction and Sections 1 and 13 of the Offer to Purchase for the other
conditions of the Offer.
<PAGE>
The Offer is being made in connection with an Agreement and Plan of Merger,
dated as of December 16, 1996 (the "Merger Agreement"), among the Company,
Parent and Purchaser. Pursuant to the Merger Agreement, and on the terms and
subject to the conditions set forth therein, Purchaser will merge with and into
the Company (the "Merger"), with the Company to be the surviving corporation in
such Merger, and each outstanding Share (other than Shares held by Parent,
Purchaser, any other subsidiary of Parent, or the Company, which will be
cancelled, and Shares held by stockholders who properly exercise appraisal
rights under Delaware law) will be converted into the right to receive an amount
in cash equal to the Offer Price. Following the consummation of the Merger, the
Company will continue as the surviving corporation and will be a wholly-owned
subsidiary of Parent. At Purchaser's option, the Merger may be alternatively
structured so that any direct or indirect subsidiary of Parent is merged with
and into the Company.
THE BOARD OF DIRECTORS OF THE COMPANY HAS, WITHOUT DISSENT, DETERMINED THAT
EACH OF THE OFFER AND THE MERGER IS FAIR TO, AND IN THE BEST INTERESTS OF, THE
STOCKHOLDERS OF THE COMPANY AND HAS, WITHOUT DISSENT, APPROVED THE OFFER AND THE
MERGER AND RECOMMENDS THAT THE STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER AND
TENDER THEIR SHARES.
Purchaser reserves the right, subject to the terms of the Merger Agreement,
to extend the Offer by giving oral or written notice of such extension to the
Depositary (as defined below). Any such extension will be followed as promptly
as practicable by public announcement thereof no later than 9:00 a.m., New York
City time, on the next business day after the previously scheduled Expiration
Date.
The Offer is subject to certain conditions set forth in the Offer to
Purchase. If any such condition is not satisfied, Purchaser expressly reserves
the right, in its sole discretion, to (a) terminate the Offer and not accept for
payment or pay for any Shares and return all tendered Shares to tendering
stockholders, (b) waive all the unsatisfied conditions (other than the Minimum
Condition, which may not be waived without the prior written consent of the
Company) and accept for payment and pay for all Shares validly tendered prior to
the Expiration Date or (c) extend the Offer and, subject to the right of
stockholders to withdraw Shares until the Expiration Date as set forth below,
retain the Shares that have been tendered during the period or periods for which
the Offer is extended.
For purposes of the Offer, Purchaser shall be deemed to have accepted for
payment and thereby purchased validly tendered Shares if, as and when Purchaser
gives oral or written notice to The First National Bank of Boston (the
"Depositary") of its acceptance of such Shares for payment pursuant to the
Offer. Payment for Shares accepted for payment pursuant to the Offer will be
made only after timely receipt by the Depositary of certificates for such Shares
(or a confirmation of a book-entry transfer with respect to such Shares into the
Depositary's account at one of the Book-Entry Transfer Facilities (as defined in
the Offer to Purchase)), a properly completed and duly executed Letter of
Transmittal (or facsimile thereof) and any other documents required by the
Letter of Transmittal. Under no circumstances will interest on the Offer Price
be paid, regardless of any delay in making such payment.
The term "Expiration Date" means 12:00 midnight, New York City time, on
January 21, 1997, unless Purchaser shall have extended the period of time during
which the Offer is open, in which event the term "Expiration Date" shall mean
the latest time and date at which the Offer, as so extended by Purchaser, shall
expire.
Tenders of Shares made pursuant to the Offer may be withdrawn at any time
prior to the Expiration Date. Thereafter, such tenders are irrevocable, except
that they may be withdrawn at any time after February 17, 1997 unless
theretofore accepted for payment as provided in the Offer to Purchase. For a
withdrawal to be effective, a written, telegraphic, telex or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth in the Offer to Purchase and must specify the
name of the person who tendered the Shares to be withdrawn, the number of Shares
to be withdrawn and the name of the registered holder, if different from that of
the person who tendered such Shares. If certificates evidencing Shares to be
withdrawn have been delivered and 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 the signatures on the
notice of withdrawal must be guaranteed by an Eligible Institution (as defined
in the Offer to Purchase) unless such Shares have been tendered for the account
of an Eligible Institution. If Shares have been tendered pursuant to the
procedure for book-entry transfer set forth in Section 3 of the Offer to
Purchase, the notice of withdrawal must specify the name and number of the
account at one of the Book-Entry Transfer Facilities to be credited with the
withdrawn Shares. Any Shares properly withdrawn will thereafter be deemed not
validly tendered for purposes of the Offer. However, withdrawn Shares may be
retendered at any time prior to the Expiration Date by again following one of
the procedures described in Section 3 of the Offer to Purchase.
<PAGE>
This information required to be disclosed by paragraph (e)(l)(vii) of Rule
14d-6 of the General Rules and Regulations under the Securities Exchange Act of
1934, as amended, is contained in the Offer to Purchase and is incorporated
herein by reference.
The Company has provided Purchaser with the Company's stockholder list and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Offer to Purchase, the related Letter of Transmittal and other
relevant materials will be mailed to record holders of Shares whose names appear
on the Company's stockholder list and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the stockholder list or, if applicable, who are
listed as participants in a clearing agency's security position listing for
subsequent transmittal to beneficial owners of Shares.
The Offer to Purchase and the related Letter of Transmittal contain
important information which should be read carefully before any decision is made
with respect to the Offer.
Requests for copies of the Offer to Purchase, the related Letter of
Transmittal and other tender offer materials may be directed to the Information
Agent or the Dealer Manager as set forth below, and copies will be furnished
promptly at Purchaser's expense. Purchaser will not pay any fees or commissions
to any broker or dealer or any other person (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:
[LOGO OF MACKENZIE PARTNERS, INC. APPEARS HERE]
156 Fifth Avenue
New York, NY 10010
(212) 929-5500 (Call Collect)
or
Call Toll Free (800) 322-2885
The Dealer Manager for the Offer is:
Credit Suisse First Boston
Eleven Madison Avenue
New York, NY 10010
Call Toll Free (800) 323-2197
December 20, 1996
- --------------------------------------------------------------------------------
================================================================================
Proof From DOREMUS & COMPANY
200 Varick Street, New York, NY 212-366-3000
---------------------------------------------
12/19/96 Proof 4
FBF-TEN-P Primar 3854
<PAGE>
EXHIBIT (a)(8)
Millipore to Acquire Tylan General
Bedford, Massachusetts, December 16, 1996--Millipore Corporation
(NYSE/MIL) and Tylan General (NASDAQ/TYGN) announced today that Millipore
has entered into a definitive agreement to acquire Tylan General for $16.00
per share in cash, or approximately $133 million, plus the assumption of
Tylan's outstanding debt. Completion of this transaction is expected in the
first quarter of 1997.
Tylan General is a leading supplier to the microelectronics industry of
precision mass flow controllers, pressure and vacuum measurement and
control equipment and ultraclean gas panels. The Company has been a leading
developer of measurement and control products and technologies to measure
and control the flow of process gases used in the manufacturing of
semiconductor devices, including introducing the first mass flow
controllers for semiconductor applications and the first adaptive pressure
control system. Headquartered in San Diego, California, Tylan had 1996
sales of approximately $150 million.
C. William Zadel, Millipore's Chairman and CEO, commented: "The
acquisition of Tylan General significantly strengthens Millipore's
competitive position in microelectronics, the Company's fastest growing
market over the past three years. It expands our product and service
offering to our microelectronics customers, accelerates our R&D program in
gas monitoring, and adds excellent software and electronic skills to our
core competencies. The acquisition also combines two breakthrough
technology platforms: Tylan's intelligent gas panels and Millipore's smart
purifiers, which will allow us to develop integrated products for the gas
market that offer greater reliability and lower cost. We will also continue
to serve our existing customers with separate components as well as
integrated systems that combine Millipore and Tylan technologies. Together
we will be able to help the microelectronics industry sustain its
incredible pace of performance improvements and cost reduction in
manufacturing integrated circuit devices."
Zadel continued: "This acquisition and our recent purchase of Amicon fit
perfectly into our recently completed long-range strategic plan, and both
present unique opportunities to strengthen Millipore for the future.
Biotechnology-derived drugs and increasingly powerful semiconductor devices
require new purification tools for discovery and manufacturing; these
acquisitions help us meet that technical and market need."
Arthur C. Spinner, Chairman of the Special Committee of the Board of
Directors of Tylan General that supervised the process of soliciting bids
for the acquisition of Tylan General, commented: "This transaction
represents the culmination of an extensive auction process that we believed
was designed to provide the best financial opportunity for the stockholders
of Tylan General."
<PAGE>
David J. Ferran, Chairman and Chief Executive Officer of Tylan General,
added, "I am very enthusiastic about this transaction and the prospects
offered by a combination of our business with that of Millipore. This
transaction will be beneficial for Tylan General's employees, customers and
suppliers, as well as for its stockholders."
Millipore intends to finance the acquisition of Tylan General with bank
borrowings and expects the acquisition to be accretive to earnings by the
second half of 1997 and to significantly enhance the long-term growth of
Millipore's revenues and profits. Millipore will, within five business
days, commence a tender offer at $16.00 per share for all the shares of
Tylan General. The offer is subject to the condition that a majority of the
shares are tendered. The tender offer, if successful, will be followed as
promptly as possible by a merger in which any remaining shares of Tylan
General stock will be converted into the right to receive $16.00 per share
in cash.
Millipore was advised in the acquisition by Credit Suisse First Boston;
Tylan General was advised by Goldman, Sachs & Co.
Millipore is a multinational company that applies its purification
technology to critical research and manufacturing problems in the
microelectronics, biopharmaceutical and analytical laboratory markets.
More information on Millipore can be found at www.millipore.com; and on
Tylan at www.tylangeneral.com.
Certain statements discussed in this news release are forward-looking
statements that involve a number of risks and uncertainties. In addition to
the factors discussed above, among the other factors that could cause
actual results to differ materially are the following: changes in foreign
exchange rates; increased regulatory concerns on the part of the
biopharmaceutical industry; swings in demand for microelectronics products;
competitive factors such as new membrane technology and/or a new method of
chip manufacture which relies less heavily on purified chemicals and gases;
and other risk factors listed from time to time in the Company's SEC
reports, including but not limited to the report on the Form 10-K for the
year ended December 31, 1995.
<PAGE>
AGREEMENT AND PLAN OF MERGER (Cash Merger) (hereinafter called this
"Agreement"), dated as of December 16, 1996, among TYLAN GENERAL, INC., a
- ----------
Delaware corporation (the "Company"), MILLIPORE CORPORATION, a Massachusetts
-------
corporation ("Purchaser"), and MCTG ACQUISITION CORP., a Delaware corporation
---------
and a wholly-owned subsidiary of Purchaser ("Purchaser Sub"), the Company and
-------------
Purchaser Sub sometimes being hereinafter collectively referred to as the
"Constituent Corporations."
RECITALS
WHEREAS, the Boards of Directors of Purchaser and the Company each have
determined that it is in the best interests of their respective stockholders for
Purchaser to acquire the Company upon the terms and subject to the conditions
set forth herein; and
WHEREAS, the Company, Purchaser and Purchaser Sub desire to make certain
representations, warranties, covenants and agreements in connection with this
Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
THE TENDER OFFER
1.1. Tender Offer.
------------
(a) Provided that this Agreement shall not have been terminated in
accordance with Article IX hereof and none of the events set forth in Annex A
hereto shall have occurred or be existing, within five business days after the
public announcement of the execution of this Agreement, Purchaser Sub will
commence a tender offer (the "Offer") for all of the outstanding shares of
-----
common stock, par value $0.001 per share (the "Shares"), of the Company at a
------
price of $16.00 per Share in cash, net to the seller, which Offer shall have an
initial expiration date not later than twenty (20) business days after the
commencement of the Offer. The obligation of Purchaser Sub to accept
<PAGE>
for payment and pay for Shares tendered pursuant to the Offer shall be subject
only to the satisfaction or waiver of the conditions to the Offer set forth in
Annex A hereto. It is agreed that the Minimum Condition (as defined in Annex A)
and the other conditions set forth in Annex A hereto are for the sole benefit of
Purchaser Sub and may be asserted by Purchaser Sub regardless of the
circumstances giving rise to any such condition unless the Purchaser, Purchaser
Sub or their Affiliates shall have caused the circumstances giving rise to such
condition. Purchaser Sub expressly reserves the right in its sole discretion to
waive, in whole or in part, at any time or from time to time, any such condition
(other than the Minimum Condition, which may not be waived without the prior
written consent of the Company), to increase the price per Share payable in the
Offer or to make any other changes in the terms and conditions of the Offer,
provided that, unless previously approved by the Company in writing, no change
- --------
may be made that decreases the price per Share payable in the Offer, reduces the
Minimum Condition, changes the form of consideration payable in the Offer,
reduces the maximum number of Shares to be purchased in the Offer, imposes
conditions to the Offer in addition to those set forth in Annex A hereto or
amends or modifies such conditions in any manner adverse to the holders of
Shares. Purchaser Sub covenants and agrees that, subject to the conditions of
the Offer set forth in Annex A hereto, Purchaser Sub shall accept for payment
and pay for Shares that have been validly tendered and not withdrawn pursuant to
the Offer as soon as it is permitted to do so under applicable law; provided
that, if the number of Shares that have been validly tendered and not withdrawn
represent less than 90% of the Shares outstanding on a fully diluted basis,
Purchaser Sub may extend the Offer up to the fifth business day following the
date on which all conditions to the Offer shall first have been satisfied or
waived.
(b) Purchaser agrees, as to the offer to purchase and related letter
of transmittal (which together constitute 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
(the "Exchange Act") and the rules and regulations thereunder and other
------------
applicable laws. The Company and its counsel, as to the Offer Documents, and
Purchaser Sub and its counsel, as to the Schedule 14D-9, shall be given an
opportunity to review such documents prior to their being filed with the SEC.
(c) In connection with the Offer, the Company will cause its transfer
agent to furnish promptly to Purchaser 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 Purchaser 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 Purchaser
or Purchaser Sub or their agents may reasonably request in communicating the
Offer to the record and beneficial holders of Shares. Subject to the
requirements of applicable law, and except for such steps as are necessary to
disseminate the Offer Documents and any other documents necessary to consummate
the Merger, Purchaser Sub and its Affiliates and Associates shall hold in
confidence the information contained in any such labels, listings and files,
will use such
2
<PAGE>
information only in connection with the Offer and the Merger, and, if this
Agreement shall be terminated, will deliver to the Company all copies of such
information then in their possession.
1.2. Company Action.
--------------
(a) The Company hereby approves of and consents to the Offer and
represents and warrants that its Board of Directors, at a meeting called and
held on December 16, 1996, by a unanimous vote of the directors present, (i)
determined that this Agreement and the transactions contemplated hereby,
including the Offer and the Merger, are fair to and in the best interests of the
stockholders of the Company, (ii) approved this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, and (iii) resolved to
recommend that the stockholders of the Company accept the Offer, tender their
Shares thereunder to Purchaser Sub and, if required by applicable law, approve
and adopt this Agreement and the Merger. Subject to the fiduciary duties of the
Board under applicable law (as determined in good faith after consultation with
independent counsel), the Company hereby consents to the inclusion in the Offer
Documents of the recommendations of the Board described in this Section 1.2(a).
(b) As soon as practicable on or prior to the date of commencement of
the Offer, the Company shall file with the SEC a Solicitation/Recommendation
Statement on Schedule 14D-9 (together with any amendments or supplements
thereto, the "Schedule 14D-9") and shall mail the Schedule 14D-9 to the
stockholders of the Company promptly after the commencement of the Offer. The
Schedule 14D-9 shall, subject to the fiduciary duties of the Board under
applicable law (as determined in good faith after consultation with independent
counsel), at all times contain the determinations, approvals and recommendations
described in Section 1.2(a). Purchaser, Purchaser Sub and the Company each
agrees promptly to correct any information provided by it for use in the
Schedule 14D-9 if and to the extent that any such information shall have become
false or misleading in any material respect and the Company further agrees to
take all steps necessary to cause the Schedule 14D-9 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 federal securities laws. Purchaser, Purchaser
Sub and their counsel shall be given a reasonable opportunity to review and
comment on the Schedule 14D-9 prior to its filing with the SEC and shall be
provided with any comments the Company and its counsel may receive from the SEC
or its staff with respect to the Schedule 14D-9 promptly after receipt of such
comments.
3
<PAGE>
ARTICLE II
THE MERGER; CLOSING; EFFECTIVE TIME
2.1. The Merger. Subject to the terms and conditions of this Agreement,
----------
at the Effective Time (as defined in Section 2.3), Purchaser Sub shall be merged
with and into the Company and the separate corporate existence of Purchaser 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 to be governed by the laws of the State of
- -----------
Delaware, and the separate corporate existence of the Company with all its
rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger, except as set forth in Section 3.1. The Merger shall have the
effects specified in the Delaware General Corporation Law (the "DGCL").
----
2.2. Closing. The closing of the Merger (the "Closing") shall take place
------- -------
(i) at the offices of Fried, Frank, Harris, Shriver & Jacobson, 350 South Grand
Avenue, 32nd Floor, Los Angeles, California 90071 at 10:00 A.M. on the first
business day on which the last to be fulfilled or waived of the conditions set
forth in Article VIII hereof shall be fulfilled or waived in accordance with
this Agreement or (ii) at such other place and time and/or on such other date as
the Company and Purchaser may agree.
2.3. Effective Time. As soon as practicable following the Closing, and
--------------
provided that this Agreement has not been terminated or abandoned pursuant to
Article IX hereof, the Company and the Purchaser will cause a Certificate of
Merger (the "Delaware Certificate of Merger") to be executed and filed with the
------------------------------
Secretary of State of Delaware as provided in Section 251 of the DGCL. The
Merger shall become effective on the date on which the Delaware Certificate of
Merger has been duly filed with the Secretary of State of Delaware, and such
time is hereinafter referred to as the "Effective Time."
--------------
2.4. Subsequent Actions. If at any time after the Effective Time, the
------------------
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of the Company or Purchaser Sub acquired or to be acquired
by the Surviving Corporation as a result of or in connection with the Merger, or
otherwise to carry out this Agreement, the officers and directors of the
Surviving Corporation shall be authorized to execute and deliver, in the name
and on behalf of the Company or Purchaser Sub, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of each
of such corporations or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm of record or otherwise any
and all right, title and interest in, to and under such rights, properties or
assets of the Surviving Corporation or otherwise to carry out this Agreement.
4
<PAGE>
ARTICLE III
CERTIFICATE OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION
3.1. The Certificate of Incorporation. The Certificate of Incorporation
--------------------------------
of the Purchaser Sub (the "Certificate") in effect at the Effective Time shall
-----------
be the Certificate of Incorporation of the Surviving Corporation, until duly
amended in accordance with the terms thereof, and the DGCL; provided, however,
that at the Effective Time the Certificate shall be amended to change the name
of the Surviving Corporation to Tylan General, Inc.
3.2. The By-Laws. The By-Laws of Purchaser Sub in effect at the
-----------
Effective Time shall be the By-Laws of the Surviving Corporation, until duly
amended in accordance with the terms thereof and the DGCL.
ARTICLE IV
OFFICERS AND DIRECTORS
OF THE SURVIVING CORPORATION
4.1. Officers and Directors. The directors of Purchaser Sub and the
----------------------
officers of the Company, together with any additional individuals designated by
Purchaser, at the Effective Time shall, from and after the Effective Time, be
the directors and officers, respectively, of the Surviving Corporation until
their successors have been duly elected or appointed and qualified or until
their earlier death, resignation or removal in accordance with the Surviving
Corporation's Certificate of Incorporation and By-Laws.
4.2. Actions by Directors. Following the election or appointment of
--------------------
Purchaser's designees pursuant to Section 4.3 hereof, and prior to the Effective
Time, the approval of a majority of the Continuing Directors shall be required
to authorize (and such authorization shall constitute the authorization of the
Board of Directors of the Company and no other action on the part of the
Company, including any action by any other director of the Company, shall be
required to authorize) any termination of this Agreement by the Company, any
amendment of this Agreement requiring action by the Board of Directors of the
Company, any extension of time for the performance of any of the obligations or
other acts of Purchaser or Purchaser Sub, any waiver of compliance with any
5
<PAGE>
of the agreements or conditions contained herein for the benefit of the Company
or any other rights of the Company hereunder, and any amendment or withdrawal by
the Board of Directors of its recommendation of the Merger pursuant to Section
7.3 hereof.
4.3. Boards of Directors; Committees. If requested by Purchaser, the
-------------------------------
Company will, subject to compliance with applicable law and immediately
following the purchase by Purchaser Sub of more than 50 percent of the
outstanding Shares pursuant to the Offer, take all actions necessary to cause
persons designated by Purchaser to become directors of the Company so that the
total number of such persons equals that number of directors, rounded up to the
next whole number, which represents the product of (x) the total number of
directors on the Board of Directors multiplied by (y) the percentage that the
number of Shares so purchased plus any Shares beneficially owned by Purchaser or
its Affiliates on the date hereof bears to the number of Shares outstanding at
the time of such purchase; provided, however, that in no event shall Purchaser
-------- -------
be entitled to designate a majority of the Board of Directors unless it is the
beneficial owner of Shares entitling it to exercise at least a majority of the
voting power of the Company's outstanding shares entitled to vote generally in
the election of directors. In furtherance thereof, the Company will use its
reasonable best efforts to secure the resignation of all but three directors, or
will increase the size of the Board, or both, as is necessary to permit
Purchaser's designees to be elected to the Company's Board of Directors;
provided, however, that prior to the Effective Time, the Company's Board of
- -------- -------
Directors shall always have at least three Continuing Directors. Immediately
following the purchase by Purchaser Sub of more than 50% of the outstanding
Shares pursuant to the Offer, the Company, if so requested, will use its
reasonable efforts to cause persons designated by Purchaser to constitute the
same percentage of each committee of such board, each board of directors of each
subsidiary of the Company and each committee of each such board (in each case to
the extent of the Company's ability to elect such persons). The Company's
obligations to appoint designees to the Board of Directors shall be subject to
Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. The Company shall
promptly take all actions required in order to fulfill its obligations under
this Section 4.3 and shall include in the Schedule 14D-9 such information as is
required under such Section 14(f), Rule 14(f)-1 and Schedule 14D-9. The
Purchaser will supply to the Company in writing and be solely responsible for
any information with respect to the Purchaser and its subsidiaries
(collectively, the "Purchaser Companies") and the nominees, directors and
-------------------
Affiliates thereof required by Section 14(f) and Rule 14f-1 to be included in
the Schedule 14D-9.
ARTICLE V
CONVERSION OR CANCELLATION OF SHARES IN THE MERGER
5.1. Conversion or Cancellation of Shares. The manner of converting or
------------------------------------
canceling shares of the Company and Purchaser Sub in the Merger shall be as
follows:
6
<PAGE>
(a) At the Effective Time, each Share issued and outstanding
immediately prior to the Effective Time (other than Shares owned by Purchaser,
Purchaser Sub or any other subsidiary of Purchaser) 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 $16.00 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
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 5.2 or the
right, if any, to receive payment from the Surviving Corporation of the "fair
value" of such Shares as determined in accordance with Section 262 of the DGCL.
(b) At the Effective Time, each Share issued and outstanding at the
Effective Time and owned by any of the Purchaser Companies, and each Share
issued and held in the Company's treasury at the Effective Time, shall, by
virtue of the Merger and without any action on the part of the holder thereof,
cease to be outstanding, shall be canceled and retired without payment of any
consideration therefor and shall cease to exist.
(c) At the Effective Time, each share of Common Stock, par value
$0.01 per share, of Purchaser Sub issued and outstanding immediately prior to
the Effective Time shall, by virtue of the Merger and without any action on the
part of Purchaser Sub or the holders of such shares, be converted into one
Share.
5.2. Payment for Shares. Purchaser shall make available or cause to be
------------------
made available to the paying agent appointed by Purchaser with the Company's
prior approval (the "Paying Agent") amounts sufficient in the aggregate to
------------
provide all funds necessary for the Paying Agent to make payments pursuant to
Section 5.1(a) hereof to holders of Shares issued and outstanding immediately
prior to the Effective Time. Promptly after the Effective Time, the Purchaser
shall instruct the Paying Agent to mail to each person who was, at the Effective
Time, a holder of record (other than any of the Purchaser Companies) of issued
and outstanding Shares a form (mutually agreed to by Purchaser and the Company)
of letter of transmittal and instructions for use in effecting the surrender of
the certificates which, immediately prior to the Effective Time, represented any
of such Shares in exchange for payment therefor. Upon surrender to the Paying
Agent of such certificates, together with such letter of transmittal, duly
executed and completed in accordance with the instructions
7
<PAGE>
thereto, the Surviving Corporation shall promptly cause to be paid to the
persons entitled thereto a check in the amount to which such persons are
entitled, after giving effect to any required tax withholdings. No interest will
be paid or will accrue on the amount payable upon the surrender of any such
certificate. 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 applicable. One hundred eighty days following the Effective
Time, the Surviving Corporation shall be entitled to cause the Paying Agent to
deliver to it any funds (including any interest received with respect thereto)
made available to the Paying Agent which have not been disbursed to holders of
certificates formerly representing Shares outstanding on the Effective Time, and
thereafter such holders shall be entitled to look to the Surviving Corporation
only as general creditors thereof with respect to the cash payable upon due
surrender of their certificates. Notwithstanding the foregoing, neither the
Paying Agent nor any party hereto shall be liable to any holder of certificates
formerly representing Shares for any amount paid to a public official pursuant
to any applicable abandoned property, escheat or similar law. The Surviving
Corporation shall pay all charges and expenses, including those of the Paying
Agent, in connection with the exchange of cash for Shares and Purchaser shall
reimburse the Surviving Corporation for such charges and expenses.
5.3. Dissenters' Rights. 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 Purchaser notice thereof and Purchaser shall
have the right to participate, at its own expense, in 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 Purchaser,
which consent shall not be unreasonably withheld, voluntarily make any payment
with 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 5.1.
5.4. Transfer of Shares After the Effective Time. No transfers of Shares
-------------------------------------------
shall be made on the stock transfer books of the Surviving Corporation at or
after the Effective Time.
5.5. Stockholders' Meeting. If approval by the Company's stockholders is
---------------------
required by applicable law to consummate the Merger, the Company, acting through
its Board of Directors, shall in accordance with applicable law, as soon as
practicable following the consummation of the Offer:
8
<PAGE>
(i) duly call, give notice of, convene and hold a special meeting of
its stockholders (the "Stockholders' Meeting") for the purpose of considering
and taking action upon this Agreement and the Merger;
(ii) subject to the fiduciary duties of the Board under applicable
law (as determined in good faith after consultation with independent counsel),
include in the Proxy Statement the recommendation of its Board of Directors that
the stockholders of the Company vote in favor of the approval and adoption of
this Agreement and the transactions contemplated hereby (including the Merger);
and
(iii) use its reasonable best efforts (A) to obtain and furnish the
information required to be included by it in the Proxy Statement and, after
consultation with Purchaser, respond promptly to any comments made by the SEC
with respect to the Proxy Statement and any preliminary version thereof and
cause the Proxy Statement to be mailed to its stockholders at the earliest
practicable time following the consummation of the Offer and (B) subject to the
fiduciary duties of the Board under applicable law (as determined in good faith
after consultation with independent counsel), to obtain the necessary approvals
by its stockholders of this Agreement and the transactions contemplated hereby
(including the Merger).
At such meeting, Purchaser and Purchaser Sub will vote all Shares owned
by them in favor of this Agreement and the transactions contemplated hereby
(including the Merger).
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Representations and Warranties of the Company. Except as set forth
---------------------------------------------
in the Disclosure Schedule delivered by the Company to Purchaser concurrently
with the execution of this Agreement (the "Company Disclosure Schedule"), the
---------------------------
Company hereby represents and warrants to Purchaser that:
9
<PAGE>
(a) Organization and Qualification; Subsidiaries.
--------------------------------------------
Each of the Company and each of its subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of each of their
respective jurisdictions of incorporation or organization, as the case may be,
has all requisite corporate power and authority to own, lease and operate its
respective properties and to carry on its respective business as is now being
conducted. Each of the Company and each of its subsidiaries is duly qualified
as a foreign corporation and in good standing to do business in each
jurisdiction in which the character of its properties owned or leased or the
nature of the business conducted by it makes such qualification necessary, other
than where the failure to be so qualified would not have a Company Material
Adverse Effect. Company Disclosure Schedule 6.1(a) sets forth (i) a true and
complete list of all of the Company's directly or indirectly owned subsidiaries,
together with the jurisdiction of incorporation or organization of each
subsidiary and the percentage of each subsidiary's outstanding capital stock or
other equity interests owned by the Company, another subsidiary of the Company
or any Affiliate of the Company, and (ii) a true and complete list of all
partnerships and joint venture arrangements or other business entities in which
the Company or any subsidiary of the Company owns, either directly or
indirectly, an equity interest, together with the jurisdiction of organization
thereof and the percentage of equity of such partnership or joint venture as is
represented by such equity interest owned by the Company, such subsidiary and
any Affiliate of the Company.
(b) Certificates of Incorporation and By-Laws.
-----------------------------------------
The Company has heretofore furnished to Purchaser complete and correct
copies of the Certificate of Incorporation and the By-Laws of the Company, which
are in full force and effect on the date hereof. The Company will provide
complete and correct copies of the comparable charter documents of each of its
subsidiaries promptly following the date hereof. The Company and its
subsidiaries are not in violation of any of the provisions of their respective
Certificates of Incorporation, By-Laws or other charter documents.
(c) Capitalization.
--------------
(A) The authorized capital stock of the Company consists of (i) 50,000,000
shares of Common Stock, $0.001 par value per share ("Company Common Stock") of
--------------------
which, as of the date hereof: (w) 7,873,491 shares of Company Common Stock were
issued and outstanding, all of which are duly authorized, validly issued, fully
paid and nonassessable and not subject to preemptive rights created by statute,
the Company's Certificate of Incorporation or By-Laws or any agreement to which
the Company is a party or is bound; (x) no shares of Company Common Stock were
held in the treasury of the Company; and (y) (1) 1,094,449 shares of Company
Common Stock were reserved for future issuance pursuant to outstanding stock
options (collectively, the "Stock Options") granted to certain employees,
-------------
directors and consultants of the Company pursuant to the Company's 1989 Non-
Qualified Stock Option Plan, 1994 Stock Option Plan, the 1996 Nonstatutory Stock
Option
10
<PAGE>
Plan, the Employee Stock Purchase Plan, and the 1994 Non-Employee Directors'
Stock Option Plan (collectively, the "Company Option Plans"), and (2)
--------------------
10,624 shares of Company Common Stock were reserved for future issuance pursuant
to outstanding stock options granted to the parties listed on Company Disclosure
Schedule 6.1(c)(A) (the "Miscellaneous Stock Options", and collectively with the
---------------------------
Stock Options, the "Company Stock Options") and (ii) 10,000,000 shares of
---------------------
preferred stock, par value $0.001 per share, of the Company (the "Company
-------
Preferred Stock" and, together with the Company Common Stock and the Company
- ---------------
Stock Options, the "Company Securities") of which, as of the date hereof,
------------------
100,000 shares of Series A Junior Participating Preferred Stock, $0.001 par
value per share, were reserved for issuance with respect to certain Rights (as
defined in the Rights Agreement, dated as of July 2, 1996, between the Company
and The First National Bank of Boston, as Rights Agent, as amended (the "Rights
Agreement")). The Company Option Plans are the only plans or agreements
pursuant to which the Company has granted Company Stock Options. Except as
described in this Section 6.1(c), no shares of Company Common Stock are reserved
for any other purpose. Except as set forth in Company Disclosure Schedule
6.1(c)(A), since October 31, 1996, no shares of Company Common Stock have been
issued by the Company, except pursuant to the exercise of Company Stock Options
outstanding on the date of this Agreement, in each case in accordance with each
of their respective terms. Each of the outstanding shares of capital stock of,
or other equity interests in, each of the Company and its subsidiaries is duly
authorized and validly issued, and, in the case of shares of capital stock,
fully paid and nonassessable, and, except as set forth in Company Disclosure
Schedule 6.1(c)(A), all such outstanding shares or other equity interests are
owned by the Company or another subsidiary of the Company free and clear of all
security interests, liens, claims, pledges, agreements, limitations on the
Company's or such subsidiaries' voting rights, charges or other encumbrances of
any nature whatsoever.
(B) Except as set forth in Company Disclosure Schedule 6.1(c)(B) and except
as set forth in Section 6.1(c)(A) above or otherwise contemplated hereby, there
are no options, warrants or other rights (including registration rights),
agreements, arrangements or commitments of any character to which the Company or
any of its subsidiaries is a party relating to the issued or unissued capital
stock of, or other equity interests in, the Company or any of its subsidiaries,
or obligating the Company or any of its subsidiaries to grant, issue or sell any
shares of the capital stock of, or other equity interests in, the Company or any
of its subsidiaries, by sale, lease, license or otherwise. There are no
obligations, contingent or otherwise, of the Company or any of its subsidiaries
to (x) repurchase, redeem or otherwise acquire any shares of Company Common
Stock or Company Preferred Stock, or the capital stock of, or other equity
interests in, any subsidiary of the Company; or (y) except as set forth in
Company Disclosure Schedule 6.1(c)(B), provide funds to, or make any investment
in (in the form of a loan, capital contribution or otherwise), or provide any
guarantee with
11
<PAGE>
respect to the obligations of, any subsidiary of the Company or any other
person. Neither the Company nor any of its subsidiaries directly or indirectly
owns, or has agreed to purchase or otherwise acquire, any of the capital stock
of, or other equity interest in, or any interest convertible into or
exchangeable or exercisable for, any of the capital stock of, or other equity
interest in, any corporation, partnership, joint venture or other business
association or entity. Except for the Company's Annual Incentive Bonus Program
and as set forth in Company Disclosure Schedule 6.1(c)(B), there are no
agreements, arrangements or commitments of any character (contingent or
otherwise) pursuant to which any person is or may be entitled to receive any
payment based on the revenues or earnings, or calculated in accordance
therewith, of the Company or any of its subsidiaries. Except as set forth in
Company Disclosure Schedule 6.1(c)(B), there are no voting trusts, proxies or
other agreements or understandings to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is
bound with respect to the voting of any shares of capital stock of the Company
or any of its subsidiaries.
(C) The Company has previously delivered to Purchaser true and complete
copies of each of the Company Option Plans and the forms of Company Stock
Options issued pursuant to the respective Company Option Plan, including all
amendments thereto. Except as contemplated by this Agreement, there have been
no changes in the terms of outstanding Company Stock Options not reflected in
such documents so delivered. Except for the Company Option Plans, and all such
amendments, agreements and documentation to them, there are no agreements,
instruments or other documents binding on the Company or any of its subsidiaries
with respect to the Company Stock Options, or any other options or warrants to
purchase shares of Company Common Stock. The Company has previously delivered
to Purchaser a true and complete written list setting forth (i) the number of
shares subject to each Company Stock Option currently outstanding, (ii) the
exercise price for each such Company Stock Option, (iii) the grant date for each
such Company Stock Option, and (iv) the expiration date for each such Company
Stock Option. Except for the Amendment to Employment Agreement dated as of July
22, 1996 between the Company and David J. Ferran, except as permitted by this
Agreement and except as set forth in Company Disclosure Schedule 6.1(c)(C),
since July 28, 1996, the Company has not taken any action that has resulted in
or which will result in the acceleration of vesting of any of the Company Stock
Options.
(d) Authority; Approval.
-------------------
The Company has all requisite corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby to be consummated by the Company (other
than when required by law with respect to the Merger, the approval and adoption
of this Agreement by the holders of a majority of the outstanding shares of
Company Common Stock in accordance with Delaware Law). The execution and
delivery of this Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action, and no other corporate proceedings on the part of the Company
are necessary to authorize this Agreement or to
12
<PAGE>
consummate the transactions contemplated hereby (other than, with respect to the
approval and adoption of this Agreement, by the holders of a majority of the
outstanding shares of Company Common Stock in accordance with Delaware Law).
This Agreement has been duly and validly executed and delivered by the Company
and, assuming the due authorization, execution and delivery thereof by Purchaser
and Purchaser Sub, constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, subject
to: (i) applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or similar laws from time to time in effect affecting creditors'
rights generally and (ii) general principles of equity including, without
limitation, standards of materiality, good faith, fair dealing and
reasonableness, whether such principles are considered in a proceeding of law or
in equity. The Company hereby represents that the Special Committee of the Board
of Directors has recommended that the Board of Directors of the Company approve
the Merger and that the Board of Directors of the Company has unanimously
adopted a resolution approving the Merger and has resolved to recommend approval
of the Merger to the Company's stockholders.
(e) No Conflict; Required Filings and Consents.
------------------------------------------
(A) To the knowledge of the Company, except as set forth on Company
Disclosure Schedule 6.1(e), the execution and delivery of this Agreement by the
Company does not, and the performance of this Agreement by the Company,
(including, without limitation, consummation of the Merger) will not, (i)
conflict with or violate the Certificate of Incorporation or By-Laws, or the
equivalent organizational documents, in each case as amended or restated, of the
Company or any of its subsidiaries, (ii) conflict with or violate any foreign,
federal, state or local law, statute, treaty, ordinance, rule, regulation,
order, writ, injunction, decree, judgment or decree (collectively, "Laws")
----
applicable to the Company or any of its subsidiaries or by which any of their
respective properties is bound or affected or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of any
lien, security interest, charge or other encumbrance ("Encumbrance") on any of
the properties or assets of the Company or any of its subsidiaries pursuant to
any note, bond, mortgage, indenture, lease or other instrument 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 respective properties is bound or
affected, other than, in the case of (ii) and (iii), any such conflicts,
violations, defaults, rights, or Encumbrances that, individually or in the
aggregate, would not have a Company Material Adverse Effect.
13
<PAGE>
(B) To the knowledge of the Company, except as set forth on Company
Disclosure Schedule 6.1(e)(A), the execution and delivery of this Agreement by
the Company does not, and the performance of this Agreement by the Company
(including, without limitation, consummation of the Merger) will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, either domestic or
foreign ("Governmental Entities"), except (i) for applicable requirements, if
---------------------
any, of the Securities Act of 1933, as amended (the "Securities Act"), the
--------------
Exchange Act, state securities or blue sky laws ("Blue Sky Laws"), the NASDAQ,
-------------
and the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and the filing and recordation of appropriate merger documents as
--------
required by Delaware Law and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
would not, either individually or in the aggregate, have a Company Material
Adverse Effect.
(f) Reports; Financial Statements.
-----------------------------
(A) Since January 28, 1995, the Company has filed all forms, reports,
statements and other documents required to be filed with the SEC including,
without limitation, (A) all Annual Reports on Form 10-K, (B) all Quarterly
Reports on Form 10-Q, (C) all proxy statements relating to meetings of
stockholders (whether annual or special) of the Company, (D) all Reports on Form
8-K, (E) all other reports or registration statements (including the Form S-4
filed in connection with its acquisition of Span Instruments, Inc.) and (F) all
amendments and supplements to all such reports and registration statements
(collectively referred to as the "SEC Reports"). The SEC Reports, including all
-----------
SEC Reports filed after the date of this Agreement and prior to the Effective
Time (i) were or will be prepared in all material respects in accordance with
the requirements of applicable Law (including, the Securities Act and the
Exchange Act, as the case may be, and the rules and regulations of the SEC
thereunder applicable to such SEC Reports) and (ii) did not at the time they
were filed, or will not at the time they are filed, contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(B) Each of the consolidated financial statements (including, in each case,
any related notes thereto) contained in the SEC Reports filed prior to or after
the date of this Agreement, and the consolidated financial statements as of and
for the fiscal year ended October 31, 1996 (the "Fiscal 1996 Financial
---------------------
Statements"), a copy of which has previously been provided to Purchaser
- ----------
(collectively, the "Company Financial Statements") (i) have been or will be
----------------------------
prepared in accordance with the published rules and regulations of the SEC and
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except (1) to the extent required by changes in
generally accepted accounting principles, (2) with respect to SEC Reports filed
prior to the date of this Agreement, as may be indicated in the notes thereto
and (3) the Fiscal 1996 Financial Statements do not include any notes) and (ii)
fairly present or will fairly present the consolidated financial position of the
Company and its subsidiaries, as of the respective dates thereof, and the
14
<PAGE>
consolidated results of operations and cash flows and changes in financial
position for the respective periods then ended, except that (x) any unaudited
interim financial statements were or will be subject to normal year-end
adjustments and (y) any pro forma financial statements contained in such
consolidated financial statements are not necessarily indicative of the
consolidated financial position of the Company and its subsidiaries, as of the
respective dates thereof, and the consolidated results of operations and cash
flows and changes in financial position for the respective periods then ended.
Upon completion of the audit of the Fiscal 1996 Financial Statements, the
Company will provide a copy thereof to the Purchaser, which will be the same in
all material respects as the Fiscal 1996 Financial Statements previously
provided to the Purchaser, will be accompanied by an unqualified audit opinion
by Ernst & Young, LLP, the Company's independent public accountants, and will
contain notes that do not include any information that is different from that
provided to the Purchaser under or pursuant to this Agreement or any document
referenced herein or in the Schedules hereto to the extent that such difference
constitutes a Company Material Adverse Effect (the "Audited Fiscal 1996
Financial Statements").
(C) Except as disclosed on Company Disclosure Schedule 6.1(f), neither the
Company nor any of its subsidiaries is liable as an indemnitor, guarantor,
surety or endorser, and no person has the power to confess judgment against the
Company or any of its subsidiaries, assets, properties or business except as
would not, individually or in the aggregate, result in or reasonably be likely
to result in a Company Material Adverse Effect.
(g) Absence of Certain Changes or Events.
------------------------------------
Except as disclosed in the SEC Reports filed prior to the date of this
Agreement or as contemplated in this Agreement, since October 31, 1996, there
has not been:
(A) any declaration, setting aside or payment of any dividend or other
distribution (whether in cash, stock or property) with respect to any of the
Company's capital stock;
(B) any material change by the Company or its subsidiaries in their
accounting methods, principles or practices (except for changes made after the
date of this Agreement as required by changes in generally accepted accounting
principles);
(C) any amendment of any material term of any outstanding equity security
of the Company or any subsidiary;
15
<PAGE>
(D) any repurchase, redemption or other acquisition by the Company or any
subsidiary of any outstanding shares of capital stock or other equity securities
of, or other ownership interests in, the Company or any subsidiary; or
(E) any change, event or series of changes or events which would have a
Company Material Adverse Effect, except for general economic changes and changes
that may affect the industries of the Company or any of its subsidiaries
generally.
(h) Absence of Litigation.
---------------------
Except as set forth in Company Disclosure Schedule 6.1(h), there is no
action, suit, investigation or proceeding, (collectively, "Litigation"), pending
----------
or, to the knowledge of the Company, threatened against or affecting the Company
or any of its subsidiaries which if adversely determined, individually or in the
aggregate, would have a Company Material Adverse Effect, and neither the Company
nor any of its subsidiaries is subject to any judgments, decrees, injunctions,
rules or orders of any Governmental Entity or arbitrator (collectively, "Orders"
------
and Orders together with Litigation being referred to as "Claims"), except for
------
matters which, individually or in the aggregate, would not have a Company
Material Adverse Effect.
(i) Employee Benefit Plans.
----------------------
(a) For purposes of this Section, the term "Company Benefit Plans" shall
---------------------
mean all material pension, retirement, profit-sharing, deferred compensation,
stock option, employee stock ownership, severance pay, vacation, bonus or other
incentive plans, and all other employee programs, arrangements or agreements,
whether arrived at through collective bargaining or otherwise, all medical,
vision, dental and other health plans, all life insurance plans, and all other
employee benefit plans or fringe benefit plans, including, without limitation,
any "employee benefit plan," as that term is defined in Section 3(3) of ERISA,
currently adopted, maintained by, sponsored in whole or in part by, or
contributed to by the Company or its Affiliates for the benefit of employees,
retirees, dependents, spouses, directors, independent contractors or other
beneficiaries and under which employees, retirees, dependents, spouses,
directors, independent contractors, or other beneficiaries are eligible to
participate. Any of the Company Benefit Plans which is an "employee pension
benefit plan," as that term is defined in Section 3(2) of ERISA, is referred to
herein as a "Company ERISA Plan."
------------------
(b) Except as set forth on Company Disclosure Schedule 6.1(i), no Company
Benefit Plan is or has been a multiemployer plan within the meaning of Section
3(37) of ERISA. As to any multiemployer plan set forth on Company Disclosure
Schedule 6.1(i), prior to the date hereof the Company has provided to Purchaser
a true and correct copy of any estimate of the "withdrawal liability" that would
arise if the Company were to withdraw or cause a withdrawal from such plan that
is within the knowledge of the Company. To the knowledge of the Company, all
Company
16
<PAGE>
Benefit Plans are in compliance with the applicable provisions (including,
without limitation, any funding requirements or limitations) of ERISA and the
Internal Revenue Code of 1986, as amended (the "Code"), except for any breach or
violation that would not have a Company Material Adverse Effect. No Company
Benefit Plan provides for post-retirement medical benefit obligations (without
regard to COBRA obligations). Except as set forth on Company Disclosure Schedule
6.1(i), no Company ERISA Plan which is a defined benefit pension plan has any
"unfunded current liability," as that term is defined in Section 302(d)(8)(A) of
ERISA, and the present fair market value of the assets of any such plan exceeds
the plan's "benefit liabilities," as that term is defined in Section 4001(a)(16)
of ERISA, when determined under actuarial factors that would apply if the plan
terminated in accordance with all applicable legal requirements.
(c) Company Disclosure Schedule 6.1(i) sets forth a true and correct list
of all Company Benefit Plans. The Company has provided Purchaser with access to
true and correct copies of each governing document for each Company Benefit
Plan, together with the most recent summary plan description and annual report
for each such plan and the actuarial report for any Company Benefit Plan that is
a defined benefit pension plan or funded welfare benefit plan.
(j) Taxes.
-----
(a) Except as would not, individually or in the aggregate, have a Company
Material Adverse Effect, the Company and each of its subsidiaries has filed all
federal, state, local and foreign income and other tax returns required to be
filed by it, has paid all taxes, assessments, fees and other governmental
charges of any nature whatsoever, with any related penalties, interest and
liabilities (any of the foregoing being referred to herein as a "Tax"), that are
due and payable on or before the date hereof, other than such Taxes as are being
contested in good faith. There are no material claims or assessments pending
against the Company or any of its subsidiaries for any alleged deficiency in
Tax, and the Company does not know of any threatened Tax claims, assessments or
investigations against the Company or any of its subsidiaries which if upheld
could have a Company Material Adverse Effect.
(b) The Company and all of its subsidiaries have paid or are withholding
and will pay when due to the proper taxing authorities all withholding amounts
required to be withheld with respect to all Taxes, including without limitation
sales and use Taxes and Taxes on income or benefits and Taxes for unemployment,
social security or other similar programs with respect to salary and other
compensation of directors, officers and employees of the Company and its
subsidiaries, except when the failure to pay or withhold would not have a
Company Material Adverse Effect.
17
<PAGE>
(c) Neither the Company nor any of its subsidiaries has any liability for
any federal, state, local, foreign or other Taxes of any corporation or entity
other than the Company and its subsidiaries, including without limitation any
liability arising from the application of U.S. Treasury Regulations (S) 1.1502-6
or any analogous provision of state, local or foreign law, except any liability
that would not have a Company Material Adverse Effect.
(d) Neither the Company nor any of its subsidiaries is or has been a party
to any Tax sharing agreement with any corporation other than the Company and its
subsidiaries.
(e) To the best of the Company's knowledge and as of the date hereof, no
person who holds 5 percent or more of the stock of the Company is a "foreign
person" as defined in Section 1445(f)(3) of the Code.
(k) Proprietary Rights.
------------------
The Company and its subsidiaries possess or have adequate rights to use all
material trademarks, trade names, patents, service marks, marks, brand names,
computer programs, databases, industrial designs and copyrights necessary for
the operation of the businesses of each of Company and its subsidiaries
(collectively, the "Proprietary Rights"). Except as set forth on Company
------------------
Disclosure Schedule 6.1(k), all of the Proprietary Rights that are material to
the conduct of the Company's business taken as a whole are owned by the Company
or its subsidiaries free and clear of any and all Encumbrances that would have a
material adverse effect on the value of, or ability of Purchaser to utilize, the
item of the Proprietary Rights to which such Encumbrances relates, and neither
the Company nor any such subsidiary has forfeited or otherwise relinquished any
Proprietary Rights which forfeiture would have a Company Material Adverse
Effect. The use of the Proprietary Rights by the Company or its subsidiaries
does not conflict with, infringe upon, violate or interfere with or constitute
an appropriation of any right, title, interest or goodwill, including, without
limitation, any intellectual property right, trademark, trade name, patent,
service mark, brand mark, brand name, computer program, database, industrial
design, copyright or any pending application therefor of any other person,
except where such conflict, infringement, violation, interference or
appropriation would not result in a Company Material Adverse Effect. Except as
set forth on Company Disclosure Schedule 6.1(k), the Company has received no
written notice that the use of any Proprietary Rights or trade dress by the
Company or its subsidiaries conflicts with, infringes upon, violates or
interferes with any rights of any other person. There are no pending claims
that any of the Proprietary Rights is invalid or conflicts with the asserted
rights of any other person or has not been used or enforced or has been failed
to be used or enforced in a manner that would result in the abandonment,
cancellation or unenforceability of any of the Proprietary Rights that is
material to the conduct of the Company's business. Except as set forth on
Company Disclosure Schedule 6.1(k), neither the Company nor any of its
subsidiaries has (i) granted any third party any license or other right to use
any of the Proprietary Rights or (ii) a license or other right to use any
intellectual property of a third party.
18
<PAGE>
(l) Opinion of Financial Advisor.
----------------------------
The Company has received the written opinion (the "Fairness Opinion") of
----------------
Goldman, Sachs & Co. ("Goldman Sachs") dated the date of this Agreement to the
-------------
effect that the $16.00 in cash to be received by the holders of Shares in the
Offer and Merger, taken as a unitary transaction, is fair to such holders; it
being understood and acknowledged that such Fairness Opinion has been rendered
to the Board of Directors of the Company and may not be relied by Purchaser,
Purchaser Sub, their affiliates or their respective stockholders.
(m) Brokers.
-------
No broker, finder or investment banker (other than Goldman Sachs) is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company.
(n) Environmental Matters; Compliance with Laws.
-------------------------------------------
19
<PAGE>
(A) For purposes of this Agreement:
"Environmental Law" means any applicable federal, state or local law
-----------------
regulating or prohibiting Releases into any part of the environment, or
pertaining to the protection of natural resources, the environment and public
and employee health and safety including, without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act (42 U.S.C. Section 9601
et seq.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), the Clean Water Act (33 U.S.C. Section 1251 et seq.), the Clean Air Act
(42 U.S.C. Section 7401 et seq.), the Toxic Substances Control Act (15 U.S.C.
Section 7401 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C. Section 136 et seq.), and the Occupational Safety and Health Act (29
U.S.C. Section 651 et seq.) and the regulations promulgated pursuant thereto, as
such laws have been and may be amended or supplemented through the Closing Date;
"Hazardous Material" means any substance, material or waste which is
------------------
regulated pursuant to any Environmental Law by any public or governmental
authority in the jurisdictions in which the applicable party or its subsidiaries
conducts business, including, without limitation, any material or substance
which is defined as a "hazardous waste," "hazardous material," "hazardous
substance," "extremely hazardous waste" or "restricted hazardous waste,"
"contaminant," "toxic waste" or "toxic substance" under any provision of
Environmental Law; and
"Release" means any release, spill, effluent, emission, leaking, pumping
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment, or into or out of any property owned,
operated or leased by the applicable party or its subsidiaries.
(B) Except as set forth on Company Disclosure Schedule
6.1(n) or as would not, individually or in the aggregate, have a Company
Material Adverse Effect:
(i) The operations of the Company and its subsidiaries, including
without limitation any generation, transportation, treatment, storage or
disposal of hazardous waste, as defined and regulated under 40 C.F.R. Parts 260-
270 (in effect as of the date of this Agreement) or any state equivalent, to the
Company's knowledge have been for the last three years, and currently are, in
compliance with all Environmental Laws;
(ii) The Company and its subsidiaries currently maintain in full force
and effect all permits, licenses, variances, exceptions and approvals required
under applicable Environmental Laws for their respective businesses as of the
date hereof;
(iii) As of the date hereof and with the exception of the permits,
licenses, variances, exceptions and approvals referenced in Section
6.1(n)(B)(ii), the Company and
20
<PAGE>
its subsidiaries are not subject to any outstanding written orders from any
Governmental Entity respecting the remediation of any Hazardous Materials or any
Release or threatened Release of a Hazardous Material;
(iv) The Company and its subsidiaries have not received within the
last three years any written notice alleging any, and as of the date hereof, to
the Company's knowledge, there is no investigation of any such party with
respect to, the violation of any Environmental Law arising from the owned or
leased properties and the operations of the Company and its subsidiaries;
(v) There is no suit, action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of its
subsidiaries arising under Environmental Laws;
(vi) To the knowledge of the Company, there has been no Release of any
Hazardous Material into the indoor or outdoor environment at, on or from the
owned or leased properties of the Company or its subsidiaries in violation of
any Environmental Laws;
(vii) To the knowledge of the Company, there is not now on or in any
owned or leased property of the Company or its subsidiaries any of the
following: (1) any underground storage tanks or surface impoundments, (2) any
friable asbestos-containing materials or (3) any polychlorinated biphenyls, in
each case in violation of Environmental Laws;
(viii) To the knowledge of the Company, the Company does not have
liability for violations of any Environmental Law by any other person or
entities that it has assumed contractually or by operation of law which would
reasonably be likely to have a Company Material Adverse Effect; and
(ix) Purchaser and Purchaser Sub acknowledge that the representations
and warranties contained in this Section 6.1(n) are the only representations and
warranties being made with respect to the environmental matters or Environmental
Laws, no other representation contained in this Agreement shall apply to any
environmental matter or Environmental Laws and no other representation or
warranty, express or implied, is being made with respect thereto.
(o) Rights Agreement.
----------------
21
<PAGE>
The Company has taken all necessary action so that none of the execution of
this Agreement, the acquisition of Shares pursuant to the Offer or the
consummation of the Merger will (i) cause any person to become an Acquiring
Person (as such term is defined in the Rights Agreement) or (ii) give rise to a
Distribution Date or a Triggering Event (as defined in the Rights Agreement).
6.2. Representations and Warranties of Purchaser and Purchaser Sub. Except
-------------------------------------------------------------
as set forth in the Disclosure Schedule delivered by the Purchaser and Purchaser
Sub to the Company concurrently with the execution of this Agreement (the
"Purchaser Disclosure Schedule"), Purchaser and Purchaser Sub hereby jointly
------------------------------
represent and warrant to Purchaser that:
(a) Organization and Qualification; subsidiaries.
--------------------------------------------
Each of Purchaser and Purchaser Sub and each of Purchaser's subsidiaries is
a corporation duly organized, validly existing and in good standing under the
laws of each of their respective jurisdictions of incorporation or organization,
as the case may be, has all requisite corporate power and authority to own,
lease and operate its respective properties and to carry on its respective
business as is now being conducted. Each of Purchaser and Purchaser Sub and
each of Purchaser's subsidiaries is duly qualified as a foreign corporation and
in good standing to do business in each jurisdiction in which the character of
its properties owned or leased or the nature of the business conducted by it
makes such qualification necessary, other than where the failure to be so
qualified would not have a Purchaser Material Adverse Effect.
(b) Authority; Approval.
-------------------
Purchaser has all requisite corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby to be consummated by Purchaser. The
execution and delivery of this Agreement by Purchaser and the consummation by
Purchaser of the transactions contemplated hereby have been duly authorized by
all necessary corporate action and no other corporate proceedings on the part of
Purchaser are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Purchaser and, assuming the due authorization,
execution and delivery thereof by the Company, constitutes the legal, valid and
binding obligations of Purchaser, enforceable against Purchaser in accordance
with its terms: (i) subject to applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws from time to
time in effect affecting creditors' rights generally and (ii) general principles
of equity including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, whether such principles are considered in a
proceeding of law or in equity.
Purchaser Sub has all requisite corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated
22
<PAGE>
hereby to be consummated by Purchaser Sub. The execution and delivery of this
Agreement by Purchaser Sub and the consummation by Purchaser Sub of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action and no other corporate proceedings on the part of Purchaser Sub
are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Purchaser Sub and, assuming the due authorization, execution and
delivery thereof by the Company, constitutes the legal, valid and binding
obligations of Purchaser Sub, enforceable against Purchaser Sub in accordance
with its terms: (i) subject to applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws from time to
time in effect affecting creditors' rights generally and (ii) general principles
of equity including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness, whether such principles are considered in a
proceeding of law or in equity.
(c) No Conflict; Required Filings and Consents.
------------------------------------------
(A) To the knowledge of Purchaser and Purchaser Sub, except as set forth on
Purchaser Disclosure Schedule 6.2(c)(A), the execution and delivery of this
Agreement by Purchaser and Purchaser Sub does not, and the performance of this
Agreement by Purchaser and Purchaser Sub will not, (i) conflict with or violate
the Certificate of Incorporation or By-Laws, or the equivalent organizational
documents, in each case as amended or restated, of the Purchaser, Purchaser Sub
or any of Purchaser's subsidiaries, (ii) conflict with or violate any laws
applicable to Purchaser or Purchaser Sub, respectively, or any of Purchaser's
subsidiaries or by which any of their respective properties is bound or affected
or (iii) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of any Encumbrance on any of the properties or assets of
Purchaser or Purchaser Sub, respectively, or any of Purchaser's subsidiaries
pursuant to any note, bond, mortgage, indenture, lease or other instrument or
obligation to which Purchaser or Purchaser Sub, respectively, or any of
Purchaser's subsidiaries is a party or by which Purchaser or Purchaser Sub,
respectively, or any of Purchaser's subsidiaries or any of their respective
properties is bound or affected, other than, in the case of (ii) and (iii), any
such conflicts, violations, defaults, rights, liens, security interests, charges
or Encumbrances that, individually or in the aggregate, would not have a
Purchaser Material Adverse Effect. Neither Purchaser nor any of its Affiliates
or Associates (as such terms are defined in Section 203 of Delaware Law) is an
"interested stockholder" (as such term is defined in Section 203 of Delaware
Law) of the Company.
23
<PAGE>
(B) To the knowledge of the Purchaser and Purchaser Sub, except as set
forth on Purchaser Disclosure Schedule 6.2(c)(A), the execution and delivery of
this Agreement by the Purchaser and Purchaser Sub does not, and the performance
of this Agreement by the Purchaser and Purchaser Sub will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entities, except (i) for applicable requirements, if any,
of the Securities Act, the Exchange Act, Blue Sky Laws, the NASDAQ, and the HSR
Act, and the filing and recordation of appropriate merger documents as required
by Delaware Law and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not,
either individually or in the aggregate, have a Purchaser Material Adverse
Effect.
(d) Brokers.
-------
No broker, finder or investment banker is entitled to any brokerage,
finder's or other fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Purchaser (other than CS First Boston, any entitlement to fees of which will
not be the liability of the Company prior to the closing of the Merger).
(e) Financing.
---------
Parent and Purchaser have available financing in an amount sufficient to
consummate the Offer and the Merger, evidence of which has been delivered to the
Company.
(f) No Prior Activities
-------------------
Except for obligations incurred in connection with its incorporation or
organization or the negotiation and consummation of this Agreement and the
transactions contemplated hereby, Purchaser Sub has neither incurred any
obligation or liability nor engaged in any business or activity of any type or
kind whatsoever or entered into any agreement or arrangement with any person or
entity.
ARTICLE VII
COVENANTS
7.1. Interim Operations of the Company. The Company covenants and agrees
---------------------------------
that, prior to the Effective Time (unless Purchaser shall otherwise agree in
writing and except as otherwise contemplated by this Agreement):
(a) the business of the Company and its subsidiaries shall be
conducted only in the ordinary and usual course and, to the extent consistent
therewith, each of the Company and its subsidiaries shall use its reasonable
best efforts to preserve its business organization intact and
24
<PAGE>
maintain satisfactory relations with customers, suppliers, employees and
business associates, in each case in all material respects.
(b) the Company shall not (i) sell, pledge, dispose of or encumber or
agree to sell or pledge any stock owned by it in any of its subsidiaries; (ii)
amend its Certificate or By-Laws or increase or propose to increase the number
of directors of the Company; (iii) split, combine or reclassify the outstanding
Shares; or (iv) declare, set aside or pay any dividend payable in cash, stock or
property with respect to the Shares.
(c) neither the Company nor any of its subsidiaries shall (i) issue,
sell, pledge, dispose of or encumber any additional shares of, or securities
convertible or exchangeable for, or options, warrants, calls, commitments or
rights of any kind to acquire, any shares of its capital stock other than, in
the case of the Company, Shares issuable pursuant to options outstanding on the
date hereof under any Company Option Plan; (ii) transfer, lease, license,
guarantee, sell, mortgage, pledge, dispose of or encumber any assets or incur or
modify any indebtedness or other liability involving an amount in excess of
$100,000 in the aggregate other than in the ordinary and usual course of
business; (iii) acquire directly or indirectly by redemption or otherwise any
shares of the capital stock of the Company (iv) incur any indebtedness for
borrowed money (except for working capital under the Company's existing credit
facilities and refinancings of existing debt that permit prepayment of such debt
without penalty) involving an amount in excess of $100,000 in the aggregate or
assume or endorse the obligations of any other person or entity; (v) make any
acquisition of, or investment in, assets or stock of any other person or entity
involving an amount in excess of $100,000 in the aggregate other than in the
ordinary and usual course of business or (vi) make or authorize any capital
expenditure in excess of $500,000 in the aggregate.
(d) except for normal increases in the ordinary course of business
that are consistent with past practices and that, in the aggregate, do not
result in a material increase in benefits or compensation expense, adopt or
amend (except as may be required by law or as provided in this Agreement) any
bonus, profit sharing, compensation, severance, termination, stock option, stock
appreciation right, restricted stock, pension, retirement, deferred
compensation, employment, severance or other employee benefit agreements,
trusts, plans, funds or other arrangements for the benefit or welfare of any
director, officer or employee, or increase in any manner the compensation or
fringe benefits of any director, officer or employee or pay any benefit not
required by any existing plan or arrangement (including, without limitation, the
granting of stock options, stock appreciation rights, shares of restricted stock
or performance units) or enter into any contract, agreement, commitment or
arrangement to do any of the foregoing.
25
<PAGE>
(e) neither the Company nor any of its subsidiaries shall, except in
the ordinary and usual course of business, enter into any material agreement or
modify, amend or terminate any of its material agreements or waive, release or
assign any material rights or claims thereunder.
(f) neither the Company nor any of its subsidiaries will authorize or
enter into an agreement to do any of the foregoing.
7.2. Acquisition Proposals. The Company agrees that neither the Company
---------------------
nor any of its subsidiaries nor any of the respective officers and directors of
the Company or its subsidiaries shall, and the Company shall direct and use its
best efforts to cause its employees, agents and representatives (including,
without limitation, any investment banker, attorney or accountant retained by
the Company or any of its subsidiaries) not to, initiate, continue, solicit or
encourage, directly or indirectly, any inquiries or the making of any proposal
or offer (including, without limitation, any proposal or offer to stockholders
of the Company) or furnish any non-public information to any third party, with
respect to a merger, consolidation, business combination or similar transaction
involving, or any tender offer, exchange offer or other purchase of all or any
significant portion of the assets or any equity securities of, the Company or
any of its subsidiaries (any such proposal or offer being hereinafter referred
to as an "Acquisition Proposal") or, unless the Board of Directors of the
--------------------
Company receives an unsolicited written offer with respect to a merger,
consolidation or sale of all or substantially all of the Company's assets or an
unsolicited tender or exchange offer for the Shares is commenced, which the
Board of Directors of the Company determines in good faith (after receiving
advice of independent legal counsel that such action is required for the
discharge of their fiduciary duties) is more favorable to the stockholders of
the Company than the Offer (an "Alternative Transaction"), engage in any
-----------------------
negotiations concerning, or provide any confidential information or data to, or
have any discussions with, any person relating to an Acquisition Proposal, or
otherwise facilitate any effort or attempt to make or implement an Acquisition
Proposal. The Company will immediately cease and cause to be terminated any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any of the foregoing. The Company will as promptly
as reasonably practicable (and in any event within 24 hours) notify Purchaser
(i) if any such inquiries or proposals are received by, any such information is
requested from, or any such negotiations or discussions are sought to be
initiated with the Company, (ii) of its receipt of an acquisition proposal and
(iii) of the existence of an Alternative Transaction. Prior to furnishing
nonpublic information to, or entering into discussions or negotiations with, any
other persons or entities, the Company shall obtain from such person or entity
an executed confidentiality agreement with terms no less favorable, taken as a
whole, to the Company than those contained in the Confidentiality Agreement, but
which confidentiality agreement shall not include any provision calling for an
exclusive right to negotiate with the Company, and the Company shall advise
Purchaser of all such nonpublic information delivered to such person
concurrently with its delivery to the requesting party.
26
<PAGE>
7.3. Meetings of the Company's Stockholders. Except as set forth in this
--------------------------------------
Section 7.3, the Board of Directors of the Company shall recommend approval of
the Agreement and the Merger and the Company shall take all lawful action to
solicit such approval. If the Board of Directors of the Company receives an
unsolicited written offer embodying an Alternative Transaction, the Board of
Directors may so amend or withdraw its recommendation and such withdrawal or
recommendation shall not constitute a breach of this Agreement. The Company's
proxy or information statement with respect to such meeting of stockholders (the
"Proxy Statement"), at the date thereof and at the date of such meeting, 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;
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 the Purchaser Companies and nominees, directors and
Affiliates of such Purchaser Companies furnished to the Company by Purchaser
specifically for use in the Proxy Statement. The Proxy Statement shall not be
filed, and no amendment or supplement to the Proxy Statement will be made by the
Company, without consultation with Purchaser and its counsel. None of the
written information concerning the Purchaser Companies and the nominees,
directors and Affiliates thereof furnished to the Company by Purchaser
specifically for use in the Proxy Statement, at the date thereof and at the date
of the stockholders' meeting, will 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.
7.4. Filings; Other Action. Subject to the terms and conditions herein
---------------------
provided, the Company and Purchaser shall: (a) promptly make their respective
filings and thereafter make any other required submissions under the HSR Act,
the Securities Act, the Exchange Act, Blue Sky Laws and the NASDAQ with respect
to the Offer and the Merger; and (b) use their reasonable best efforts to
promptly take, or cause to be taken, all other action and do, or cause to be
done, all other things necessary, proper or appropriate under applicable laws
and regulations to consummate and make effective the transactions contemplated
by this Agreement.
7.5. Access. Upon reasonable notice, the Company shall (and shall cause
------
each of its subsidiaries to) afford Purchaser's officers, employees, counsel,
accountants and other authorized representatives ("Representatives") access,
---------------
during normal business hours throughout the period prior to the Effective Time,
to its and its subsidiaries' properties, books, contracts and records and,
during such period, the Company shall (and shall cause each of its subsidiaries
to) furnish promptly to Purchaser all information concerning its business,
properties and personnel as Purchaser or its
27
<PAGE>
Representatives may reasonably request, provided, that the foregoing shall not
--------
require the Company to permit any inspection, or to disclose any information,
which in the reasonable judgment of the Company would result in the disclosure
of any trade secrets of third parties or violate any obligation of the Company
with respect to confidentiality All information obtained by Purchaser and its
Representatives pursuant to this Section 7.5 shall be treated as "Evaluation
Material" for all purposes of the Confidentiality Agreement.
7.6. Notification of Certain Matters. Each party shall give prompt notice
-------------------------------
to the other parties of (i) the occurrence or failure to occur of any event,
which occurrence or failure would be likely to cause any representation or
warranty or 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.
7.7. Publicity. The initial press release shall be a joint press release
---------
and thereafter, except as required by law, the Company and Purchaser shall
consult with each other prior to issuing any press releases or otherwise making
public statements with respect to the transactions contemplated hereby and prior
to making any filings with any Governmental Entity or with any national
securities exchange with respect thereto.
7.8. Benefits.
--------
(a) Stock Options; Stock Purchase Plan. Not later than the Effective
----------------------------------
Time and continuing for a period of at least one hundred twenty (120) days after
the Effective Time, Purchaser shall offer in writing to each holder of a vested
Company Stock Option (whether or not such Company Stock Option terminated
effective as of the Effective Time by virtue of the Merger or would have
terminated thereafter) the opportunity to have such Company Stock Option
canceled and to receive an amount in cash equal to the excess of the Merger
Consideration over the exercise price per Share of such Company Stock Option
multiplied by the number of Shares previously subject to such Company Stock
Option, less all applicable withholding taxes. Whether or not vested, any
Company Stock Options not tendered for cancellation pursuant to such offer shall
continue to be governed by the terms of such Company Stock Option and the
applicable Company Option Plan. The Company shall have the right to amend the
terms of any Company Stock Option outstanding on the date hereof so that it
would become vested immediately prior to the Effective Time. The Company shall
have the right to cause all funds held in the Company's Employee Stock Purchase
Plan to be used to purchase Shares so that such Shares will be converted into
the right to receive cash in the Merger; provided that the Employee Stock
Purchase Plan is thereupon terminated.
(b) Employee Benefits. (i) Purchaser shall cause the Surviving
-----------------
Corporation to provide to employees of the Company and its subsidiaries, who are
employed by the Surviving Corporation or its subsidiaries following the
Effective Time ("Company Employees"), employee benefits which
-----------------
28
<PAGE>
in the aggregate are substantially comparable to or greater than those currently
provided by the Company to such employees.
(ii) In the event that Company Employees are or become eligible to
participate in any plans maintained by the Purchaser or its Subsidiaries
("Purchaser Benefit Plans"), Purchaser or its subsidiaries shall grant such
-------------------------
employees credit for purposes of eligibility, vesting and benefit accrual, for
all service credited for such purposes under comparable Company Benefit Plans,
provided, however, that, with respect to Purchaser's Retirement Plan and such
service with the Company shall be credited with respect to eligibility and
vesting only, but shall not be recognized for purposes of determining the amount
of retirement benefits, if any, under Purchaser's Retirement Plan.
(iii) Any pre-existing condition exclusion under any Purchaser
Benefit Plan providing medical or dental benefits shall be no more restrictive
for any Company Employee who, immediately prior to commencing participation in
such Purchaser Benefit Plan, was participating in a Company Benefit Plan
providing medical or dental benefits and had satisfied any pre-existing
condition provision under such Company Benefit Plan. Any expenses that were
taken into account under a Company Benefit Plan providing medical or dental
benefits in which the Company Employee participated immediately prior to
commencing participation in a Purchaser Benefit Plan providing medical or dental
benefits shall be taken into account to the same extent under such Purchaser
Benefit Plan, in accordance with the terms of such Purchaser Benefit Plan, for
purposes of satisfying applicable deductible, coinsurance and maximum out-of-
pocket provisions and life-time benefit limits.
(c) Survivability. This Section 7.8 shall survive the Effective
-------------
Time, and is intended to be for the benefit of, and shall be enforceable by, the
Company Employees and the holders of Company Stock Options and shall be binding
on Purchaser and Purchaser Sub and the Surviving Corporation and their
respective successors and assigns.
Section 7.9. Indemnification; Directors' and Officers' Insurance.
---------------------------------------------------
(a) The Certificate of Incorporation of the Surviving Corporation
shall contain the provisions with respect to indemnification not less favorable
to the directors and officers than those set forth in the Certificate of
Incorporation of the Company on the date of this Agreement, which provisions
shall not be amended, repealed or otherwise modified for a period of six years
after the Effective Time in any manner that would adversely affect the rights
thereunder of individuals who
29
<PAGE>
at the Effective Time were directors or officers of the Company in respect of
actions or omissions occurring at or prior to the Effective Time (including,
without limitation, the transactions contemplated by this Agreement), unless
such modification is required by Law. Purchaser shall guarantee the obligations
of the Surviving Corporation under this Section 7.9(a).
(b) Purchaser shall cause the Surviving Corporation to use its
reasonable best efforts to maintain in effect for six years from the Effective
Time, if available, the coverage provided by the current directors' and
officers' liability insurance policies maintained by the Company (provided that
the Surviving Corporation may substitute therefor policies of at least the same
coverage containing terms and conditions which are not materially less
favorable) with respect to matters occurring prior to the Effective Time;
provided, however, that nothing contained herein shall require the Surviving
- -------- -------
Corporation to incur any annual premium in excess of 200% of the last annual
aggregate premium paid prior to the date of this Agreement for all current
directors' and officers' liability insurance policies maintained by the Company
which the Company represents and warrants to be $150,000 (the "Current
Premium"). If such premiums for such insurance would at any time exceed 200% of
the Current Premium, then the Surviving Corporation shall cause to be maintained
policies of insurance which, in the Surviving Corporation's good faith
determination, provide the maximum coverage available at an annual premium equal
to 200% of the Current Premium.
(c) This Section 7.9 shall survive the Effective Time, and is
intended to be for the benefit of, and shall be enforceable by, the Indemnified
Parties and shall be binding on Purchaser and Purchaser Sub and the Surviving
Corporation and their respective successors and assigns.
7.10. Takeover Statute. If any "fair price", "moratorium", "control share
----------------
acquisition" or other form of anti-takeover statute or regulation is or shall
become applicable to the transactions contemplated hereby, the Company and the
members of the Board of Directors of the Company shall grant such approvals and
take such actions as are necessary so that the transactions contemplated hereby
may be consummated as promptly as practicable on the terms contemplated hereby
and otherwise act to eliminate or minimize the effects of such statute or
regulation on the transactions contemplated hereby.
30
<PAGE>
ARTICLE VIII
CONDITIONS TO THE MERGER
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
satisfaction or waiver, where permissible, prior to the Effective Time, of the
following conditions:
(a) Stockholder Approval. If approval of the Merger by the holders
--------------------
of Shares is required by applicable law, the Merger shall have been approved by
the requisite vote of such holders;
(b) No Injunctions; Laws. No injunction or other order shall have
--------------------
been issued or any law enacted which prohibits the consummation of the Merger or
makes such consummation illegal; provided, however, that prior to either party
invoking this provision, such party shall have used its reasonable best efforts
to have any such injunction lifted; and
(c) Governmental and Regulatory Consents. The waiting period
------------------------------------
applicable to the consummation of the Merger under the HSR Act shall have
expired or been terminated and all consents, approvals and authorizations
required to be obtained prior to the Effective Time by the Company from any
Governmental Entity in connection with the execution and delivery of this
Agreement by the Company and the consummation of the transactions contemplated
hereby by the Company, Purchaser and Purchaser Sub shall have been made or
obtained (as the case may be) except where the failure to obtain the same would
not have a Company Material Adverse Effect.
ARTICLE IX
TERMINATION
9.1. Termination by Mutual Consent. This Agreement may be terminated and
-----------------------------
the Merger may be abandoned at any time prior to the Effective Time, before or
after the approval by holders of Shares, by the mutual consent of Purchaser and
the Company, by action of their respective Boards of Directors.
9.2. Termination by either Purchaser or the Company. This Agreement may be
----------------------------------------------
terminated and the Merger may be abandoned by action of the Board of Directors
of either Purchaser or the Company if, (a) without fault of the terminating
party, the Merger shall not have been consummated
31
<PAGE>
by June 30, 1997 whether or not such date is before or after the approval by
holders of Shares; and (b) by Purchaser or the Company if any court of competent
jurisdiction or other governmental body located or having jurisdiction within
the United States or any country or economic region in which the Company or any
of its subsidiaries or Purchaser or any of its affiliates, directly or
indirectly, has material assets or operations, shall have issued an order,
decree or ruling or taken any other action restraining, enjoining or otherwise
prohibiting the Offer or the Merger and such order, decree, ruling or other
action shall have become final and non-appealable.
9.3. Termination by Purchaser. Until any Shares have been purchased
------------------------
pursuant to the Offer, this Agreement may be terminated and the Merger may be
abandoned prior to the Effective Time, before or after the approval by holders
of Shares, by action of the Board of Directors of Purchaser, if (x) the Company
shall have failed to comply in any material respect with the covenants or
agreements contained in this Agreement to be complied with or performed by the
Company at or prior to such date of termination and, with respect to any such
failure that can be remedied, the failure is not remedied within fifteen days
after Purchaser has furnished the Company with written notice of such failure,
or (y) the Board of Directors of the Company shall have withdrawn or modified in
a manner materially adverse to Purchaser or Purchaser Sub its approval or
recommendation of the Offer, this Agreement or the Merger or shall have resolved
to do any of the foregoing.
9.4. Termination by the Company. This Agreement may be terminated and the
--------------------------
Merger may be abandoned prior to the Effective Time, before or after the
approval by holders of Shares by action of the Board of Directors of the
Company, if Purchaser or Purchaser Sub (or another Purchaser Company) (i) shall
have failed to comply in any material respect with the covenants or agreements
contained in this Agreement to be complied with or performed by Purchaser or
Purchaser Sub at or prior to such date of termination and, with respect to any
such failure that can be remedied, the failure is not remedied within fifteen
days after the Company has furnished Purchaser with written notice of such
failure, (ii) shall have failed to commence the Offer within the time required
in Section 1.1 or (iii) shall have terminated or withdrawn the Offer or amended
the Offer in any manner not expressly permitted by this Agreement.
9.5. Termination in the Event of an Alternative Transaction. This
------------------------------------------------------
Agreement may be terminated and the Merger abandoned prior to the Effective
Time:
(a) By either Purchaser or the Company, if that entity is not
material breach of any of the terms of this Agreement, not sooner than the third
business day after the Company's notice to the Purchaser (or Purchaser's
becoming aware) that the Company has entered into an agreement providing for an
Alternative Transaction; or
32
<PAGE>
(b) By Parent, if the Board of Directors of the Company shall have
withdrawn or modified in any manner adverse to Purchaser or Purchaser Sub its
approval of the Offer, this Agreement and the Merger or its recommendation that
the Company's stockholders accept the Offer.
9.6. Effect of Termination and Abandonment.
-------------------------------------
(a) In the event of termination and abandonment of this Agreement
pursuant to Section 9.1, 9.2, 9.3 or 9.4, this Agreement shall forthwith become
void and have no further effect, other than the provisions of Section 1.1(c),
this Section 9.6 and Section 10.1. No such termination and abandonment and
nothing contained in this Section 9.6, shall relieve any party from liability
for any breach of this Agreement.
(b) If this Agreement is terminated pursuant to Section 9.5, the
Company shall pay Purchaser a non-refundable fee of $5,000,000, which amount
shall be paid by wire transfer of immediately available funds within two
business days after the date this Agreement is so terminated.
(c) If this Agreement is terminated after the commencement of the
Offer as a result of the Company's failure to provide Audited Fiscal 1996
Financial Statements meeting the standards set forth in the final sentence of
Section 6.1(f)(B) prior to the termination of the Offer (except where such
failure to meet such standards results solely from facts or circumstances
arising after October 31, 1996 reflected in the Audited Fiscal 1996 Financial
Statements in a manner that results in a difference from the information
referred to in said Section 6.1(f)(B) that constitutes a Company Material
Adverse Effect), the Company shall pay Purchaser a non-refundable fee of
$75,000, which amount shall be paid by wire transfer of immediately available
funds within two business days after the date this Agreement is so terminated.
ARTICLE X
MISCELLANEOUS AND GENERAL
10.1. Payment of Expenses. Subject to Section 9.6, whether or not the
-------------------
Merger shall be consummated, each party hereto shall pay its own expenses
incident to preparing for, entering into and carrying out this Agreement and the
consummation of the Merger.
33
<PAGE>
10.2. Survival. Except for Sections 7.8, 7.9, 9.6 and 10.1 and the
--------
confidentiality obligations pursuant to Section 1.1(c), the representations,
warranties, agreements and covenants in this Agreement shall not survive the
consummation of the Merger or the termination of this Agreement.
10.3. Modification or Amendment. Subject to the applicable provisions of
-------------------------
the DGCL, at any time prior to the Effective Time, the parties hereto may modify
or amend this Agreement, by written agreement executed and delivered by duly
authorized officers of the respective parties.
10.4. Waiver of Conditions. The conditions to each of the parties'
--------------------
obligations to consummate the Merger are for the sole benefit of such party and
may be waived by such party in whole or in part to the extent permitted by
applicable law.
10.5. Counterparts. For the convenience of the parties hereto, this
------------
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
10.6. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware, without giving effect to the
rules of such state respecting conflicts of laws.
10.7. Notices. All notices and other communications given or made
-------
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered, mailed or transmitted, and shall be effective
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission (provided that a
confirmation copy is sent by another approved means) to the telecopier number
specified below:
(a) If to Purchaser or to Purchaser Sub:
Millipore Corporation
80 Ashby Road
Bedford, Massachusetts 01730
Attention: Geoffrey Nunes
Telephone No.: (617) 533-2209
Telecopier No.: (617) 533-3162
34
<PAGE>
with a copy to:
David B. Walek
Ropes & Gray
One International Plaza
Boston, Massachusetts 02110
Telephone No.: (617) 951-7388
Telecopier No.: (617) 951-7050
(b) If to the Company:
Tylan General, Inc.
15330 Avenue of Science
San Diego, California 92128
Attention: Chief Financial Officer
Telephone No.: (619) 618-1990
Telecopier No.: (619) 618-1992
with a copy to:
Cooley Godward Castro Huddleson & Tatum
4365 Executive Drive, Suite 1100
San Diego, California 92121-2128
Attention: D. Bradley Peck
Telephone No.: (619) 550-6000
Telecopier No.: (619) 453-3355
35
<PAGE>
and
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
Attention: Arthur Fleischer, Jr.
Telephone No.: (212) 859-8120
Telecopier No.: (212) 859-4000
and
Fried, Frank, Harris, Shriver & Jacobson
350 South Grand Avenue, 32nd Floor
Los Angeles, California 90071
Attention: Edward S. Rosenthal
Telephone No.: (213) 473-2001
Telecopier No.: (213) 473-2222
10.8. Entire Agreement, etc. This Agreement together with the Disclosure
---------------------
Schedules and any exhibits or Annexes hereto and the Confidentiality Agreement
(a) constitutes the entire agreement, and supersedes all other prior agreements,
understandings, representations and warranties both written and oral, among the
parties, with respect to the subject matter hereof, and (b) shall not be
assignable by operation of law or otherwise and is not intended to create any
obligations to, or rights in respect of, any persons other than the parties
hereto; provided, however, that Purchaser may designate, by written notice to
the Company, another wholly-owned direct or indirect subsidiary to be a
Constituent Corporation in lieu of Purchaser Sub, in the event of which, all
references herein to Purchaser Sub shall be deemed references to such other
subsidiary except that all representations and warranties made herein with
respect to Purchaser Sub as of the date of this Agreement shall be deemed
representations and warranties made with respect to such other subsidiary as of
the date of such designation.
10.9 Definition of "Affiliate" and "Associate". For purposes of this
-----------------------------------------
Agreement, "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 under the Exchange Act as in effect on the
date of this Agreement (the term "registrant" in said Rule 12b-2 meaning in this
case the Company).
10.10. Definition of "Company Material Adverse Effect". For purposes of
-----------------------------------------------
this Agreement, "Company Material Adverse Effect" shall mean any material
adverse effect on the financial condition, properties, businesses or results of
operations of the Company and its subsidiaries taken as a whole.
36
<PAGE>
10.11. Definition of "Continuing Director". For purposes of this
-----------------------------------
Agreement "Continuing Director" means any member of the Board of Directors of
the Company, while such person is a member of the Board of Directors of the
Company, who is not an Affiliate or Associate or representative of the Purchaser
or Purchaser Sub and was a member of the Board of Directors of the Company prior
to the date of this Agreement, and any successor of a Continuing Director while
such successor is a member of the Board of Directors of the Company, who is not
an Affiliate or Associate or representative of the Purchaser or Purchaser Sub
and is recommended or elected to succeed the Continuing Director by a majority
of Continuing Directors.
10.12. Definition of "Purchaser Material Adverse Effect". For purposes of
-------------------------------------------------
this Agreement, "Purchaser Material Adverse Effect" shall mean any material
adverse effect on the financial conditions properties, businesses or results of
operations of the Purchaser and its subsidiaries taken as a whole.
10.13. Definition of "subsidiary". When a reference is made in this
--------------------------
Agreement to a subsidiary of a party, the word "subsidiary" means any
corporation or other organization whether incorporated or unincorporated of
which at least a majority of the securities or interests having by the terms
thereof ordinary voting power to elect at least a majority of the board of
directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such party or by any one or more of its subsidiaries, or by such party and
one or more of its subsidiaries.
10.14. Obligation of Purchaser. Whenever this Agreement requires
-----------------------
Purchaser Sub to take any action, such requirement shall be deemed also to
include an undertaking on the part of Purchaser to cause Purchaser Sub to take
such action.
10.15. Captions. The Article, Section and paragraph captions herein are
--------
for convenience of reference only, do not constitute part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
37
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the duly authorized officers of the parties hereto on the date first hereinabove
written.
MILLIPORE CORPORATION
By: /s/ GEOFFREY NUNES
-----------------------------------
Name: GEOFFREY NUNES
Title: SENIOR VICE PRESIDENT
MCTG ACQUISITION CORP.
By: /s/ GEOFFREY NUNES
-----------------------------------
Name: GEOFFREY NUNES
Title: PRESIDENT
TYLAN GENERAL, INC.
By: /s/ DAVID J. FERRAN
-----------------------------------
Name: DAVID J. FERRAN
Title: CHAIRMAN, CHIEF EXECUTIVE
OFFICER AND PRESIDENT
38
<PAGE>
Annex A
Certain Conditions of the Offer. Notwithstanding any other provision of
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the Offer and provided that Purchaser Sub shall not be obligated to accept for
payment any Shares until expiration of all applicable waiting periods under the
HSR Act, Purchaser Sub shall not be required to accept for payment or, subject
to any applicable rules and regulations of the Commission, including Rule 14e-
1(c) promulgated under the Exchange Act (relating to the Purchaser's obligation
to pay for or return tendered Shares promptly after termination or withdrawal of
the Offer), pay for, or may delay the acceptance for payment of or payment for,
any tendered Shares, or may, in its sole discretion, terminate or amend the
Offer as to any Shares not then paid for if a majority of the total Shares
outstanding on a fully diluted basis and as will permit Purchaser Sub to effect
the Merger without the vote of any person other than Purchaser Sub shall not
have been properly and validly tendered pursuant to the Offer and not withdrawn
prior to the expiration of the Offer (the "Minimum Condition"), or, if on or
-----------------
after the date of the Agreement, and at or before the time of payment for any of
such Shares (whether or not any of such Shares have theretofore been accepted
for payment), any of the following events shall occur:
(a) there shall have occurred (i) any general suspension of, or
limitation on trading in securities on the NYSE or in the over-the-counter
market (other than a shortening of trading hours or any coordinated trading halt
triggered solely as a result of a specified increase or decrease in a market
index), (ii) a declaration of a banking moratorium or any suspension of payments
in respect of banks in the United States or (iii) a commencement of a war or
armed hostilities involving the United States and continuing for at least three
business days and which has a Company Material Adverse Effect;
(b) the Company shall have breached or failed to perform in any
material respect its obligations, covenants or agreements under the Agreement
and, with respect to any such failure that can be remedied, the failure is not
remedied on or before the Closing Date, or any representation or warranty of the
Company set forth in the Agreement shall have been inaccurate or incomplete in
any respect except as would not have a Company Material Adverse Effect;
(c) there shall be instituted or pending any action, litigation,
proceeding, investigation or other application (hereinafter, an "Action")
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before any court of competent jurisdiction or other
A-1
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governmental entity by any governmental entity that is reasonably likely to: (i)
result in a restriction or prohibition on the consummation of the transactions
contemplated by the Offer or the Merger; (ii) prohibit, or impose any material
limitations on Purchaser's or Purchaser Sub's ownership or operation of all or a
material portion of their or the Company's business or assets, or to compel
Purchaser or Purchaser Sub to dispose of or hold separate all or a material
portion of Purchaser's or Purchaser Sub's or the Company's business or assets;
(iii) make the acceptance for payment of, purchase of, or payment for, some or
all of the Shares illegal or rendering Purchaser or Purchaser Sub unable to, or
restricting or prohibiting, the ability of Purchaser or Purchaser Sub to accept
for payment, purchase or pay for some or all of the Shares; or (iv) impose
material limitations on the ability of Purchaser or Purchaser Sub effectively to
acquire or hold or to exercise full rights of ownership of the Shares including,
without limitation, the right to vote the Shares purchased by them on an equal
basis with all other Shares on all matters properly presented to the
stockholders of the Company;
(d) any statute, rule, regulation, order or injunction shall be
enacted, promulgated, entered, enforced or deemed to or become applicable to the
Offer or the Merger that results in any of the consequences referred to in
clauses (i) through (iv) of paragraph (c) above;
(e) any person, entity or group shall have entered into a definitive
agreement or an agreement in principle with the Company with respect to a tender
offer or exchange offer for some portion or all of the Shares or a merger,
consolidation or other business combination with or involving the Company;
(f) the Board of Directors of the Company shall have withdrawn or
amended, or modified in a manner materially adverse to the Purchaser or
Purchaser Sub, its recommendation of the Offer or the Merger, or shall have
approved or recommended any other Acquisition Proposal; or
(g) the Merger Agreement shall have been terminated by the Company or
Purchaser or Purchaser Sub in accordance with its terms or Purchaser or
Purchaser Sub shall have reached an agreement or understanding in writing with
the Company providing for termination or amendment of the Offer or delay in
payment for the Shares;
A-2
<PAGE>
VOTING AND SECURITIES PURCHASE AGREEMENT
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THIS VOTING, OPTION AND SECURITIES PURCHASE AGREEMENT (the "Agreement") is
dated as of December 16, 1996, by and among each of the undersigned
securityholders (individually, a "Securityholder" and collectively, the
"Securityholders") of Tylan General, Inc., a Delaware corporation (the
"Company"), Millipore Corporation, a Massachusetts corporation ("Acquiror
Parent"), and MCTG Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of Acquiror Parent ("Acquiror").
RECITALS
A. Each Securityholder is the beneficial and record owner of the number of
shares, if any, of common stock, par value $.001 per share, of the Company
("Company Common Stock") set forth opposite such Securityholders' name on
----------------------
Schedule A hereto.
- ----------
B. Each Securityholder is the beneficial and record owner of such options
exercisable for Company Common Stock ("Company Option Securities"), if any,
(which under existing circumstances may be exercised for the number of shares of
Company Common Stock set forth opposite each such Securityholders' name on
Schedule A hereto) set forth opposite such Securityholder's name on Schedule A
- ---------- ----------
hereto.
C. Acquiror, Acquiror Parent and the Company have concurrently herewith
entered into an Agreement and Plan of Merger (the "Merger Agreement"), pursuant
----------------
to which (i) Acquiror has agreed to make a cash tender offer (the "Offer") to
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acquire all the issued and outstanding shares of Company Common Stock at $16.00
per share (the "Per Share Amount") and (ii) Acquiror will then be merged with
----------------
and into Company (the "Merger"), with the Company continuing as the surviving
------
corporation.
D. In consideration for the agreements contained herein, prior to the date
hereof, and prior to the time at and date on which Acquiror Parent or Acquiror
became an "interested stockholder" for purposes of Section 203 of the DGCL, the
board of directors of the Company has approved the agreements of the
Securityholders provided in this Agreement.
E. In order to induce Acquiror Parent and Acquiror to enter into the
Merger Agreement and to commence the Offer, the Securityholders wish to make
certain representations, warranties, covenants and agreements in connection with
the Offer and the Merger.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
<PAGE>
ARTICLE I
1.1. Definitions. Capitalized terms used herein (including in the recitals)
-----------
but not otherwise defined herein shall have the respective meanings ascribed
thereto in the Merger Agreement. The following terms shall have the following
meanings:
"beneficially own" shall have the meaning set forth in Rule 13d-3
----------------
under the Securities Exchange Act of 1934, as amended.
"Representatives" shall have the meaning set forth in Section 3.4.
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ARTICLE II
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REPRESENTATIONS AND WARRANTIES
OF THE SECURITYHOLDERS
2.1. Representations and Warranties of the Securityholders. Each
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Securityholder represents and warrants, severally but not jointly, to Acquiror
Parent and Acquiror as follows:
(a) Ownership of Company Securities. Such Securityholder is the
-------------------------------
beneficial owner of the shares of the Company Common Stock and/or Company Option
Securities set forth opposite such Securityholder's name on Schedule A, free and
----------
clear of all Encumbrances. There are no rights, agreements, arrangements or
commitments of any character to which such Securityholder is a party relating to
the pledge, disposition or voting of any shares of capital stock of Company or
any of its Subsidiaries that are owned by such Securityholder or which may be
issued to such Securityholder upon exercise of Company Option Securities, and
there are no voting trusts or voting agreements with respect to any of such
shares or securities. The shares of Company Common Stock and Company Option
Securities set forth opposite such Securityholder's name on Schedule A
----------
constitute all of the outstanding shares of capital stock of Company and all
Company Option Securities owned beneficially or of record by such Securityholder
and, except as disclosed in Schedule A, such Securityholder does not own
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beneficially or of record any other capital stock of Company or Company Option
Securities.
(b) Authority to Execute and Perform Agreements. Such Securityholder has
-------------------------------------------
the full legal right and power and all authority required to enter into, execute
and deliver this Agreement and to perform fully such Securityholder's
obligations hereunder. The execution and delivery of this Agreement by such
Securityholder have been duly authorized by all requisite organizational action,
if any, on the part of such Securityholder. This Agreement has been duly
executed and delivered and constitutes the legal, valid and binding obligation
of such Securityholder enforceable against such
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Securityholder in accordance with its terms, except as such enforceability may
be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect generally affecting
creditors' rights or by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(c) No Conflicts; Consents.
----------------------
(i) The execution and delivery by such Securityholder of this Agreement do
not, and the consummation of the transactions contemplated hereby will not, (A)
conflict with or result in any violation of or default (with or without notice
or lapse of time or both) under (I) the charter, by-laws or similar documents of
such Securityholder, (II) any contractual obligation of such Securityholder,
(III) any law, regulation, ruling, decree or order applicable to such
Securityholder or (B) create or give rise to any Encumbrance on any of the
shares of Company Common Stock or Company Option Securities set forth opposite
such Securityholder's name on Schedule A.
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(ii) No governmental authorizations, consents, approvals or filings are
required to be obtained or made by such Securityholder in connection with the
execution and delivery by such Securityholder of this Agreement or the
consummation of the transactions contemplated hereby (other than clearance under
the Hart-Scott-Rodino Antitrust Improvement Act of 1976, if required).
(b) Information Supplied. None of the information specifically supplied or
--------------------
to be supplied by such Securityholder with respect to such Securityholder for
inclusion or incorporation by reference in the Offer Documents or Schedule 14D-9
will, at the date such documents are filed with the Commission or are first
published, sent or given to the stockholders of Company, 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.
2.2. Representations and Warranties of Acquiror Parent and Acquiror.
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Each of Acquiror Parent and Acquiror represents and warrants to the
Securityholders:
(a) Authority to Execute and Perform Agreements. Each of Acquiror Parent
-------------------------------------------
and Acquiror has the full legal right and power and all authority required to
enter into, execute and deliver this Agreement and to perform fully their
obligations hereunder. The execution and delivery of this Agreement by Acquiror
Parent and Acquiror has been duly authorized by all requisite organizational
action, if any, on the part of each of Acquiror Parent and Acquiror. This
Agreement has been duly executed and delivered and constitutes the legal, valid
and binding obligation of each of
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Acquiror Parent and Acquiror enforceable against each of Acquiror Parent's and
Acquiror in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect generally affecting
creditors' rights or by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(b.) No Conflicts; Consents.
----------------------
(i) The execution and delivery by each of Acquiror Parent and Acquiror of
this Agreement do not, and the consummation of the transactions contemplated
hereby and by the Merger Agreement will not, conflict with or result in any
violation of or default (with or without notice or lapse of time or both) under
(A) the charter, by-laws or similar documents of such person, (B) and
contractual obligation of such person or (C) any law, regulation, ruling, decree
or order applicable to such Securityholder.
(ii) No governmental authorizations, consents, approvals or filings are
required to be obtained or made by such Securityholder of this Agreement or the
consummation of the transactions contemplated hereby or by the Merger Agreement
(other than clearance under the Hart-Scott-Rodino Antitrust Improvement Act of
1976, if required).
ARTICLE III
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COVENANTS
3.1. No Disposition of Securities. Each Securityholder agrees that such
----------------------------
Securityholder shall not, except pursuant to the Merger Agreement or this
Agreement, sell, transfer, pledge, hypothecate, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the sale, transfer, pledge, hypothecation, encumbrance or other
disposition of, any of or any interest in any of the shares of Company Common
Stock or Company Option Securities, or shares of Company Common Stock issuable
upon exercise of any such Company Option Securities, set forth opposite such
Securityholder's name on Schedule A. Each Securityholder agrees that (a)
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promptly after the date hereof, the certificates representing the shares of
Company Common Stock and Company Option Securities owned by such Securityholder
shall bear a legend indicating that such shares or securities, as the case may
be, are subject to this Agreement, which legend may be removed upon termination
of this Agreement, (b) any attempted or purported transfer of Company Common
Stock or Company Option Securities in violation of this Section 3.1 shall be
null and void and without effect, and (c) Company shall not be required to enter
in its stock or other records, or reflect, recognize or give effect to for any
purpose, any transfer of securities of
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Company in violation of this Agreement. Nothing in this Agreement shall
restrict exercise by any Securityholder of any option exercisable for Company
Option Securities; provided that all securities issued pursuant to any such
exercise shall be treated as Company Common Stock for all purposes under this
Agreement.
3.2. Voting Arrangements. Each Securityholder agrees that, except pursuant
-------------------
to this Agreement, it shall not grant any proxies, deposit any shares of Company
Common Stock into a voting trust or enter into any voting agreement with respect
to any shares of Company Common Stock now owned beneficially or of record by
such Securityholder, other than proxies to vote such shares at any annual or
special meeting of stockholders of Company on matters unrelated to the matters
set forth in Section 4.1 hereof.
3.3. Satisfaction of Conditions to the Offer and the Merger. Each
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Securityholder agrees that, subject to the fiduciary duty of any Securityholder
serving as a director or officer of Company, such Securityholder, in its
capacity as such, shall assist and cooperate with the parties to the Merger
Agreement in doing all things necessary, proper or advisable under applicable
laws as promptly as practicable to consummate and make effective the Offer and
the Merger and the other transactions contemplated by the Merger Agreement.
Each Securityholder agrees that such Securityholder shall not take any action
that would or is reasonably likely to result in any of its representations and
warranties set forth in this Agreement being untrue as of the date made.
3.4 No Solicitation. Each Securityholder agrees that such Securityholder
---------------
shall not, nor shall it authorize or permit any of its partners, officers,
affiliates, employees, agents, investment bankers, attorneys, financial advisors
or other representatives (collectively, "Representatives") to, directly or
---------------
indirectly, solicit, initiate or continue or encourage (including by way of
furnishing information or assistance) or take other action to facilitate any
inquiries or the making of any proposal that constitutes or may reasonably be
expected to lead to, an Acquisition Proposal or an Alternative Transaction from
any Person other than Acquiror Parent and Acquiror, or engage in any discussions
or negotiations relating thereto or in furtherance thereof or accept or enter
into any agreement with respect to any Acquisition Proposal; provided, however,
-------- -------
that notwithstanding any other provision of this Agreement, if such
Securityholder is a director or officer of Company, such Securityholder may take
any action, including casting a vote or signing a written consent, in such
Person's capacity as a director or officer that the Board of Directors and
officers of Company would be permitted to take in accordance with Section 7.2 of
the Merger Agreement. Subject to the foregoing, such Securityholder shall
immediately cease and cause to be terminated any existing solicitation,
initiation, encouragement, activity, discussion or negotiation with any parties
conducted heretofore by such Securityholder or any of its Representatives with
respect to any of the foregoing.
3.5 Tender. Each Securityholder hereby agrees to validly tender (and not
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withdraw) pursuant to and in accordance with the terms of the Offer, no later
than the tenth
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<PAGE>
Business Day after commencement of the Offer pursuant to Section 1.1 of the
Merger Agreement and Rule 14d-2 under the Exchange Act, all shares of Company
Common Stock set forth opposite such Securityholder's name on Schedule A
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hereto. Each Securityholder hereby acknowledges and agrees that the obligation
of Acquiror to accept for payment and pay for shares of Company Common Stock in
the Offer, including the shares of Company Common Stock owned by such
Securityholder, is subject to the terms and conditions of the Offer.
ARTICLE IV
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PROXY;
WAIVER OF RIGHTS
4.1 Proxy. (a) Each Securityholder hereby agrees that, during the
-----
term of this Agreement, at any meeting of the stockholders of Company, however
called, and at every adjournment thereof, and in any action by written consent
of the stockholders of Company, to (i) vote all of the shares of Company Common
Stock then owned by such Securityholder in favor of the adoption of the Merger
Agreement as in effect on the date hereof (as the Merger Agreement may be
amended (A) as contemplated by Section 10.3 of the Merger Agreement or (B) with
the consent of such Securityholder) and each of the other transactions
contemplated thereby and any action required in furtherance thereof, (ii) vote
such shares against any action or agreement that would result in a breach in any
material respect of any covenant, representation or warranty or any other
obligation of Company under the Merger Agreement, and (iii) vote such shares
against any Acquisition Proposal, Alternative Transaction or any other action or
agreement that, directly or indirectly, is inconsistent with or that would, or
is reasonably likely to, directly or indirectly, impede, interfere with or
attempt to discourage the Offer or the Merger or any other transaction
contemplated by the Merger Agreement, including but not limited to (I) any
extraordinary corporate transaction (other than the Offer and the Merger on the
terms set forth in the Merger Agreement), such as a merger, consolidation,
business combination, reorganization, recapitalization or liquidation involving
Company or any of its Subsidiaries, (II) a sale or transfer of a material amount
of assets of Company or any of its Subsidiaries, (III) any redemption of
securities of Company or any of its Subsidiaries, or (IV) any material change in
Company's capitalization, corporate structure or business; provided, however,
-------- -------
that, if such Securityholder is a director or officer of Company, nothing herein
shall be construed to obligate such Securityholder to act, in such
Securityholder's capacity as a director or officer, in any manner which
conflicts with such Person's fiduciary duties as a director or officer of
Company.
(b) In furtherance of the foregoing, (i) each Securityholder hereby
appoints Acquiror Parent and the officer of Acquiror Parent, and each of them,
with full power or substitution in the premises, its proxies to vote all such
Securityholder's shares of Company Common Stock now or hereafter owned
beneficially or of record by such Securityholder at any meeting, general or
special, of the stockholders of Company, and to execute one or more
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<PAGE>
written consents or other instruments from time to time in order to take such
action without the necessity of a meeting of the stockholders of Company, in
accordance with the provisions of the preceding paragraph and (ii) Acquiror
Parent hereby agrees to vote such shares or execute written consents or other
instruments in accordance with the provisions of the preceding paragraph.
(c) The proxy and power of attorney granted herein shall be irrevocable
during the term of this Agreement, shall be deemed to be coupled with an
interest and shall revoke all prior proxies granted by such Securityholder.
Such Securityholder shall not grant any proxy to any person which conflicts with
the proxy granted herein, and any attempt to do so shall be void. The power of
attorney granted herein is a durable power of attorney and shall survive the
disability or incompetence of such Securityholder.
4.2. Waiver of Appraisal Rights. Each Securityholder hereby waives its
--------------------------
rights to appraisal under Section 262 of the Delaware General Corporation Law
with respect to any shares of Company Common Stock owned by it or issuable to it
in connection with the transactions contemplated by the Merger Agreement.
4.3. Waiver of Certain Rights. Each Securityholder hereby waives and
------------------------
agrees not to assert any claims or rights it may have against any director of
Company in respect of approval or adoption of the Merger Agreement or the
consummation of the Offer or the Merger or the other transactions contemplated
thereby.
ARTICLE V
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MISCELLANEOUS
5.1. Termination. This Agreement shall terminate upon the earlier to
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occur of (a) the mutual consent of Acquiror Parent, Acquiror and each of the
Securityholders, (b) the termination of the Merger Agreement and (c) the
Effective Time of the Merger.
5.2. Amendment. This Agreement may be amended only by a written
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instrument executed by the parties or their respective successors or assigns.
5.3. Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
facsimile, telegram or telex or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified in a
notice given in accordance with this Section 6.3):
If to Acquiror Parent or Acquiror, at the addresses and to the
Persons (including the copies) set forth in the Merger Agreement; and
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If to any of the Securityholders to:
David J. Ferran
Don E. Whitson
c/o Tylan General, Inc.
15330 Avenue of Science
San Diego, California 92128
With a copy to:
Fried, Frank, Harris, Shriver & Jacobson
350 South Grand Avenue, 32nd Floor
Los Angeles, California 90071
Attention: Edward S. Rosenthal
and
Cooley Goodward LLP
4365 Executive Drive
Suite 1100
San Diego, California 92121
Attention: Brian Peck
5.4. Counterparts. This Agreement may be executed in one or more
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counterparts and each counterpart shall be deemed to be an original, but all of
which shall constitute one and the same original.
5.5. Applicable Law. This Agreement shall be governed by, and construed
--------------
in accordance with, the laws of the State of Delaware without reference to
choice of law principles, including all matters of construction, validity and
performance.
5.6. Severability; Enforcement. The invalidity of any portion hereof
-------------------------
shall not affect the validity, force or effect of the remaining portions hereof.
If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, each party agrees that a
court of competent jurisdiction may enforce such restriction to the maximum
extent permitted by law, and each party hereby consents and agrees that such
scope may be judicially modified accordingly in any proceeding brought to
enforce such restriction.
5.7. Further Assurances. Each party hereto shall execute and deliver such
------------------
additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
-8-
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5.8. Parties in Interest; Assignment. Neither this Agreement nor any of
-------------------------------
the rights, interest or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties; provided,
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however, that the Acquiror may assign the Option to an Affiliate.
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5.9. Entire Agreement. This Agreement and the Merger Agreement contain
----------------
the entire understanding of the parties hereto and thereto with respect to the
subject matter contained herein and therein, and supersede and cancel all prior
agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter. There are no
restrictions, promises, representations, warranties, agreements or undertakings
of any party hereto or to the Merger Agreement with respect to the transactions
contemplated by this Agreement and the Merger Agreement other than those set
forth herein or therein or made hereunder or thereunder.
5.10. Specific Performance. The parties hereto agree that the remedy at
--------------------
law for any breach of this Agreement will be inadequate and that any party by
whom this Agreement is enforceable shall be entitled to specific performance or
injunctive relief in addition to any other appropriate relief or remedy. Such
party may, in its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive relief or such other relief as such court
may deemed just and proper in order to enforce this Agreement or prevent any
violation hereof and, to the extent permitted by applicable law, each party
waives any objection to the imposition of such relief or any requirement for the
posting of a bond or other collateral in connection therewith.
5.11. Headings; References. The section and paragraph headings contained
--------------------
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. All references herein to
"Sections" or "Exhibits" shall be deemed to be references to Articles or
Sections hereof or Exhibits hereto unless otherwise indicated.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed and delivered as of the day and year first above written.
MILLIPORE CORPORATION
By: /s/ GEOFFREY NUNES
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Name: Geoffrey Nunes
Title: Senior Vice President
MCTG ACQUISITION CORP.
By: /s/ GEOFFREY NUNES
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Name: Geoffrey Nunes
Title: President
SECURITYHOLDERS:
/s/ DON E. WHITSON
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Don E. Whitson
/s/ DAVID J. FERRAN
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David J. Ferran
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Timothy Brown
/s/ DIANNE FERRAN
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Dianne Ferran
/s/ WILLIAM B. HAWTHORNE
/s/ KAREN L. HAWTHORNE
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Dr. William B. and Mrs. Karen L.
Hawthorne
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<PAGE>
/s/ RUTH FERRAN
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Ruth Ferran
/s/ LEO WHITSON
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Leo Whitson
/s/ M.K. WHITSON
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M.K. Whitson
/s/ ROBERT J. FERRAN
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Robert J. Ferran
Tylan General, Inc., a Delaware corporation ("Company") hereby consents to
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the foregoing Voting and Securities Purchase Agreement and hereby agrees that it
will not enter in its stock or other records, or reflect, recognize or give
effect to for any purpose, any transfer of securities of Company in violation of
Section 3.1 of the foregoing Voting, Option and Securities Purchase Agreement.
Company hereby waives any and all transfer restrictions applicable to any and
all Company Common Stock and Company Option Securities held by any of the
Securityholders in connection with the transfer thereof to Acquiror Parent or
Acquiror pursuant to the Option (as defined in the foregoing Voting, Option and
Securities Purchase Agreement).
TYLAN GENERAL, INC.
By: /s/ DAVID J. FERRAN
---------------------------
Name: David J. Ferran
Title: President and Chief
Executive Officer
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<PAGE>
Schedule A
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Company Company
Name of Securityholder Common Shares Option Securities
- ---------------------- ------------- -----------------
David J. Ferran 189,309 120,312
Don E. Whitson/Leo Whitson, 734,103 75,000
as Trustees
M.K. Whitson 63,644 0
Timothy Brown 110,984 20,000
Dianne Ferran 41,113 0
Robert J. Ferran 96,728 0
Ruth Ferran 19,491 0
Dr. William B. and Mrs. 73,689 0
Karen L. Hawthorne
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MILLIPORE
December 16, 1996 EXHIBIT (C)(3)
Mr. David J. Ferran
Tylan General, Inc.
15330 Avenue of Science
San Diego, CA 92128
Dear David:
In futherance of our prior discussions, Millipore hereby agrees with you
as follows:
(1) Millipore agrees that in connection with the change in your position
following the consummation of the transaction between Millipore and Tylan
General, Inc., Millipore will pay you one lump sum payment of $851,425.00 and
will provide, at Millipore's expense, those medical, dental and hospitalization
benefits set forth in Section 3.1(b)(3), all as set forth in the Severance
Protection Agreement dated 22 July 1996 between you and Tylan General, Inc.
(2) Further, we hereby confirm that Millipore will accelerate the
vesting schedule of all stock options held by current participants in the Tylan
General stock option plans; and
(3) Millipore hereby agrees simultaneous with the termination of your
employment, that it will enter into a Consulting Agreement with you upon terms
and conditions to be mutually agreed upon by the parties. Such Agreement shall
include the provision that Millipore will pay to you in one lump sum in the
amount of $1,702,850.00 for services rendered under the Agreement upon
termination of that Agreement.
Upon payment of the lump sum set forth in paragraph (1) above and upon
execution of the Consulting Agreement, you agree that any and all prior
agreements relating to your employment or the termination of your employment
that you have previously entered into with Vacuum General, Inc. or Tylan
General, Inc. shall be of no further force and effect.
If you agree to all of the above, please note your acceptance below.
Sincerely, Agreed to and Accepted
MILLIPORE CORPORATION
/s/ Geoffrey Nunes /s/ David J. Ferran
Geoffrey Nunes -----------------------
Senior Vice President David J. Ferran
<PAGE>
PERSONAL AND CONFIDENTIAL EXHIBIT (C)(4)
- -------------------------
AUGUST 29, 1996
Mr. Geoffrey Nunes
Corporate Senior Vice President and
General Counsel
Millipore Corporation
80 Ashby Road
Bedford, MA 01730
Dear Mr. Nunes:
In connection with your consideration of your participation in a possible
negotiated transaction with Tylan General, Inc. and/or its subsidiaries,
affiliates or divisions (collectively, with such subsidiaries, affiliates and
divisions, the "Company"), the Company is prepared to make available to you
certain information concerning the business, financial condition, operations,
assets and liabilities of the Company. As a condition to such information being
furnished to you and your directors, officers, employees, agents, lenders or
advisors (including, without limitation, attorneys, accountants, consultants,
bankers and financial advisors) (collectively, "Representatives"), you agree to
treat any information concerning the Company (whether prepared by the Company,
its advisors or otherwise and irrespective of the form of communication) which
is furnished to you or to your Representatives now or in the future by or on
behalf of the Company for the purpose of evaluating such transaction (herein
collectively referred to as the "Evaluation Material") in accordance with the
provisions of this letter agreement, and to take or abstain from taking certain
other actions hereinafter set forth.
The term "Evaluation Material" also shall be deemed to include all notes,
analyses, compilations, studies, interpretations or other documents prepared by
you or your Representatives which contain, reflect or are based upon, in whole
or in part, the information furnished to you or your Representatives pursuant
hereto. The term Evaluation Material does not include information which
(i) is or becomes generally available to the public other than as a result of a
disclosure by you or your Representatives, (ii) was within your possession prior
to its being furnished to you by or on behalf of the Company pursuant hereto,
provided that the source of such information was not bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company or any other party with respect to such
information or (iii) becomes available to you on a nonconfidential basis from a
source other than the Company or any of its Representatives, provided that such
source is not bound by a confidentiality agreement with or other contractual,
legal or fiduciary obligation of confidentiality to the Company or any other
party with respect to such information.
<PAGE>
Millipore Corporation
August 29, 1996
Page Two
You hereby agree that you and your Representatives shall use the Evaluation
Material solely for the purpose of evaluating a possible negotiated transaction
between the Company and you, that the Evaluation Material will be kept
confidential and will not be used by you or your Representatives in any way
detrimental to the Company and that you and your Representatives will not
disclose any of the Evaluation Material in any manner whatsoever; provided,
---------
however, that (i) you make any disclosure of such information to which the
- --------
Special Committee of independent directors of the Company (the "Special
Committee") gives its prior written consent and (ii) any of such information may
be disclosed to your Representatives who need to know such information for the
sole purpose of evaluating a possible negotiated transaction with the Company,
who agree to keep such information confidential and who are provided with a copy
of this letter agreement and agree to be bound by the terms hereof to the same
extent as if they were parties hereto. In any event, you shall be responsible
for any breach of this letter agreement by any of your Representatives and you
agree, at your sole expense, to take all reasonable measures (including but not
limited to court proceedings) to restrain your Representatives from prohibited
or unauthorized disclosures or use of the Evaluation Material.
In addition, you agree that, without the prior written consent of the Special
Committee, you and your Representatives will not disclose to any other person
the fact that the Evaluation Material has been made available to you, that
discussions or negotiations are taking place concerning a possible transaction
involving the Company or any of the terms, conditions or other facts with
respect thereto (including the status thereof) provided, that you may make such
---------
disclosure if you have received the written opinion of your outside counsel that
such disclosure must be made by you in order that you not commit a violation of
law. Without limiting the generality of the foregoing, you further agree that,
without the prior written consent of the Special Committee, you will not,
directly or indirectly, enter into any agreement, arrangement or understanding,
or any discussions which might lead to such agreement, arrangement or
understanding, with any person regarding a possible transaction involving the
Company. The term person as used in this letter agreement shall be broadly
------
interpreted to include the media and any corporation, partnership, group,
individual or other entity.
In the event that you or any of your Representatives are requested or required
(by oral questions, interrogatories, requests for information or documents in
legal proceedings, subpoena, civil investigative demand or other similar
process) to disclose any of the Evaluation Material or the fact that the
Evaluation Material has been made available to you, that discussions or
negotiations are taking place concerning a possible transaction involving the
Company or any of the terms or conditions or other facts with respect thereto,
you shall provide the Special Committee with prompt written notice of any such
request or requirement so that the Company may seek a protective order or other
appropriate remedy and/or the Special Committee may waive compliance with the
provisions of this letter agreement. If, in the absence of a protective order or
other remedy or the receipt of a waiver by the Special Committee, you or any of
your Representatives are nonetheless, based on the written opinion of your
outside legal counsel, legally compelled to disclose Evaluation
<PAGE>
Millipore Corporation
August 29, 1996
Page Three
Material or other information to any tribunal or else stand liable for contempt
or suffer other censure or penalty, you or your Representative may, without
liability hereunder, disclose to such tribunal only that portion of the
Evaluation Material and such other information which such counsel advises you is
legally required to be disclosed, provided that you exercise your best efforts
to preserve the confidentiality of the Evaluation Material and such other
information being disclosed, including, without limitation, by cooperating with
the Company to obtain an appropriate protective order or other reliable
assurance that confidential treatment will be accorded by such tribunal to the
Evaluation Material and such other information being disclosed.
If you decide that you do not wish to proceed with a transaction with the
Company, you will promptly inform the Special Committee of that decision. In
that case, or at any time upon the request of the Special Committee for any
reason, you will promptly deliver to the Company all Evaluation Material (and
all copies thereof) furnished to you or your Representatives by or on behalf of
the Company pursuant hereto. In the event of such a decision or request, all
other Evaluation Material prepared by you or your Representatives shall be
destroyed and no copy thereof shall be retained. Notwithstanding the return or
destruction of the Evaluation Material, you and your Representatives will
continue to be bound by your obligations of confidentiality and other
obligations hereunder.
You understand and acknowledge that neither the Company nor any of its
Representatives (including without limitation any of the Company's directors,
officers, employees, or agents) make any representation or warranty, express or
implied, as to the accuracy or completeness of the Evaluation Material. You
agree that neither the Company nor any of its Representatives (including without
limitation any of the Company's directors, officers, employees, or agents) shall
have any liability to you or to any of your Representatives relating to or
resulting from the use of the Evaluation Material or any errors therein or
omissions therefrom. Only those representations or warranties which are made in
a final definitive agreement regarding any transactions contemplated hereby,
when, as and if executed, and subject to such limitations and restrictions as
may be specified therein, will have any legal effect.
In consideration of the Evaluation Material being furnished to you, you hereby
agree that, for a period of two years from the date hereof, neither you nor any
of your affiliates will solicit to employ any of the current officers or
employees of the Company with whom you have had contact or who was specifically
identified to you during the period of your investigation of the Company,
without obtaining the prior written consent of the Special Committee.
You agree that, for a period of one year from the date of this letter agreement,
unless such shall have been specifically invited in writing by the Special
Committee, neither you nor any of your affiliates (as such term is defined under
the Securities Exchange Act of 1934, as amended (the "1934 Act")) or
Representatives will in any manner, directly or indirectly, (a) effect or seek,
offer or propose (whether publicly or otherwise) to effect, or cause or
participate in or in any way assist any other person to effect or seek, offer or
propose (whether publicly or otherwise) to effect or participate
<PAGE>
Millipore Corporation
August 29, 1996
Page Four
In, (i) any acquisition of any securities (or beneficial ownership thereof) or
assets of the Company; (ii) any tender or exchange offer, merger or other
business combination involving the Company; (iii) any recapitalization,
restructuring, liquidation, dissolution or other extraordinary transaction with
respect to the Company; or (iv) any "solicitation" of "proxies" (as such terms
are used in the proxy rules of the Securities and Exchange Commission) or
consents to vote any voting securities of the Company; (b) form, join or in any
way participate in a "group" (as defined under the 1934 Act); (c) otherwise act,
alone or in concert with others, to seek to control or influence the management,
Board of Directors or policies of the Company, (d) take any action which might
force the Company to make a public announcement regarding any of the types of
matters set forth in (a) above; or (e) enter into any discussions or
arrangements with any third party with respect to any of the foregoing. You also
agree during such period not to request the Special Committee, directly or
indirectly, to amend or waive any provision of this paragraph (including this
sentence).
All inquiries, requests for information and other communications with the
Company shall be made through Jennifer Moses of Goldman Sachs & Co. ("Goldman")
(telephone no. 212-902-7878). You agree not to initiate or maintain contact
(except for those contacts made in the ordinary course of business) with any
other officer, director, employee or agent of the Company regarding the
Company's business, prospects, operations, finances or any other matter
pertaining to the Company or any proposed transaction. It is understand that
Goldman will arrange for appropriate contacts for due diligence purposes. It is
further understand that all (a) communications concerning a possible
transaction, (b) requests for additional information, (c) requests for facility
tours or management meetings and (d) discussions or questions regarding
procedures, will be submitted or directed to Goldman, except with the written
consent of the Special Committee.
You understand and agree that no contract or agreement providing for any
transaction involving the Company shall be deemed to exist between you and the
Company unless and until a final definitive agreement has been executed and
delivered, and you hereby waive, in advance, any claims (including, without
limitation, breach of contract) in connection with any transaction involving the
Company unless and until you and the Company shall have entered into a final
definitive agreement. You also agree that unless and until a final definitive
agreement regarding a transaction between the Company and you has been executed
and delivered, neither the Company nor you will be under any legal obligation
of any kind whatsoever with respect to such a transaction by virtue of this
letter agreement except for the matters specifically agreed to herein. You
further acknowledge and agree that the Company reserves the right, in its sole
discretion, to reject any and all proposals made by you or any of your
Representatives with regard to a transaction between the Company and you, and to
terminate discussions and negotiations with you at any time. You further
understand that (i) the Company and its Representatives shall be free to conduct
any process for any transaction involving the Company, if and as they in their
sole discretion shall determine (including, without limitation, negotiating with
any other interested parties and entering into a definitive agreement without
prior notice to you or any other person), (ii) any procedures relating to such
process or transaction may be
<PAGE>
Millipore Corporation
August 29, 1996
Page Five
changed at any time without notice to you or any other person and (iii) you
shall not have any claims whatsoever against the Company, its Representatives or
any of their respective directors, officers, stockholders, owners, affiliates
or agents arising out of or relating to any transaction involving the Company
(other than those as against the parties to a definitive agreement with you in
accordance with the terms thereof) nor, unless a definitive agreement is entered
into with you, against any third party with whom a transaction is entered into.
Neither this paragraph nor any other provision in this agreement can be waived
or amended except by written consent of the Special Committee, which consent
shall specifically refer to this paragraph (or such provision) and explicitly
make such waiver or amendment.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder.
It is further understood and agreed that money damages would not be a sufficient
remedy for any breach of this letter agreement by you or any of your
Representatives and that the Company shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for any such breach.
Such remedies shall not be deemed to be the exclusive remedies for a breach by
you of this letter agreement but shall be in addition to all other remedies
available at law or equity to the Company. In the event of litigation relating
to this letter agreement, if a court of competent jurisdiction determines that
you or any of your Representatives have breached this letter agreement, then you
shall be liable and shall pay to the Company the reasonable legal fees incurred
by the Company in connection with such litigation, including any appeal
therefrom.
This letter agreement is for the benefit of the Company and its directors,
officers, stockholders, owners, affiliates and agents, and shall be governed by
and construed in accordance with the laws of the State of California without
giving effect to the conflicts of laws principles thereof. You also hereby
irrevocably and unconditionally consent to submit to the exclusive jurisdiction
of the courts of the State of California and of the United States of America
located in the State of California for any actions, suits or proceedings arising
out of or relating to this letter agreement and the transactions contemplated
hereby (and you agree not to commence any action, suit or proceeding relating
thereto except in such courts), and further agree that service of any process,
summons, notice or document by U.S. registered mail to your address set forth
above shall be effective service of process for any action, suit or proceeding
brought against you in any such court. You hereby irrevocably and
unconditionally waive any objection to the laying of venue of any action, suit
or proceeding arising out of this letter agreement or the transactions
contemplated hereby, in the courts of the State of California or the United
States of America located in the State of California, and hereby further
irrevocably and unconditionally waive and agree not to plead or claim in any
such
<PAGE>
Millpore Corporation
August 29, 1996
Page Six
court that any such action, suit or proceeding brought in any such court has
been brought in an inconvenient forum.
This letter agreement shall terminate, and shall be of no further force and
effect, on and after the third anniversary of the date hereof.
Please confirm your agreement with the foregoing by signing and returning one
copy of this letter to the undersigned, whereupon this letter agreement shall
become a binding agreement between you and the Company.
Very truly yours,
TYLAN GENERAL, INC.
By: /s/ Goldman, Sachs & Co.
-------------------------------
Goldman, Sachs & Co.
on behalf of Tylan General, Inc.
Accepted and agreed as of
the date first written
above:
MILLPORE CORPORATION
By: /s/ Virg Erwin 9/16/96
---------------------
Name: Virg Erwin
Title: Director, Gas SBU
[SIGNATURE APPEARS HERE] 9/16/96
[SIGNATURE APPEARS HERE] 9/18/96
Vice President & General Manager, Microelectronics Division
[SIGNATURE APPEARS HERE]
Sr. Vice President
<PAGE>
PERSONAL AND CONFIDENTIAL
- -------------------------
October 25, 1996
Mr. Geoffrey Nunes
Millipore Corporation
80 Ashby Road
Bedford, MA 01730
Dear Mr. Nunes:
Millipore Corporation ("you") entered into a Confidentiality Agreement with
Tylan General, Inc. (the "Company") dated August 29, 1996 (the "Agreement").
Said Agreement contains a "standstill" provision prohibiting you from taking
certain actions for a period of one year from the date of the Agreement (the
"Standstill Provision"). We are writing this letter to inform you that the
Company has executed a Confidentiality Agreement containing a Standstill
Provision which is of a shorter duration than the Standstill Provision in the
Agreement, specifically, for a period of 120 days commending on October 18, 1996
(the "Revised Standstill Provision"). Accordingly, the Company is hereby
offering you the opportunity to amend the Agreement to replace the Standstill
Provision with the Revised Standstill Provision. Please indicate your acceptance
or rejection of the Revised Standstill Provision by initialing the appropriate
line below.
Accept Reject
/s/GN
------ ------
By initialing the "Accept" line of this letter, you agree that the Agreement
shall be deemed to be amended in accordance with the terms of the Revised
Standstill Provision. Except as specifically amended by this letter, all terms
and provisions of the Agreement shall remain unmodified and in full force and
effect.
This letter agreement may be signed and/or initialed in counterparts, which
together shall constitute a single instrument.
If you have any questions, please contact us.
Very truly yours,
TYLAN GENERAL, INC.
By: /s/ Goldman, Sachs & Co.
----------------------------
Goldman, Sachs & Co.
on behalf of Tylan General, Inc.
