<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
----------------
MOORE PRODUCTS CO.
(Name of Subject Company)
MALIBU ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
SIEMENS ENERGY & AUTOMATION, INC.
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
SIEMENS AKTIENGESELLSCHAFT
(Bidders)
COMMON STOCK,
PAR VALUE $1.00 PER SHARE
(Title of Class of Securities)
615836-103
(CUSIP Number of Class of Securities)
KENNETH R. MEYERS
SIEMENS CORPORATION
1301 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10019
(212) 258-4000
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications on Behalf of Bidders)
with a copy to:
WILLIAM G. LAWLOR
PETER D. CRIPPS
DECHERT PRICE & RHOADS
4000 BELL ATLANTIC TOWER
1717 ARCH STREET
PHILADELPHIA, PENNSYLVANIA 19103
(215) 994-4000
----------------
Calculation of Filing Fee
<TABLE>
<CAPTION>
Transaction Valuation* Amount of Filing Fee**
---------------------- ----------------------
<S> <C>
$184,012,277.90 $36,802.45
</TABLE>
- --------
* Estimated for purposes of calculating the amount of the filing fee only.
The filing fee calculation assumes the purchase of 3,293,045 shares of
common stock, $1.00 par value per share (the "Common Stock") (including
646,060 shares with respect to outstanding options to acquire shares of
Common Stock, "Options"), and 175,950 shares of preferred stock, $1.00 par
value per share (the "Preferred Stock"), of Moore Products Co. Such number
of shares of Common Stock and shares of Preferred Stock includes all
outstanding shares of Common Stock and shares of Preferred Stock and
assumes the exercise of all outstanding Options as of January 16, 2000.
** The amount of the filing fee calculated in accordance with Regulation
240.0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50th
of one percent of the value of the transaction.
Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the form or
schedule and the date of its filing. [_]
<TABLE>
<S> <C>
Amount Previously Paid: Not applicable. Filing Party: Not applicable.
Form or Registration No.: Not applicable. Date Filed: Not applicable.
</TABLE>
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<PAGE>
CUSIP No. 615836- Page 1 of 3
103 14D-1
Names of Reporting Persons S.S. or I.R.S.
Identification Nos. of Above Persons
1. Siemens Energy & Automation, Inc.
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2. Check the Appropriate Box if a Member of a Group (a) [_]
(b) [_]
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3. SEC Use Only
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4. Source of Funds WC
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5. Check Box 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
Delaware
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7. Aggregate Amount Beneficially Owned by Each Reporting Person
1,541,119 shares of Common Stock*
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8. Check Box if the Aggregate Amount in Row (7) Excludes [_]
Certain Shares
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9. Percent of Class Represented by Amount in Row (7)
51.5% of the outstanding shares of Common Stock
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10. Type of Reporting Person
CO
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* Beneficial ownership is based upon the 1,196,379 shares of Common Stock,
175,950 shares of Preferred Stock convertible into 70,380 shares of Common
Stock and Options to acquire 274,360 shares of Common Stock (216,750 of
which are presently exercisable by the holders thereof) subject to the
Tender and Option Agreement dated as of January 16, 2000 among Parent (as
hereinafter defined), Purchaser (as hereinafter defined) and certain
stockholders (the "Certain Stockholders") of the Company (as hereinafter
defined), pursuant to which each Certain Stockholder has agreed to tender in
the Offer (as hereinafter defined), and not to withdraw therefrom, and has
granted Parent and Purchaser an option to acquire under certain
circumstances the Securities (as hereinafter defined) owned by such Certain
Stockholder.
<PAGE>
CUSIP No. 615836- Page 2 of 3
103 14D-1
Names of Reporting Persons S.S. or I.R.S.
Identification Nos. of Above Persons
1. Siemens Aktiengesellschaft
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2. Check the Appropriate Box if a Member of a Group (a) [_]
(b) [_]
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3. SEC Use Only
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4. Source of Funds WC
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5. Check Box 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
The Federal Republic of Germany
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7. Aggregate Amount Beneficially Owned by Each Reporting Person
1,541,119 shares of Common Stock*
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8. Check Box if the Aggregate Amount in Row (7) Excludes [_]
Certain Shares
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9. Percent of Class Represented by Amount in Row (7)
51.5% of the outstanding shares of Common Stock
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10. Type of Reporting Person
CO
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* Beneficial ownership is based upon the 1,196,379 shares of Common Stock,
175,950 shares of Preferred Stock convertible into 70,380 shares of Common
Stock and Options to acquire 274,360 shares of Common Stock (216,750 of
which are presently exercisable by the holders thereof) subject to the
Tender and Option Agreement dated as of January 16, 2000 among Parent (as
hereinafter defined), Purchaser (as hereinafter defined) and certain
stockholders (the "Certain Stockholders") of the Company (as hereinafter
defined), pursuant to which each Certain Stockholder has agreed to tender in
the Offer (as hereinafter defined), and not to withdraw therefrom, and has
granted Parent and Purchaser an option to acquire under certain
circumstances the Securities (as hereinafter defined) owned by such Certain
Stockholder.
<PAGE>
CUSIP No. 615836- Page 3 of 3
103 14D-1
Names of Reporting Persons S.S. or I.R.S.
Identification Nos. of Above Persons
1. Malibu Acquisition Corp.
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2. Check the Appropriate Box if a Member of a Group (a) [_]
(b) [_]
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3. SEC Use Only
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4. Source of Funds WC
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5. Check Box 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
Pennsylvania
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7. Aggregate Amount Beneficially Owned by Each Reporting
Person
1,541,119 shares of Common Stock*
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8. Check Box if the Aggregate Amount in Row (7) Excludes [_]
Certain Shares
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9. Percent of Class Represented by Amount in Row (7)
51.5% of the outstanding shares of Common Stock
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10. Type of Reporting Person
CO
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* Beneficial ownership is based upon the 1,196,379 shares of Common Stock,
175,950 shares of Preferred Stock convertible into 70,380 shares of Common
Stock and Options to acquire 274,360 shares of Common Stock (216,750 of
which are presently exercisable by the holders thereof) subject to the
Tender and Option Agreement dated as of January 16, 2000 among Parent (as
hereinafter defined), Purchaser (as hereinafter defined) and certain
stockholders (the "Certain Stockholders") of the Company (as hereinafter
defined), pursuant to which each Certain Stockholder has agreed to tender in
the Offer (as hereinafter defined), and not to withdraw therefrom, and has
granted Parent and Purchaser an option to acquire under certain
circumstances the Securities (as hereinafter defined) owned by such Certain
Stockholder.
<PAGE>
TENDER OFFER
This Tender Offer Statement on Schedule 14D-1 (this "Statement") relates to
the offer by Malibu Acquisition Corp., a Pennsylvania corporation
("Purchaser") and a direct wholly owned subsidiary of Siemens Energy &
Automation, Inc. ("Parent"), a Delaware corporation and an indirect wholly
owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the
laws of the Federal Republic of Germany ("Siemens AG"), to purchase (i) all of
the outstanding shares of common stock, par value $1.00 per share (the "Common
Stock"), of Moore Products Co., a Pennsylvania corporation (the "Company"), at
a price of $54.71 per share of Common Stock, net to the seller in cash,
without interest thereon (the "Common Stock Price"), and (ii) all of the
outstanding shares of preferred stock, par value $1.00 per share (the
"Preferred Stock" and, together with the Common Stock, the "Securities"), at a
price of $21.88 per share of Preferred Stock, net to the seller in cash,
without interest thereon (the "Preferred Stock Price"), upon the terms and
subject to the conditions set forth in the Offer to Purchase dated January 21,
2000 (the "Offer to Purchase"), a copy of which is attached hereto as Exhibit
(a)(1), and in the Letter of Transmittal, a copy of which is attached hereto
as Exhibit (a)(2) (the Offer to Purchase and the Letter of Transmittal, as
amended or supplemented from time to time, together constitute the "Offer").
Item 1. Security and Subject Company.
(a) The name of the subject company is Moore Products Co., and the address
of its principal executive offices is 1201 Sumneytown Pike, Spring House, PA
19477-0900. The telephone number of the Company at such location is (215) 646-
7400.
(b) The information set forth in the "Introduction" of the Offer to Purchase
is incorporated herein by reference.
(c) The information set forth in "Price Range of the Securities; Dividends
on the Securities" of the Offer to Purchase is incorporated herein by
reference.
Item 2. Identity and Background.
(a) through (d), (g): This Statement is being filed by Siemens AG, Purchaser
and Parent. The information set forth in the "Introduction," "Certain
Information Concerning Siemens AG, Parent and Purchaser" and Schedule I of the
Offer to Purchase is incorporated herein by reference. The name, business
address, present principal occupation or employment, the material occupations,
positions, offices or employments for the past five years and citizenship of
each member of the Supervisory Board or Board of Management and each executive
officer of Siemens AG and each director and executive officer of Parent and
Purchaser and the name, principal business and address of any corporation or
other organization in which such occupations, positions, offices and
employments are or were carried on are set forth in Schedule I to the Offer to
Purchase and incorporated herein by reference.
(e) through (f): During the last five years, none of Siemens AG, Purchaser
or Parent or, to the best knowledge of Siemens AG, Purchaser and Parent, any
of the persons referred to in Sections 1, 2 or 3 of Schedule I to the Offer to
Purchase (i) have been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (ii) was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result of
which any such person 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)(1) Other than the transactions described in Item 3(b) below, none of
Siemens AG, Purchaser or Parent or, to the best knowledge of Siemens AG,
Purchaser and Parent, any of the persons referred to in Schedule I to the
Offer to Purchase have entered into any transaction with the Company, or any
of the Company's affiliates
1
<PAGE>
which are corporations, since the commencement of the Company's third full
fiscal year preceding the date of this Statement, the aggregate amount of
which was equal to or greater than one percent of the consolidated revenues of
the Company for (i) the fiscal year in which such transaction occurred or (ii)
the portion of the current fiscal year which has occurred if the transaction
occurred in such year.
(a)(2) Other than the transactions described in Item 3(b) below, none of
Siemens AG, Purchaser or Parent or, to the best knowledge of Siemens AG,
Purchaser and Parent, any of the persons referred to in Schedule I to the
Offer to Purchase have entered into any transaction since the commencement of
the Company's third full fiscal year preceding the date of this Statement with
the executive officers, directors or affiliates of the Company which are not
corporations, in which the aggregate amount involved in such transaction or in
a series of similar transactions, including all periodic installments in the
case of any lease or other agreement providing for periodic payments or
installments, exceeded $40,000.
(b) The information set forth in the "Introduction," "Certain Information
Concerning Siemens AG, Parent and Purchaser," "Background of the Offer;
Contacts with the Company" and "Plans for the Company; Other Matters" of the
Offer to Purchase is incorporated herein by reference.
Item 4. Source and Amount of Funds or Other Consideration.
(a) and (b): The information set forth in the "Introduction" and "Sources
and Amount of Funds" of the Offer to Purchase is incorporated herein by
reference.
(c) Not applicable.
Item 5. Purpose of the Tender Offer and Plans or Proposals of the Bidders.
(a) through (e): The information set forth in the "Introduction," "Purpose
of the Offer and the Merger; the Merger Agreement and Certain Other
Agreements," "Plans for the Company; Other Matters" and "Dividends and
Distributions" of the Offer to Purchase is incorporated herein by reference.
(f) and (g): The information set forth in the "Introduction" and "Effect of
the Offer on the Market for the Common Stock; Stock Quotation; Exchange Act
Registration; Margin Regulations" of the Offer to Purchase is incorporated
herein by reference.
Item 6. Interest in Securities of the Subject Company.
(a) and (b): The information set forth in the "Introduction," "Certain
Information Concerning Siemens AG, Parent and Purchaser" and "Background of
the Offer; Contacts with the Company" of the Offer to Purchase is incorporated
herein by reference.
Item 7. Contracts, Arrangements, Understandings or Relationships with Respect
to the Subject Company's Securities.
The information set forth in the "Introduction," "Sources and Amount of
Funds," "Background of the Offer; Contacts with the Company," "Purpose of the
Offer and the Merger; the Merger Agreement and Certain Other Agreements,"
"Plans for the Company; Other Matters" and "Fees and Expenses" of the Offer to
Purchase is incorporated herein by reference.
Item 8. Persons Retained, Employed or to be Compensated.
The information set forth in "Fees and Expenses" of the Offer to Purchase is
incorporated herein by reference.
2
<PAGE>
Item 9. Financial Statements of Certain Bidders.
The information set forth in "Certain Information Concerning Siemens AG,
Parent and Purchaser" of the Offer to Purchase is incorporated herein by
reference.
Item 10. Additional Information.
(a) Except as disclosed in Items 3 and 7 above, there are no present or
proposed material contracts, arrangements, understandings or relationships
between Siemens AG, Purchaser or Parent, or to the best knowledge of Siemens
AG, Purchaser and Parent, any of the persons listed in Schedule I to the Offer
to Purchase, and the Company or any of its executive officers, directors,
controlling persons or subsidiaries.
(b) and (c): The information set forth in the "Introduction," "Certain
Conditions of the Offer," "Certain Legal Matters and Regulatory Approvals" and
"Miscellaneous" of the Offer to Purchase is incorporated herein by reference.
(d) The information set forth in "Effect of the Offer on the Market for the
Securities; Stock Exchange Listing; Exchange Act Registration; Margin
Regulations" and "Certain Legal Matters and Regulatory Approvals" of the Offer
to Purchase is incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase and the Letter of
Transmittal, copies of which are attached hereto as Exhibits (a)(1) and
(a)(2), to the extent not otherwise incorporated herein by reference, is
incorporated herein by reference.
Item 11. Material to be Filed as Exhibits.
<TABLE>
<C> <S>
(a)(1) Offer to Purchase, dated January 21, 2000.
(a)(2) Letter of Transmittal to Tender Shares of Common Stock and Preferred
Stock.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Summary Advertisement.
(a)(8) Press Release dated January 17, 2000.
(a)(9) Press Release dated January 21, 2000.
(b) None.
(c)(1) Agreement and Plan of Merger, dated as of January 16, 2000, by and
among Parent, Purchaser and the Company.
(c)(2) Confidentiality Agreement, dated as of November 15, 1999, by and among
Parent and the Company.
(c)(3) Tender and Option Agreement, dated as of January 16, 2000, by and among
Parent, Purchaser and certain stockholders of the Company.
(c)(4) Employee Benefit and Severance Principles Adopted by the Company's
Board of Directors (incorporated by reference to the Schedule 14D-9
filed the date hereof by the Company).
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
3
<PAGE>
SIGNATURE
After due inquiry and to the best of its knowledge and belief, the
undersigned certifies that the information set forth in this statement is
true, complete and correct.
Dated: January 21, 2000
SIEMENS AKTIENGESELLSCHAFT
/s/ Dr. Inge Preuss
By: _________________________________
Name: Dr. Inge Preuss
Title: Prokurist
/s/ Juergen Werth
By: _________________________________
Name: Juergen Werth
Title: Prokurist
SIEMENS ENERGY & AUTOMATION, INC.
/s/ Thomas J. Malott
By: _________________________________
Name: Thomas J. Malott
Title: President and CEO
MALIBU ACQUISITION CORP.
/s/ Gary K. Gabriel
By: _________________________________
Name: Gary K. Gabriel
Title: Treasury
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
(a)(1) Offer to Purchase, dated January 21, 2000.
(a)(2) Letter of Transmittal to Tender Shares of Common Stock and Preferred
Stock.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Summary Advertisement.
(a)(8) Press Release dated January 17, 2000.
(a)(9) Press Release dated January 21, 2000.
(b) None.
(c)(1) Agreement and Plan of Merger, dated as of January 16, 2000, by and
among Parent, Purchaser and the Company.
(c)(2) Confidentiality Agreement, dated as of November 15, 1999, by and among
Parent and the Company.
(c)(3) Tender and Option Agreement, dated as of January 16, 2000, by and
among Parent, Purchaser and certain stockholders of the Company.
(c)(4) Employee Benefit and Severance Principles Adopted by the Company's
Board of Directors (incorporated by reference to the Schedule 14D-9
filed the date hereof by the Company).
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
<PAGE>
EXHIBIT (a)(1)
<PAGE>
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
and
All Outstanding Shares of Series A Preferred Stock
of
Moore Products Co.
at
$54.71 Net Per Share of Common Stock
and
$21.88 Net Per Share of Series A Preferred Stock
by
Malibu Acquisition Corp.
a wholly owned subsidiary of
Siemens Energy & Automation, Inc.
an indirect wholly owned subsidiary of
Siemens Aktiengesellschaft
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON THURSDAY, FEBRUARY 17, 2000, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS BEING MADE PURSUANT TO AN AGREEMENT AND PLAN OF MERGER, DATED
AS OF JANUARY 16, 2000 (THE "MERGER AGREEMENT"), BY AND AMONG SIEMENS ENERGY &
AUTOMATION, INC., MALIBU ACQUISITION CORP. AND MOORE PRODUCTS CO. (THE
"COMPANY"). THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE
MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE
OFFER AND THE MERGER (EACH AS DEFINED HEREIN), AND DETERMINED THAT THE OFFER
AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, EACH CLASS OF THE
COMPANY'S SECURITYHOLDERS AND RECOMMENDS THAT SECURITYHOLDERS ACCEPT THE OFFER
AND TENDER THEIR SECURITIES (AS DEFINED HEREIN) PURSUANT TO THE OFFER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN IMMEDIATELY PRIOR TO THE EXPIRATION OF THE OFFER OR
OTHERWISE ACQUIRED BY SIEMENS ENERGY & AUTOMATION, INC. OR ANY OF ITS
AFFILIATES PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF SECURITIES
REPRESENTING AT LEAST A MAJORITY OF (A) THE FULLY DILUTED VOTING POWER (AS
DEFINED HEREIN) AND (B) (X) THE OUTSTANDING SHARES OF PREFERRED STOCK (AS
DEFINED HEREIN) AND (Y) THE FULLY DILUTED SHARES (AS DEFINED HEREIN) AND (II)
ANY APPLICABLE WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST
IMPROVEMENTS ACT OF 1976, AS AMENDED, HAVING EXPIRED OR BEEN TERMINATED. THE
OFFER IS ALSO SUBJECT TO THE OTHER CONDITIONS SET FORTH IN THIS OFFER TO
PURCHASE. SEE SECTION 15.
---------------
IMPORTANT
Any securityholder desiring to tender all or any portion of such
securityholder's Securities should either (i) complete and sign the enclosed
Letter of Transmittal (or a manually signed facsimile thereof) in accordance
with the Instructions in the Letter of Transmittal, have such securityholder's
signature thereon guaranteed (if required by Instruction 1 to the Letter of
Transmittal), mail or deliver the Letter of Transmittal (or a manually signed
facsimile thereof) and any other required documents to the Depositary (as
defined herein) and either deliver the certificates for such Securities to the
Depositary along with the Letter of Transmittal (or such manually signed
facsimile) or, in the case of a book-entry transfer effected pursuant to the
procedures described in Section 3 of this Offer to Purchase, deliver an
Agent's Message (as defined herein) and any other required documents to the
Depositary and deliver such Securities pursuant to the procedure for book-
entry transfer set forth in Section 3 of this Offer to Purchase or (ii)
request such securityholder's broker, dealer, commercial bank, trust company
or other nominee to effect the transaction for such securityholder. Any
securityholder whose Securities 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 to tender such
Securities.
Any securityholder who desires to tender Securities and whose certificates
evidencing such Securities are not immediately available, or who cannot comply
with the procedures for book-entry transfer on a timely basis, or who cannot
deliver all required documents to the Depositary prior to the expiration of
the Offer, may tender such Securities by following the procedures for
guaranteed delivery set forth in Section 3 of this Offer to Purchase.
Questions and requests for assistance may be directed to the Information
Agent (as defined herein) or the Dealer Manager (as defined herein) at their
respective addresses and telephone numbers set forth on the back cover of this
Offer to Purchase. Requests for additional copies of this Offer to Purchase,
the Letter of Transmittal, the Notice of Guaranteed Delivery and other tender
offer materials may be directed to the Information Agent or the Dealer
Manager, or to brokers, dealers, commercial banks or trust companies.
---------------
The Dealer Manager for the Offer is:
Goldman, Sachs & Co.
January 21, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
INTRODUCTION............................................................... 1
THE OFFER.................................................................. 4
1. Terms of the Offer................................................... 4
2. Acceptance for Payment and Payment................................... 6
3. Procedures for Tendering Securities.................................. 7
4. Withdrawal Rights.................................................... 10
5. Certain U.S. Federal Income Tax Consequences......................... 11
6. Price Range of the Securities; Dividends on the Securities........... 12
7. Effect of the Offer on the Market for the Common Stock; Stock
Quotation; Exchange Act Registration; Margin Regulations.............. 12
8. Certain Information Concerning the Company........................... 14
9. Certain Information Concerning Siemens AG, Parent and Purchaser...... 16
10. Sources and Amount of Funds.......................................... 19
11. Background of the Offer; Contacts with the Company................... 20
12. Purpose of the Offer and the Merger; the Merger Agreement and Certain
Other Agreements........................................................ 22
13. Plans for the Company; Other Matters................................. 41
14. Dividends and Distributions.......................................... 43
15. Certain Conditions of the Offer...................................... 43
16. Certain Legal Matters and Regulatory Approvals....................... 46
17. Fees and Expenses.................................................... 51
18. Miscellaneous........................................................ 52
SCHEDULE I -- INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICERS OF
SIEMENS AG, PARENT AND PURCHASER.......................................... I-1
</TABLE>
<PAGE>
To the Holders of Common Stock and Series A Preferred Stock
of Moore Products Co.:
INTRODUCTION
Malibu Acquisition Corp., a Pennsylvania corporation ("Purchaser") and a
wholly owned subsidiary of Siemens Energy & Automation, Inc. ("Parent"), a
Delaware corporation and an indirect wholly owned subsidiary of Siemens
Aktiengesellschaft, a corporation formed under the laws of the Federal
Republic of Germany ("Siemens AG"), hereby offers to purchase all outstanding
shares of common stock, par value $1.00 per share (the "Common Stock"), of
Moore Products Co., a Pennsylvania corporation (the "Company"), at a price of
$54.71 per share of Common Stock, net to the seller in cash, without interest
thereon (the "Common Stock Price"), and all of the outstanding shares of
Series A preferred stock, par value $1.00 per share (the "Preferred Stock"
and, together with the Common Stock, the "Securities"), of the Company, at a
price of $21.88 per share of Preferred Stock, net to the seller in cash,
without interest thereon (the "Preferred Stock Price"), upon the terms and
subject to the conditions set forth in this Offer to Purchase and in the
related Letter of Transmittal (which, as amended or supplemented from time to
time, collectively constitute the "Offer").
Tendering securityholders of record who tender Securities directly will not
be obligated to pay brokerage fees or commissions or, except as set forth in
Instruction 6 of the Letter of Transmittal, stock transfer taxes on the
purchase of Securities by Purchaser pursuant to the Offer. However, any
tendering securityholder or other payee who fails to complete and sign the
Substitute Form W-9 included in the Letter of Transmittal may be subject to
backup federal income tax withholding of 31% of the gross proceeds payable to
such securityholder or other payee pursuant to the Offer. See Section 3.
Securityholders who hold their Securities through a bank or broker should
check with such institution as to whether they charge any service fees.
Purchaser will pay all fees and expenses of Goldman, Sachs & Co. ("Goldman
Sachs"), which is acting as Dealer Manager (in such capacity, the "Dealer
Manager"), ChaseMellon Shareholder Services, L.L.C., which is acting as the
Depositary (in such capacity, the "Depositary") and Georgeson & Company, Inc.,
which is acting as the Information Agent (in such capacity, the "Information
Agent"), incurred in connection with the Offer and in accordance with the
terms of the agreements entered into between Purchaser, Parent and/or Siemens
AG and each such person. See Section 17.
The Board of Directors of the Company (the "Company Board") has unanimously
approved the Merger Agreement (as defined below) and the transactions
contemplated thereby, including the Offer and the Merger (as defined below),
and determined that the Offer and the Merger are fair to, and in the best
interests of, each class of the Company's securityholders and unanimously
recommends that securityholders accept the Offer and tender their Securities
pursuant to the Offer.
Houlihan Lokey Howard & Zukin Financial Advisors, Inc. ("Houlihan Lokey"),
financial advisor to the Company, has delivered to the Company Board its
written opinion, dated January 16, 2000 (the "Financial Advisor Opinion"), to
the effect that, as of such date, the consideration to be received by the
holders of Securities pursuant to the Offer and the Merger is fair, from a
financial point of view, to such securityholders. A copy of the Financial
Advisor Opinion is attached as an exhibit to the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-
9"), which has been filed by the Company with the Securities and Exchange
Commission (the "Commission") in connection with the Offer and which is being
mailed to securityholders herewith. Securityholders are urged to, and should,
read the Financial Advisor Opinion carefully.
The Offer is conditioned upon, among other things, (i) there being validly
tendered and not withdrawn immediately prior to the expiration of the Offer or
otherwise acquired by Parent or any of its affiliates prior to the expiration
of the Offer a number of Securities representing at least a majority of (A)
the Fully Diluted Voting Power (as defined below) and (B) (x) the outstanding
shares of Preferred Stock and (y) the Fully Diluted Shares (as defined below)
(the "Minimum Condition") and (ii) any applicable
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waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), having expired or been terminated. The Offer is
also subject to the other conditions set forth in this Offer to Purchase. See
Sections 1 and 15.
Purchaser reserves the right, subject only to the applicable rules and
regulations of the Commission, to waive each of the conditions (other than
clause (A) of the Minimum Condition and the condition that the Merger
Agreement shall not have been terminated in accordance with its terms, which
may be waived only with the Company's consent) to the obligations of Purchaser
to consummate the Offer, the Merger and the other transactions contemplated by
the Merger Agreement and the Tender and Option Agreement (as defined below)
(the "Transactions").
The Company has advised Parent and Purchaser that each member of the
Company Board and each of the Company's executive officers intends to tender
all Securities owned by such persons pursuant to the Offer or (solely in the
case of directors and executive officers who would as a result of the tender
incur liability under Section 16(b) of the Exchange Act of 1934, as amended
(the "Exchange Act")) to vote in favor of the Merger. In addition,
simultaneously with the execution and delivery of the Merger Agreement, Parent
and Purchaser, on the one hand, and all of the Company's directors, Robert E.
Wisniewski, Treasurer and Secretary of the Company, trusts affiliated with
members of the Moore family and the Moore Products Co. Pension Plan, on the
other hand (the "Certain Securityholders"), entered into a Tender and Option
Agreement dated as of January 16, 2000 (the "Tender and Option Agreement").
The Tender and Option Agreement relates to the 1,196,379 shares of Common
Stock and 175,950 shares of Preferred Stock owned by the Certain
Securityholders, as well as 274,360 shares of Common Stock subject to Options
(as defined below), of which 216,750 such Options are presently exercisable.
The issued and outstanding Securities subject to the Tender and Option
Agreement currently represent approximately 49.8% of the Fully Diluted Voting
Power, 100% of the outstanding shares of Preferred Stock and 36.3% of the
Fully Diluted Shares. The issued and outstanding Securities and presently
exercisable Options subject to the Tender and Option Agreement together
represent approximately 54.9% of the Fully Diluted Voting Power, 100% of the
outstanding shares of Preferred Stock and 42.9% of the Fully Diluted Shares.
Pursuant to the Tender and Option Agreement, each Certain Securityholder has
agreed, among other things, to grant Purchaser an option to purchase the
Securities subject thereto under certain circumstances upon the occurrence of
certain "Trigger Events" (as defined below) and to tender in the Offer, and
not to withdraw therefrom, the Securities owned by such Certain
Securityholders, as well as any other Securities acquired prior to the
expiration of the Offer including pursuant to the exercise of Options. See
Section 12 under "--Tender and Option Agreement".
As used in this Offer to Purchase, "Fully Diluted Voting Power" means the
voting power represented by all of the outstanding Securities entitled
generally to vote at the Shareholder Meeting (as defined below) on a fully
diluted basis, after giving effect to the exercise of all outstanding options
(including the Options (whether or not currently exercisable)), warrants and
securities exercisable or convertible into such voting securities, except that
outstanding shares of Preferred Stock are not treated as having been converted
into shares of Common Stock, with each share of Common Stock having one vote
per share and each share of Preferred Stock having five votes per share;
provided that Parent may, at its option exercisable in its sole discretion,
exclude at any time from the calculation of Fully Diluted Shares any or all
Options (whether or not currently exercisable). Parent has not currently
elected to exercise such option but reserves the right to do so. As used in
this Offer to Purchase, "Fully Diluted Shares" means all outstanding shares of
Common Stock on a fully diluted basis, after giving effect to the exercise and
conversion of all outstanding options (including the Options (whether or not
currently exercisable)), warrants and securities exercisable or convertible
(but excluding shares of Preferred Stock) into Common Stock; provided that
Parent may, at its option exercisable in its sole discretion, exclude at any
time from the calculation of Fully Diluted Shares any or all Options (whether
or not currently exercisable). Parent has not currently elected to exercise
such option but reserves the right to do so. The Company has represented and
warranted to Parent and Purchaser that, as of January 16, 2000, (i) the
authorized capital stock of the Company consisted of 7,500,000 shares of
Common Stock and 325,000 shares of Preferred Stock of which 176,000 shares of
Preferred Stock were authorized, (ii) 2,646,985 shares of Common Stock and
175,950 shares of Preferred Stock were issued and outstanding and (iii)
646,060 shares of Common Stock were reserved for issuance
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pursuant to outstanding options (the "Options") issued under certain Company
stock option plans. The Merger Agreement provides, among other things, that
the Company will not, without the prior written consent of Parent, issue any
shares of capital stock of any class of the Company, or any options, warrants,
convertible securities or other rights of any kind to acquire any shares of
such capital stock of the Company (except for the issuance of shares of Common
Stock issuable pursuant to Options outstanding on the date of the Merger
Agreement). See Section 12. Based on the foregoing and assuming that there are
an aggregate of 4,172,795 votes representing the Fully Diluted Voting Power,
175,950 outstanding shares of Preferred Stock and 3,293,045 Fully Diluted
Shares, the Minimum Condition will be satisfied if Securities representing
2,086,398 votes, 87,976 shares of Preferred Stock and 1,646,523 Fully Diluted
Shares are validly tendered and not withdrawn immediately prior to the
expiration of the Offer or otherwise acquired by Parent or any of its
affiliates prior to the Expiration Date. Accordingly, if the Certain
Securityholders validly tender and do not withdraw all the Securities subject
to the Tender and Option Agreement (including the Securities subject to
exercisable Options), then clause (A) of the Minimum Condition (which relates
to Fully Diluted Voting Power) will be satisfied, and if Purchaser waives the
condition set forth in clause (B) of the Minimum Condition (which relates to
the minimum number of Securities to be tendered into the Offer) the Minimum
Condition would be satisfied without the tender of any additional Securities.
See Section 3 under "--Options." Purchaser does not currently intend to waive
such clause (B) of the Minimum Condition but reserves the right to do so.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of January 16, 2000 (the "Merger Agreement"), by and among Parent,
Purchaser and the Company. Pursuant to the Merger Agreement and in accordance
with the Pennsylvania Business Corporation Law (the "PBCL"), as promptly as
practicable after the completion of the Offer and satisfaction or waiver, if
permissible, of all conditions, including the purchase of Securities pursuant
to the Offer (sometimes referred to herein as the "consummation" of the Offer)
and the approval and adoption of the Merger Agreement by the securityholders
of the Company (if required by applicable law), Purchaser (or another wholly
owned subsidiary of Parent) will be merged with and into the Company (the
"Merger") and the Company will be the surviving corporation in the Merger (the
"Surviving Corporation") and a wholly owned subsidiary of Parent;
alternatively, Parent may elect to merge the Company with and into Purchaser
(or another wholly owned subsidiary of Siemens AG), and Purchaser or such
subsidiary will be the Surviving Corporation in the Merger. At the effective
time of the Merger (the "Effective Time"), (i) each share of Common Stock then
outstanding, other than shares of Common Stock held by (A) the Company or any
of its subsidiaries, (B) Parent or Purchaser or any of their subsidiaries and
(C) holders of shares of Common Stock who properly perfect their dissenter's
rights under the PBCL, if applicable, will be converted into the right to
receive $54.71 in cash, without interest thereon (the "Common Stock Merger
Consideration") and (ii) each share of Preferred Stock then outstanding, other
than shares of Preferred Stock held by (A) the Company or any of its
subsidiaries, (B) Parent or Purchaser or any of their subsidiaries and (C)
holders of shares of Preferred Stock who properly perfect their dissenter's
rights under the PBCL, if applicable, will be converted into the right to
receive $21.88 in cash, without interest thereon (the "Preferred Stock Merger
Consideration"). The Merger Agreement is more fully described in Section 12.
The Merger Agreement provides that immediately upon the purchase by
Purchaser of Securities pursuant to the Offer, Purchaser shall be entitled to
designate such number of directors, rounded up to the next whole number, on
the Company Board as shall give Purchaser representation on the Company Board
equal to the product of the total number of directors on the Company Board
(giving effect to the directors elected pursuant to this sentence) multiplied
by the percentage that the number of votes represented by Securities
beneficially owned by Purchaser and its affiliates (including Securities so
accepted for payment and purchased) bears to the number of votes represented
by Securities then outstanding, and the Company shall, at such time, use its
best efforts promptly to cause Purchaser's designees to be elected as
directors of the Company, including increasing the size of the Company Board
or securing the resignations of incumbent directors or both.
Consummation of the Merger is conditioned upon, among other things, the
approval and adoption by the requisite vote of securityholders of the Company
of the Merger Agreement and the Merger, if required by applicable law. See
Section 12. The Company has represented that under the PBCL and pursuant to
the Articles
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of Incorporation and the Bylaws of the Company, the affirmative vote of the
holders of a majority of the votes cast by the holders of Securities, voting
together as a single class, with each share of Common Stock entitled to one
vote per share and each share of Preferred Stock entitled to five votes per
share, is the only vote of any class or series of the Company's capital stock
which is necessary to approve the Merger Agreement and the Merger, at a
meeting of the Company's securityholders. If the Minimum Condition is
satisfied and Purchaser purchases Securities representing a majority of the
Fully Diluted Voting Power, Purchaser will be able to effect the Merger
without the affirmative vote of any other securityholder. Pursuant to the
Merger Agreement, Parent and Purchaser have agreed to vote the Securities
acquired by them pursuant to the Offer in favor of the Merger. See Section 13.
The Merger Agreement is more fully described in Section 12.
Under Section 1904 of the PBCL, if a corporation owns at least 80% of the
outstanding shares of each class of a subsidiary corporation, the corporation
holding such stock may merge such subsidiary into itself, or itself into such
subsidiary, without any action or vote on the part of the board of directors
or the shareholders of such other corporation (a "short-form merger"). In the
event that Purchaser acquires in the aggregate at least 80% of the outstanding
shares of Common Stock and the outstanding shares of Preferred Stock pursuant
to the Offer or otherwise, Parent and Purchaser could effect a short-form
merger without any further approval of the Company Board or the
securityholders of the Company. In the Merger Agreement, Purchaser and the
Company have agreed that Purchaser may extend the Offer on one or more
occasions for an aggregate period of not more than ten business days if the
Minimum Condition has been satisfied but less than 80% of each of the Common
Stock and Preferred Stock have been validly tendered and not properly
withdrawn. Even if Purchaser does not own 80% of each of the Common Stock and
Preferred Stock following the consummation of the Offer, Purchaser could seek
to purchase additional Securities in the open market or otherwise in order to
reach the 80% threshold and effect a short-form merger. The per Security
consideration paid for any Securities so acquired in open market purchases may
be greater or less than that paid in the Offer. Parent and Purchaser presently
intend to effect a short-form merger, if permitted to do so under the PBCL,
pursuant to which Purchaser will be merged with the Company. See Section 13.
Certain Federal income tax consequences of the sale of Securities pursuant
to the Offer are described in Section 5.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
THE OFFER
1. Terms of the Offer. Upon the terms and subject to the conditions of the
Offer (including, if the Offer is extended or amended, the terms and
conditions of such extension or amendment), Purchaser will accept for payment
and pay for all Securities validly tendered prior to the Expiration Date, and
not properly withdrawn in accordance with Section 4. The term "Expiration
Date" shall mean 12:00 Midnight, New York City time, on Thursday, February 17,
2000, unless and until Purchaser, in accordance with the terms of the Merger
Agreement, 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.
The Offer is conditioned upon the satisfaction of the Minimum Condition,
the expiration or termination of any waiting period imposed by the HSR Act,
and the other conditions set forth in Section 15. If such conditions are not
satisfied at or prior to the Expiration Date, Purchaser reserves the right,
subject to the terms of the Merger Agreement and subject to complying with
applicable rules and regulations of the Commission, to (i) decline to purchase
any Securities tendered in the Offer and terminate the Offer and return all
tendered Securities to the tendering securityholders, (ii) waive any or all
conditions to the Offer (other than clause (A) of the Minimum Condition and
the condition that the Merger Agreement shall not have been terminated in
accordance with its terms, which conditions may be waived only with the
Company's consent) and, subject to complying with
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applicable rules and regulations of the Commission, purchase all Securities
validly tendered, (iii) extend the Offer and, subject to the right of
securityholders to withdraw shares of Common Stock until the Expiration Date,
retain all Securities which have been tendered during the period or periods
for which the Offer is extended or (iv) subject to the provisions of next
paragraph, amend the Offer.
Under the Merger Agreement, Purchaser has the right, in its sole
discretion, to modify and make changes to the terms and conditions of the
Offer, provided that without the prior consent of the Company, no modification
or change may be made which (i) decreases the consideration payable in the
Offer (except as permitted in the Merger Agreement), (ii) changes the form of
consideration payable in the Offer (other than by adding consideration), (iii)
changes the Minimum Condition, (iv) decreases the maximum number of Securities
sought pursuant to the Offer, (v) changes the material conditions to the Offer
in a manner adverse to the Company or its shareholders or option holders, or
(vi) imposes additional material conditions to the Offer (other than in
respect of any consideration which is payable in addition to the Common Stock
Price and Preferred Stock Price). Notwithstanding the foregoing, Purchaser may
(but shall not be required under the Merger Agreement or otherwise to),
without the consent of the Company, (i) extend the Offer on one or more
occasions for such period as may be determined by Purchaser in its sole
discretion (each such extension period not to exceed 10 business days at a
time), if at the then scheduled Expiration Date any of the conditions to
Purchaser's obligations to accept for payment and pay for Securities shall not
be satisfied or waived, (ii) extend the Offer for any period required by any
rule, regulation, interpretation or position of the Commission or the staff
thereof applicable to the Offer, (iii) extend the Offer on one or more
occasions for an aggregate period of not more than 10 business days if the
Minimum Condition has been satisfied but less than 80% of each of the Common
Stock and Preferred Stock have been validly tendered and not properly
withdrawn and (iv) extend the Offer for any reason on one occasion for an
aggregate period of not more than 10 business days beyond the latest
expiration date that would otherwise be permitted under clause (i), (ii) or
(iii) of this sentence, notwithstanding the prior satisfaction of the
conditions to the Offer set forth in Section 15. The conditions to the Offer
are for the benefit of Purchaser and may be waived by Purchaser (provided that
Purchaser may not waive the condition that the Merger Agreement shall not have
been terminated in accordance with its terms or clause (A) of the Minimum
Condition without the Company's consent) in whole or in part at any time and
from time to time, in its sole discretion to the extent available (although
Purchaser has no current intention of availing itself of such right). In
addition, under the Merger Agreement, Purchaser may terminate the Offer as it
relates to the Preferred Stock in the event that Purchaser has acquired all of
the outstanding shares of Preferred Stock, including pursuant to the exercise
of the Purchase Option (as defined below) granted pursuant to the Tender and
Option Agreement.
Subject to the terms of the Merger Agreement and applicable rules and
regulations of the Commission, Purchaser expressly reserves the right, in its
sole discretion, at any time or from time to time, to (a) extend the period of
time during which the Offer is open and thereby delay acceptance for payment
of and the payment for any Securities, by giving oral or written notice of
such extension to the Depositary and (b) amend the Offer in any other respect
by giving oral or written notice of such amendment to the Depositary. Under no
circumstances will interest be paid on the purchase price for tendered
Securities, whether or not Purchaser exercises its right to extend the Offer.
Any extension, delay, waiver, amendment or termination of the Offer will be
followed as promptly as practicable by public announcement thereof, the
announcement in the case of an extension to be issued no later than 9:00 a.m.,
New York City time, on the next business day after the previously scheduled
Expiration Date in accordance with Rules 14d-4(c), 14d-6(d) and 14e-1(d) under
the Exchange Act, which require that material changes be promptly disseminated
to holders of Securities. Subject to applicable law and without limiting the
obligation of Purchaser under such Rules or the manner in which Purchaser may
choose to make any public announcement, Purchaser will not have any obligation
to publish, advertise or otherwise communicate any such public announcement
other than by making a press release to the Dow Jones News Service. As used in
this Offer to Purchase, "business day" has the meaning set forth in Rule 14d-1
under the Exchange Act.
If Purchaser extends the Offer, or if Purchaser (whether before or after
its acceptance for payment of Securities) is delayed in its purchase of, or
payment for, Securities or is unable to pay for Securities pursuant to
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the Offer for any reason, then, without prejudice to Purchaser's rights under
the Offer, the Depositary may retain tendered Securities on behalf of
Purchaser, and such Securities may not be withdrawn except to the extent
tendering securityholders are entitled to the withdrawal rights described in
Section 4. However, the ability of Purchaser to delay the payment for
Securities which Purchaser has accepted for payment is limited by Rule 14e-
1(c) under the Exchange Act, which requires that a bidder pay the
consideration offered or return the securities deposited by, or on behalf of,
holders of securities promptly after the termination or withdrawal of the
Offer.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer,
Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the
Exchange Act. The minimum period during which the Offer must remain open
following material changes in the terms of the Offer or information concerning
the Offer, other than a change in price or a change in percentage of
securities sought, will depend upon the facts and circumstances then existing,
including the relative materiality of the changed terms or information. In a
public release, the Commission has stated its view that an offer must remain
open for a minimum period of time following a material change in the terms of
such offer and that waiver of a material condition, such as the Minimum
Condition, is a material change in the terms of such offer. The release states
that an offer should remain open for a minimum of five business days from the
date a material change is first published, or sent or given to securityholders
and that, if material changes are made with respect to information not
materially less significant than the offer price and the number of shares
being sought, a minimum of 10 business days may be required to allow adequate
dissemination and investor response. The requirement to extend the Offer will
not apply to the extent that the number of business days remaining between the
occurrence of the change and the then scheduled Expiration Date equals or
exceeds the minimum extension period that would be required because of such
amendment. If, prior to the Expiration Date, Purchaser increases the
consideration offered to holders of shares of Common Stock or shares of
Preferred Stock pursuant to the Offer, such increased consideration will be
paid to all holders whose shares of Common Stock or shares of Preferred Stock,
as the case may be, are purchased in the Offer whether or not such shares of
Common Stock or shares of Preferred Stock were tendered prior to such
increase.
The Company has provided Purchaser with the Company's securityholder lists
and security position listings for the purpose of disseminating the Offer to
securityholders. This Offer to Purchase, the related Letter of Transmittal and
other relevant documents will be mailed to record holders of Securities whose
names appear on the securityholders lists 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 securityholder lists or,
if applicable, who are listed as participants in a clearing agency's security
position listing, for subsequent transmittal to beneficial owners of
Securities.
2. Acceptance for Payment and Payment. 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 Securities validly tendered prior to
the Expiration Date and not properly withdrawn in accordance with Section 4
promptly after the later to occur of (i) the Expiration Date and (ii) the
satisfaction or waiver of the conditions of the Offer set forth in Section 15
related to regulatory matters. Any determination concerning the satisfaction
of such terms and conditions shall be within the sole discretion of Purchaser.
See Section 4.
Purchaser expressly reserves the right, in its sole discretion, to delay
acceptance for payment of, or payment for, Securities in order to comply in
whole or in part with any applicable law, including without limitation the HSR
Act. See Section 16. If Purchaser is delayed in its acceptance for payment of,
or payment for (whether before or after its acceptance for payment of
Securities), Securities or is unable to accept for payment or pay for
Securities pursuant to the Offer for any reason, then, without prejudice to
Purchaser's rights under the Offer (including such rights as are set forth in
Sections 1 and 15) (but subject to compliance with Rule 14e-1(c) under the
Exchange Act, which requires that a tender offeror pay the consideration
offered or return the tendered securities promptly after termination or
withdrawal of a tender offer), the Depositary may, nevertheless, on behalf of
Purchaser, retain tendered Securities, and such Securities may not be
withdrawn except to the extent tendering
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securityholders are entitled to exercise, and duly exercise, withdrawal rights
as described in Section 4 with respect to shares of Common Stock.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Securities properly tendered to Purchaser and
not withdrawn, if, as and when Purchaser gives oral or written notice to the
Depositary of its acceptance for payment of such Securities. Upon the terms
and subject to the conditions of the Offer, payment for Securities accepted
for payment pursuant to the Offer will be made by deposit of the purchase
price therefor with the Depositary, which will act as agent for tendering
securityholders for the purpose of receiving payment from Purchaser and
transmitting payment to tendering securityholders. In all cases, payment for
Securities accepted for payment pursuant to the Offer will be made only after
timely receipt by the Depositary of (i) certificates for such Securities (or a
timely Book Entry Confirmation (as defined below) with respect thereto), (ii)
the Letter of Transmittal (or a manually signed 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 (as defined below) and
(iii) any other documents required by the Letter of Transmittal. Accordingly,
payment may be made to tendering securityholders at different times if
delivery of the certificates and other required documents occur at different
times. The price paid to any holder of shares of Common Stock pursuant to the
Offer will be the highest price per share of Common Stock paid to any other
holder of such shares of Common Stock pursuant to the Offer. The price paid to
any holder of shares of Preferred Stock pursuant to the Offer will be the
highest price per share of Preferred Stock consideration paid to any other
holder of such shares of Preferred Stock pursuant to the Offer.
Under no circumstances will interest be paid on the Common Stock Price or
the Preferred Stock Price to be paid by Purchaser for the Securities,
regardless of any extension of the Offer or any delay in making such payment.
If any tendered Securities are not purchased pursuant to the Offer for any
reason, or if certificates are submitted representing more Securities than are
tendered, certificates evidencing Securities not tendered or not accepted for
purchase will be returned to the tendering securityholder, or such other
person as the tendering securityholder shall specify in the Letter of
Transmittal, as promptly as practicable following the expiration, termination
or withdrawal of the Offer. In the case of shares of Common Stock delivered by
book-entry transfer into the Depositary's account at the Book-Entry Transfer
Facility (as defined below) pursuant to the procedures set forth in Section 3,
such shares of Common Stock will be credited to such account maintained at the
Book-Entry Transfer Facility as the tendering securityholder shall specify in
the Letter of Transmittal, as promptly as practicable following the
expiration, termination or withdrawal of the Offer. If no such instructions
are given with respect to shares of Common Stock delivered by book-entry
transfer, any such shares of Common Stock not tendered or not purchased will
be returned by crediting the account at the Book-Entry Transfer Facility
designated in the Letter of Transmittal as the account from which such shares
of Common Stock were delivered.
Purchaser reserves the right to transfer or assign, in whole or, from time
to time, in part, to one or more of its affiliates, the right to purchase
Securities tendered pursuant to the Offer, but any such transfer or assignment
will not relieve Purchaser of its obligations under the Offer and will in no
way prejudice the rights of tendering securityholders to receive payment for
Securities validly tendered and accepted for payment pursuant to the Offer.
3. Procedures for Tendering Securities.
Valid Tender. For Securities to be validly tendered pursuant to the Offer,
either (i) a properly completed and duly executed Letter of Transmittal (or
manually signed facsimile thereof), together with any required signature
guarantees, or in the case of a book-entry transfer, an Agent's Message, and
any other required documents, must be received by the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date and either certificates evidencing tendered Securities must be
received by the Depositary at one of such addresses or, in the case of shares
of Common Stock, such shares of Common Stock must be delivered to the
Depositary pursuant to the procedures for book-entry transfer set forth below
and
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a Book-Entry Confirmation must be received by the Depositary, in each case
prior to the Expiration Date, or (ii) the tendering securityholder must comply
with the guaranteed delivery procedures described below.
If certificates evidencing tendered Securities are forwarded to the
Depositary in multiple deliveries, a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof) must accompany
each delivery. No alternative, conditional or contingent tenders will be
accepted and no fractional Securities will be purchased.
Book-Entry Transfer. The Depositary will establish an account with respect
to the shares of Common Stock at The Depository Trust Company (the "Book-Entry
Transfer Facility") for purposes of the Offer within two business days after
the date of this Offer to Purchase. Any financial institution that is a
participant in the Book-Entry Transfer Facility's system may make book-entry
delivery of shares of Common Stock by causing the Book-Entry Transfer Facility
to transfer such shares of Common Stock into the Depositary's account in
accordance with such Book-Entry Transfer Facility's procedures for such
transfer. However, although delivery of shares of Common Stock may be effected
through book-entry transfer into the Depositary's account at the Book-Entry
Transfer Facility, the Letter of Transmittal (or a manually signed facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or an Agent's Message, and any other required documents must, in
any case, be transmitted to, and received by, the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date, or the tendering securityholder must comply with the
guaranteed delivery procedures described below. The confirmation of a book-
entry transfer of shares of Common Stock into the Depositary's account at the
Book-Entry Transfer Facility as described above is referred to herein as a
"Book-Entry Confirmation." The Company does not anticipate that the shares of
Preferred Stock will be eligible for book-entry transfer.
The term "Agent's Message" means a message transmitted by the 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 of Common Stock 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.
The Letter of Transmittal and any other required documents must be
transmitted to and received by the Depositary at one of its addresses set
forth on the back cover page of this Offer to Purchase. Delivery of the Letter
of Transmittal and any other required documents to the Book-Entry Transfer
Facility will not constitute delivery to the Depositary.
The method of delivery of Securities, the Letter of Transmittal and all
other required documents, including delivery through the Book-Entry Transfer
Facility, is at the election and risk of the tendering securityholder.
Securities will be deemed delivered only when actually received by the
Depositary (including, in the case of a Book-Entry Transfer, by Book-Entry
Confirmation). If delivery is by mail, registered mail with return receipt
requested, properly insured, is recommended. In all cases, sufficient time
should be allowed to ensure timely delivery.
Signature Guarantees. No signature guarantee is required on a Letter of
Transmittal (i) if such Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section, includes any participant
in the Book Entry Transfer Facility's systems whose name appears on a security
position listing as the owner of the Securities) of Securities tendered
therewith and such registered holder has not completed either the box entitled
"Special Delivery Instructions" or the box entitled "Special Payment
Instructions" on such Letter of Transmittal or (ii) if such Securities are
tendered for the account of a financial institution (including most commercial
banks, savings and loan associations and brokerage houses) that is a
participant in the Security Transfer Agents Medallion Program, the New York
Stock Exchange Medallion Signature Guarantee Program or the Stock Exchange
Medallion Program or by any other "eligible guarantor institution," as such
term is defined in Rule 17Ad-15 under the Exchange Act (each, an "Eligible
Institution" and, collectively, "Eligible Institutions"). In all other cases,
all signatures on Letters of Transmittal must be guaranteed by an Eligible
Institution. See Instructions 1 and 5 to the Letter of Transmittal. If the
certificates for Securities 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
8
<PAGE>
for Securities not tendered or not accepted for payment are to be returned, to
a person other than the registered holder of the certificates surrendered,
then the tendered certificates for such Securities must be endorsed or
accompanied by appropriate stock powers, in either case, signed exactly as the
name or names of the registered holders or owners appear on the certificates,
with the signatures on the certificates or stock powers guaranteed as
described above. See Instructions 1 and 5 to the Letter of Transmittal.
Guaranteed Delivery. If a securityholder desires to tender Securities
pursuant to the Offer and such securityholder's certificates are not
immediately available or the procedures for book-entry transfer cannot be
completed on a timely basis or time will not permit all required documents to
reach the Depositary prior to the Expiration Date, such securityholder's
tender may be effected if all the following conditions are met:
(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, prior to the Expiration Date;
(iii) in the case of shares of Common Stock, the certificates for all
tendered shares of Common Stock, in proper form for transfer, or a Book-
Entry Confirmation, together with a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof), with any
required signature guarantees, or, in the case of a book-entry transfer, an
Agent's Message, and any other required documents, are received by the
Depositary within three trading days after the date of execution of such
Notice of Guaranteed Delivery; and
(iv) in the case of shares of Preferred Stock, the certificates for all
tendered shares of Preferred Stock, in proper form for transfer, together
with a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof), with any required signature guarantees,
and any other required documents, are received by the Depositary within
three trading days after the date of execution of such Notice of Guaranteed
Delivery.
A "trading day" is any day on which the Nasdaq National Market is open for
business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mailed to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Securities accepted
for payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (a) certificates for (or a timely Book-Entry
Confirmation with respect to) such Securities, (b) a Letter of Transmittal (or
a manually signed 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 (c) any other documents required by the
Letter of Transmittal. Accordingly, tendering securityholders may be paid at
different times depending upon when certificates for Securities or Book-Entry
Confirmations with respect to such Securities are actually received by the
Depositary.
The valid tender of Securities pursuant to one of the procedures described
above will constitute a binding agreement between the tendering securityholder
and Purchaser upon the terms and subject to the conditions of the Offer.
Appointment. By executing the Letter of Transmittal as set forth above
(including delivery through an Agent's Message), the tendering securityholder
will irrevocably appoint designees of Parent as such securityholder's
attorneys-in-fact and proxies in the manner set forth in the Letter of
Transmittal, each with full power of substitution, to the full extent of such
securityholder's rights with respect to the Securities tendered by such
securityholder and accepted for payment by Purchaser and with respect to any
and all non-cash dividends, distributions, rights, other shares of Common
Stock or shares of Preferred Stock or other securities issued or issuable in
respect of such Securities on or after January 16, 2000 (collectively,
"Distributions"). All such
9
<PAGE>
proxies will be considered coupled with an interest in the tendered
Securities. Such appointment will be effective if, as and when, and only to
the extent that, Purchaser accepts for payment Securities tendered by such
securityholder as provided herein. All such powers of attorney and proxies
will be irrevocable and will be deemed granted in consideration of the
acceptance for payment by Purchaser of Securities tendered in accordance with
the terms of the Offer. Upon such appointment, all prior powers of attorney,
proxies and consents given by such securityholder with respect to such
Securities (and any and all Distributions) will, without further action, be
revoked and no subsequent powers of attorney, proxies, consents or revocations
may be given by such securityholder (and, if given, will not be deemed
effective). The designees of Purchaser will thereby be empowered to exercise
all voting and other rights with respect to such Securities (and any and all
Distributions), including, without limitation, in respect of any annual or
special meeting of the Company's securityholders (and any adjournment or
postponement thereof), actions by written consent in lieu of any such meeting
or otherwise, as each such attorney-in-fact and proxy or his substitute shall
in his sole discretion deem proper. Purchaser reserves the right to require
that, in order for Securities to be deemed validly tendered, immediately upon
Purchaser's acceptance for payment of such Securities, Purchaser must be able
to exercise full voting, consent and other rights with respect to such
Securities (and any and all Distributions), including voting at any meeting of
securityholders.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tender of Securities will be determined by Purchaser, in its sole discretion,
which determination will be final and binding. Purchaser reserves the absolute
right to reject any or all tenders of any Securities determined by it not to
be in proper form or the acceptance for payment of which, or payment for
which, may, in the opinion of Purchaser's counsel, be unlawful. Purchaser also
reserves the absolute right, in its sole discretion, to waive any defect or
irregularity in any tender of Securities of any particular securityholder,
whether or not similar defects or irregularities are waived in the case of
other securityholders. No tender of Securities will be deemed to have been
validly made until all defects or irregularities relating thereto have been
cured or waived. None of Purchaser, Parent, the Dealer Manager, the
Depositary, the Information Agent or any other person will be under any duty
to give notification of any defects or irregularities in tenders or incur any
liability for failure to give any such notification. 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.
Backup Withholding. In order to avoid "backup withholding" of Federal
income tax on payments of cash pursuant to the Offer, a securityholder
surrendering Securities in the Offer, or its assignee (in either case, the
"Payee") must, unless an exemption applies, provide the Depositary with such
Payee's correct taxpayer identification number ("TIN") on a Substitute Form W-
9 and certify under penalties of perjury that such TIN is correct. If a Payee
does not provide such Payee's correct TIN or fails to provide the
certification described above, the Internal Revenue Service (the "IRS") may
impose a penalty on such Payee and payment of cash to such Payee pursuant to
the Offer may be subject to backup withholding of 31%. All securityholders
surrendering Securities pursuant to the Offer and other Payees should complete
and sign the Substitute Form W-9 included as part of the Letter of Transmittal
to provide the information and certification necessary to avoid backup
withholding (unless an applicable exemption exists and is proved in a manner
satisfactory to Purchaser and the Depositary). Certain Payees (including,
among others, all corporations and certain foreign individuals and entities)
are not subject to backup withholding. Noncorporate foreign securityholders
should complete and sign a Form W-8, Certificate of Foreign Status, a copy of
which may be obtained from the Depositary, in order to avoid backup
withholding. See Instruction 10 to the Letter of Transmittal.
Options. Holders of currently exercisable Options may exercise such Options
pursuant to their terms and tender the Securities received upon such exercise
pursuant to the Offer. Alternatively, holders of unexercised Options will
receive cash payments after the Effective Time in respect of such unexercised
Options. See Section 12 under "--Options."
4. Withdrawal Rights. Except as otherwise provided in this Section 4 or as
provided by applicable law, tenders of Securities are irrevocable. Shares of
Common Stock tendered pursuant to the Offer may be withdrawn
10
<PAGE>
pursuant to the procedures set forth below at any time prior to the Expiration
Date and, unless theretofore accepted for payment by Purchaser pursuant to the
Offer, may also be withdrawn at any time after March 20, 2000.
For a withdrawal to be effective, a written, telegraphic 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 such notice of withdrawal must specify the name of the person who tendered
the shares of Common Stock to be withdrawn, the number of shares of Common
Stock to be withdrawn and the name of the registered holder of the shares of
Common Stock to be withdrawn, if different from the name of the person who
tendered the shares of Common Stock. If certificates evidencing shares of
Common Stock to be withdrawn have been delivered or otherwise identified to
the Depositary, then, prior to the physical release of such certificates, the
serial numbers shown on such certificates must be submitted to the Depositary
and, unless such shares of Common Stock have been tendered by an Eligible
Institution, the signatures on the notice of withdrawal must be guaranteed by
an Eligible Institution. If shares of Common Stock have been delivered
pursuant to the procedures for book-entry transfer as set forth in Section 3,
any notice of withdrawal must also specify the name and number of the account
at the Book-Entry Transfer Facility to be credited with the withdrawn shares
of Common Stock and otherwise comply with such Book-Entry Transfer Facility's
procedures.
Withdrawals of tendered shares of Common Stock may not be rescinded, and
any shares of Common Stock properly withdrawn will thereafter be deemed not
validly tendered for purposes of the Offer. However, withdrawn shares of
Common Stock may be retendered by again following one of the procedures
described in Section 3 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
which determination will be final and binding. None of Purchaser, Parent, the
Dealer Manager, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification.
5. Certain U.S. Federal Income Tax Consequences. The following is a general
summary of certain U.S. Federal income tax consequences of the Offer and the
Merger relevant to a beneficial holder of Securities whose Securities are
tendered and accepted for payment pursuant to the Offer or whose Securities
are converted to cash in the Merger (a "Holder"). The discussion is based on
the Internal Revenue Code of 1986, as amended (the "Code"), regulations issued
thereunder, judicial decisions and administrative rulings, all of which are
subject to change, possibly with retroactive effect. The following discussion
does not address the U.S. Federal income tax consequences to all categories of
Holders that may be subject to special rules (e.g., holders who acquired their
Securities pursuant to the exercise of employee stock options or other
compensation arrangements with the Company, holders who perfect applicable
dissenters' rights under the PBCL, foreign holders, insurance companies, tax-
exempt organizations, dealers in securities and persons who have acquired the
Securities as part of a straddle, hedge, conversion transaction or other
integrated investment), nor does it address the Federal income tax
consequences to persons who do not hold the Securities as "capital assets"
within the meaning of Section 1221 of the Code (generally, property held for
investment).
The Federal income tax consequences set forth below are included for
general informational purposes only. Because individual circumstances may
differ, each Holder should consult such Holder's own tax advisor to determine
the applicability of the rules discussed below to such Holder and the
particular tax effects of the Offer and the Merger, including the application
and effect of U.S. Federal, state, local and other income tax laws.
The receipt of cash for Securities pursuant to the Offer or the Merger will
be a taxable transaction for U.S. Federal income tax purposes and may also be
a taxable transaction under applicable state, local and foreign income and
other tax laws. In general, a Holder who sells Securities pursuant to the
Offer or receives cash in exchange for Securities pursuant to the Merger will
recognize gain or loss for Federal income tax purposes equal
11
<PAGE>
to the difference, if any, between the amount of cash received and the
Holder's adjusted tax basis in the Securities sold pursuant to the Offer or
surrendered for cash pursuant to the Merger. Gain or loss will be determined
separately for each block of Securities (i.e., Securities acquired at the same
cost in a single transaction) tendered pursuant to the Offer or surrendered
for cash pursuant to the Merger. Such gain or loss will be long-term capital
gain or loss if the Holder has held the Securities for more than one year at
the time of the consummation of the Offer or the Merger. Capital gains
recognized by an individual investor (or an estate or certain trusts) upon a
disposition of a Security that has been held for more than one year generally
will be subject to a maximum tax rate of 20% or, in the case of a Security
that has been held for one year or less, will be subject to tax at ordinary
income rates. Certain limitations apply to the use of capital losses.
6. Price Range of the Securities; Dividends on the Securities. The shares
of Common Stock are listed on the Nasdaq National Market under the symbol
"MORP". The following table sets forth, for each of the fiscal quarters
indicated, the high and low sales price per share of Common Stock on the
Nasdaq National Market and the amount of cash dividends paid per share of
Common Stock, as reported in published financial sources.
<TABLE>
<CAPTION>
Sales Price
------------- Cash
High Low Dividends
------ ------ ---------
<S> <C> <C> <C>
Fiscal Year Ended December 31, 1998:
First Quarter ended March 31, 1998................. $36.50 $31.50 $0.40
Second Quarter ended June 30, 1998................. 36.00 27.75 0.00
Third Quarter ended September 30, 1998............. 30.38 20.00 0.00
Fourth Quarter ended December 31, 1998............. 28.00 18.00 0.00
Fiscal Year Ended December 31, 1999:
First Quarter ended March 31, 1999................. $24.00 $20.38 $0.22
Second Quarter ended June 30, 1999................. 24.63 20.25 0.00
Third Quarter ended September 30, 1999............. 29.00 21.75 0.00
Fourth Quarter ended December 31, 1999............. 42.38 22.00 0.00
Fiscal Year Ending December 31, 2000:
First Quarter (through January 20, 2000)........... $54.25 $36.00 $0.00
</TABLE>
On January 14, 2000, the last full trading day prior to the public
announcement of the execution of the Merger Agreement by the Company, Parent
and Purchaser, the last reported closing sales price of the shares of Common
Stock on the Nasdaq National Market was $42.88 per share of Common Stock. On
January 20, 2000, the last full trading day prior to the commencement of the
Offer, the last reported sales price of the shares of Common Stock on the
Nasdaq National Market was $54.13 per share of Common Stock. Securityholders
are urged to obtain a current market quotation for the shares of Common Stock.
The shares of Preferred Stock are not listed for public trading on any
market and the Company has advised Purchaser that there is no active market in
such shares. Each share of Preferred Stock is entitled to receive an annual
dividend of $0.05, in cash or (subject to certain limitations) shares of
Preferred Stock. Such dividends may be declared and paid quarterly, semi-
annually or annually, in the discretion of the Company Board on such dates as
it may determine.
Under the terms of the Merger Agreement, the Company is not permitted to
declare or pay dividends with respect to the Securities without the prior
written consent of Parent, except for regular quarterly dividends on the
Preferred Stock consistent with past practices not to exceed $0.0125 per share
of Preferred Stock.
7. Effect of the Offer on the Market for the Common Stock; Stock Quotation;
Exchange Act Registration; Margin Regulations.
Market for the Common Stock. The purchase of shares of Common Stock by
Purchaser pursuant to the Offer will reduce the number of holders of shares of
Common Stock and the number of shares of Common Stock that might otherwise
trade publicly and, depending upon the number of shares of Common Stock so
purchased, could adversely affect the liquidity and market value of the
remaining shares of Common Stock held by the public.
12
<PAGE>
Stock Quotation. The shares of Common Stock are listed on the Nasdaq
National Market. Depending upon the number of shares of Common Stock purchased
pursuant to the Offer, the shares of Common Stock may no longer meet the
requirements for continued listing on the Nasdaq National Market and may
therefore be delisted from the Nasdaq National Market. According to the Nasdaq
National Market's published guidelines, the Nasdaq National Market would
consider delisting the shares of Common Stock if, among other things, the
total number of round-lot holders of shares of Common Stock (including both
holders of record and beneficial holders of stock) were to fall below 300, or
the number of publicly held shares of Common Stock (exclusive of management or
other concentrated holdings) were to fall below 500,000 or the aggregate
market value of publicly held shares of Common Stock were to not exceed $1
million. If, as a result of the purchase of shares of Common Stock pursuant to
the Offer or otherwise, the shares of Common Stock no longer meet the
requirements of the Nasdaq National Market for continued listing and the
shares of Common Stock are no longer listed, the market for the shares of
Common Stock would be adversely affected.
If the Nasdaq National Market were to delist the shares of Common Stock, it
is possible that the shares of Common Stock would continue to trade on other
securities exchanges or in the over-the-counter market and that price
quotations would be reported by such exchanges or through other sources.
However, the extent of the public market for the shares of Common Stock and
the availability of such quotations would depend upon such factors as the
number of holders and/or the aggregate market value of the publicly-traded
shares of Common Stock remaining at such time, the interest in maintaining a
market in the shares of Common Stock on the part of securities firms, the
possible termination of registration under the Exchange Act as described below
and other factors.
Exchange Act Registration. The shares of Common Stock are currently
registered under the Exchange Act. Registration of the shares of Common Stock
under the Exchange Act may be terminated upon application of the Company to
the Commission if the shares of Common Stock are not listed on a national
securities exchange, quoted on an automated inter-dealer quotation system or
held by 300 or more holders of record. Termination of registration of the
shares of Common Stock under the Exchange Act would substantially reduce the
information required to be furnished by the Company to the holders thereof and
to the Commission, and would make certain provisions of the Exchange Act, such
as the short-swing profit recovery provisions of Section 16(b), the
requirement of furnishing a proxy statement pursuant to Section 14(a) or 14(c)
of the Exchange Act and the related requirement of furnishing an annual report
to shareholders and the requirements of Rule 13e-3 under the Exchange Act with
respect to going private transactions no longer applicable to the Company.
Furthermore, if a substantial number of shares of Common Stock are acquired by
Purchaser, the ability of "affiliates" of the Company and persons holding
"restricted securities" of the Company to dispose of such securities pursuant
to Rule 144 promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), may be impaired or, with respect to certain persons,
eliminated. If registration of the shares of Common Stock under the Exchange
Act were terminated, the shares of Common Stock would no longer be margin
securities or eligible for listing on the Nasdaq National Market. Purchaser
believes that the purchase of shares of Common Stock pursuant to the Offer may
result in the shares of Common Stock becoming eligible for deregistration
under the Exchange Act and it is the intention of Purchaser to cause the
Company to make an application for termination of registration of the shares
of Common Stock as soon as possible after successful completion of the Offer,
if the shares of Common Stock are then eligible for such termination. If
registration of the shares of Common Stock under the Exchange Act is not
terminated prior to the Merger, such registration will be terminated following
the consummation of the Merger.
Margin Regulations. The shares of Common Stock are presently "margin
securities" under the regulations of the Board of Governors of the Federal
Reserve System (the "Federal Reserve Board"), which status has the effect,
among other things, of allowing brokers to extend credit on the collateral of
the shares of Common Stock. Depending upon factors similar to those described
above regarding listing and market quotations, it is possible that, following
the Offer, the shares of Common Stock would no longer constitute "margin
securities" for the purposes of the margin regulations of the Federal Reserve
Board and therefore could no longer be used as collateral for loans made by
brokers. In addition, if registration of the shares of Common Stock under the
Exchange Act were terminated, the shares of Common Stock would no longer
constitute "margin securities."
13
<PAGE>
8. Certain Information Concerning the Company. The information concerning
the Company contained in this Offer to Purchase, including that set forth
below under "--Summary of Selected Financial Data," has been furnished by the
Company or has been taken from or based upon publicly available documents and
records on file with the Commission and other public sources. The summary
information concerning the Company in this Section 8 and elsewhere in this
Offer to Purchase is derived from the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998 and the Company's Quarterly Report on
Form 10-Q for the nine months ended September 30, 1999, as filed with the
Commission pursuant to the Exchange Act, and other publicly available
information. The summary information set forth below is qualified in its
entirety by reference to such reports (which may be obtained and inspected as
described below) and should be considered in conjunction with the more
comprehensive financial and other information in such reports and other
publicly available reports and documents filed by the Company with the
Commission and other publicly available information. Although Purchaser,
Parent and Siemens AG do not have any knowledge that would indicate that any
statements contained herein based upon such reports are untrue, neither
Siemens AG, Parent nor Purchaser assumes responsibility for the accuracy or
completeness of the information concerning the Company contained in such
documents and records or for any failure by the Company to disclose events
which may have occurred or may affect the significance or accuracy of any such
information but which are unknown to Siemens AG, Parent or Purchaser.
General. The Company is a Pennsylvania corporation with principal executive
offices located at 1201 Sumneytown Pike, Spring House, Pennsylvania 19477-
0900. The telephone number of the Company at such offices is (215) 646-7400.
The business of the Company consists of developing, manufacturing, selling and
supporting advanced instruments and systems used in the measurement and
control of industrial manufacturing processes.
Selected Financial Information. Set forth below is a summary of certain
consolidated financial information with respect to the Company, excerpted or
derived from the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998 and the Company's Quarterly Report on Form 10-Q for
the nine months ended September 30, 1999, as filed with the Commission
pursuant to the Exchange Act.
More comprehensive financial information is included in such reports
(including management's discussion and analysis of financial condition and
results of operations) and in other documents filed by the Company with the
Commission. 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, documents and
financial information may be inspected and copies may be obtained from the
Commission in the manner set forth below under "--Available Information."
14
<PAGE>
MOORE PRODUCTS CO.
SUMMARY OF SELECTED FINANCIAL DATA
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
Year Ended December 31 (Unaudited)
-------------------------- -----------------
1998 1997 1996 1999 1998
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Net sales...................... $168,113 $164,247 $142,892 $123,474 $122,736
Income before income taxes..... 8,230 10,225 2,752 3,823 6,225
Net income..................... 3,591 6,468 1,278 2,162 3,136
Net income per common share:
Basic........................ 1.37 2.50 0.49 0.82 1.20
Diluted...................... 1.26 2.31 0.47 0.77 1.09
Balance Sheet Data (at period
end):
Cash and cash equivalents...... $ 7,549 $ 3,816 $ 4,066 $ 2,618 $ 2,870
Total current assets........... 69,820 67,110 59,694 69,307 65,885
Total assets................... 101,967 93,992 86,047 104,825 96,440
Total current liabilities...... 29,820 25,875 24,367 30,283 26,315
Total stockholders' equity..... 62,955 60,489 54,554 65,346 62,572
</TABLE>
Other Financial Information. During the course of the discussions between
Parent and the Company that led to the execution of the Merger Agreement, the
Company provided Parent or its representatives with certain information about
the Company and its financial performance which is not publicly available. The
information provided included financial projections for the Company as an
independent company (i.e., without regard to the impact to the Company of a
transaction with Parent and Purchaser). The following is a summary of selected
projected financial information provided to Parent by the Company.
<TABLE>
<CAPTION>
Fiscal Year Ended December 31,
-------------------------------
Projected
-------------------------------
1999 2000 2001 2002
------- ------- ------- -------
(In millions)
<S> <C> <C> <C> <C>
Bookings....................................... $ 183.6 $ 193.0 $ 218.0 $ 251.0
Billings....................................... 171.4 185.0 201.0 231.0
Cost of Sales.................................. 105.9 110.7 119.0 135.6
Gross Margin................................... 65.5 74.3 82.0 95.4
Research and Development....................... 14.2 15.6 17.5 20.4
Sales and Marketing............................ 37.2 37.6 39.1 43.0
General and Administrative..................... 9.1 10.5 11.5 13.1
Total Operating Expense........................ 60.5 63.7 68.1 76.5
Operating Income............................... 5.0 10.6 13.9 18.9
</TABLE>
The Company has advised Purchaser and Parent that it does not as a matter
of course make public any projections as to future performance or earnings,
and the projections set forth above are included in this Offer only because
the information was provided to Parent and Purchaser during their negotiations
with the Company. The projections were not prepared with a view to public
disclosure or compliance with the published guidelines of the Commission or
the guidelines established by the American Institute of Certified Public
Accountants regarding projections or forecasts. The Company has advised Parent
and Purchaser that its internal operating projections are, in general,
prepared solely for internal use and capital budgeting and other management
decisions and are subjective in many respects and thus susceptible to various
interpretations and periodic revision based on actual experience and business
developments. According to the Company, the projections were based on a number
of internal assumptions with respect to industry performance, general
business, economic, market and
15
<PAGE>
financial conditions and other matters, some of which are beyond the control
of the Company, Purchaser or Parent or their respective financial advisors and
representatives and some of which inevitably will prove to be incorrect. One
cannot predict whether the assumptions used in preparing the foregoing
information were or will be accurate; accordingly, there can be no assurance,
and no representation or warranty is made, that actual results will not vary
materially from those described above. The foregoing information is forward-
looking in nature and inherently subject to significant uncertainties and
contingencies, many of which are beyond the control of the Company, including
industry performance, general business and economic conditions, currency
exchange rates, customer requirements, competition, adverse changes in
applicable laws, regulations or rules governing environmental, tax and
accounting matters and other matters. The inclusion of this information should
not be regarded as an indication that Siemens AG, Parent, Purchaser, the
Company or anyone who received this information then considered, or now
considers, it a reliable prediction of future events, and this information
should not be relied on as such. None of Siemens AG, Parent or Purchaser or
any of their respective financial advisors or the Dealer Manager assumes any
responsibility for the validity, reasonableness, accuracy or completeness of
the projections, and the Company has made no representation to Siemens AG,
Parent or Purchaser regarding the projections described above. None of the
Company, Purchaser, Parent, Siemens AG or any of their respective financial
advisors or the Dealer Manager intends to update, revise or correct such
projections if they are or become inaccurate (even in the short term). The
projections have not been adjusted to reflect the effects of the Offer or the
Merger.
Available Information. The Company is subject to the informational filing
requirements of the Exchange Act and, in accordance therewith, is obligated to
file reports, proxy statements and other information with the Commission
relating to its business, financial condition and other matters. Information
as of particular dates concerning the Company's directors and officers, their
remuneration, options granted to them, the principal holders of the Company's
securities and any material interests of such persons in transactions with the
Company is required to be disclosed in proxy statements distributed to the
Company's securityholders and filed with the Commission. Such reports, proxy
statements and other information should be available for inspection at the
public reference facilities of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the regional offices of the Commission located
at Seven World Trade Center, Suite 1300, New York, NY 10048 and Citicorp
Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661. Copies of such
information should be obtainable by mail, upon payment of the Commission's
customary charges, by writing to the Commission's principal office at 450
Fifth Street, N.W., Washington, D.C. 20549. The Commission also maintains a
website on the Internet at http://www.sec.gov that contains reports, proxy
statements and other information relating to the Company which have been filed
via the Commission's EDGAR System.
9. Certain Information Concerning Siemens AG, Parent and Purchaser.
Siemens AG, Parent and Purchaser. Siemens AG is corporation organized under
the laws of the Federal Republic of Germany, with its principal executive
offices at Wittelsbacherplatz 2, D-80333 Munich, Federal Republic of Germany.
The telephone number of Siemens AG at such location is 011-49-89-636-00.
Siemens AG's principal business is the design, development, manufacture and
marketing of a wide range of electrical and electronic products and systems.
Parent is a corporation organized under the laws of the State of Delaware,
with its principal executive offices at 3333 Old Milton Parkway, Alpharetta,
GA 30005-4437. The telephone number of Parent at such location is (770) 751-
2000. Parent manufactures and markets a wide variety of electrical and
electronic equipment and systems, as well as complete industrial control and
automation systems. Parent is a wholly owned subsidiary of Siemens
Corporation, a Delaware corporation which has its principal executive offices
at 1301 Avenue of the Americas, New York, NY 10019. The capital stock of
Siemens Corporation is held by Siemens Beteiligungs Verwaltungs Gesellschaft,
GmbH, Siemens Nixdorf Informationssysteme AG and OSRAM GmbH, each of which is
a corporation organized under the laws of the Federal Republic of Germany, and
Siemens Building Technologies AG, a corporation organized under the laws of
Switzerland. All of these subsidiaries in turn are direct wholly owned
subsidiaries of Siemens AG.
16
<PAGE>
Purchaser is a newly incorporated Pennsylvania corporation organized in
connection with the Offer and the Merger and has not carried on any
significant activities other than in connection with the Offer and the Merger.
The principal offices of Purchaser are located at 3333 Old Milton Parkway,
Alpharetta, GA 30005-4437. The telephone number of Purchaser at such location
is (770) 751-2000. All of the outstanding capital stock of Purchaser is owned
directly by Parent. Until immediately prior to the time Purchaser purchases
Securities pursuant to the Offer, it is not anticipated that Purchaser will
have any significant assets or liabilities or engage in any significant
activities other than those incident to its formation and capitalization and
the transactions contemplated by the Offer and the Merger.
Financial Information of Siemens AG. Siemens AG is not subject to the
informational reporting requirements of the Exchange Act, and, accordingly,
does not file reports or other information with the Commission relating to its
business, financial condition and other matters.
Set forth below is certain selected consolidated financial information
relating to Siemens AG and its subsidiaries for Siemens AG's last two fiscal
years. The selected consolidated financial information has been prepared in
Deutsche Mark in accordance with the German Commercial Code (HGB) and the
German Corporation Act (AktG). These accounting principles are referred to
herein as "German GAAP." German GAAP differs in certain significant respects
from generally accepted accounting principles in the United States ("U.S.
GAAP"). A summary of the significant differences between U.S. GAAP and German
GAAP is set forth below. Parent, however, believes that the differences are
not material to a decision by a holder of Securities of whether to sell,
tender or hold any Securities because any such differences would not affect
the ability of Purchaser to obtain sufficient funds to pay for Securities to
be acquired pursuant to the Offer. The amounts in the table set forth below
are in Deutsche Mark unless otherwise indicated.
SIEMENS AG
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(in Deutsche Mark ("DM"), except where otherwise
indicated in United States dollars ("$"))
<TABLE>
<CAPTION>
Years Ended
September 30, 1999 (1) September 30, 1999 September 30, 1998
---------------------- ------------------ ------------------
(in million $) (in million DM) (in million DM)
<S> <C> <C> <C>
Income Statement Data:
(Amounts in accordance
with German GAAP)
Net sales............. $72,994 DM134,134 DM117,696
Net income............ 1,985 3,648 917
Unappropriated
consolidated net
income............... 956 1,757 892
Balance Sheet Data:
(Amounts in accordance
with German GAAP)
Liquid assets......... $ 2,609 DM 4,794 DM 5,615
Current assets........ 34,730 63,820 59,774
Total assets.......... 65,451 120,273 112,024
Accrued liabilities... 24,520 45,058 43,351
Debt.................. 7,729 14,203 14,484
Shareholders' equity.. 18,306 33,640 30,292
</TABLE>
- --------
(1) Amounts in this column are unaudited and have been translated solely for
the convenience of the reader at an exchange rate of DM1.8376 = $1.00, the
Noon Buying Rate (as defined below) on September 30, 1999. No
representation is made that the Deutsche Mark has been, could have been or
could be, converted into U.S. dollars at that or any other rate.
The following represents, in the opinion of management of Siemens AG, the
significant differences between U.S. GAAP and German GAAP that would affect
the determination of consolidated net income and shareholders' equity of
Siemens AG for the periods for which the selected consolidated financial
information has been presented herein.
17
<PAGE>
Internally Developed Computer Software. Under German GAAP, internally
developed software may not be capitalized. Under U.S. GAAP, the capitalization
of internally developed computer software shall begin once technological
feasibility is established, and cease when the product is available for
general release to customers.
Capitalized Interest. German GAAP permits, but does not require, the
capitalization of interest as a part of the historical cost of acquisition of
assets that are contracted or otherwise provided for an enterprise's own use.
Siemens AG does not capitalize the interest incurred in connection with the
financing of asset acquisitions. The capitalization of such interest costs is
required by U.S. GAAP.
Long-Term Construction Contracts. Under U.S. GAAP, accounting for work in
process and finished goods under the percentage-of-completion method is the
preferred method when estimates of costs to complete and extent of progress
toward completion of long-term contracts are reasonably dependable. Under
German GAAP, accounting for work in process and finished goods is determined
using the completed contract method.
Valuation of Securities. Under German GAAP, securities are valued at the
lower of acquisition cost or market value at the balance sheet date. Under
U.S. GAAP, securities are classified into one of three categories: held-to-
maturity securities, available-for-sale securities or trading securities. Most
Siemens AG securities are considered to be available-for-sale and therefore
are reported at fair value at the balance sheet date. Unrealized holding gains
and losses on available-for-sale securities are accounted for as a component
of shareholder's equity (other comprehensive income).
Deferred Taxes. Under German GAAP, deferred taxes are calculated based on
the liability method but are recognized only to the extent that consolidated
deferred tax liabilities exceed consolidated deferred tax assets.
Additionally, deferred tax assets may not be established for net operating
loss carryforwards.
Under U.S. GAAP, deferred taxes are provided for all temporary differences
between the tax and commercial balance sheets. Not all differences that
qualify for the deferred tax calculation are permissible under German GAAP.
Under U.S. GAAP, deferred taxes are also calculated for tax loss carryforwards
and certain other adjustments using the liability method and based on enacted
tax rates. A valuation allowance is established when it is more likely than
not that deferred tax assets will not be realized.
Pension Plans. U.S. GAAP requires pension costs to be recognized and
computed as stipulated by the Statement of Financial Accounting Standards No.
87. Under German GAAP, the accruals for pension plans do not reflect
forecasted increases of wages and salaries.
Minority Interests. Contrary to U.S. GAAP, under German GAAP participation
of minority shareholders at subsidiaries is shown as part of shareholders'
equity and net income.
Other. Other differences in accounting principles include the valuation of
outstanding foreign currency forward transactions, cost capitalized in
inventory, and the criteria for differentiating between operating leases and
capital leases.
The following table sets forth, for the periods and dates indicated,
certain information concerning the exchange rate between Deutsche Mark and
U.S. Dollars based on the noon buying rate in New York City for cable
transfers in Deutsche Mark, as certified for customs purposes by the Federal
Reserve Bank of New York (the "Noon Buying Rate") (expressed as Deutsche Mark
per U.S. Dollar). For the period starting on January 1, 1999, the table
reflects the conversion of the Noon Buying Rate for Euro to Deutsche Mark at
the legally fixed conversion rate of (Euro)1.00 = DM1.95583. From January 1,
1999, upon the introduction of the Euro, until December 31, 2001, Germany and
each other country which is part of the European Monetary Union may use two
currencies (the Euro and its local currency). During this transitional period,
the exchange rate between the Euro and Deutsche Mark is legally fixed at the
exchange rate stated above. On January 1, 2002, Deutsche Mark will cease to
exist.
18
<PAGE>
<TABLE>
<CAPTION>
Deutsche Mark per U.S. Dollar
---------------------------------
Period-end Average
Calendar Year Rate Rate (1) High Low
- ------------- ---------- -------- ------ ------
<S> <C> <C> <C> <C>
1997.......................................... 1.7991 1.7394 1.8810 1.5413
1998.......................................... 1.6670 1.7588 1.8542 1.6060
1999.......................................... 1.9422 1.8493 1.9527 1.6558
2000 (through January 20, 2000)............... 1.9302 1.9113 1.9336 1.8924
</TABLE>
- --------
(1) The average of the Noon Buying Rates on the last business day of each
full month during the relevant period with the exception of 2000 which is
the average of the Noon Buying Rates of each business day until January
20, 2000.
Other Information Regarding Siemens AG, Parent and Purchaser. The name,
citizenship, business address, principal occupation or employment and five-
year employment history for each of the executive officers of Siemens AG,
Parent and Purchaser, and for members of the board of directors of Parent and
Purchaser and members of the supervisory board and management board of Siemens
AG, respectively, are set forth in Schedule I hereto.
Except as set forth in this Offer to Purchase or the Schedule 14D-1
referred to in Section 18, none of Siemens AG, Parent, Purchaser or, to the
best knowledge of Siemens AG, Parent and Purchaser, any of the persons listed
on Schedule I hereto or any associate or majority owned subsidiary of Siemens
AG, Parent, Purchaser or any of the persons so listed, beneficially owns or
has a right to acquire, directly or indirectly, any Securities, and none of
Siemens AG, Parent or Purchaser, or to the best knowledge of Siemens AG,
Parent and Purchaser, any of the persons or entities referred to above, nor
any of the respective executive officers, directors or subsidiaries of any of
the foregoing, has effected any transaction in the Securities during the past
60 days.
Except as set forth in this Offer to Purchase or the Schedule 14D-1
referred to in Section 18, none of Siemens AG, Parent, Purchaser or, to the
best knowledge of Siemens AG, Parent and Purchaser, any of the persons listed
on Schedule I hereto, has any contract, arrangement, understanding or
relationship with any other person with respect to any securities of the
Company, including, but not limited to, any contract, arrangement,
understanding or relationship concerning the transfer or the voting of any
securities of the Company, joint ventures, loan or option arrangements, puts
or calls, guarantees of loans, guarantees against loss or the giving or
withholding of proxies.
Except as set forth in this Offer to Purchase or the Schedule 14D-1
referred to in Section 18, none of Siemens AG, Parent, Purchaser, any of their
respective affiliates, nor, to the best knowledge of Siemens AG, Parent or
Purchaser, any of the persons listed on Schedule I, has had, since January 1,
1997, any business relationships or transactions with the Company or any of
its executive officers, directors or affiliates that would be required to be
reported under the rules of the Commission applicable to the Offer. From time
to time affiliates of Parent have transacted business with the Company in the
ordinary course of business. Except as set forth in this Offer to Purchase or
the Schedule 14D-1 referred to in Section 18, since January 1, 1997, there
have been no contacts, negotiations or transactions between Siemens AG,
Parent, Purchaser, any of their respective affiliates or, to the best
knowledge of Siemens AG, Parent and Purchaser, any of the persons listed on
Schedule I, and the Company or its affiliates concerning a merger,
consolidation or acquisition, tender offer or other acquisition of securities,
election of directors or a sale or other transfer of a material amount of
assets.
10. Sources and Amount of Funds.
The Offer is not conditioned upon any financing arrangements. Purchaser
estimates that the total amount of funds required by Purchaser to consummate
the Offer and the Merger, including the fees and expenses of the Offer and the
Merger and refinancing of existing indebtedness of the Company, is
approximately $173.5 million. Purchaser will obtain all such funds from
Siemens AG or a direct or indirect wholly owned subsidiary of Siemens AG in
the form of capital contributions or advances. Siemens AG anticipates funding
the capital contributions or advances through a combination of cash on hand
and other internally generated funds.
19
<PAGE>
11. Background of the Offer; Contacts with the Company.
Following the appointment of Edward T. Hurd as Chairman of the Board of the
Company in the fall of 1996, the Company began re-evaluating the Company's
position and prospects as a small independent company in the rapidly
consolidating process automation industry and considered various possible
strategies for increasing shareholder value. Throughout 1997 and 1998, the
Company considered possible alliances with several strategic partners, only
one of which evolved beyond preliminary discussions and evaluation. The one
potential alliance during this period that advanced beyond preliminary
discussions involved a large foreign competitor of the Company. The Company
and this potential partner held discussions from time to time through the fall
of 1998 and into the early spring of 1999, when they were terminated by mutual
agreement.
In the summer of 1999, the Company was approached by a large U.S. based
company that expressed interest in a possible acquisition of the Company. The
two companies entered into a confidentiality agreement, and numerous meetings
occurred between the Company and this party over the next several months. The
Board was routinely updated concerning these discussions through periodic
telephone conferences and regularly scheduled meetings. In early November,
during a telephonic meeting of the Board in which the Board was being updated
on the discussions with this party, the Board directed the Company's
management to contact other potential acquirors to assess their interest in
entering into a business combination with the Company. Following this meeting,
the Company's management made contacts with six potential strategic partners,
including Parent and the foreign competitor with whom the Company had
terminated discussions in the spring of 1999.
On November 11, 1999, in compliance with the Board's directions, Mr. Hurd
contacted Dr. Manfred R. Liska, Vice President of Strategic Planning and
Cooperation of Parent, by telephone. Dr. Liska expressed interest in
evaluating a potential business combination with the Company. On November 16,
1999, a confidentiality agreement was executed by the Company and Parent to
allow Parent the opportunity to review the Company's business material and to
initiate business discussions. On November 17, 1999, Thomas J Malott,
President and Chief Executive Officer of Parent, Gary K. Gabriel, Executive
Vice President and Chief Financial Officer of Parent, and Dr. Liska met with
Mr. Hurd, Donald E. Bogle, President and Chief Executive Officer of the
Company, Edward J. Curry, Executive Vice President and Chief Operating Officer
of the Company, and Robert E. Wisniewski, Treasurer and Secretary of the
Company, at the Company's Spring House, Pennsylvania headquarters. During this
meeting, the parties toured the Company's facilities and discussed various
issues related to a possible business combination, although this meeting did
not yield any specific understanding between the parties. At the conclusion of
the meeting, Parent's representatives indicated that they would be in contact
with the Company in the near future.
On November 19, 1999, members of the Company's management, along with some
of its financial and legal advisors, met with management members of the U.S.
based company that had contacted the Company in the summer of 1999 and
discussed the terms of a possible acquisition of the Company in exchange for
capital stock of such company having a value per share of Common Stock in the
mid $40s range, subject to due diligence and other conditions. Following that
meeting, the Company once again contacted Parent and the other potential
acquirors who had expressed interest in acquiring the Company and advised them
that if they had a serious interest in acquiring the Company they should move
forward promptly or risk being too late. On this date the Company also
formally retained Conway DelGenio Gries & Co., LLC ("Conway DelGenio") in
order to help the Company evaluate proposals from potential acquirors, and
Houlihan Lokey to render a fairness opinion. On November 23, 1999, in response
to market activity in its stock, the Company issued a press release disclosing
that it had engaged an investment banking firm to help it evaluate potential
strategic alternatives. Following this press release, the Company was
contacted, through Conway DelGenio, by a number of additional potential
acquirors. Exploratory discussions commenced with several of these potential
acquirors, none of which progressed beyond the preliminary discussion and
preliminary due diligence stage. During a telephonic meeting of the Board on
November 26, 1999 during which the Board was updated on existing inquiries as
well as the initial discussions with Parent, Houlihan Lokey provided the Board
with its preliminary view as to a valuation and fairness range for the
Securities in a change-of-control transaction.
20
<PAGE>
On November 29, 1999, at the request of the Company, Parent delivered a
preliminary, non-binding letter indicating its interest in acquiring the
Company's capital stock with an estimated price range for the shares of Common
Stock between $48 to $52 per share. On this date and on November 30, 1999, the
Board had telephonic meetings during which Parent's November 29, 1999 letter
was discussed. Following the November 30, 1999 Board meeting and over the next
several days, Mr. Hurd had several conversations with Mr. Malott and Dr. Liska
regarding Parent's preliminary letter of interest and the structure and timing
of a potential acquisition by Parent of the Company. During these discussions,
Parent indicated that, subject to due diligence and further review and
investigation, it could potentially offer as much as $175 million for the
Company. Mr. Malott emphasized that Parent would not proceed with an
acquisition of the Company unless the Moore family and certain other
shareholders agreed to commit their Securities to Parent pursuant to a tender
and option agreement. At the same time these discussions were taking place,
Dr. Liska was in contact with Mr. Bogle to plan Parent's due diligence. On
December 3, 1999, Dr. Liska forwarded a letter to Mr. Bogle relating Parent's
desire to refrain from further negotiations until its due diligence was
completed. Representatives of Parent visited the Company's Spring House,
Pennsylvania facility during the week of December 6 through December 10 and
undertook their due diligence review at an off-site location. No substantive
business discussions were held during this due diligence period.
During the week of December 13, 1999, Parent relayed to the Company a
number of issues uncovered during Parent's due diligence. On December 17,
1999, Messrs. Malott and Gabriel met via video conference with Messrs. Hurd,
Bogle, Moore, Curry and Wisniewski to discuss, among other things, these due
diligence issues. At that meeting, Messrs. Malott and Gabriel indicated that
the Company's potential acquisition by Parent was scheduled to be discussed
that week by members of the Managing Board of Siemens AG. On December 22,
1999, Mr. Malott contacted Mr. Hurd and indicated he was authorized to offer
up to an aggregate of $170 million for the Company, again subject to receipt
of a tender and option agreement from specified shareholders of the Company
and satisfactory completion of due diligence. On that same day, the Board had
a telephonic meeting where this value was discussed, and the Board authorized
the Company's management to commence negotiations to resolve open issues and
to reach a definitive agreement. Beginning on December 22, 1999, members of
management of both companies, together with their respective legal and
financial advisors, extensively negotiated the terms of the proposed
acquisition and the definitive documentation. The principal issues discussed
among the parties during these negotiations included the nature and extent of
the parties' representations and warranties, the conditions to the Offer, the
termination events under the Merger Agreement and the liability of the parties
in such circumstances, the amount of the termination fee and expense
reimbursement due Parent under the Merger Agreement and the bases upon which
they were payable, and the nature of Parent's commitments with respect to
various Company officer and employee benefit, employment and indemnification
matters.
On January 13-14, 2000, the Board met to discuss the terms of Parent's
offer of $170 million (which equates to $54.71 per share of Common Stock,
$21.88 per share of Preferred Stock and the cashing out of all of the
Company's outstanding Options for an amount equal to $54.71 minus the exercise
price of such Options) and drafts of the Merger Agreement and the Tender and
Option Agreement. During these meetings, members of the Company's senior
management, together with the Company's legal and financial advisors, reviewed
in detail with the Board, among other things, the background of the proposed
transaction, the potential benefits and risks of and the strategic and
financial rationale of the transactions, and the proposed terms of each of the
Merger Agreement and the Tender and Option Agreement. The Board also discussed
and approved the Principles (as defined in Section 12 under "--Employee
Benefits and Severance Principles Adopted by the Company's Board of
Directors"), and further discussed other provisions of the Merger Agreement
relating to pension plan and other employee benefits to be provided following
the Merger. On January 14, 2000, Houlihan Lokey provided a detailed financial
presentation and delivered its oral opinion (to be confirmed in writing upon
finalization of the terms of each of the Merger Agreement and the Tender and
Option Agreement) that the consideration to be received by holders of each of
the shares of Common Stock and Preferred Stock pursuant to the Merger
Agreement was fair, from a financial point of view, to such holders. Late that
day, after extensive discussion and further negotiation with Parent over
certain terms, the Board unanimously approved each of the Merger Agreement,
the Tender and Option Agreement and the transactions contemplated thereby,
subject to certain
21
<PAGE>
changes discussed at the meeting. The Board further authorized the officers to
complete the negotiations and, subject to receipt of the final written
fairness opinion from Houlihan Lokey, to enter into and perform each of the
Merger Agreement and the Tender and Option Agreement.
On January 16, 2000, the representatives of both Parent and the Company
concluded negotiations of mutually acceptable definitive documentation.
Parent, Purchaser and the Company executed the Merger Agreement and Parent,
Purchaser, the Company and the Certain Stockholders executed the Tender and
Option Agreement on January 16, 2000, and the transaction was announced prior
to the opening of business on January 17, 2000 by the issuance of a joint
press release.
On January 21, 2000, Purchaser commenced the Offer.
12. Purpose of the Offer and the Merger; the Merger Agreement and Certain
Other Agreements.
Purpose of the Offer and the Merger. The purpose of the Offer and the
Merger is to enable Siemens AG indirectly to acquire control of, and the
entire equity interest in, the Company. The Offer is being made pursuant to
the Merger Agreement and is intended to increase the likelihood that the
Merger will be effected. The purpose of the Merger is to acquire all of the
outstanding Securities not purchased pursuant to the Offer. The Company will,
as of the Effective Time, be an indirect wholly owned subsidiary of Siemens
AG.
Merger Agreement.
The following is a summary of certain provisions of the Merger Agreement.
This summary is not a complete description of the terms and conditions of the
Merger Agreement and is qualified in its entirety by reference to the full
text of the Merger Agreement which is filed with the Commission as an exhibit
to the Tender Offer Statement on Schedule 14D-1 filed by Siemens AG, Parent
and Purchaser (the "Schedule 14D-1") and is incorporated herein by reference.
Capitalized terms not otherwise defined below shall have the meanings set
forth in the Merger Agreement. The Merger Agreement may be examined, and
copies obtained, as set forth in Section 8 of this Offer to Purchase.
The Offer. The Merger Agreement provides that Purchaser will commence the
Offer and that upon the terms and subject to prior satisfaction or waiver (to
the extent permitted to be waived) of the conditions of the Offer, Purchaser
will purchase all Securities validly tendered pursuant to the Offer. The
Merger Agreement provides that Purchaser has the right, in its sole
discretion, to modify and make certain changes to the terms and conditions of
the Offer as described in Section 1.
The Company's Board of Directors. The Merger Agreement provides that
immediately upon the acceptance for payment of and payment for any Securities
by Purchaser or any of its affiliates pursuant to the Offer, Purchaser will be
entitled to designate such number of directors, rounded up to the next whole
number, on the Board of Directors of the Company as will give Purchaser,
subject to compliance with Section 14(f) of the Exchange Act, representation
on the Board of Directors of the Company equal to the product of (i) the total
number of directors on the Board of Directors of the Company (giving effect to
the increase in the size of such Board pursuant to this paragraph) and (ii)
the percentage that the number of votes represented by Securities beneficially
owned by Purchaser and its affiliates (including Securities so accepted for
payment and purchased) bears to the number of votes represented by Securities
then outstanding. In furtherance thereof, concurrently with such acceptance
for payment and payment for such Securities the Company will, upon request of
Parent and in compliance with Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder, use its best efforts promptly either to increase the
size of its Board of Directors or to secure the resignations of such number of
its incumbent directors, or both, as is necessary to enable such designees of
Parent to be so elected or appointed to the Company's Board of Directors, and,
subject to applicable law, the Company will take all reasonable actions
available to the Company to cause such designees of Parent to be so elected or
appointed. The Merger Agreement provides that at such time, the Company will,
if requested by Parent and subject to applicable law, also take all reasonable
action necessary to cause persons designated by Parent to constitute at least
the same percentage
22
<PAGE>
(rounded up to the next whole number) as is on the Company's Board of
Directors of (i) each committee of the Company's Board of Directors, (ii) each
board of directors (or similar body) of each subsidiary of the Company and
(iii) each committee (or similar body) of each such board. Notwithstanding the
foregoing, the Company will use its best efforts to ensure that, in the event
that Purchaser's designees are elected to the Board of Directors of the
Company, such Board of Directors will have, at all times prior to the
Effective Time, at least two directors who are directors on the date of the
Merger Agreement and who are not officers or affiliates of the Company (it
being understood that for purposes of this sentence, a director of the Company
will not be deemed an affiliate of the Company solely as a result of his
status as a director of the Company), Parent or any of their respective
subsidiaries (the "Independent Directors"); and provided further, that, in
such event, if the number of Independent Directors is reduced below two for
any reason whatsoever the remaining Independent Director may designate a
person to fill such vacancy who is not an officer or affiliate of the Company,
Parent, or any of their respective subsidiaries and such person will be deemed
to be an Independent Director for purposes of the Merger Agreement or, if no
Independent Directors then remain, the other directors may designate two
persons to fill such vacancies who may not be officers or affiliates of the
Company, Parent or any of their respective subsidiaries, and such persons will
be deemed to be Independent Directors for purposes of the Merger Agreement.
Subject to applicable law, the Company will promptly take all action
reasonably requested by Parent necessary to effect any such election,
including mailing to its shareholders the information required by Section
14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder (or, at
Parent's request, furnishing such information to Parent for inclusion in the
Offer Documents initially filed with the Commission and distributed to the
shareholders of the Company) as is necessary to enable Parent's designees to
be elected to the Company's Board of Directors. From and after the time, if
any, that Parent's designees constitute a majority of the Company's Board of
Directors and prior to the Effective Time, any amendment of the Merger
Agreement materially adverse to the holders of the Securities or any
termination of the Merger Agreement by the Company may be effected only by the
action of a majority of the Independent Directors of the Company, which action
will be deemed to constitute the action of any committee specifically
designated by the Board of Directors of the Company to approve the actions
contemplated thereby and the full Board of Directors of the Company; provided,
that, if there shall be no Independent Directors, such actions may be effected
by majority vote of the entire Board of Directors of the Company.
The Merger. Pursuant to the Merger Agreement and the PBCL, as promptly as
practicable after the completion of the Offer and the satisfaction or waiver,
if permissible, of all conditions, including the purchase of Securities
pursuant to the Offer and the approval and adoption of the Merger Agreement by
the shareholders of the Company (if required by applicable law), Purchaser
will be merged with and into the Company and the Company will be the surviving
corporation (the "Surviving Corporation") and, as of the Effective Time, a
wholly owned subsidiary of Parent. At the election of Parent, any direct or
indirect wholly owned subsidiary of Parent may be substituted for Purchaser as
a constituent corporation in the Merger. Notwithstanding the foregoing, Parent
may elect at any time prior to the time that the notice of the meeting of
shareholders of the Company to consider approval of the Merger and the Merger
Agreement (the "Shareholder Meeting") is first given to the Company's
shareholders that instead of merging Purchaser into the Company as hereinabove
described, to merge the Company into Purchaser or another direct or indirect
wholly owned subsidiary of Siemens AG; provided, however, that the Company
will not be deemed to have breached any of its representations, warranties or
covenants in the Merger Agreement solely by reason of such election. In such
event the parties will execute an appropriate amendment to the Merger
Agreement in order to reflect the foregoing and to provide that Purchaser or
such other subsidiary of Parent will be the Surviving Corporation. At the
Effective Time, (i) each issued and outstanding share of Common Stock, other
than shares of Common Stock held by (A) the Company or any of its
subsidiaries, (B) Parent or Purchaser or any of their subsidiaries and (C)
shareholders who properly perfect their dissenters rights under the PBCL, will
be converted into the right to receive the Common Stock Merger Consideration
or any higher price that may be paid for shares of Common Stock pursuant to
the Offer, without interest and (ii) each issued and outstanding share of
Preferred Stock other than shares of Preferred Stock held by (A) the Company
or any of its subsidiaries, (B) Parent or Purchaser or any of their
subsidiaries and (C) shareholders who properly perfect their dissenters rights
under the PBCL, will be converted into the right to receive the Preferred
Stock Merger Consideration or any higher price that may be paid for shares
23
<PAGE>
of Preferred Stock pursuant to the Offer, without interest. The Company's
Articles of Incorporation will become the Articles of Incorporation of the
Surviving Corporation, and Purchaser's Bylaws will be the Bylaws of the
Surviving Corporation.
Options. The Merger Agreement provides that, simultaneously with the
execution of the Merger Agreement, the Board of Directors of the Company (or,
if appropriate, any committee thereof) adopted appropriate resolutions, and
the Company agreed to take all other actions necessary after the date of the
Merger Agreement, if any, to provide that each outstanding stock option (each
"Option") theretofore granted under the Company's 1997 Non-Employee Directors'
Equity Incentive Plan (the "Directors' Plan") and the Company's 1994 Stock
Option Plan (the "Management Plan") (collectively, the "Company Stock Option
Plans"), whether or not then vested or exercisable, will, at the Effective
Time, be cancelled, and each holder thereof will be entitled to receive a
payment in cash from the Company (subject to any applicable withholding taxes,
the "Cash Payment"), upon cancellation, equal to the product of (i) the number
of Securities subject to such Option and (ii) the excess, if any, of the
Common Stock Merger Consideration over the exercise price per share subject or
related to such Option. The Cash Payment shall be paid by the Company
immediately before the Effective Time. As provided in the Merger Agreement,
the Company Stock Option Plans (and any feature of any benefit plan or other
plan, program or arrangement) providing for the issuance or grant of any other
interest in respect of the capital stock of the Company or any subsidiary will
terminate as of the Effective Time. The Merger Agreement provides that the
Company will take all steps necessary to ensure that none of the Company or
any of its subsidiaries is or will be bound by any Options, other options,
warrants, rights or agreements which would entitle any person, other than the
current shareholders of Purchaser or its affiliates, to acquire any capital
stock of the Surviving Corporation or any of its subsidiaries or, to receive
any payment in respect thereof (except for Cash Payments to be made as
described in this paragraph to holders of Options outstanding immediately
prior to the Effective Time) and to cause such Options to be cancelled or
cause the holders of the Options to agree to such cancellation thereof.
The Merger Agreement provides that no further grants of Options will be
made under the Company Stock Option Plans after the date of the Merger
Agreement, and the provision in any other benefit plan providing for the
potential issuance, transfer or grant of any capital stock of the Company or
any of its subsidiaries or any interest, or release of restrictions in respect
of any capital stock of the Company or any of its subsidiaries will be
deleted, and the Company Stock Option Plans will be terminated, as of the
Effective Time, and the Company will ensure that following the Effective Time
no holder of an Option (whether or not outstanding as of the Effective Time),
restricted stock, derivative security, or any participant in any other benefit
plan will have any right thereunder to acquire any capital stock of the
Company or any of its subsidiaries or the Surviving Corporation. No
participant in the Company Stock Option Plans will be entitled to receive any
other payment or benefit thereunder except as described in this and the
preceding paragraph.
Representations and Warranties. In the Merger Agreement, the Company has
made customary representations and warranties to Parent and Purchaser with
respect to, among other things, corporate organization, subsidiaries,
capitalization, authority to enter into the Merger Agreement, the absence of
certain changes, required consents, no conflicts between the Merger Agreement
and applicable laws and certain agreements to which the Company or its assets
may be subject, financial statements, filings with the Commission, disclosures
in proxy statements and tender offer documents, absence of certain changes or
events, litigation, insurance, labor and employment matters, employee benefit
plans, tax matters, compliance with applicable laws, intellectual property,
brokers' and finders' fees, environmental matters, material contracts,
applicability of state takeover statutes, undisclosed liabilities, title to
properties, indemnification claims, excess parachute payments, termination
agreements, deductions under Section 162(m) of the Code, the vote required to
approve the Merger Agreement and its receipt of the Financial Advisor Opinion.
In the Merger Agreement, each of Parent and Purchaser has made customary
representations and warranties to the Company with respect to, among other
things, corporate organization, authority to enter into the Merger Agreement,
required consents, no conflicts between the Merger Agreement and applicable
laws and certain
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agreements to which Parent or Purchaser or their assets may be subject,
financing, disclosures in proxy statements and tender offer documents and
brokers' and finders' fees.
Interim Operations. Pursuant to the Merger Agreement, the Company has
agreed that, prior to the Effective Time, unless otherwise expressly
contemplated by the Merger Agreement or consented to in writing by Parent, it
will and will cause each of its subsidiaries to (i) operate its business in
the usual and ordinary course consistent with past practices, (ii) use its
reasonable best efforts to preserve intact its business organization, maintain
its rights and franchises, retain the services of its respective key employees
and maintain its relationships with its respective customers and suppliers and
others having business dealings with it to the end that its goodwill and
ongoing business will be unimpaired at the Effective Time, (iii) maintain and
keep its material properties and assets in as good repair and condition as at
present, ordinary wear and tear excepted, and maintain supplies and
inventories in quantities consistent with its customary business practice and
(iv) use its reasonable best efforts to keep in full force and effect
insurance and bonds comparable in amount and scope of coverage to that
currently maintained.
Except as set forth in the disclosure schedules to the Merger Agreement,
the Company has agreed that, except as expressly contemplated by the Merger
Agreement or otherwise consented to in writing by Parent, from the date of the
Merger Agreement until the Effective Time, it will not, and will not permit
any of its subsidiaries to (a) (i) increase the compensation (or benefits)
payable to or to become payable to any director or employee, except for
increases in salary or wages of employees in the ordinary course of business
and consistent with past practice; (ii) grant any severance or termination pay
(other than pursuant to the normal severance policy or practice of the Company
or its subsidiaries as disclosed in the disclosure schedules to the Merger
Agreement and in effect on the date of the Merger Agreement) to, or enter into
or amend in any material respect any employment or severance agreement with,
any employee; (iii) establish, adopt, enter into or amend any collective
bargaining agreement or benefit plan of the Company or any commonly controlled
entity; or (iv) take any action to accelerate any rights or benefits, or make
any determinations not in the ordinary course of business consistent with past
practice, under any collective bargaining agreement or benefit plan of the
Company or any commonly controlled entity; (b) declare, set aside or pay any
dividend on, or make any other distribution in respect of (whether in cash,
stock or property), outstanding shares of capital stock, except for regular
quarterly dividends on the Preferred Stock consistent with past practices
(including as to declaration, record and payment dates), each such quarterly
dividend in no event to exceed $0.0125 per share of Preferred Stock and
dividends by a wholly owned subsidiary of the Company to the Company or
another wholly owned subsidiary of the Company; (c) except for redeeming the
Preferred Stock in certain circumstances at the request of Parent or
Purchaser, redeem, purchase or otherwise acquire, or offer or propose to
redeem, purchase or otherwise acquire, any outstanding shares of capital stock
(including, without limitation, the Preferred Stock) of, or other equity
interests in, or any securities that are convertible into or exchangeable for
any shares of capital stock of, or other equity interests in, or any
outstanding options, warrants or rights of any kind to acquire any shares of
capital stock of, or other equity interests in, the Company or any of its
subsidiaries (other than (i) any such acquisition by the Company or any of its
wholly owned subsidiaries directly from any wholly owned subsidiary of the
Company in exchange for capital contributions or loans to such subsidiary, or
(ii) any acquisition, purchase, forfeiture or retirement of shares of Common
Stock or the Options occurring pursuant to the terms (as in effect on the date
of the Merger Agreement) of any existing benefit plan of the Company or any of
its subsidiaries, in a manner otherwise consistent with the terms of the
Merger Agreement); (d) effect any reorganization or recapitalization; or
split, combine or reclassify any of the capital stock of, or other equity
interests in, the Company or any of its subsidiaries or issue or authorize or
propose the issuance of any other securities in respect of, in lieu of or in
substitution for, shares of such capital stock or such equity interests; (e)
offer, sell, issue or grant, or authorize or propose the offering, sale,
issuance or grant of, any shares of capital stock of, or other equity
interests in, any securities convertible into or exchangeable for (or
accelerate any right to convert or exchange securities for) any shares of
capital stock of, or other equity interest in, or any options, warrants or
rights of any kind to acquire any shares of capital stock of, or other equity
interests in, or any Voting Company Debt or other voting securities of, the
Company or any of its subsidiaries, or any "phantom" stock, "phantom" stock
rights, stock appreciation rights or stock-based performance units, other than
issuances of shares of Common Stock upon the exercise of
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the Options outstanding at the date of the Merger Agreement in accordance with
the terms thereof (as in effect on the date of the Merger Agreement) and the
acceleration of such Options as contemplated in the Merger Agreement; (f)
acquire or agree to acquire, by merging or consolidating with, by purchasing
an equity interest in or a portion of the assets of, or in any other manner,
any business or any corporation, partnership, association or other business
organization or division thereof or otherwise acquire any assets of any other
person (other than the purchase of inventories and supplies from suppliers or
vendors in the ordinary course of business and consistent with past practice
and other than asset acquisitions which do not exceed $50,000 in any
individual transaction or $100,000 in the aggregate); (g) sell, lease,
exchange or otherwise dispose of, or grant any lien with respect to, any of
the properties or assets of the Company or any of its subsidiaries that are,
individually or in the aggregate, material to the business of the Company and
its subsidiaries, except for dispositions of excess or obsolete assets and
sales of inventories in the ordinary course of business and consistent with
past practice; (h) propose or adopt any amendments to its articles of
incorporation or bylaws or other organizational documents; (i) effect any
change in any accounting methods, principles or practices in effect as of
December 31, 1998 affecting the reported consolidated assets, liabilities or
results of operations of the Company, except as may be required by a change in
generally accepted accounting principles; (j) (i) incur any indebtedness for
borrowed money (other than borrowings for working capital purposes under the
Company's existing revolving credit facility disclosed in the disclosure
schedules to the Merger Agreement which aggregate borrowings will not exceed
$5 million at any time), issue or sell any debt securities or warrants or
other rights to acquire any debt securities of the Company or any of its
subsidiaries, guarantee any such indebtedness or debt securities of another
person, enter into any "keep well" or other agreement to maintain any
financial statement condition of another person or enter into any arrangement
having the economic effect of any of the foregoing, or (ii) make any loans,
advances or capital contributions to, or investments in, any other person,
other than to or in the Company or any direct or indirect wholly owned
subsidiary of the Company; (k) enter into certain contracts described in the
Merger Agreement; (l) pay, discharge, settle or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge, settlement or
satisfaction, in the ordinary course of business consistent with past practice
or in accordance with their terms, of liabilities reflected or reserved
against in the most recent consolidated financial statements (or the notes
thereto) of the Company included in the Company's filings and reports
(including proxy statements) under the Exchange Act filed since December 31,
1998 and publicly available prior to the date of the Merger Agreement or
incurred since the date of such financial statements in the ordinary course of
business consistent with past practice; (m) take certain other actions set
forth in the Merger Agreement; (n) settle the terms of any material litigation
affecting the Company or any of its subsidiaries; (o) make any tax election
except in a manner consistent with past practice, change any method of
accounting for tax purposes, or settle or compromise any material tax
liability; (p) make or agree to make any new capital expenditures other than
capital expenditures which individually do not exceed $250,000 and which in
the aggregate do not exceed $500,000 and provided such are in accordance with
the Company's budget; or (q) agree in writing or otherwise to take any of the
foregoing actions or any action which would make any representation or
warranty of the Company in the Merger Agreement or the Tender and Option
Agreement untrue or incorrect in any material respect or cause any condition
set forth in Section 15 to occur or any condition under "--Conditions to the
Merger" to be unsatisfied.
No Solicitation. In the Merger Agreement, the Company has agreed from and
after the date of the Merger Agreement until the Effective Time or the
termination of the Merger Agreement, that neither the Company nor any of its
subsidiaries will directly or indirectly initiate, solicit or encourage
(including by way of furnishing non-public information or assistance), or take
any other action to facilitate, any inquiries or the making or submission of
any Acquisition Proposal (as defined below) or enter into or maintain or
continue discussions or negotiate with any person or group in furtherance of
such inquiries or to obtain or induce any person or group to make or submit an
Acquisition Proposal or agree to or endorse any Acquisition Proposal or assist
or participate in, facilitate or encourage, any effort or attempt by any other
person or group to do or seek any of the foregoing or authorize or permit any
of its officers, directors or employees or any of its subsidiaries or
affiliates or any investment banker, financial advisor, attorney, accountant
or other representative or agent retained by it or any of its subsidiaries to
take any such action; provided, however, that nothing contained in the Merger
Agreement will prohibit the Company or the Board of Directors of the Company
from, prior to the earlier to occur of acceptance
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for payment of Securities pursuant to the Offer or adoption of the Merger
Agreement by the requisite vote of the shareholders of the Company, furnishing
information to or entering into discussions or negotiations with any person or
entity that makes an unsolicited (i.e. not solicited after the date of the
Merger Agreement) written, bona fide Acquisition Proposal that constitutes, or
may reasonably be expected to lead to, any Superior Proposal (as defined
below), if, and only to the extent that (i) the Board of Directors of the
Company, after consultation with and based upon the opinion of independent
legal counsel (who may be the Company's regularly engaged independent legal
counsel) determines reasonably and in good faith that the failure to do so
would reasonably be expected to constitute a breach of the fiduciary duty of
the Board of Directors of the Company under applicable law and (ii) prior to
taking such action the Company (x) delivers to Parent and Purchaser the notice
required pursuant to the Merger Agreement stating that it is taking such
action and (y) receives from such person or group an executed confidentiality
agreement that is not, in any material respect, less restrictive as to such
person or entity than the Confidentiality Agreement (as defined below) and
which, in any event, contains customary confidentiality and standstill
restrictions and shall not contain any exclusivity provisions which would
prohibit the Company from complying with its obligations described under "--No
Solicitation" or otherwise under the Merger Agreement. Any violation of the
restrictions described under "--No Solicitation" by any officer, director,
employee or affiliate of the Company or any of its subsidiaries or any
investment banker, attorney, accountant or other advisor, agent or
representative of the Company or any of its subsidiaries, whether or not such
person is purporting to act on behalf of the Company or any of its
subsidiaries or otherwise, will be deemed to be a breach by the Company of the
provisions described under "--No Solicitation".
Except as expressly permitted by the Merger Agreement, neither the Board of
Directors of the Company nor any committee thereof may (i) withdraw, modify in
a manner adverse to Parent or Purchaser or fail to make, or propose to
withdraw, modify in a manner adverse to Parent or Purchaser or fail to make
its approval or recommendation of the Offer or the Merger or of the Tender and
Option Agreement, the Merger Agreement and the other Transactions, (ii)
approve or recommend, or propose to approve or recommend, any Acquisition
Proposal, (iii) take any action not previously taken to render the provisions
of any anti-takeover statute, rule or regulation (including Sections 2538
through 2588, inclusive, of the PBCL) inapplicable to any person (other than
Parent, Purchaser or their affiliates) or group or to any Acquisition
Proposal, or (iv) cause the Company to accept such Acquisition Proposal and/or
enter into any letter of intent, agreement in principle, acquisition agreement
or other similar agreement (each, an "Acquisition Agreement") related to any
Acquisition Proposal; provided, however, that prior to the earlier to occur of
acceptance for payment of Securities pursuant to the Offer or adoption of the
Merger Agreement by the requisite vote of the shareholders of the Company, the
Board of Directors of the Company may terminate the Merger Agreement if, and
only to the extent that (A) such Acquisition Proposal is a Superior Proposal,
(B) the Board of Directors of the Company, after consultation with and based
upon the written opinion of independent legal counsel (who may be the
Company's regularly engaged independent counsel), determines reasonably and in
good faith that the failure to do so would reasonably be expected to
constitute a breach of the fiduciary duty of the Board of Directors of the
Company under applicable law, (C) the Company will, prior to or simultaneously
with the taking of such action, have paid or pay to Parent or Purchaser or
their designee the Termination Fee, (D) the Company is not in material breach
of the Merger Agreement, including without limitation the provisions of the
Merger Agreement described under "--No Solicitation," (E) the Company shall
have complied with its obligations relating to termination of the Merger
Agreement in this situation and (F) concurrently with such termination, the
Company enters into a definitive acquisition agreement with respect to such
Superior Proposal.
In addition to the obligations of the Company set forth in the two
preceding paragraphs, the Company agreed to promptly (and in any event, within
one business day) advise Parent orally and in writing of any request for
information or the submission or receipt of any Acquisition Proposal, or any
inquiry with respect to or which could reasonably be expected to lead to any
Acquisition Proposal, the material terms and conditions of such request,
Acquisition Proposal or inquiry, and the identity of the person making any
such request, Acquisition Proposal or inquiry and the Company's response or
responses thereto. The Company will keep Parent fully informed of the status
and details (including amendments or proposed amendments) of any such request,
Acquisition Proposal or inquiry. Immediately following the execution of the
Merger Agreement, the Company
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was required to terminate and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
"Acquisition Proposal" means an inquiry, offer or proposal regarding any of
the following (other than the Transactions contemplated by the Merger
Agreement) involving the Company: (i) any merger, consolidation, share
exchange, recapitalization, liquidation, dissolution, business combination or
other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition of 20% or more of the assets of the Company and
its subsidiaries, taken as a whole, or of any Material Business (as defined
below) or of any subsidiary or subsidiaries responsible for a Material
Business in a single transaction or series of related transactions; (iii) any
tender offer (including a self tender offer) or exchange offer that, if
consummated, would result in any person or group beneficially owning more than
20% of the outstanding shares of any class of equity securities of the Company
or its subsidiaries (or in the case of a person or group which beneficially
owns more than 20% of the outstanding shares of any class of equity securities
of the Company as of the date of the Merger Agreement, would result in such
person or group increasing the percentage or number of shares of such class
beneficially owned by such person or group) or the filing of a registration
statement under the Securities Act in connection therewith; (iv) any
acquisition of 20% or more of the outstanding shares of capital stock of the
Company or the filing of a registration statement under the Securities Act in
connection therewith or any other acquisition or disposition the consummation
of which would prevent or materially diminish the benefits to Parent of the
Merger; or (v) any public announcement by the Company or any third party of a
proposal, plan or intention to do any of the foregoing or of any agreement to
engage in any of the foregoing. "Superior Proposal" means any proposal made by
one or more third parties to acquire, directly or indirectly, including
pursuant to a tender offer, exchange offer, merger, consolidation, share
exchange, business combination, recapitalization, liquidation, dissolution or
other similar transaction, all the shares of Common Stock and Preferred Stock
then outstanding or all or substantially all of the assets of the Company and
its subsidiaries which the Board of Directors of the Company determines
reasonably and in good faith (based on the written opinion of Houlihan Lokey
or another financial advisor of nationally recognized reputation) to be
superior to each of (x) the holders of Common Stock and (y) the holders of
Preferred Stock from a financial point of view (taking into account any
changes to the terms of the Merger Agreement and the Offer that have been
proposed by Parent in response to such proposal) and to be more favorable to
the Company and each of (x) the holders of Common Stock and (y) the holders of
Preferred Stock (taking into account all financial and strategic
considerations, including relevant legal, financial, regulatory and other
aspects of such proposal and the third party making such proposal and the
conditions and prospects for completion of such proposal) than the Offer, the
Merger and the other Transactions taken as a whole. "Material Business" means
any business (or the assets needed to carry out such business) that
contributed or represented 15% or more of the net sales, the net income or the
assets (including equity securities) of the Company and its subsidiaries taken
as a whole.
The Merger Agreement provides that nothing contained therein shall prohibit
the Company or the Board of Directors of the Company from taking and
disclosing to its shareholders a position contemplated by Rule 14e-2(a)
promulgated under the Exchange Act or from making any disclosure to the
Company's shareholders if the Board of Directors of the Company, after
consultation with and based upon the written opinion of independent legal
counsel (who may be the Company's regularly engaged independent counsel),
determines reasonably and in good faith that the failure to take such action
would reasonably be expected to constitute a breach of the fiduciary duty of
the Board of Directors under applicable law; provided that neither the Board
of Directors of the Company nor any committee thereof withdraws or modifies,
or proposes to withdraw or modify, the approval or recommendation of the Board
of Directors of the Company of the Offer or the Merger or approves or
recommends, or publicly proposes to approve or recommend, an Acquisition
Proposal unless and until the Company and its Board of Directors have complied
with all the provisions of the Merger Agreement described under "--No
Solicitation."
Indemnification. In the Merger Agreement, Parent and Purchaser agreed that
all rights to indemnification for acts or omissions occurring prior to the
Effective Time existing as of the date of the Merger Agreement in favor of the
current or former directors or officers of the Company and its subsidiaries as
provided in the
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Company's and/or, if greater, such subsidiaries' respective articles of
incorporation or bylaws will survive the Merger and will continue in full
force and effect in accordance with their terms for a period of six years from
the Effective Time. Parent will cause to be maintained, if commercially
available, for a period of six years from the Effective Time the Company's
current directors' and officers' insurance and indemnification policy (the
"D&O Insurance"), provided that Parent may substitute therefor, at its
election, policies or financial guarantees with the same carriers or other
obligors as insure Parent's directors and officers of at least the same
coverage and amounts containing terms and conditions which are substantially
similar to the existing D&O Insurance to the extent that such insurance
policies provide coverage for events occurring prior to the Effective Time for
all persons who are or were directors and/or officers of the Company at any
time prior to the Effective Time, so long as the annual premium to be paid by
the Company after the Effective Time for such D&O Insurance during such six-
year period would not exceed $133,875 per year. If, during such six-year
period, such insurance coverage cannot be obtained at all or can only be
obtained for an amount in excess of $133,875 per year, Parent will use
reasonable efforts to cause such insurance coverage to be obtained for an
amount equal to $133,875 per year, on terms and conditions substantially
similar to the existing D&O Insurance.
Employee Plans and Benefits and Agreements. Pursuant to the Merger
Agreement, Parent and Purchaser will, and will cause the Surviving Corporation
to, from and after the Effective Time, honor the employment agreement between
the Company and Donald E. Bogle dated October 31, 1997.
Pursuant to the Merger Agreement, subsequent to the Effective Time,
Purchaser or Parent will cause appropriate action to be taken to amend the
Company's Pension Plan (the "Company Pension Plan") with respect to the
benefit earned under the Company Pension Plan by those participants in the
Company Pension Plan who are actively employed by the Company at the Effective
Time ("Eligible Participants"), as set forth in this paragraph. The amendments
will be as follows: (i) the reduction in the amount of the Company Pension
Plan benefit that is payable to Eligible Participants due to the commencement
of such Eligible Participant's Company Pension Plan benefit prior to the
Eligible Participant attaining his or her normal retirement age under the
Company Pension Plan shall be changed to be the same as the reduction that is
set forth in a specified provision of the Siemens Retirement Plan, provided
that the Eligible Participant is at least age 55 and has at least ten years of
vesting service under the Company Pension Plan at the time of his or her
termination of employment from the Surviving Corporation or an affiliate of
the Surviving Corporation; and (ii) a lump sum optional form of benefit
payment shall be added to the Company Pension Plan, provided that the Eligible
Participant is at least age 55 and has at least ten years of vesting service
under the Company Pension Plan at the time of his or her termination of
employment from the Surviving Corporation or an affiliate of the Surviving
Corporation. All of the other provisions of the Company Pension Plan shall
continue to apply in accordance with its terms. The Merger Agreement provides
that after the Effective Time Purchaser or Parent will cause appropriate
action to be taken to merge the assets and liabilities of the Company Pension
Plan into the Siemens Retirement Plan, or its successor Plan.
Pursuant to the Merger Agreement, if and when a cash balance formula
becomes effective under the Siemens Retirement Plan, Purchaser or Parent will
cause appropriate action to be taken to have the calculation of the opening
balances for Eligible Participants who are actively employed with the
Surviving Corporation or any other U.S. affiliate of Parent at the time the
conversion to such formula becomes effective for such Eligible Participants to
be made in accordance with the provisions of this paragraph. The calculation
of the opening balance under the cash balance formula for an Eligible
Participant for whom the sum of his or her age and vesting service under the
Moore Pension Plan at the time of the conversion is less than 55, shall be
done in accordance with the terms of the Siemens Retirement Plan in effect at
the time of the conversion. For an Eligible Participant for whom the sum of
his or her age and vesting service under the Company Pension Plan at the time
of the conversion is equal to or more than 55, the opening balance shall be
equal to the sum of (A) the opening balance calculated in accordance with the
provisions of the Siemens Retirement Plan in effect at the time of the
conversion and (B) the additional amount that is necessary so that after
taking into account future pay and interest credits the projected age 65
benefit from the cash balance formula of the Siemens Retirement Plan is equal
to the projected age 65 benefit from the Company Pension Plan. For purposes of
calculating clause (A) under the
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immediately preceding sentence, if the Eligible Participant is at least age 55
and has at least 10 years of vesting service under the Company Pension Plan at
the time of the conversion, the Eligible Participant's opening balance shall
be based upon the Eligible Participant's early retirement benefit under the
Company Pension Plan, and for all other Eligible Participants an age 65
benefit shall be used. For purposes of calculating the amount under clause (B)
in the second preceding sentence, the following assumptions shall be used: (1)
an interest rate of 6.5%, (2) the prevailing commissioners' standard mortality
table as described in Section 807(d) of the Internal Revenue Code used to
determine reserves for group annuity contracts issued on the date the
conversion is calculated, (3) a salary scale of 4%, and (4) pay credits
ranging from 4 to 15%.
The Merger Agreement provides that, after the Effective Time, Purchaser or
Parent will cause appropriate action to be taken to have a separation plan
adopted with respect to the employees of the Company who are actively employed
by the Company at the Effective Time which will provide (A) one week of
separation pay for each full year of service, and (B) an additional payment of
eight weeks of separation pay if a general release acceptable to the employer
of such employees is executed, and for purposes of calculating benefits under
this separation plan, service with the Company that is recognized as vesting
service under the Company Pension Plan shall be included.
Employee Benefits and Severance Principles Adopted by the Company's Board
of Directors.
The Board of Directors of the Company, coincident with its approval of the
Merger Agreement, adopted principles to memorialize certain determinations
made by the Board with respect to certain employee benefits and severance
matters affecting the Company's employees after the Effective Time (the
"Principles"). In the Merger Agreement, Parent has agreed to implement and
carry out these Principles with the same effect as if fully set forth in the
Merger Agreement.
The following is a summary of certain provisions of the Principles adopted
by the Board of Directors of the Company on January 14, 2000. This summary is
not a complete description of the terms and conditions of the Principles and
is qualified in its entirety by reference to the full text of the Principles
which the Company has filed with the Commission as an exhibit to the Schedule
14D-9 and is incorporated herein by reference. Capitalized terms not otherwise
defined below have the meanings set forth in the Principles. The Principles
may be examined, and copies obtained, as set forth in Section 8 of this Offer
to Purchase.
For purposes of meeting any service requirements for participation, vesting
or early retirement under any pension or other benefit plans sponsored by
Purchaser, Parent or the Company in which the employees of the Company shall
be covered after the Effective Time, Purchaser or Parent will cause
appropriate action to be taken to cause the service of the Company employees
with the Company or any of its subsidiaries that is considered vesting service
under the Company Pension Plan to be recognized as service under such plans.
At the Effective Time, Purchaser or Parent will cause appropriate action to
be taken to cause those individuals who are actively employed by the Company
at the Effective Time to be covered by benefit plans that are comparable in
the aggregate to the benefits that those employees had at the Effective Time,
provided, however, that nothing in the Principles will (i) require Purchaser
or Parent to provide any equity based plan not generally made available to
employees of Parent and Purchaser; or (ii) prevent the sponsor of such plans
from amending or modifying such plans at any time after the Effective Time, in
accordance with the Merger Agreement. In addition, Purchaser or Parent will
cause appropriate action to be taken to cause any health plans under which
employees of the Company will be covered after the Effective Time to waive any
pre-existing condition requirements with respect to the employees of the
Company and their eligible dependents.
The Company will continue the employment of each of Donald E. Bogle, Edward
J. Curry, William B. Moore, and Robert E. Wisniewski (each, a "Designated
Officer") for a period of not less than six months (the "Initial Period")
after the Effective Time at salaries at least equal to those in effect for
each Designated Officer as of January 14, 2000. If during the period
commencing on the first day after the expiration of the Initial Period and
ending on the second anniversary of the Effective Time (the "Protected
Period") the Company or any
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successor thereto discharges any Designated Officer other than for Cause (as
defined in the Principles) or by reason of the Designated Officer's death, or
if the Designated Officer resigns for Good Reason (as defined in the
Principles) the Company or any successor thereto will: (a) make a lump sum
payment to such Designated Officer of an amount equal to one week's pay for
each of the Designated Officer's years of service, calculated in accordance
with provision relating to employee's service; (b) provided that such
Designated Officer enters into, and does not breach in any material respect
Parent's customary release and 12 month non-compete agreement (with respect to
the material business or businesses in which such Designated Officer was
engaged at any time during the 24 month period prior to termination), pay such
Designated Officer, over the ensuing 12 months, an amount equal to, and on
essentially the same schedule as, the base salary that would have been paid to
such Designated Officer if he had remained employed for those 12 months at the
base salary in effect on the date of his termination; (c) continue the medical
coverage in effect for such Designated Officer on the date of his termination
for the remainder of the Protected Period; and (d) provide such Designated
Officer appropriate outplacement services. If any payment to be made
hereunder, together with the other payments and benefits that the Designated
Officer is entitled to receive from the Company or any successor thereto would
be subject to the excise tax imposed by Section 4999 of the Code, the payments
to be made hereunder will be reduced, but only to the extent necessary in the
opinion of Parent's independent auditors so that those payments will be
deductible by the Company or any successor and not subject to excise tax. Any
such determination with respect to Mr. Bogle shall be made in accordance with
his Employment Agreement.
Parent and Purchaser will, and will cause the Company to, honor in
accordance with their existing terms the split dollar life insurance
arrangements between the Company and those of its employees covered by such
arrangements on January 14, 2000, provided that except as to individuals
retired on or before such date or who retire after such date under
circumstances entitling them to an immediate pension under a pension plan
maintained by the Company or any successor, no such arrangement will remain in
effect following termination of employment.
Reasonable Best Efforts. In the Merger Agreement, subject to the terms and
conditions thereof, each of the parties thereto has agreed to use its
reasonable best efforts to take, or cause to be taken, all appropriate action,
and to do, or cause to be done, all things necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
Transactions as soon as reasonably practicable. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of the Merger Agreement and the Tender and Option Agreement, the
proper officers and directors of each party to the Merger Agreement shall take
all such necessary action. Such reasonable best efforts shall apply to,
without limitation, (i) the obtaining of all necessary consents, approvals or
waivers from third parties and any Federal, state or local government or any
court, administrative or regulatory agency or commission or other governmental
authority or agency, domestic or foreign (a "Governmental Entity") necessary
to the consummation of the Transactions and (ii) opposing vigorously any
litigation or administrative proceeding relating to the Merger Agreement and
the Tender and Option Agreement or the transactions contemplated thereby,
including, without limitation, promptly appealing any adverse court or agency
order. Notwithstanding the foregoing or any other provisions contained in the
Merger Agreement or the Tender and Option Agreement to the contrary, neither
Parent nor any of its affiliates shall be under any obligation of any kind to
(i) respond to a second request for information under the HSR Act or to enter
into any negotiations or to otherwise agree with or litigate against any
Governmental Entity, including but not limited to any governmental or
regulatory authority with jurisdiction over the enforcement of any applicable
federal, state, local and foreign antitrust, competition or other similar
laws, or (ii) otherwise agree with any Governmental Entity or any other party
to sell or otherwise dispose of, agree to any limitations on the ownership or
control of, or hold separate (through the establishment of a trust or
otherwise) particular assets or categories of assets or businesses of any of
the Company, its subsidiaries, Parent or any of Parent's affiliates.
The Company will use its reasonable best efforts to complete prior to the
expiration of the Offer all activities, if any, required of the Company in
connection with, and in compliance with, the Connecticut Property Transfer Law
(Sections 22a-134 through 22a-134e of the Connecticut General Statutes, as
amended by Public Act 95-183) with respect to the Company's 74 Northwest
Drive, Plainville, Connecticut property.
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The Company and its Board of Directors will (i) use its reasonable best
efforts to ensure that no state takeover statute or similar statute, rule or
regulation (including Sections 2538 through 2588, inclusive, of the PBCL) is
or becomes applicable to the Offer, the Merger, the Merger Agreement, the
Tender and Option Agreement or any of the other Transactions and (ii) if any
state takeover statute or similar statute, rule or regulation becomes
applicable to the Transactions, use its reasonable best efforts to ensure that
the Transactions, including the transactions contemplated by the Merger
Agreement and the Tender and Option Agreement may be consummated as promptly
as practicable on the terms contemplated by the Merger Agreement and the
Tender and Option Agreement and otherwise to minimize the effect of such
statute or regulation on the Transactions.
Standstill Agreements. The Merger Agreement provides that, subject to the
Company's rights described under "--No Solicitation," the Company will not
terminate, amend, modify or waive any material provision of any
confidentiality or standstill or similar agreement to which the Company or any
of its subsidiaries is a party (other than any involving Parent or Purchaser).
Subject to the foregoing, during such period, the Company has agreed to
enforce and to permit (and, to the fullest extent permitted under applicable
law, assigns its rights thereunder to Parent and Purchaser) Parent and
Purchaser to enforce on its behalf and as third party beneficiaries thereof,
to the fullest extent permitted under applicable law, the provisions of any
such agreements, including obtaining injunctions to prevent any breaches of
such agreements and to enforce specifically the terms and provisions thereof
in any court or other tribunal having jurisdiction. In addition, the Company
waived any rights the Company may have under any standstill or similar
agreements to object to the transfer to Purchaser of all Securities held by
shareholders covered by such standstill or similar agreements and agreed not
to consent to the transfer of any Securities held by such shareholders to any
other person unless (i) the Company has obtained the specific, prior written
consent of Parent with respect to any such transfer or (ii) the Merger
Agreement has been terminated in accordance with the provisions set forth in
"--Termination."
Shareholder Meeting. The Merger Agreement provides that, to the extent
required by applicable law and subject to the Company's rights described under
"--No Solicitation," the Company will promptly after consummation of the Offer
take all action necessary in accordance with the PBCL and its Articles of
Incorporation and Bylaws to convene a meeting of the shareholders of the
Company to consider and vote on the Merger and the Merger Agreement. At such
shareholder meeting, all of the Securities then owned by Parent, Purchaser or
any other subsidiary of Parent will be voted to approve the Merger and the
Merger Agreement. The Board of Directors of the Company will recommend that
the Company's shareholders vote to approve the Merger and the Merger Agreement
if such vote is sought, will use its best efforts to solicit from shareholders
of the Company proxies in favor of the Merger and will take all other action
in its judgment necessary and appropriate to secure the vote of shareholders
required by the PBCL to effect the Merger.
Notwithstanding the foregoing, in the event that Purchaser acquires at
least 80% of each of the Common Stock and Preferred Stock, the parties to the
Merger Agreement will, at the request of Purchaser, take all necessary and
appropriate action to cause the Merger to become effective as a "short-form
merger" without a meeting of the shareholders of the Company. See Section 13.
Conditions to the Merger. The respective obligations of each party to
effect the Merger are subject to the satisfaction or waiver, where
permissible, prior to the Effective Time, of the following conditions: (i) if
required by the PBCL, the Merger Agreement shall have been approved by the
requisite affirmative vote of the shareholders of the Company in accordance
with applicable law, (ii) no statute, rule, regulation, executive order,
decree or injunction shall have been enacted, entered, promulgated, or
enforced by any court or Governmental Entity which is in effect and has the
effect of prohibiting the consummation of the Merger and (iii) the waiting
period (and any extension thereof) applicable to the consummation of the
Merger under the HSR Act, if any, shall have expired or been terminated, (iv)
in the case of the Company's obligations, all other governmental consents,
orders and approvals legally required for the consummation of the Merger and
the transactions contemplated by the Merger Agreement shall have been obtained
and be in effect at the Effective Time, except where the failure to obtain any
such consent would not reasonably be expected to subject any officer,
director, employee or shareholder of the Company to civil or criminal
liability in respect of the failure to obtain such consent, and (v) in the
case of Parent's and Purchaser's obligations, all other governmental consents,
orders and
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approvals legally required for the consummation of the Merger and the
transactions contemplated by the Merger Agreement (including merger control
clearance by the German Federal Cartel Office under the GWB Act) shall have
been obtained and be in effect at the Effective Time, except where the failure
to obtain any such consent would not reasonably be expected to have a Material
Adverse Effect on the Company or Parent, or materially impede the operation or
use of any of the Company's assets or business after the Closing.
Termination. The Merger Agreement may be terminated and the Merger may be
abandoned at any time (notwithstanding approval thereof by the shareholders of
the Company) prior to the Effective Time:
(a) by mutual written consent duly authorized by the Boards of Directors
of the Company, Parent and Purchaser;
(b) by Parent, Purchaser or the Company if any court of competent
jurisdiction or other Governmental Entity shall have issued a final order,
decree or ruling or taken any other final action restraining, enjoining or
otherwise prohibiting the consummation of the Offer or the Merger and such
order, decree or ruling or other action is or shall have become
nonappealable;
(c) by Parent or Purchaser, if due to an occurrence or circumstance
which would result in the occurrence and continued existence of any of the
conditions described in Section 15, Purchaser shall have (i) failed to
commence the Offer within the time required by Regulation 14D under the
Exchange Act, (ii) terminated the Offer without purchasing any Securities
pursuant to the Offer or (iii) failed to accept for payment Securities
pursuant to the Offer prior to May 31, 2000;
(d) by the Company (i) if there shall not have been and be continuing a
material breach of any representation, warranty, covenant or agreement on
the part of the Company, and Purchaser shall have (A) failed to commence
the Offer within the time required by Regulation 14D under the Exchange
Act, (B) subject to the ability of Parent and Purchaser to terminate the
Offer as it relates to the Preferred Stock in the event that Parent or
Purchaser has acquired all of the outstanding shares of Preferred Stock,
including pursuant to the Purchase Option pursuant to the Tender and Option
Agreement, terminated the Offer without purchasing all the Securities
validly tendered and not withdrawn pursuant to the Offer, or (C) subject to
the ability of Parent and Purchaser to terminate the Offer as it relates to
the Preferred Stock in the event that Parent or Purchaser has acquired all
of the outstanding shares of Preferred Stock, including pursuant to the
Purchase Option pursuant to the Tender and Option Agreement, failed to
accept for payment Securities pursuant to the Offer prior to May 31, 2000,
or (ii) prior to the purchase of Securities pursuant to the Offer,
concurrently with the execution of a definitive acquisition agreement under
the circumstances permitted by the provisions described under "--No
Solicitation," provided, that such termination described in this clause
(ii) will not be effective unless (x) the Company and its Board of
Directors shall have complied in all material respects with all their
obligations under the provisions described under "--No Solicitation" and
the Company shall have paid the Termination Fee (as defined below) and (y)
the Company shall have provided Parent and Purchaser with at least five
business days' prior written notice prior to terminating the Merger
Agreement, which notice shall be accompanied by (1) a copy of the proposed
definitive acquisition agreement with respect to the Superior Proposal that
the Company proposes to accept, (2) the Company's written certification
that it has made the determinations with respect to such Superior Proposal
required pursuant to the Merger Agreement and (3) the representation that
the Company will, in the absence of any other Superior Proposal, execute
such a definitive acquisition agreement unless Parent or Purchaser modify
the Offer or the Merger Agreement such that the Company's Board of
Directors determines that the Offer and the Merger (as so modified) are at
least as favorable as such Superior Proposal;
(e) by Parent or Purchaser prior to the purchase of Securities pursuant
to the Offer, if (i) any representations and warranties of the Company
contained in the Merger Agreement which are qualified by materiality shall
not be true and correct at any time prior to the acceptance for payment of
Securities pursuant to the Offer (without regard to any knowledge
qualifications therein), or the representations and warranties of the
Company contained in the Merger Agreement which are not qualified by
materiality shall not be true and correct in any material respect at any
time prior to the acceptance for payment of Securities pursuant to the
Offer (without regard to any knowledge qualifications therein) (other than
to the extent such
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representations and warranties expressly relate to an earlier date, in
which case such representations and warranties shall not be true and
correct as of such date), or (ii) the Company shall not have performed and
complied with, in all material respects (without reference to any
materiality qualifications therein), each covenant or agreement contained
in the Merger Agreement and required to be performed or complied with by
it, and which breach, in the case of clause (i) and (ii) above, shall not
have been cured prior to the earlier of (A) 10 business days following
notice of such breach to the Company by Parent or Purchaser and (B) May 31,
2000; provided, however, that the Company shall have no right to cure and
Parent and Purchaser may immediately terminate the Merger Agreement in the
event that such breach by the Company was willful, in the event of a
material breach of the provisions described under "--No Solicitation"
(whether or not willful), or in the event that such breach is not
reasonably capable of being cured within such period of time or (iii) the
Board of Directors of the Company or any committee thereof shall have
withdrawn, or modified, amended or changed (including by amendment of the
Schedule 14D-9) in a manner adverse to Parent or Purchaser its approval or
recommendation of the Offer, the Merger, any of the Transactions or the
Merger Agreement, or shall have approved or recommended to the Company's
shareholders an Acquisition Proposal or any other acquisition of Securities
other than the Offer and the Merger, or shall have adopted any resolutions
to effect any of the foregoing or (iv) the Board of Directors of the
Company shall have failed to publicly reaffirm their approval or
recommendation of the Offer, the Merger, the Transactions or the Merger
Agreement within two business days following Parent's or Purchaser's
written request to do so;
(f) by the Company prior to the purchase of any Securities pursuant to
the Offer if (i) there shall have been a material breach of any
representation or warranty in the Merger Agreement on the part of Parent or
Purchaser which materially adversely affects (or materially delays) the
consummation of the Offer or the Merger or (ii) Parent or Purchaser shall
not have performed or complied with, in all material respects (without
reference to any materiality qualifications therein), each covenant or
agreement contained in the Merger Agreement and required to be performed or
complied with by them, and such breach materially adversely affects the
Company, its shareholders generally or its employees generally or which
materially adversely affects (or materially delays) the consummation of the
Offer or the Merger, and which breach, in the case of both clause (i) and
clause (ii) above, shall not have been cured prior to the earlier of (A) 10
business days following notice of such breach to Parent and Purchaser by
the Company and (B) May 31, 2000; provided, however, that Parent and
Purchaser shall have no right to cure such breach and the Company may
immediately terminate the Merger Agreement in the event that such breach by
Parent or Purchaser was willful or in the event such breach is not
reasonably capable of being cured within such period of time;
(g) by Parent or Purchaser prior to the purchase of Securities pursuant
to the Offer if any person or group (which includes a "person" or "group"
as such terms are defined in Section 13(d)(3) of the Exchange Act) other
than Parent, Purchaser, any of their affiliates, or any group of which any
of them is a member, shall have acquired beneficial ownership of more than
20% of the outstanding shares of Common Stock or Preferred Stock or shall
have consummated or entered into a definitive agreement or an agreement in
principle to consummate an Acquisition Proposal or if any person or group
which, prior to the date of the Merger Agreement, had a Schedule 13D or 13G
on file with the Commission shall have acquired or proposed to acquire
beneficial ownership of additional shares of any class or series of capital
stock of the Company, through the acquisition of stock, the formation of a
group or otherwise, constituting 10% or more of any such class or series,
or shall have been granted any option, right or warrant, conditional or
otherwise, to acquire beneficial ownership of additional shares of any
class or series of capital stock of the Company (including the Common Stock
and Preferred Stock) constituting 10% or more of any such class or series
(it being understood that the execution of the Tender and Option Agreement
by the Certain Securityholders and the performance of their obligations
thereunder shall not, in itself, be deemed to constitute such an
acquisition of beneficial ownership triggering such provision); or
(h) by Parent or Purchaser if the Company or any Certain Securityholders
who beneficially own, individually or in the aggregate, 10% of the Fully
Diluted Voting Power or 10% of the Fully Diluted Shares shall have breached
in any material respect any of its or their obligations under the Tender
and Option
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Agreement and such breach shall not have been cured, provided that there
shall be no right to cure in respect of breaches that are not reasonably
capable of cure (which shall include, without limitation, breaches of
provisions of the Tender and Option Agreement dealing with restrictions on
the transfer of Securities, voting and solicitation of competing bids
discussed under "--Tender and Option Agreement" below.
In the event of the termination and abandonment of the Merger Agreement
pursuant to the provisions set forth under "--Termination" above, the Merger
Agreement, except for certain provisions, will become void and have no effect,
without any liability on the part of any party or its affiliates, directors,
officers or shareholders. To the extent the Company then owes Parent a
Termination Fee pursuant to the provisions described under "--Termination Fee"
at the time of such termination, termination by the Company pursuant to the
provisions set forth under "--Termination" above will not be effective unless
prior to or simultaneously therewith such Termination Fee is paid to the
Parent.
Termination Fee. Except as provided below, the Merger Agreement provides
that all fees and expenses incurred by the parties thereto will be borne
solely and entirely by the party which has incurred such fees and expenses
(provided that the filing fees under the HSR Act and under the GWB Act will be
borne by Purchaser).
If:
(i) (x) Parent or Purchaser terminates the Merger Agreement pursuant to
paragraph (c) under "--Termination" or the Company terminates the Merger
Agreement pursuant to clause (d)(i) under "--Termination," in either case,
in circumstances when, prior to such termination any third party shall have
acquired beneficial ownership of 20% or more of the outstanding shares of
Common Stock or Preferred Stock (or any person or group with a Schedule 13D
or 13G on file with the Commission (including the shareholders party to the
Tender and Option Agreement except as expressly permitted in that
agreement) shall have acquired beneficial ownership of additional shares of
any class or series of capital stock of the Company (including Common Stock
and Preferred Stock), through the acquisition of stock, the formation of a
group or otherwise, constituting 10% or more of any such class or series
(it being understood that the execution of the Tender and Option Agreement
by the Company shareholders that are parties thereto and the performance of
their obligations thereunder will not, in itself, be deemed to constitute
such an acquisition of beneficial ownership triggering this provision)) or
shall have made or consummated or announced an intention to make or
consummate an Acquisition Proposal (or with respect to any proposal that
may be existing on the date of the Merger Agreement, not withdrawn such
Acquisition Proposal) or (y) Parent or Purchaser terminates the Merger
Agreement pursuant to paragraph (g) under "--Termination," and, in any such
case described in clauses (x) or (y) above, within 12 months after such
termination the Company or any of its subsidiaries enters into or publicly
announces an intention to enter into a definitive agreement with respect to
an Acquisition Proposal, or consummates or publicly announces an intention
to consummate an Acquisition Proposal;
(ii) Parent or Purchaser terminates the Merger Agreement pursuant to (x)
clauses (e)(i) or (ii) under "--Termination" as a result of a willful
breach of the Merger Agreement by the Company or any material breach of the
provisions described under "--No Solicitation" (whether or not willful),
(y) clauses (e)(iii) or (iv) under "--Termination" or (z) paragraph (h)
under "--Termination";
(iii) the Company terminates the Merger Agreement pursuant to clause
(d)(ii) under "--Termination"; or
(iv) the Company terminates the Merger Agreement pursuant to paragraph
(f) under "--Termination" in circumstances when Parent or Purchaser shall
also have the right to terminate the Merger Agreement pursuant to the
circumstances described in clauses (i) or (ii) above;
then, in each case, the Company will pay to Parent, within two business days
following the execution and delivery of such agreement or such occurrence, as
the case may be, or prior to or simultaneously with such termination by the
Company as contemplated by clauses (i), (iii) or (iv) above, a fee, in cash,
of $5.5 million (a "Termination Fee"); provided, that the Company in no event
shall be obligated to pay more than one such
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Termination Fee with respect to all such agreements and occurrences and such
termination. These provisions will not derogate from any other rights or
remedies which Parent or Purchaser may possess under the Merger Agreement or
under applicable law, and the payment of the Termination Fee will not be
deemed to constitute liquidated damages.
If the Merger Agreement is terminated as a result of a breach of the Merger
Agreement by any party thereto and such breach is not a willful and material
breach by the breaching party or a material breach by the Company of the
provisions described under "--No Solicitation," such breaching party shall
have no liability to the non-breaching party (or parties) under the Merger
Agreement except that: (i) no such breach shall relieve the obligation of the
Company to pay the Termination Fee if it is otherwise payable pursuant to the
provisions described above under "--Termination Fee"; (ii) no such breach
shall affect the rights provided to Parent or Purchaser under the enforcement
provisions of the Merger Agreement to the extent available; and (iii) the
breaching party, irrespective of whether the breach is willful, shall be
responsible for the Expenses (as defined below) of the non-breaching party (or
parties), except with respect to a Specified Breach (as defined below) as to
which there shall be no liability. The parties to the Merger Agreement
acknowledged and agreed that no such limitation of liability or any other
limitation of liability shall apply to breaches which are willful and material
or a material breach by the Company of the provisions described under "--No
Solicitation."
For purposes of the provisions under "--Termination Fee," "Expenses" shall
mean the reasonable documented out of pocket costs and expenses (not to exceed
an aggregate maximum of $3.0 million) incurred by the non-breaching party (or
parties) and its affiliates with respect to or arising out of the negotiation
and execution of the Merger Agreement, the Tender and Option Agreement, the
Confidentiality Agreement and the performance of the Transactions, including
all fees and expenses of counsel, accountants, investment bankers, printers,
experts and consultants and travel expenses, disbursements and other external
or internal out of pocket costs or expenses. "Specified Breach" shall mean a
breach of a representation or warranty contained in the Merger Agreement (i)
first occurring after the date of the Merger Agreement, (ii) caused by an
event or circumstance first occurring after the date of the Merger Agreement
outside of the breaching party's control, direction and ability to cure, and
(iii) in respect of which the breaching party had no knowledge of the
likelihood of occurrence prior to the date of the Merger Agreement (e.g., an
act of God). A Specified Breach shall not include, in any event, a material
breach of a representation or warranty as of the date of the Merger Agreement.
The Merger Agreement provides that the Termination Fee shall not be
refundable or subject to offset or any other claim by the Company, provided
that (i) if the Company shall have paid any Expenses to Parent or Purchaser
pursuant to the two preceding paragraphs, the amount of such Expenses which
have been so paid shall be credited against the amount of any Termination Fee
which is thereafter due and payable to Parent or Purchaser pursuant to the
provisions under "--Termination Fee," (ii) if the Company shall have paid any
Termination Fee to Parent or Purchaser pursuant to the provisions under "--
Termination Fee," the amount of such Termination Fee which has been so paid
shall be credited against the amount of any Expenses which thereafter are due
and payable to Parent or Purchaser pursuant to the two preceding paragraphs
and (iii) in connection with any suit or claim for monetary damages brought by
Parent or Purchaser with respect to a breach of the Merger Agreement by the
Company, the amount of the Termination Fee paid by the Company, if any, shall
be credited against the amount of any monetary damages suffered by Parent or
Purchaser which the Company otherwise would be responsible for with respect to
such suit or claim.
Tender and Option Agreement.
The following is a summary of certain provisions of the Tender and Option
Agreement. This summary is not a complete description of the terms and
conditions of the Tender and Option Agreement and is qualified in its entirety
by reference to the full text of the Tender and Option Agreement which is
filed with the Commission as an exhibit to the Schedule 14D-1 and is
incorporated herein by reference. Capitalized terms not otherwise defined
below shall have the meanings set forth in the Tender and Option Agreement.
The Tender and Option Agreement may be examined, and copies obtained, as set
forth in Section 8 of this Offer to Purchase.
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Pursuant to the Tender and Option Agreement, each Certain Securityholder
agreed to validly tender (or cause the record owner of such shares to validly
tender) and sell (and not withdraw, except in the event the Purchase Option is
exercised, in which case such withdrawal shall be for the limited purpose of
consummating the Purchase Option) pursuant to and in accordance with the terms
of the Offer as promptly as reasonably possible and in any event prior to the
tenth business day after commencement of the Offer (or the earlier of the
expiration date of the Offer and the fifth business day after such Securities
are acquired by such Certain Securityholder if the Certain Securityholder
acquires Securities after the date of the Tender and Option Agreement), all of
the then outstanding Securities beneficially owned by such Certain
Securityholder (including the shares of Common Stock and Preferred Stock
outstanding as of the date of the Tender and Option Agreement and set forth in
the Tender and Option Agreement opposite such Certain Securityholder's name).
The Certain Securityholders party to the Tender and Option agreement are the
Trust U/W Coleman B. Moore, the Trust U/D Coleman B. Moore (I), the Trust U/D
Coleman B. Moore (II), the Trust U/D Frances O. Moore (Trustee James A.
Moore), the Trust U/D Frances O. Moore (Trustee Thomas C. Moore), the Trust
U/D Frances O. Moore (Trustee William B. Moore), the Moore Products Co.
Pension Plan, the Moore Products Co. Pension Plan Benefits Committee, James O.
Moore, Thomas C. Moore as Custodian, the 1977 Moore Family Trust, William B.
Moore, Donald E. Bogle, Edward T. Hurd, Edward J. and Madeline J. Curry
JTWROS, Edwin G. and Jean G. Rorke JTWROS, Raymond M. Reed, Ralph H. and Ruth
M. Owens JTWROS, the Robert B. Adams Trust, u/a dated 1/27/99, F. Lawton
Hindle, and Robert E. Wisniewski. In the event, notwithstanding the provisions
of the first sentence of this paragraph, any Securities beneficially owned by
a Certain Securityholder are for any reason withdrawn from the Offer or are
not purchased pursuant to the Offer, such Securities will remain subject to
the terms of the Tender and Option Agreement.
Each Certain Securityholder (other than the Trust U/D Frances O. Moore
(Trustee James O. Moore), the Trust U/D Frances O. Moore (Trustee Thomas C.
Moore), the Trust U/D Frances O. Moore (Trustee William B. Moore), Edward T.
Hurd, Edward J. and Madeline J. Curry JTWROS, Edwin G. and Jean G. Rorke
JTWROS, Raymond M. Reed, Ralph H. and Ruth M. Owens JTWROS, the Robert B.
Adams Trust, u/a dated 1/27/99 and F. Lawton Hindle and each of Robert E.
Wisniewski and Edward J. Curry in their capacity as individuals), (a) agreed
that at any annual, special, postponed or adjourned meeting of the
shareholders of the Company it will cause the Securities such Certain
Securityholder beneficially owns to be counted as present (or absent if
requested by Parent or Purchaser) thereat for purposes of establishing a
quorum and to vote or consent and (b) constitute and appoint Parent and
Purchaser, or any nominee thereof, with full power of substitution, during and
for the term of the Tender and Option Agreement, as his true and lawful
attorney and proxy for and in his or its name, place and stead, to vote all
the Securities such Certain Securityholder beneficially owns at the time of
such vote, at any annual, special, postponed or adjourned meeting of the
shareholders of the Company (and this appointment will include the right to
sign his or its name (as shareholder) to any consent, certificate or other
document relating to the Company that laws of the Commonwealth of Pennsylvania
may require or permit), in the case of both (a) and (b) above, (x) in favor of
approval and adoption of the Merger Agreement and approval and adoption of the
Merger and the other transactions contemplated thereby and (y) against (1) any
Acquisition Proposal, (2) any action or agreement that would result in a
breach in any respect of any covenant, agreement, representation or warranty
of the Company under the Merger Agreement or the Tender and Option Agreement
and (3) the following actions (other than the Merger and the other
transactions contemplated by the Merger Agreement): (i) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or subsidiaries; (ii) a sale, lease or
transfer of a material amount of assets of the Company or any of its
subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries; (iii) (A) any change in
a majority of the persons who constitute the board of directors of the Company
or any of its subsidiaries as of the date of the Tender and Option Agreement;
(B) any change in the present capitalization of the Company or any amendment
of the Company's or any of its subsidiaries' articles or certificate of
incorporation or bylaws, as amended to date; (C) any other material change in
the Company's or any of its subsidiaries' corporate structure or business; or
(D) any other action that is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or adversely affect the Offer, the
Merger and the other transactions contemplated by the Tender and Option
Agreement and the Merger Agreement.
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Each Certain Securityholder granted to Parent and Purchaser an irrevocable
option (the "Purchase Option") to purchase for cash, in a manner set forth
below, any or all of the Securities (and including Securities acquired after
the date of the Tender and Option Agreement by such Certain Securityholder)
beneficially owned by the Certain Securityholder at a price (the "Exercise
Price") per Security equal to $54.71 per share of Common Stock and $21.88 per
share of Preferred Stock, as the case may be. In the event of any stock
dividends, stock splits, recapitalizations, combinations, exchanges of shares
or the like, the Exercise Price will be appropriately adjusted.
The Tender and Option Agreement provides that in the event that (i) the
Purchase Option has been exercised, in whole or in part with respect to any
Certain Securityholder, (ii) the Merger has not been consummated and (iii)
within 12 months after the last exercise of the Purchase Option with respect
to any Certain Securityholder Parent or any affiliate of Parent sells the
Securities acquired upon exercise of the Purchase Option ("Purchase Option
Securities") to a third party or parties (other than an affiliate of Parent)
or the Company consummates a merger or consolidation with, or sells all or
substantially all of its assets or equity interests to, such a third party or
parties (the events referred to in this clause (iii) being referred to as a
"Subsequent Transaction"), Parent will notify each Certain Securityholder from
whom or which Parent or Purchaser acquired Purchase Option Securities within
five business days of the occurrence of such Subsequent Transaction and of the
receipt by Parent or any of its affiliates of proceeds from such Subsequent
Transaction with respect to such Purchase Option Securities. Parent will pay
to each such Certain Securityholder an amount in cash and/or shall deliver an
amount in kind to such Certain Securityholder (in accordance with the nature
of the consideration received by Parent and any of its affiliates from such
Subsequent Transaction) equal to one-half of the excess, if any, of (A) the
total consideration received by Parent and any of its affiliates with respect
to such Purchase Option Securities acquired from such Certain Securityholder
resulting from such Subsequent Transaction less the prorated amount of any
expenses incurred by Parent or its affiliates in connection with such
Subsequent Transaction over (B) the total consideration received by such
Certain Securityholder upon exercise of the Purchase Option with respect to
such Purchase Option Securities acquired from such Certain Securityholder. For
the purposes of making this calculation, any non-cash consideration to be paid
to such Certain Securityholder will be valued at fair market value.
In the event that (i) the Purchase Option has not been exercised as to all
of the Securities subject to the Purchase Option, (ii) the Merger has not been
consummated and (iii) at any time before the first anniversary of the later of
the termination of the Merger Agreement under circumstances where a
Termination Fee is payable thereunder or the last day on which the Purchase
Option is exercisable, a Certain Securityholder or any affiliate of such
Certain Securityholder sells the Securities as to which the Purchase Option
has not been exercised ("Subject Securities") to a third party or parties
(other than an affiliate of Parent) in a Subsequent Transaction or the Company
consummates a Subsequent Transaction, such Certain Securityholder will notify
Parent within five business days of each of the occurrence of such a
Subsequent Transaction and of the receipt by such Certain Securityholder or
any of its affiliates of proceeds from such a Subsequent Transaction with
respect to such Subject Securities. Such Certain Securityholder will pay to
Parent an amount in cash and/or shall deliver an amount in kind to Parent (in
accordance with the nature of the consideration received by such Certain
Securityholder and any of its affiliates from such Subsequent Transaction)
equal to one-half of the excess, if any, of (A) the total consideration
received by such Certain Securityholder and any of its affiliates with respect
to such Subject Securities resulting from such Subsequent Transaction over (B)
the total consideration which would have been received by such Certain
Securityholder upon exercise of the Purchase Option had the Purchase Option
been so exercised. For the purposes of making this calculation, any non-cash
consideration to be paid to Parent shall be valued at fair market value.
The Tender and Option Agreement provides that, in the event that (i) the
Purchase Option has been exercised, in whole or in part with respect to any
Certain Securityholder, (ii) the Merger is consummated and (iii) Parent and
Purchaser have increased the price per share of either the Common Stock or the
Preferred Stock payable in the Merger above the Exercise Price set forth in
the fourth paragraph under "--Tender and Option Agreement," (it being
understood that the payment of any amounts pursuant to the exercise of
dissenters' rights will not be considered for this purpose), Parent will pay
to each Certain Securityholder from whom Parent or
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Purchaser purchased Purchase Option Securities, within two business days
following the Effective Time of the Merger, an amount equal to the excess of
(A) the price per share paid for the Common Stock and Preferred Stock in the
Merger over (B) the Exercise Price of the Common Stock and/or Preferred Stock,
as the case may be, purchased by Parent or Purchaser from such Certain
Securityholder upon exercise of the Purchase Option.
The Tender and Option Agreement provides that subject to the conditions set
forth below, the Purchase Option may be exercised by Parent or Purchaser, in
whole or in part, at any time or from time to time after the occurrence of any
Trigger Event. A "Trigger Event" means any one of the following: (i) the
Merger Agreement becomes terminable under circumstances that entitle Parent or
Purchaser to receive the Termination Fee under the Merger Agreement
(regardless of whether the Merger Agreement is actually terminated or such
Termination Fee is then actually paid), (ii) the Offer has expired but, due to
the failure of the Certain Securityholder to validly tender and not withdraw
all of the then outstanding Securities beneficially owned by such Certain
Securityholder, the Purchaser has not accepted for payment or paid for all of
such Securities, (iii) a tender or exchange offer for some or all Securities
shall have been publicly proposed to be made or shall have been made by
another person, or (iv) it shall have been publicly disclosed or Parent or
Purchaser shall have otherwise learned that after the date of the Tender and
Option Agreement, (A) any person or "group" (as defined in Section 13(d)(3) of
the Exchange Act) (other than Parent or Purchaser or their affiliates) shall
have acquired or proposed to acquire beneficial ownership of more than 20% of
any class or series of capital stock of the Company (including the Common
Stock and Preferred Stock), through the acquisition of stock, the formation of
a group or otherwise, or shall have been granted any option, right or warrant,
conditional or otherwise, to acquire beneficial ownership of more than 20% of
any class or series of capital stock of the Company, (B) any such person or
group which, prior to the date of the Tender and Option Agreement, had a
Schedule 13D or 13G on file with the Commission shall have acquired or
proposed to acquire beneficial ownership of additional shares of any class or
series of capital stock of the Company, through the acquisition of stock, the
formation of a group or otherwise, constituting 10% or more of any such class
or series, or shall have been granted any option, right or warrant,
conditional or otherwise, to acquire beneficial ownership of additional shares
of any class or series of capital stock of the Company (including the Common
Stock and Preferred Stock) constituting 10% or more of any such class or
series, (C) any person (other than Parent or Purchaser or their affiliates)
shall have filed a Notification and Report Form under the HSR Act, or made a
public announcement reflecting an intent to acquire the Company or any assets
or securities of the Company, or (D) any person or group (other than Parent
and Purchaser or their affiliates) shall have entered into or publicly offered
to enter into a definitive agreement with the Company with respect to a
merger, consolidation or other business combination including the Company.
Notwithstanding the foregoing, it is understood that the execution of the
Tender and Option Agreement by the Certain Securityholders and the performance
of their obligations thereunder shall not, in itself, be deemed to constitute
a Trigger Event.
The Purchase Option will terminate upon the earliest of: (i) the Effective
Time; (ii) termination of the Merger Agreement other than upon, during or
after the occurrence of a Trigger Event; (iii) 90 days following any
termination of the Merger Agreement upon, during or after the occurrence of a
Trigger Event (or if, at the expiration of such 90 day period the Purchase
Option cannot be exercised or the Closing thereunder cannot occur by reason of
any applicable judgment, decree, order, injunction, law or regulation, 20
business days after such impediment to exercise or Closing has been removed or
has become final and not subject to appeal); or (iv) the exercise in full of
the Purchase Option and consummation of the Closing with respect thereto. Upon
the giving by Parent or Purchaser to a Certain Securityholder of the Exercise
Notice and the tender of the aggregate Exercise Price, Parent or Purchaser, as
the case may be, subject to applicable law and the Closing conditions, will be
deemed to be the holder of record of the Securities transferable upon such
exercise, notwithstanding that the stock transfer books of the Company are
then closed or that certificates representing such Securities have not been
actually delivered to Parent.
Pursuant to the Tender and Option Agreement, if requested by Parent and
Purchaser in the Exercise Notice, such Certain Securityholder will exercise
all Options (to the extent exercisable) and other rights (including conversion
or exchange rights) beneficially owned by such Certain Securityholder and will
sell the Securities acquired pursuant to such exercise to Parent or Purchaser
as provided in the Tender and Option Agreement.
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In the Tender and Option Agreement, the Company agreed that immediately
upon the purchase of an aggregate of not less than 10% of the voting power of
all outstanding Securities by Purchaser or any of its affiliates pursuant to
the Purchase Option, Purchaser will be entitled to designate such number of
directors, rounded up to the next whole number, on the Board of Directors of
the Company as will give Purchaser representation on the Board of Directors of
the Company equal to the product of (i) the total number of directors on the
Board of Directors of the Company (giving effect to the increase in the size
of such Board pursuant to this paragraph) and (ii) the percentage that the
number of votes represented by Securities beneficially owned by Purchaser and
its affiliates (including Securities so purchased pursuant to the Purchase
Option) bears to the number of votes represented by Securities then
outstanding. In furtherance thereof, the Company agreed that it and its Board
of Directors will, upon the request of Parent, use their reasonable best
efforts promptly either to increase the size of its Board of Directors or to
secure the resignations of such number of its incumbent directors, or both, as
is necessary to enable such designees of Parent to be so elected or appointed
to the Company's Board of Directors, and, subject to applicable law, the
Company will take all reasonable actions available to the Company to cause
such designees of Parent to be so elected or appointed (including by calling a
special meeting of its stockholders if so requested by Parent or Purchaser).
At such time, the Company will, if requested by Parent, subject to applicable
law, also take all reasonable action necessary to cause persons designated by
Parent to constitute at least the same percentage (rounded up to the next
whole number) as is on the Company's Board of Directors of (i) each committee
of the Company's Board of Directors, (ii) each board of directors (or similar
body) of each subsidiary of the Company and (iii) each committee (or similar
body) of each such board. Such designees of Purchaser will be assigned to the
class of directors having the latest expiration date for its term of office at
the time of such election.
The Tender and Option Agreement provides that the obligation of each
Certain Securityholder to sell such Certain Securityholder's Securities to
Parent or Purchaser thereunder is subject to the conditions that (i) all
waiting periods, if any, under the HSR Act, applicable to the sale of the
Securities or the acquisition of the Securities by Parent or Purchaser, as the
case may be, thereunder have expired or have been terminated; (ii) all
material consents, approvals, orders or authorizations of, or registrations,
declarations or filings with, any court, administrative agency or other
Governmental Entity, if any, required in connection with sale of the
Securities or the acquisition of the Securities by Parent or Purchaser
thereunder have been obtained or made; and (iii) no preliminary or permanent
injunction or other order by any court of competent jurisdiction prohibiting
or otherwise restraining such sale or acquisition is in effect.
Under the Tender and Option Agreement, the Company has agreed to provide
Parent and Purchaser certain registration rights with respect to the
Securities purchased pursuant to the Purchase Option.
The Tender and Option Agreement will terminate (a) upon the later to occur
of (i) the termination of the Purchase Option (other then in connection with
the exercise in full of the Purchase Option and consummation of the Closing
with respect thereto) or (ii) 90 days after the final Closing, except for
certain sections of the Tender and Option Agreement relating to the Purchase
Option and certain representations, warranties, covenants and agreements,
which will only terminate as and when provided therein, or (b) by the mutual
consent of each Certain Securityholder as to its rights and obligations
hereunder, the Board of Directors of the Company and the Board of Directors of
Parent.
The obligations of the Pension Plan under the Tender and Option Agreement
are subject to the applicable provisions of Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), and the rules and regulations
thereunder and, in the event performance by the Pension Plan of its
obligations thereunder would contravene the applicable provisions of ERISA and
the rules and regulations thereunder and the Pension Plan and Parent receive
the written opinion of independent counsel to the Pension Plan to such effect,
the Pension Plan will be deemed not to be in breach of its obligations under
the Tender and Option Agreement to the extent it will be required to take or
not take any action in compliance with ERISA and the rules and regulations
thereunder.
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Confidentiality Agreement.
The following is a summary of certain provisions of the Confidentiality
Agreement effective as of November 15, 1999, between Parent and the Company
(the "Confidentiality Agreement"). This summary is not a complete description
of the terms and conditions of the Confidentiality Agreement and is qualified
in its entirety by reference to the full text of the Confidentiality Agreement
which is filed with the Commission as an exhibit to the Schedule 14D-1 and is
incorporated herein by reference. The Confidentiality Agreement may be
examined, and copies obtained, as set forth in Section 8 of this Offer to
Purchase.
Pursuant to the terms of the Confidentiality Agreement that Parent and the
Company entered into effective November 15, 1999, the Company and Parent
agreed to provide, among other things, for the confidential treatment of their
discussions regarding the Offer and the Merger and the exchange of certain
confidential information concerning the Company. Parent agreed to restrictions
on the ability of Parent to solicit employees of the Company subject to
certain exceptions.
13. Plans for the Company; Other Matters.
Plans for the Company. Based on a preliminary review of the Company's
operations, Parent currently intends, among other things, to integrate
Parent's process automation activities (including recently acquired
businesses) into the Company's process automation systems and measurement and
control products businesses, which Parent believes will significantly enhance
its position in process automation. Parent also intends to consider strategic
alternatives with respect to the Company's measurements solutions business and
certain real estate and to redeploy excess assets in the Company's defined
benefit pension plan in a manner consistent with the plan's commitments to the
Company's employees and retirees. Parent expects to reduce costs by leveraging
other common assets, operations, sales and technical organizations. Parent
will continue to evaluate and review the Company and its business, assets,
corporate structure, capitalization, operations, properties, policies,
management and personnel with a view towards determining how to optimally
realize any potential benefits which arise from the combination of the
operations of the Company with those of Parent. Such evaluation and review is
ongoing and is not expected to be completed until after the consummation of
the Offer and the Merger. If, as and to the extent that Purchaser acquires
control of the Company, Parent and Purchaser will complete such evaluation and
review of the Company and will determine what, if any, changes would be
desirable in light of the circumstances and the strategic business portfolio
which then exist. Such changes could include, among other things,
restructuring the Company through changes in the Company's business, corporate
structure, articles of incorporation, by-laws, capitalization or management or
involve consolidating and streamlining certain operations and reorganizing
other businesses and operations. In addition, subject to the terms of the
Merger Agreement, Parent currently intends to terminate the declaration of
dividends on the Company's Common Stock after the consummation of the Offer.
Assuming the Minimum Condition is satisfied and Purchaser purchases
Securities pursuant to the Offer, Parent intends to promptly, subject to Rule
14f-1 of the Exchange Act, exercise its rights under the Merger Agreement to
obtain majority representation on, and control of, the Company Board. See
Section 12. Purchaser presently intends to exercise its rights to cause the
Company to elect to the Company Board its designees, and Purchaser intends to
select such designees from among the individuals (who are currently officers
or directors of Parent) identified in Schedule I hereto and in the Schedule
14D-9. The Merger Agreement also provides that the directors of Purchaser
immediately prior to the Effective Time shall be the directors of the
Surviving Corporation at and after the Effective Time. Purchaser or an
affiliate of Purchaser may, following the consummation or termination of the
Offer, seek to acquire additional Securities through open market purchases,
privately negotiated transactions, a tender offer or exchange offer or
otherwise, upon such terms and at such prices as it shall determine, which may
be more or less than the price paid in the Offer. Purchaser and its affiliates
also reserve the right to dispose of any or all Securities acquired by them,
subject to the terms of the Merger Agreement.
Except as disclosed in this Offer to Purchase, neither Siemens AG, Parent
nor Purchaser has any present plans or proposals that would result in an
extraordinary corporate transaction, such as a merger, reorganization,
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liquidation, or sale or transfer of a material amount of assets, involving the
Company or any of its subsidiaries, or any material changes in the Company's
capitalization, corporate structure, business or composition of its management
or the Company Board.
Shareholder Approval. Under the PBCL and the Company's Articles of
Incorporation, the approval of the Company Board and the affirmative vote of
the holders of a majority of the votes cast by the holders of Securities,
voting together as a single class, with each share of Common Stock entitled to
one vote per share and each share of Preferred Stock entitled to five votes
per share, are required to adopt and approve the Merger Agreement and the
Merger. The Company has represented in the Merger Agreement that the execution
and delivery of the Merger Agreement by the Company and the consummation by
the Company of the transactions contemplated by the Merger Agreement have been
duly authorized by all necessary corporate action on the part of the Company,
subject to the approval of the Merger and the Merger Agreement by the
Company's shareholders in accordance with the PBCL. In addition, the Company
has represented that the affirmative vote of the holders of a majority of the
votes cast by the holders of Securities, voting together as a single class,
with each share of Common Stock entitled to one vote per share and each share
of Preferred Stock entitled to five votes per share, is the only vote of the
holders of any class or series of the Company's capital stock which is
necessary to approve the Merger Agreement and the Merger. Therefore, unless
the Merger is consummated pursuant to the short-form merger provisions under
the PBCL described below (in which case no further corporate action by the
shareholders of the Company will be required to complete the Merger), the only
remaining required corporate action of the Company will be the approval of the
Merger Agreement and the Merger by the affirmative vote of the holders of a
majority of the votes cast by the holders of Securities, voting together as a
single class, with each share of Common Stock entitled to one vote per share
and each share of Preferred Stock entitled to five votes per share. The Merger
Agreement provides that Parent will vote, or cause to be voted, all of the
Securities then owned by Parent, Purchaser or any of Parent's other
subsidiaries and affiliates in favor of the approval of the Merger and the
adoption of the Merger Agreement. In the event that Parent, Purchaser and
Parent's other subsidiaries acquire in the aggregate at least Securities
representing a majority of the Fully Diluted Voting Power, they would have the
ability to effect the Merger without the affirmative votes of any other
shareholders.
Short-Form Merger. Section 1904 of the PBCL provides that, if a corporation
owns at least 80% of the outstanding shares of each class of a subsidiary
corporation, the corporation holding such stock may either merge such
subsidiary into itself or merge itself into such other corporation, in either
case, without any action or vote on the part of the board of directors or the
shareholders of such other corporation (a "short-form merger"). In the event
that Purchaser acquires in the aggregate at least 80% of the outstanding
shares of Common Stock and the outstanding shares of Preferred Stock, pursuant
to the Offer or otherwise, then, at the election of Parent, a short-form
merger could be effected without any further approval of the Company Board or
the shareholders of the Company, subject to compliance with the provisions of
Section 1904 of the PBCL. In the Merger Agreement, Purchaser and the Company
have agreed that Purchaser may extend the Offer on one or more occasions for
an aggregate period of not more than ten business days if the Minimum
Condition has been satisfied but less than 80% of each of the Common Stock and
Preferred Stock have been validly tendered and not properly withdrawn. Even if
Purchaser does not own 80% of each of the Common Stock and Preferred Stock
following the consummation of the Offer, Purchaser could seek to purchase
additional Securities in the open market or otherwise in order to reach the
80% threshold and effect a short-form merger. The per Security consideration
paid for any Securities so acquired in open market purchases may be greater or
less than that paid in the Offer. Parent and Purchaser presently intend to
effect a short-form merger, if permitted to do so under the PBCL, pursuant to
which Purchaser will be merged with the Company.
Appraisal Rights. Holders of Securities do not have appraisal rights as a
result of the Offer. However, if the Merger is consummated, notwithstanding
anything in the Merger Agreement to the contrary, any issued and outstanding
Securities held by persons who object to the Merger and comply with all the
provisions of the PBCL concerning the right of holders of Securities to
dissent from the Merger and require appraisal of their shares of Common Stock
or Preferred Stock (a "Dissenting Shareholder") will not be converted into the
right to receive the Common Stock Price or the Preferred Stock Price, without
interest thereon, pursuant to the Merger
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Agreement, but will be converted into the right to receive such consideration
as may be determined to be due to such Dissenting Shareholder pursuant to the
PBCL; provided, however, that the Securities outstanding immediately prior to
the Effective Time and held by a Dissenting Shareholder who will, after the
Effective Time, withdraw his demand for appraisal or lose his right of
appraisal, in either case pursuant to the PBCL, will be deemed to be converted
as of the Effective Time into the right to receive the Common Stock Price or
the Preferred Stock Price, as the case may be, payable to the holder thereof,
without interest thereon. Under the Merger Agreement, the Company shall give
Parent (i) prompt notice of any demands for appraisal pursuant to the
applicable provisions of the PBCL received by the Company, withdrawals of such
demands, and any other instruments served pursuant to the PBCL and received by
the Company and (ii) the opportunity to participate in all negotiations and
proceedings with respect to demands for appraisal under the PBCL. The Company
shall not, except with the prior written consent of Parent, make any payment
with respect to any such demands for appraisal or offer to settle or settle
any such demands.
The foregoing summary of the rights of Dissenting Shareholders under the
PBCL does not purport to be a complete statement of the procedures to be
followed by holders of Securities desiring to exercise any appraisal rights
available under the PBCL and is qualified in its entirety by the full text of
Section 1930 and Subchapter D of Chapter 15 of the PBCL. The preservation and
exercise of appraisal rights require strict adherence to the applicable
provisions of the PBCL. Failure to follow the steps required by Section 1930
and Subchapter D of Chapter 15 of the PBCL for perfecting appraisal rights may
result in the loss of such rights.
Rule 13e-3. The Commission has adopted Rule 13e-3 under the Exchange Act
which is applicable to certain "going private" transactions and which may
under certain circumstances be applicable to the Merger or another business
combination following the purchase of shares of Common Stock pursuant to the
Offer in which Purchaser seeks to acquire the remaining shares of Common Stock
not held by it. Purchaser believes, however, that Rule 13e-3 will not be
applicable to the Merger because it is anticipated that the Merger would be
effected within one year following consummation of the Offer and in the Merger
shareholders would receive the same price per share of Common Stock as paid in
the Offer. If Rule 13e-3 were applicable to the Merger, it would require,
among other things, that certain financial information concerning the Company,
and certain information relating to the fairness of the proposed transaction
and the consideration offered to minority shareholders in such a transaction,
be filed with the Commission and disclosed to minority shareholders prior to
consummation of the transaction. The purchase of a substantial number of
shares of Common Stock pursuant to the Offer may result in the Company being
able to terminate its Exchange Act registration, although Parent has no
current intention to do so prior to the Effective Time. See Section 7. If such
registration were terminated, Rule 13e-3 would be inapplicable to any such
future Merger or such alternative transaction.
14. Dividends and Distributions.
The Merger Agreement provides that between the date of the Merger Agreement
and the Effective Time, the Company will not, and will not permit any of its
subsidiaries without the prior written consent of Parent to, (i) split,
combine or reclassify any issued and outstanding shares of its capital stock,
or declare, set aside or pay any dividend or other distribution (payable in
cash, stock, property or otherwise) with respect to such shares, (ii) redeem,
purchase, acquire or offer to acquire (or permit any subsidiary to redeem,
purchase, acquire or offer to acquire) any shares of its capital stock or
(iii) issue, sell, pledge, accelerate, modify the terms of or dispose of, or
agree to issue, sell, pledge, accelerate, modify the terms of or dispose of,
any additional shares of, or securities convertible or exchangeable for, or
any options, warrants, calls, commitments or rights of any kind to acquire any
shares of, its capital stock of any class or other property or assets,
provided, that the Company may declare and pay to holders of shares of
Preferred Stock regular quarterly cash dividends not to exceed $0.0125 per
share of Preferred Stock per fiscal quarter.
15. Certain Conditions of the Offer.
Notwithstanding any other provision of the Offer or the Merger Agreement,
in addition to (and not in limitation of) Purchaser's rights pursuant to the
Merger Agreement to extend and amend the Offer in accordance
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with the Merger Agreement, Purchaser shall not be required to accept for
payment or, subject to Rule 14e-1(c) of the Exchange Act, pay for and may
delay the acceptance for payment of or, subject to Rule 14e-1(c) of the
Exchange Act, the payment for, any Securities not theretofore accepted for
payment or paid for, and Purchaser may terminate or amend the Offer (subject
to certain provisions of the Merger Agreement) if in the sole judgment of
Purchaser (i) the Minimum Condition has not been satisfied, (ii) any
applicable waiting period under the HSR Act shall not have expired or been
terminated or (iii) at any time on or after the date of the Merger Agreement
and prior to the time of acceptance of such Securities for payment or the
payment therefor, any of the following conditions has occurred and continues
to exist:
(a) any representations and warranties of the Company in the Merger
Agreement which are qualified by materiality shall not be true and correct
(determined without regard to any knowledge qualifications therein) as of
such time, or the representations and warranties of the Company in the
Merger Agreement which are not qualified by materiality shall not be true
and correct (determined without regard to any knowledge qualifications
therein) in any material respect, as of such time (other than to the extent
such representations and warranties expressly relate to an earlier date, in
which case such representations and warranties shall not be true and
correct as of such date) and which breach shall not have been cured prior
to the earlier of (i) 10 business days following notice of such breach and
(ii) May 31, 2000; provided, however, that the Company shall have no right
to cure such breach in the event that such breach by the Company was
willful or in the event such breach is not reasonably capable of being
cured within such period of time;
(b) the Company shall not have performed and complied with, in all
material respects (without reference to any materiality qualifications
therein), each covenant or agreement contained in the Merger Agreement and
required to be performed or complied with by it and which breach shall not
have been cured prior to the earlier of (i) 10 business days following
notice of such breach and (ii) May 31, 2000; provided, however, that the
Company shall have no right to cure such breach in the event that such
breach by the Company was willful, if such breach involves a material
breach of the provisions of the Merger Agreement described under "--No
Solicitation" in Section 12 (whether or not such breach was willful) or in
the event such breach is not reasonably capable of being cured within such
period of time;
(c) there shall have occurred and be continuing (i) any general
suspension of trading in, or limitation on prices for, securities on the
New York Stock Exchange (excluding any coordinated trading halt triggered
as a result of a specified decrease in a market index), (ii) any
extraordinary or material adverse change in the financial markets in the
United States or the Federal Republic of Germany, (iii) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States or the Federal Republic of Germany by any Governmental
Entity, (iv) any mandatory limitation, by any Governmental Entity on, or
other event that materially affects, the extension of credit by banks or
other lending institutions, (v) a commencement of a war, armed hostilities
or other national or international calamity directly or indirectly
involving the United States or the Federal Republic of Germany which could
reasonably be expected to have a Material Adverse Effect on the Company or
materially adversely affect or delay the consummation of the Offer, (vi)
any material adverse change in United States or the Federal Republic of
Germany currency exchange rates or a suspension of, or limitation on, the
markets therefor, (vii) in the case of any of the foregoing existing on the
date of the Merger Agreement, a material acceleration or worsening thereof,
or (viii) a decline in the Standard & Poor's Index of 500 Industrial
Companies by an amount in excess of 25%, measured from the close of
business on the date of the Merger Agreement;
(d) there shall be threatened or pending any suit, action, or proceeding
by any Governmental Entity, or by any other person which has a reasonable
possibility of success, (i) challenging the acquisition by Parent or
Purchaser of the Securities, seeking to make illegal, materially delay,
make materially more costly or otherwise directly or indirectly restrain or
prohibit the making or consummation of the Offer and the Merger or the
performance of any of the other Transactions or seeking to obtain from the
Company, Parent or Purchaser any damages that are material in relation to
the Company and its subsidiaries taken as a whole, (ii) seeking to prohibit
or materially limit the ownership or operation by the Company, Parent or
any of their respective subsidiaries or affiliates of any of the businesses
or assets of the Company, Parent or any of their respective subsidiaries or
affiliates, or to compel the Company, Parent or any of their respective
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subsidiaries or affiliates to dispose of or hold separate any of the
material businesses or assets of the Company, Parent or any of their
respective subsidiaries or affiliates, as a result of the Offer, the Merger
or any of the other Transactions, (iii) seeking to impose material
limitations on the ability of Parent or Purchaser to acquire or hold, or
exercise full rights of ownership of, any Securities accepted for payment
pursuant to the Offer including, without limitation, the right to vote the
Securities accepted for payment by it on all matters properly presented to
the shareholders of the Company, (iv) seeking to prohibit Parent or any of
its subsidiaries or affiliates from effectively controlling in any material
respect the business or operations of the Company or its subsidiaries, (v)
requiring divestiture by Purchaser or any of its affiliates of any
Securities or (vi) which otherwise is reasonably likely to have a Material
Adverse Effect on the Company or Parent;
(e) there shall be any statute, rule, regulation, judgment, order or
injunction (including with respect to competition or antitrust matters)
enacted, entered, enforced, promulgated or issued, or any statute, rule or
regulation which has been proposed by the relevant legislative or
regulatory body and is reasonably likely to be enacted, with respect to or
deemed applicable to, or any material consent or approval withheld or any
other action shall be taken with respect to (i) Parent, the Company or any
of their respective subsidiaries or affiliates or (ii) the Offer or the
Merger or any of the other Transactions by any Governmental Entity or
court, including without limitation any required approvals or waiting
periods under the GWB Act and the HSR Act, other than applicable waiting
periods under the HSR Act as specified in the introductory paragraph above,
that has resulted or is reasonably likely to result, directly or
indirectly, in any of the consequences referred to in clauses (i) though
(vi) of paragraph (d) above;
(f) since the date of the Merger Agreement there shall have occurred any
events, changes, effects or developments that, individually or in the
aggregate, have had or are reasonably likely to have, a Material Adverse
Effect on the Company;
(g) (i) the Board of Directors of the Company or any other committee
thereof shall have (A) withdrawn, or modified, amended or changed
(including by amendment of the Schedule 14D-9) in a manner materially
adverse to Parent or Purchaser; its approval or recommendation of the
Offer, the Merger Agreement and the Merger or any of the other
Transactions, (B) approved or recommended to the Company's shareholders an
Acquisition Proposal or any other acquisition of Securities other than the
Offer and the Merger, or (C) adopted any resolution to effect any of the
foregoing, or (ii) the Board of Directors of the Company shall have failed
to publicly reaffirm their approval or recommendation of the Offer, the
Merger, the Transactions or the Merger Agreement within two business days
following Parent's or Purchaser's written request to do so;
(h) the Merger Agreement shall have been terminated in accordance with
its terms;
(i) any person or group (which includes a "person" or "group" as such
terms are defined in Section 13(d)(3) of the Exchange Act) other than
Parent, Purchaser, any of their affiliates, or any group of which any of
them is a member, shall have acquired beneficial ownership of more than 20%
of the outstanding shares of Common Stock or Preferred Stock or shall have
consummated or entered into a definitive agreement or an agreement in
principle to consummate an Acquisition Proposal or if any person or group
which, prior to the date of the Merger Agreement, had a Schedule 13D or 13G
on file with the Commission shall have acquired or proposed to acquire
beneficial ownership of additional shares of any class or series of capital
stock of the Company, through the acquisition of stock, the formation of a
group or otherwise, constituting 10% or more of any such class or series,
or shall have been granted any option, right or warrant, conditional or
otherwise, to acquire beneficial ownership of additional shares of any
class or series of capital stock of the Company (including the Common Stock
and Preferred Stock) constituting 10% or more of any such class or series
(it being understood that the execution of the Tender and Option Agreement
by the Company shareholders that are parties thereto shall not, in itself,
be deemed to constitute such an acquisition of beneficial ownership
triggering this provision);
(j) the Company or any shareholder or shareholders beneficially owning,
indirectly or in the aggregate, more than 10% of the Fully Diluted Voting
Power or 10% of the Fully Diluted Shares shall have breached in any
material respect any of its or their obligations under the Tender and
Option Agreement;
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(k) (i) all consents and approvals of and notices to or filings with
Governmental Entities and third parties required in connection with the
Offer, the Merger and any of the other Transactions shall not have been
obtained or made other than those the absence of which, individually or in
the aggregate, would not have a Material Adverse Effect or prevent or
materially delay consummation of any of the Offer, the Merger or any of the
other Transactions, or (ii) all consents and approvals of third parties
required in connection with the Offer, the Merger and any of the other
Transactions and listed on the disclosure schedules to the Merger Agreement
shall not have been obtained or made;
(l) the Company shall not have provided Parent and Purchaser with
documentation reasonably acceptable to them demonstrating the percentage
ownership of the outstanding capital stock or equity interests of certain
subsidiaries listed in the disclosure schedules to the Merger Agreement or
all charters and bylaws or other organizational documents of such
subsidiaries which are reasonably satisfactory to Parent and Purchaser; or
(m) the Company shall not have completed in all material respects all
obligations and activities required of it under the Connecticut Property
Transfer Law, including in connection with the Offer, the Merger and any of
the other Transactions, or Parent or Purchaser reasonably determines that
any remaining obligations under the Connecticut Property Transfer Law would
have a Material Adverse Effect on the Company;
which, in the sole judgment of Purchaser, in any such case, and regardless of
the circumstances giving rise to any such condition (including any action or
inaction by Parent or any of its affiliates), makes it inadvisable to proceed
with the Offer or with such acceptance for payment, purchase of, or payment
for Securities.
The foregoing conditions are for the sole benefit of Purchaser and Parent
and may be asserted by Purchaser or Parent regardless of the circumstances
giving rise to any such condition and may be waived by Purchaser or Parent, in
whole or in part, at any time and from time to time, in the sole discretion of
Purchaser or Parent. The failure by Purchaser or Parent or any of their
respective affiliates at any time to exercise any of the foregoing rights will
not be deemed a waiver of any right, the waiver of any such right with respect
to particular facts and circumstances shall not be deemed a waiver with
respect to any other facts and circumstances and each right will be deemed an
ongoing right which may be asserted at any time and from time to time.
"Material Adverse Effect" means (i) any adverse change or effect in the
condition (financial or otherwise), assets, liabilities, business, properties,
results of operations or prospects of a specified person or its subsidiaries,
which change or effect is material, individually or in the aggregate with any
other changes or effects, to the specified person and its subsidiaries taken
as a whole, or (ii) any event, matter, condition or effect which materially
impairs the ability of a specified person to perform on a timely basis its
obligations under the Merger Agreement, the Tender and Option Agreement, or
the consummation of the Transactions.
16. Certain Legal Matters and Regulatory Approvals.
General. Except as described in this Section 16, based on a review of
publicly available filings made by the Company with the Commission and other
publicly available information concerning the Company, neither Parent nor
Purchaser is aware of any license or regulatory permit that is material to the
business of the Company and its subsidiaries, taken as a whole, and is likely
to be adversely affected by the acquisition of Securities by Parent or
Purchaser pursuant to the Offer, the Merger or otherwise, or of any approval
or other action by any governmental, administrative or regulatory agency or
authority, domestic or foreign, that would be required prior to the
acquisition of Securities by Purchaser pursuant to the Offer, the Merger or
otherwise; except for those approvals and actions which Parent and Purchaser
presently expect to obtain. To the extent that any such approval or other
action is required, Purchaser and Parent presently contemplate that such
approval or other action will be sought, except as described below under "--
State Antitakeover Statutes." While, except as otherwise described in this
Offer to Purchase, Purchaser does not presently intend to delay the acceptance
for payment of, or payment for, Securities 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 or would be
obtained without substantial
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conditions or that 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, or other
substantial conditions complied with, in the event that such approvals were
not obtained or such other actions were not taken or in order to obtain any
such approval or other action. If certain types of adverse action are taken
with respect to the matters discussed below, Purchaser could decline to accept
for payment, or pay for, any Securities tendered. See Section 15 for certain
conditions to the Offer, including conditions with respect to governmental
actions.
The Company is incorporated under the laws of Pennsylvania. The
Pennsylvania Takeover Disclosure Law ("PTDL") purports to regulate certain
attempts to acquire a corporation which (1) is organized under the laws of
Pennsylvania or (2) has its principal place of business and substantial assets
located in Pennsylvania. In Crane Co. v. Lam, the United States District Court
for the Eastern District of Pennsylvania preliminarily enjoined, on grounds
arising under the United States Constitution, enforcement of at least the
portion of the PTDL involving the pre-offer waiting period thereunder. Section
8(a) of the PTDL provides an exemption for any offer to purchase securities as
to which the board of directors of the target company recommends acceptance to
its shareholders, if at the time such recommendation is first communicated to
shareholders the offeror files with the Pennsylvania Securities Commission
("PSC") a copy of the Schedule 14D-1 and certain other information and
materials, including an undertaking to notify securityholders of the target
company that a notice has been filed with the PSC which contains substantial
additional information about the offering and which is available for
inspection at the PSC's principal office during business hours. The Company
Board has unanimously approved the transactions contemplated by the Merger
Agreement and recommended acceptance of the Offer and the Merger to the
Company's securityholders. While reserving and not waiving its right to
challenge the validity of the PTDL or its applicability to the Offer,
Purchaser is making a Section 8(a) filing with the PSC in order to qualify for
the exemption from the PTDL. Additional information about the Offer has been
filed with the PSC pursuant to the PTDL and is available for inspection at the
PSC's office at Eastgate Office Building, 2nd Floor, 1010 North 7th Street,
Harrisburg, PA 17102-1410 during business hours.
Chapter 25 of the PBCL contains other provisions relating generally to
takeovers and acquisitions of certain publicly owned Pennsylvania corporations
such as the Company that have a class or series of shares entitled to vote
generally in the election of directors of the corporation registered under the
Exchange Act (a "registered corporation"). The following discussion is a
general and highly abbreviated summary of certain features of such chapter, is
not intended to be complete or to completely address potentially applicable
exceptions or exemptions, and is qualified in its entirety by reference to
Chapter 25 of the PBCL.
In addition to other provisions not applicable to the Offer or the Merger,
Subchapter 25D of the PBCL includes provisions requiring approval of a merger
of a registered corporation with an "interested shareholder" in which the
"interested shareholder" is treated differently from other shareholders, by
the affirmative vote of the shareholders entitled to cast at least a majority
of the votes that all shareholders other than the interested shareholder are
entitled to cast with respect to the transaction without counting the votes of
the interested shareholder. This disinterested shareholder approval
requirement is not applicable to a transaction (i) approved by a majority of
disinterested directors, (ii) in which the consideration to be received by
shareholders is not less than the highest amount paid by the interested
shareholder in acquiring his shares, or (iii) effected without submitting the
merger to a vote of shareholders as permitted in Section 1924(b)(1)(ii) of the
PBCL. The Company has represented to Parent and Purchaser that the
disinterested shareholder approval requirement of Subchapter 25D will not be
applicable to the Merger.
Subchapter 25E of the PBCL provides that, in the event that Purchaser (or a
group of related persons, or any other person or group of related persons)
were to acquire Securities representing at least 20% of the voting power of
the Company, in connection with the Offer or otherwise (a "Control
Transaction"), securityholders of the Company would have the right to demand
"fair value" of such securityholders' Securities and to be paid such fair
value upon compliance with the requirements of Subchapter 25E. Under
Subchapter 25E, "fair value" may not be less than the highest price per share
paid by the controlling person or group at any time during the 90-day period
ending on and including the date of the Control Transaction, plus an
increment, if any, representing
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any value, including, without limitation, any proportion of value payable for
acquisition of control of the Company, that may not be reflected in such
price. The Company has opted out of Subchapter 25E in its Bylaws and has
represented to Parent and Purchaser that Subchapter 25E is not applicable to
the transactions contemplated by the Merger Agreement and the Tender and
Option Agreement.
Subchapter 25F of the PBCL prohibits under certain circumstances certain
"business combinations," including mergers and sales or pledges of significant
assets, of a registered corporation with an "interested shareholder" for a
period of five years. Subchapter 25F exempts, among other things, business
combinations approved by the board of directors prior to a shareholder
becoming an interested shareholder and transactions with interested
shareholders who beneficially owned shares with at least 15% of the total
voting power of a corporation on March 23, 1988 and remain so. The Company has
represented to Parent and Purchaser that Subchapter 25F is not applicable to
the transactions contemplated by the Merger Agreement and the Tender and
Option Agreement.
Subchapter 25G of the PBCL, relating to "control-share acquisitions,"
prevents under certain circumstances the owner of a control-share block of
shares of a registered corporation from voting such shares unless a majority
of both the "disinterested" shares and all voting shares approve such voting
rights. Failure to obtain such approval may result in a forced sale by the
control-share owner of the control-share block to the corporation at a
possible loss. The Company has opted out of Subchapter 25G in its Bylaws and
has represented to Parent and Purchaser that Subchapter 25G is not applicable
to the transactions contemplated by the Merger Agreement and the Tender and
Option Agreement.
Subchapter 25H of the PBCL, relating to disgorgement by certain controlling
shareholders of a registered corporation following attempts to acquire
control, provides that under certain circumstances any profit realized by a
controlling person from the disposition of shares of the corporation to any
person (including to the corporation under Subchapter 25G or otherwise) will
be recoverable by the corporation. The Company has opted out of Subchapter 25H
in its Bylaws and has represented to Parent and Purchaser that Subchapter 25H
is not applicable to the transactions contemplated by the Merger Agreement and
the Tender and Option Agreement.
Subchapter 25I of the PBCL entitles "eligible employees" of a registered
corporation to a lump sum payment of severance compensation under certain
circumstances if the employee is terminated, other than for willful
misconduct, within 90 days before voting rights lost as a result of a control-
share acquisition are restored by a vote of disinterested shareholders.
Subchapter 25J of the PBCL provides protection against termination or
impairment under certain circumstances of "covered labor contracts" of a
registered corporation as a result of a "business combination transaction" if
the business operation to which the covered labor contract relates was owned
by the registered corporation at the time voting rights are restored by
shareholder vote after a control-share acquisition. The Company has
represented to Parent and Purchaser that Subchapters 25I and 25J are not
applicable to the transactions contemplated by the Merger Agreement and the
Tender and Option Agreement.
Section 2504 of the PBCL provides that the applicability of Chapter 25 of
the PBCL to a registered corporation having a class or series of shares
entitled to vote generally in the election of directors registered under the
Exchange Act or otherwise satisfying the definition of a registered
corporation under Section 2502(l) of the PBCL shall terminate immediately upon
the termination of the status of the corporation as a registered corporation.
Purchaser intends to seek to cause the Company to terminate the registration
of the shares of Common Stock under the Exchange Act as soon after
consummation of the Offer as the requirements for termination of the
registration of the shares of Common Stock are met.
A number of states have adopted laws and regulations that purport to apply
to attempts to acquire corporations that are incorporated in such states, or
whose business operations have substantial economic effects in such states, or
which have substantial assets, security holders, employees, principal
executive offices or principal places of business in such states. In Edgar v.
MITE Corp., the Supreme Court of the United States (the "Supreme Court")
invalidated on constitutional grounds the Illinois Business Takeover statute,
which, as a matter of state securities law, made certain corporate
acquisitions more difficult. However, in 1987, in CTS Corp.
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v. Dynamics Corp. of America, the Supreme Court held that the State of Indiana
may, as a matter of corporate law and, in particular, with respect to those
aspects of corporate law concerning corporate governance, constitutionally
disqualify a potential acquiror from voting on the affairs of a target
corporation without the prior approval of the remaining shareholders. The
state law before the Supreme Court was by its terms applicable only to
corporations that had a substantial number of shareholders in the state and
were incorporated there.
Purchaser does not believe that the antitakeover laws and regulations of
any state other than the Commonwealth of Pennsylvania will by their terms
apply to the Offer, and, except as set forth above with respect to the PBCL,
Purchaser has not attempted to comply with any state antitakeover statute or
regulation. Purchaser reserves the right to challenge the applicability or
validity of any state law purportedly applicable to the Offer and nothing in
this Offer to Purchase or any action taken in connection with the Offer is
intended as a waiver of such right. If it is asserted that any state
antitakeover statute is applicable to the Offer 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 to receive
approvals from, the relevant state authorities, and Purchaser might be unable
to accept for payment or pay for Securities tendered pursuant to the Offer or
may be delayed in consummating the Offer. In such case, Purchaser may not be
obligated to accept for payment, or pay for, any Securities tendered pursuant
to the Offer. See Section 15.
The Company has agreed in the Merger Agreement that it and its Board of
Directors will (i) use its reasonable best efforts to ensure that no state
takeover statute or similar statute, rule or regulation (including Sections
2538 through 2588, inclusive, of the PBCL) is or becomes applicable to the
Offer, the Merger, the Merger Agreement, the Tender and Option Agreement or
any of the other Transactions contemplated by the foregoing and (ii) if any
state takeover statute or similar statute, rule or regulation becomes
applicable to the Offer, the Merger, the Merger Agreement, the Tender and
Option Agreement or any other Transactions, use its reasonable best efforts to
ensure that the Offer, the Merger and the other Transactions may be
consummated as promptly as practicable on the terms contemplated by the Merger
Agreement and the Tender and Option Agreement and otherwise to minimize the
effect of such statute or regulation on the Offer, the Merger and the other
Transactions.
United States Antitrust. The Offer and the Merger are subject to the HSR
Act, which provides that certain acquisition transactions may not be
consummated unless certain information has been furnished to the Antitrust
Division of the United States Department of Justice (the "Antitrust Division")
and the United States Federal Trade Commission (the "FTC") and certain waiting
period requirements have been satisfied.
The rules promulgated by the FTC require the filing by each of Parent and
the Company of a Notification and Report Form with respect to the Offer under
the HSR Act. The waiting period under the HSR Act with respect to the Offer
will expire at 11:59 p.m., New York City time, on the fifteenth day after the
date Parent's form is filed unless early termination of the waiting period is
granted. However, the Antitrust Division or the FTC may extend the waiting
period by requesting additional information or documentary material from
Parent. If such a request is made, such waiting period will expire at 11:59
p.m., New York City time, on the tenth day after 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
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. Purchaser will not accept for payment Securities tendered pursuant
to the Offer unless and until the waiting period requirements imposed by the
HSR Act with respect to the Offer have been satisfied. See Section 15.
The Notification and Report Form described above is also applicable to the
Purchase Option granted to Parent and Purchaser pursuant to the Tender and
Option Agreement. Under the provisions of the HSR Act
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applicable to the Purchase Option, the purchase of Securities pursuant to the
Purchase Option may not be consummated until the expiration of a 30-calendar
day waiting period following the filing by Parent, unless both the Antitrust
Division and the FTC terminate the waiting period thereto. If, within such 30-
calendar day waiting period, either the Antitrust Division or the FTC requests
additional information or documentary material from Parent or the Company, the
waiting period would be extended for an additional 20 calendar days following
substantial compliance by Parent or the Company, as the case may be, with such
request. Thereafter, the waiting period could be extended only by court order.
Only one extension of such waiting period pursuant to a request for additional
information is authorized by the HSR Act and the rules promulgated thereunder,
except by court order. Pursuant to the Tender and Option Agreement, if the
Purchase Option becomes exercisable, it would continue to be exercisable until
20 days after the waiting period (including as extended) under the HSR Act has
expired.
The FTC and the Antitrust Division frequently scrutinize the legality under
the Antitrust Laws (as defined below) of transactions such as Purchaser's
acquisition of Securities pursuant to the Offer and the Merger. At any time
before or after Purchaser's acquisition of Securities, 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
acquisition of Securities pursuant to the Offer or otherwise seeking
divestiture of Securities acquired by Purchaser or divestiture of substantial
assets of Siemens AG or its subsidiaries. Private parties, as well as state
governments, may also bring legal action under the Antitrust Laws under
certain circumstances. Based upon an examination of publicly available
information provided by the Company relating to the businesses in which the
Company and its subsidiaries are engaged, Siemens AG and Purchaser believe
that the acquisition of Securities by Purchaser will not violate the Antitrust
Laws. Nevertheless, there can be no assurance that a challenge to the Offer or
other acquisition of Securities by Purchaser on antitrust grounds will not be
made or, if such a challenge is made, of the result. See Section 15 for
certain conditions to the Offer, including conditions with respect to
litigation and certain government actions.
As used in this Offer to Purchase, "Antitrust Laws" shall mean and include
the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the
Federal Trade Commission Act, as amended, and all other Federal, state and
foreign statutes, rules, regulations, orders, decrees, administrative and
judicial doctrines, and other laws that are designed or intended to prohibit,
restrict or regulate actions having the purpose or effect of monopolization or
restraint of trade.
German Antitrust. Under German laws and regulations relating to the
regulation of monopolies and competition, certain acquisition transactions may
not be consummated in Germany unless certain information has been furnished to
the German Federal Cartel Office (the "FCO") and certain waiting period
requirements have been satisfied without issuance by the FCO of an order to
refrain. The purchase of Securities by Purchaser pursuant to the Offer and the
consummation of the Merger may be subject to such requirements. Under such
laws, the FCO has one month (unless earlier terminated by the FCO) from the
time of filing of such information with the FCO to clear the Offer and the
Merger or to advise the parties of its intention to investigate the Offer and
the Merger in-depth, in which case the FCO has four months from the date of
filing in which to take steps to oppose the Offer and the Merger. According to
the German law against restraints of competition, the purchase of Securities
pursuant to the Offer may not be consummated before the end of the one-month
period, and, provided that the FCO has informed the parties about the
initiation of an in-depth review within such period, before the end of the
four-month period or its agreed-upon extension, unless the FCO has given its
clearance to the transaction in writing before the end of such periods. In the
course of its reviews, the FCO will examine whether the proposed acquisition
of Securities by Purchaser pursuant to the Offer would create a dominant
market position or strengthen an already-existing dominant position in
Germany. If the FCO makes such a finding, it will act to prohibit the
transaction. Siemens AG has filed the required notification with the FCO and
the one-month waiting period is expected to expire prior to the Expiration
Date. While Siemens AG and Parent do not believe that there is any basis for
the FCO to investigate the Offer and the Merger in-depth, there can be no
assurance that the FCO will not investigate or oppose the transactions or that
the FCO will not extend the waiting period.
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Other Foreign Approvals. According to publicly available information, the
Company conducts business in a number of other foreign countries and
jurisdictions. In connection with the acquisition of the Securities pursuant
to the Offer or the Merger, the laws of certain of those foreign countries and
jurisdictions may require the filing of information with, or the obtaining of
the approval or consent of, governmental authorities in such countries and
jurisdictions. The governments in such countries and jurisdictions might
attempt to impose additional conditions on the Company's operations conducted
in such countries and jurisdictions as a result of the acquisitions of the
Securities pursuant to the Offer or the Merger. If such approvals or consents
are found to be required the parties intend to make the appropriate filings
and applications. In the event such a filing or applications is made for the
requisite foreign approvals or consents, there can be no assurance that such
approvals or consents will be granted and, if such approvals or consents are
received, there can be no assurance as to the date of such approvals or
consents. In addition, there can be no assurance that Purchaser will be able
to cause the Company or its subsidiaries to satisfy or comply with such laws
or that compliance or noncompliance will not have adverse consequences for the
Company or any subsidiary after purchase of the Securities pursuant to the
Offer or the Merger.
Connecticut Environmental Transfer Law. The Connecticut Property Transfer
Law (the "CPTL"), requires that prior to the transfer of ownership of an
establishment subject to the CPTL, the transferor must submit certain forms
regarding environmental activities at the establishment and, if the transferee
cannot state (i) that there has been no spillage or discharge of hazardous
waste on the property or that any such spillage or discharge has been cleaned
up according to the procedures and requirements of the state Department of
Environmental Protection (the "DEP") and (ii) that any hazardous waste
remaining on-site is being managed in accordance with all applicable
regulations, one of the parties to the transfer must certify to the
Commissioner of the DEP that such party will investigate and, if necessary,
remediate, contain or otherwise mitigate the effects of any spillage or
discharge in accordance with the Connecticut remediation standards and within
a timetable approved by the Commissioner of the DEP. Purchaser understands
that the Company operates certain facilities in Connecticut that have in the
past been subject to the CPTL. Purchaser will seek to determine whether any of
the Company's properties are subject to the CPTL and, if so, Purchaser will
comply, or seek to cause the Company to comply, with the CPTL.
17. Fees and Expenses.
Purchaser and Parent have retained Georgeson & Company, Inc. to serve as
the Information Agent and ChaseMellon Shareholder Services, L.L.C. to serve as
the Depositary in connection with the Offer. The Information Agent may contact
holders of Securities by personal interview, mail, telephone, telex, telegraph
and other methods of electronic communication and may request brokers,
dealers, banks, trust companies and other nominees to forward the Offer
materials to beneficial holders. The Information Agent and the Depositary will
each receive reasonable and customary compensation for their services, be
reimbursed for certain reasonable out-of-pocket expenses and be indemnified
against certain liabilities and expenses in connection with their services,
including certain liabilities under the Federal securities laws.
On behalf of Parent, Siemens Corporation has engaged Goldman Sachs to act
as the Dealer Manager and, through its affiliate Goldman, Sachs & Co. oHG, to
provide certain financial advisory services to Siemens AG and Parent. Pursuant
to a letter agreement dated December 8, 1999, Siemens AG has agreed to pay
upon consummation of the Offer (Euro)2.1 million to Goldman, Sachs & Co. oHG
as compensation for the services of Goldman Sachs as Dealer Manager and the
services of Goldman, Sachs & Co. oHG as financial advisor to Siemens AG and
Parent. Siemens Corporation has also agreed to reimburse Goldman Sachs for all
reasonable expenses, including attorney's fees, and to indemnify Goldman Sachs
and Goldman, Sachs & Co. oHG against liabilities and expenses in connection
with their services, including liabilities under Federal securities laws.
Except as set forth above, neither Siemens AG, Parent nor Purchaser will
pay any fees or commissions to any broker or dealer or other person or entity
in connection with the solicitation of tenders of Securities 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 the Offer materials to their
customers.
51
<PAGE>
18. 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 Securities.
Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of the Securities pursuant thereto,
Purchaser shall make a good faith effort to comply with such statute or seek
to have such statute declared inapplicable to the Offer. If, after such good
faith effort, Purchaser cannot comply with such state statute, the Offer will
not be made to (nor will tenders be accepted from or on behalf of) holders of
Securities in such state. In those jurisdictions where the securities, blue
sky or other laws require the Offer to be made by a licensed broker or dealer,
the Offer is being made on behalf of Purchaser by the Dealer Manager or one or
more registered brokers or dealers licensed under the laws of such
jurisdictions.
No person has been authorized to give any information or to make any
representation on behalf of Siemens AG, Parent or Purchaser not contained
herein or in the Letter of Transmittal and, if given or made, such information
or representation must not be relied upon as having been authorized.
Purchaser, Parent and Siemens AG have filed with the Commission the
Schedule 14D-1 pursuant to Rule 14d-3 under the Exchange Act, together with
exhibits, furnishing certain additional information with respect to the Offer.
In addition, the Company has filed with the Commission the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, setting forth its
recommendation with respect to the Offer and the reasons for its
recommendation and furnishing certain additional related information. Such
Schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the same manner set forth in
Section 8 of this Offer to Purchase (except that such material will not be
available at the regional offices of the Commission).
Malibu Acquisition Corp.
January 21, 2000
52
<PAGE>
SCHEDULE I
INFORMATION CONCERNING DIRECTORS AND
EXECUTIVE OFFICERS OF SIEMENS AG, PARENT AND PURCHASER
1. Directors and Executive Officers of Siemens AG. The following table sets
forth the name and present principal occupation or employment, and material
occupations, positions, offices or employments for the past five years, of
each member of the Supervisory Board and the Board of Managing Directors and
executive officers of Siemens AG. Unless otherwise indicated, each such person
is a citizen of the Federal Republic of Germany and the business address of
each such person is c/o Siemens AG, Wittelsbacherplatz 2, D-80333 Munich,
Federal Republic of Germany. Unless otherwise indicated, each such person has
held his or her present occupation as set forth below, or has been an
executive officer at Siemens AG for the past five years.
<TABLE>
<CAPTION>
Present Principal Occupation or Employment; Material Positions
Name and Address Held During the Past Five Years
- ---------------- --------------------------------------------------------------
<S> <C>
Supervisory Board
Dr. Karl-Hermann
Baumann................ Chairman of the Supervisory Board since February
1998. Chief Financial Officer until February 1998.
Alfons Graf............. First Deputy Chairman of the Supervisory Board.
Chairman of the Central Works Council.
Dr. Rolf-E. Breuer...... Second Deputy Chairman of the Supervisory Board.
Taunusanlage 12 Spokesman of the Board of Managing Directors of
D-60325 Frankfurt am Deutsche Bank AG, Frankfurt am Main.
Main
Federal Republic of
Germany
Helmut Cors............. Member of the Supervisory Board. Member of the
Johannes-Brahms-Platz 1 Federal Executive Committee, Deutsche Angestellten
D-20355 Hamburg Gewerkschaft.
Federal Republic of
Germany
Bertin Eichler.......... Member of the Supervisory Board. Executive Member of
Lyoner Strasse 32 the Board of Management of Industriegewerkschaft
D-60528 Frankfurt Metall since September 1996. First Representative of
Federal Republic of Industriegewerkschaft Metall, Amberg until September
Germany 1996.
Jean Gandois............ Member of the Supervisory Board. Independent
72 rue du Faubourg consultant since April 1999. President of Cockerill
Saint Honore Sambre S.A., Belgium, until April 1999. Citizen of
75008 Paris France.
France
Birgit Grube............ Member of the Supervisory Board. Member of the Works
Council.
Heinz Hawreliuk......... Member of the Supervisory Board. Union Secretary,
Laubenheimer Strasse 88 Industriegewerkschaft Metall.
D-55130 Mainz
Federal Republic of
Germany
Ralf Heckmann........... Member of the Supervisory Board. Chairman of the
Combined Works Council.
Robert M. Kimmitt....... Member of the Supervisory Board. Senior partner,
2445 M Street, N.W. Wilmer, Cutler & Pickering, Washington D.C., since
Washington, D.C. 20037- May 1997. Banker, Lehman Brothers until April 1997.
1420 Citizen of the United States of America.
</TABLE>
I-1
<PAGE>
<TABLE>
<CAPTION>
Present Principal Occupation or Employment; Material Positions
Name and Address Held During the Past Five Years
- ---------------- --------------------------------------------------------------
<S> <C>
Dr. Heinz Kriwet........ Member of the Supervisory Board. Chairman of the
August-Thyssen-Strasse 1 Supervisory Board of Thyssen Krupp AG since March
D-40211 Dusseldorf 1999. Chairman of the Supervisory Board of Thyssen
Federal Republic of AG from March 1996 until March 1999. Chairman of the
Germany Board of Management of Thyssen AG until March 1996.
Prof. Dr. Hubert Markl.. Member of the Supervisory Board. President of the
Hofgartenstrasse 8 Max-Planck-Gesellschaft, Munich, since 1996.
D-80539 Munich Professor at the University of Konstanz until 1996.
Federal Republic of
Germany
Georg Nassauer.......... Member of the Supervisory Board. Member of the Works
Siemensdamm 50-54 Council.
D-13629 Berlin
Federal Republic of
Germany
Dr. Albrecht Schmidt.... Member of the Supervisory Board. Spokesman for the
Am Tucherpark 16 Managing Directors, Bayerische Hypo- und Vereinsbank
D-80538 Munich AG, Munich.
Federal Republic of
Germany
Dr. Henning Schulte- Member of the Supervisory Board. Chairman of the
Noelle................. Board of Managing Directors, Allianz AG, Munich.
Koniginstrasse 28
D-80790 Munich
Federal Republic of
Germany
Georg Seubert........... Member of the Supervisory Board. Member of the Works
Humboldtstrasse 64 Council.
D-90459 Nuremberg
Federal Republic of
Germany
Peter von Siemens....... Member of the Supervisory Board.
Dr. Daniel L. Vasella... Member of the Supervisory Board. President of
CH-4002 Basel Novartis International AG, Basel, Switzerland.
Switzerland Citizen of Switzerland.
Klaus Wigand............ Member of the Supervisory Board. Head of Department
Information and Communication of Central Human
Resources.
Erwin Zahl.............. Member of the Supervisory Board. Member of the Works
Von-der-Taan-Strasse 30 Council.
D-90439 Nuremberg
Federal Republic of
Germany
</TABLE>
I-2
<PAGE>
<TABLE>
<CAPTION>
Present Principal Occupation or Employment; Material Positions
Name and Address Held During the Past Five Years
- ---------------- --------------------------------------------------------------
<S> <C>
Board of Managing Directors
Dr. Heinrich v. Pierer.............. President and Chief Executive Officer.
Dr. Volker Jung..................... Member of the Board of Managing Directors.
Roland Koch......................... Member of the Board of Managing Directors since
Hofmannstrasse 51 1997. Member of the Group Executive Committee for
D-81359 Munich Public Networks since 1995.
Federal Republic of Germany
Dr. Edward G. Krubasik..... Member of the Board of Managing Directors since
Werner-von-Siemens-Strasse 1997. Director at McKinsey & Company Inc., Munich,
50 until January 1997.
D-91052 Erlangen
Federal Republic of
Germany
Heinz-Joachim Neuburger............. Member of the Board of Managing Directors since
November 1997. Executive Director at Siemens Ltd.,
Bombay, from April 1996 until November 1997. Head of
Treasury Department until April 1996.
Prof. Peter Pribilla................ Member of the Board of Managing Directors.
Jurgen Radomski..................... Member of the Board of Managing Directors.
Werner-von-Siemens-Strasse 50
D-91052 Erlangen
Federal Republic of Germany
Dr. Gunter Wilhelm.................. Member of the Board of Managing Directors.
Werner-von-Siemens-Strasse 50
D-91052 Erlangen
Federal Republic of Germany
Prof. Dr. Claus Weyrich............. Member of the Board of Managing Directors since
Otto-Hahn-Ring 6 1996. Head of Corporate Research since 1994.
D-81739 Munich
Federal Republic of Germany
Dr. Klaus Wucherer.................. Member of the Board of Managing Directors since
Gleiwitzer Strasse 555 August 1999. President of the Automation & Drives
D-90475 Nuremberg Group since September 1998. Vice President of the
Federal Republic of Germany Automation & Drives Group since 1996. Division Head
until 1996.
</TABLE>
I-3
<PAGE>
2. Directors and Executive Officers of Parent. The following table sets
forth the name and present principal occupation or employment, and material
occupations, positions, offices or employments for the past five years, of
each director and executive officer of Parent. Each such person is a citizen
of the United States of America, unless otherwise noted, and the business
address of each such person is c/o Siemens Energy & Automation, Inc., 3333 Old
Milton Parkway, Alpharetta, GA 30005-4437.
<TABLE>
<CAPTION>
Present Principal Occupation or Employment; Material Positions
Name and Address Held During the Past Five Years
- ---------------- --------------------------------------------------------------
<S> <C>
Dr. Klaus Wucherer...... Director. See Part 1 of this Schedule I.
Johannes Feldmayer...... Director. Group Vice President, Automation & Drives,
Gleiwitzer Strasse 555 Siemens AG, since 1999. Former Vice President of
D-90475 Nuremberg Siemens AG. Citizen of the Federal Republic of
Federal Republic of Germany.
Germany
Dr. Udo Wagner.......... Director. Executive Manager of Industrial Projects
Schuhstrasse 60 and Technical Services, Siemens AG. Chief Financial
D-91052 Erlangen Officer of Bremer Vulkan from 1996 to 1997. Chief
Federal Republic of Financial Officer of ABB until 1996. Citizen of the
Germany Federal Republic of Germany.
Gerhard Schulmeyer...... Director, President and Chief Executive Officer of
1301 Avenue of the Siemens Corporation. Formerly President and Chief
Americas Executive Officer of Siemens Nixdorf
New York, NY 10019 Informationssysteme AG, Munich. Citizen of the
Federal Republic of Germany.
Thomas J Malott......... Director. President and Chief Executive Officer.
Gary K. Gabriel......... Director. Executive Vice President and Chief
Financial Officer since 1998. Former Executive Vice
President and Chief Financial Officer of Siemens
Canada, Ltd.
Richard C. Buzun........ Executive Vice President and Chief Operating Officer
since 2000. Senior Vice President from 1997 to 1999.
Vice President until 1997.
Michael A. Troy......... Vice President Human Resources.
Reinhold Achatz......... Vice President Industrial Solutions and Software
Division since 2000. President of ANS Software
Division of Siemens AG from 1998 to 1999. Software
Developer, Siemens AG until 1998. Citizen of the
Federal Republic of Germany.
Dr. Manfred R. Liska.... Vice President Strategic Planning and Cooperation.
Citizen of the Federal Republic of Germany.
Oliver Hauck............ Senior Vice President Industrial Systems and
100 Technology Drive Technical Services Division since 2000. Vice
Alpharetta, GA 30005 President and Senior Vice President until 1999.
Citizen of the Federal Republic of Germany.
K. C. Cornelius......... Vice President Sales since 1997. Vice President
Sales and Regional Manager until 1997.
Michael S. Williamson... Secretary since 1998. Associate General Counsel,
Siemens Corporation since 1998. Assistant Secretary
until 1998. Senior Counsel, Siemens Corporation
until 1998.
</TABLE>
I-4
<PAGE>
3. Directors and Executive Officers of Purchaser. The following table sets
forth the name and present principal occupation or employment, and material
occupations, positions, offices or employments for the past five years, of
each director and executive officer of Purchaser. Each such person is a
citizen of the United States of America, unless otherwise noted, and the
business address of each such person is c/o Siemens Energy & Automation, Inc.,
3333 Old Milton Parkway, Alpharetta, GA 30005-4437.
<TABLE>
<CAPTION>
Present Principal Occupation or Employment; Material Positions
Name and Address Held During the Past Five Years
- ---------------- --------------------------------------------------------------
<S> <C>
Thomas J Malott......... Director and President of Purchaser since 2000. See
Part 2 of this Schedule I.
Gary K. Gabriel......... Director and Treasurer of Purchaser since 2000. See
Part 2 of this Schedule I.
Michael S. Williamson... Secretary of Purchaser since 2000. See Part 2 of
this Schedule I.
</TABLE>
I-5
<PAGE>
Facsimile copies of the Letter of Transmittal, properly completed and duly
executed, will be accepted. The Letter of Transmittal, certificates for
Securities and any other required documents should be sent or delivered by
each securityholder of the Company or his broker, dealer, commercial bank,
trust company or other nominee to the Depositary, at the applicable address
set forth below:
The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
By Registered Mail:
By Hand Delivery:
By Overnight Courier:
Reorganization Reorganization Department Reorganization
Department 120 Broadway Department
Post Office Box 3301 13th Floor 85 Challenger Road
South Hackensack, NJ New York, NY 10271 Mail Stop-Reorg
07606
By Facsimile Transmission: Ridgefield Park, NJ
(For Eligible Institutions Only) 07660
(201) 296-4293
Confirm Facsimile by Telephone Only:
(201) 296-4860
Any questions or requests for assistance or additional copies of this Offer
to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and
the other tender offer materials may be directed to the Information Agent or
the Dealer Manager at the address and telephone number set forth below.
Securityholders may also contact their broker, dealer, commercial bank, trust
company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
[GEORGESON SHAREHOLDER COMMUNICATIONS INC.]
17 State Street
New York, New York 10004
Call Collect (212) 440-9800
Call Toll Free (800) 223-2064
The Dealer Manager for the Offer is:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Call Collect (212) 902-1000
Call Toll Free (800) 323-5678
<PAGE>
EXHIBIT (a)(2)
<PAGE>
Letter of Transmittal
To Tender Shares of Common Stock
and Shares of Series A Preferred Stock
of
Moore Products Co.
Pursuant to the Offer to Purchase
Dated January 21, 2000
by
Malibu Acquisition Corp.
a wholly owned subsidiary of
Siemens Energy & Automation, Inc.
an indirect wholly owned subsidiary of
Siemens Aktiengesellschaft
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME,
ON THURSDAY, FEBRUARY 17, 2000, UNLESS THE OFFER IS EXTENDED.
The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
By Registered Mail: By Hand Delivery: By Overnight Courier:
Reorganization Department Reorganization Department Reorganization Department
Post Office Box 3301 120 Broadway 85 Challenger Road
South Hackensack, NJ 13th Floor Mail Stop-Reorg
07606 New York, NY 10271 Ridgefield Park, NJ 07660
By Facsimile Transmission:
(201) 296-4293
(for eligible institutions only)
Confirm Facsimile by Telephone Only:
(201) 296-4860
Delivery of this Letter of Transmittal to an address other than as set forth
above will not constitute a valid delivery to the Depositary.
You must sign this Letter of Transmittal in the appropriate space therefor
provided below and complete the Substitute Form W-9 set forth below.
THE INSTRUCTIONS CONTAINED WITHIN THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE>
This Letter of Transmittal is to be used by securityholders of Moore
Products Co. if certificates for Securities (as defined below) are to be
forwarded herewith or, unless an Agent's Message (as defined in Instruction 2
below) is utilized, if delivery of shares of Common Stock is to be made by
book-entry transfer to an account maintained by the Depositary at the Book-
Entry Transfer Facility (as defined in and pursuant to the procedures set
forth in Section 3 of the Offer to Purchase). Holders who deliver shares of
Common Stock by book-entry transfer are referred to herein as "Book-Entry
Securityholders" and other securityholders who deliver Securities are referred
to herein as "Certificate Securityholders."
Securityholders whose certificates for Securities are not immediately
available or who cannot deliver either the certificates for, or a Book-Entry
Confirmation (as defined in Section 3 of the Offer to Purchase) with respect
to, their Securities and all other documents required hereby to the Depositary
prior to the Expiration Date (as defined in Section 1 of the Offer to
Purchase) must tender their Securities pursuant to the guaranteed delivery
procedures set forth in Section 3 of the Offer to Purchase. See Instruction 2.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY WILL NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
[_]CHECK HERE IF TENDERED SHARES OF COMMON STOCK ARE BEING DELIVERED BY BOOK-
ENTRY TRANSFER TO THE DEPOSITARY'S ACCOUNT AT THE BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY
TRANSFER FACILITY MAY DELIVER SHARES OF COMMON STOCK BY BOOK-ENTRY
TRANSFER):
Name of Tendering Institution_______________________________________________
Account Number______________________________________________________________
Transaction Code Number_____________________________________________________
[_]CHECK HERE IF TENDERED SECURITIES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Owner(s)______________________________________________
Window Ticket Number (if any)_______________________________________________
Date of Execution of Notice of Guaranteed Delivery__________________________
Name of Institution that Guaranteed Delivery________________________________
If delivered by Book-Entry Transfer, check box: [_]
Account Number______________________________________________________________
Transaction Code Number_____________________________________________________
DESCRIPTION OF SECURITIES TENDERED
Securities Tendered (Attach additional signed list if necessary)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Name(s) and Address(es) of
Registered Holder(s)
(Please fill in, if blank, Number of
exactly as name(s) Securities Number
appear(s) on Certificate Represented by of Securities
Certificate(s)) Number(s)(1) Certificate(s)(1) Tendered(2)
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
Total Securities
</TABLE>
- -------------------------------------------------------------------------------
(1) NEED NOT BE COMPLETED BY BOOK-ENTRY SECURITYHOLDERS.
(2) UNLESS OTHERWISE INDICATED, ALL SECURITIES REPRESENTED BY SHARE
CERTIFICATES DELIVERED TO THE DEPOSITARY WILL BE DEEMED TO HAVE BEEN
TENDERED. SEE INSTRUCTION 4.
2
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE INSTRUCTIONS SET FORTH IN
THIS LETTER OF TRANSMITTAL CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Malibu Acquisition Corp., a Pennsylvania
corporation ("Purchaser") and a wholly owned subsidiary of Siemens Energy &
Automation, Inc. ("Parent"), a Delaware corporation and an indirect wholly
owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the
laws of the Federal Republic of Germany ("Siemens AG"), the above-described
shares of common stock, par value $1.00 per share (the "Common Stock"), of
Moore Products Co., a Pennsylvania corporation (the "Company"), and the above
described shares of Series A preferred stock, par value $1.00 per share (the
"Preferred Stock" and, together with the Common Stock, the "Securities") of
the Company, pursuant to Purchaser's offer to purchase all outstanding shares
of Common Stock at a price of $54.71 per share of Common Stock, net to the
Seller in cash, without interest thereon (the "Common Stock Price"), and all
outstanding shares of Preferred Stock at a price of $21.88 per share of
Preferred Stock, net to the seller in cash, without interest thereon (the
"Preferred Stock Price") upon the terms and subject to the conditions set
forth in the Offer to Purchase dated January 21, 2000, and in this Letter of
Transmittal (which, together with any amendments or supplements thereto or
hereto, collectively constitute the "Offer"). The undersigned understands that
Purchaser reserves the right to transfer or assign, in whole at any time, or
in part from time to time, to one or more of its affiliates, the right to
purchase all or any portion of the Securities tendered pursuant to the Offer,
but any such transfer or assignment will not relieve Purchaser of its
obligations under the Offer and will in no way prejudice the rights of
tendering securityholders to receive payment for Securities validly tendered
and accepted for payment pursuant to the Offer. Receipt of the Offer is hereby
acknowledged.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of January 16, 2000 (the "Merger Agreement"), by and among Parent,
Purchaser and the Company.
Upon the terms and subject to the conditions of the Offer (and if the Offer
is extended or amended, the terms of any such extension or amendment), subject
to, and effective upon, acceptance for payment of the Securities tendered
herewith in accordance with the terms of the Offer, the undersigned hereby
sells, assigns and transfers to, or upon the order of, Purchaser all right,
title and interest in and to all the Securities that are being tendered hereby
(and any and all non-cash dividends, distributions, rights, other shares of
Common Stock or shares of Preferred Stock or other securities issued or
issuable in respect thereof on or after January 16, 2000 (collectively,
"Distributions")) and irrevocably constitutes and appoints the Depositary the
true and lawful agent and attorney-in-fact of the undersigned with respect to
such Securities (and all Distributions), with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest), to (i) deliver certificates for such Securities (and any and all
Distributions), or transfer ownership of such Securities (and any 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, (ii) present
such Securities (and any and all Distributions) for transfer on the books of
the Company, and (iii) receive all benefits and otherwise exercise all rights
of beneficial ownership of such Securities (and any and all Distributions),
all in accordance with the terms of the Offer.
By executing this Letter of Transmittal, the undersigned hereby irrevocably
appoints Thomas J Malott, Gary K. Gabriel and Michael S. Williamson in their
respective capacities as officers of Purchaser, and any individual who shall
thereafter succeed to any such offices of Purchaser, and each of them, and any
other designees of Purchaser, the attorneys-in-fact and proxies of the
undersigned, each with full power of substitution, (i) to vote at any annual
or special meeting of the Company's securityholders or any adjournment or
postponement thereof or otherwise in such manner as each such attorney-in-fact
and proxy or his substitute shall in his sole discretion deem proper with
respect to, (ii) to execute any written consent concerning any matter as each
such attorney-in-fact and proxy or his substitute shall in his sole discretion
deem proper with respect to, and (iii) to otherwise act as each such attorney-
in-fact and proxy or his substitute shall in his sole discretion deem proper
with respect to, all of the Securities (and any and all Distributions)
tendered hereby and accepted for payment by Purchaser. This appointment will
be effective if and when, and only to the extent that, Purchaser accepts such
Securities for payment pursuant to the Offer. This power of attorney and proxy
are irrevocable and are granted in consideration of the acceptance for payment
of such Securities in accordance with the terms of the Offer. Such acceptance
for payment shall, without further action,
3
<PAGE>
revoke any prior powers of attorney and proxies granted by the undersigned at
any time with respect to such Securities (and any and all Distributions), and
no subsequent powers of attorney, proxies, consents or revocations may be
given by the undersigned with respect thereto (and, if given, will not be
deemed effective). Purchaser reserves the right to require that, in order for
Securities to be deemed validly tendered, immediately upon Purchaser's
acceptance for payment of such Securities, Purchaser must be able to exercise
full voting, consent and other rights with respect to such Securities (and any
and all Distributions), including voting at any meeting of the Company's
securityholders.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Securities
tendered hereby and all Distributions, that the undersigned owns the
Securities tendered hereby within the meaning of Rule 14e-4 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that the
tender of the tendered Securities complies with Rule 14e-4 under the Exchange
Act, and that when the same are accepted for payment by Purchaser, Purchaser
will acquire good, marketable and unencumbered title thereto and to all
Distributions, free and clear of all liens, restrictions, charges and
encumbrances and the same will not be 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 Securities tendered hereby and all
Distributions. In addition, the undersigned shall remit and transfer promptly
to the Depositary for the account of Purchaser all Distributions in respect of
the Securities tendered hereby, accompanied by appropriate documentation of
transfer, and, pending such remittance and transfer or appropriate assurance
thereof, Purchaser shall be entitled to all rights and privileges as owner of
each such Distribution and may withhold the entire purchase price of the
Securities tendered hereby or deduct from such purchase price the amount or
value of such Distribution as determined by Purchaser in its sole discretion.
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, executors, administrators, personal
representatives, trustees in bankruptcy, successors and assigns of the
undersigned. This tender is irrevocable; provided that shares of Common Stock
tendered pursuant to the Offer may be withdrawn at any time on or prior to the
Expiration Date and, unless theretofore accepted for payment as provided in
the Offer to Purchase, may also be withdrawn at any time after March 20, 2000,
subject to the withdrawal rights set forth in Section 4 of the Offer to
Purchase.
The undersigned understands that the valid tender of Securities pursuant to
any one of the procedures described in Section 3 of 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 (and if the Offer is extended or amended, the terms or conditions of any
such extension or amendment). Without limiting the foregoing, if the price to
be paid in the Offer is amended in accordance with the terms of the Merger
Agreement, the price to be paid to the undersigned will be the amended price
notwithstanding the fact that a different price is stated in this Letter of
Transmittal. The undersigned recognizes that under certain circumstances set
forth in the Offer to Purchase, Purchaser may not be required to accept for
payment any of the Securities tendered hereby.
Unless otherwise indicated under "Special Payment Instructions," please
issue the check for the purchase price of all Securities purchased and/or
return any certificates for Securities not tendered or accepted for payment in
the name(s) of the registered holder(s) appearing above under "Description of
Securities Tendered." Similarly, unless otherwise indicated under "Special
Delivery Instructions," please mail the check for the purchase price of all
Securities purchased and/or return any certificates for Securities not
tendered or not accepted for payment (and any accompanying documents, as
appropriate) to the address(es) of the registered holder(s) appearing above
under "Description of Securities Tendered." In the event that the boxes
entitled "Special Payment Instructions" and "Special Delivery Instructions"
are both completed, please issue the check for the purchase price of all
Securities purchased and/or return any certificates evidencing Securities not
tendered or not accepted for payment (and any accompanying documents, as
appropriate) in the name(s) of, and deliver such check and/or return any such
certificates (and any accompanying documents, as appropriate) to, the
person(s) so indicated. Unless otherwise indicated herein in the box entitled
"Special Payment Instructions," please credit any shares of Common Stock
tendered herewith by book-entry transfer that are not accepted for payment by
crediting the account at the Book-Entry Transfer Facility designated above.
The undersigned recognizes that Purchaser has no obligation pursuant to the
"Special Payment Instructions" to transfer any Securities from the name of the
registered holder thereof if Purchaser does not accept for payment any of the
Securities so tendered.
4
<PAGE>
[_]CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SECURITIES THAT YOU OWN
HAVE BEEN LOST, DESTROYED OR STOLEN AND SEE INSTRUCTION 11.
NUMBER OF SHARES OF COMMON STOCK REPRESENTED BY LOST, DESTROYED OR STOLEN
CERTIFICATES:
NUMBER OF SHARES OF PREFERRED STOCK REPRESENTED BY LOST, DESTROYED OR
STOLEN CERTIFICATES:
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 check To be completed ONLY if certifi-
for the purchase price of Securi- cates for Securities not tendered
ties accepted for payment is to or not accepted for payment
be issued in the name of someone and/or the check for the purchase
other than the undersigned, if price of Securities accepted for
certificates for Securities not payment is to be sent to someone
tendered or not accepted for pay- other than the undersigned or to
ment are to be issued in the name the undersigned at an address
of someone other than the under- other than that shown under "De-
signed or if shares of Common scription of Securities Ten-
Stock tendered hereby and deliv- dered." Mail check and/or stock
ered by book-entry transfer that certificates to:
are not accepted for payment are
to be returned by credit to an Mail check and/or stock certifi-
account maintained at a Book-En- cates to:
try Transfer Facility other than
the account indicated above. Name______________________________
(Please Print)
Issue check and/or stock certifi-
cate(s) to: Address __________________________
(Zip Code)
Name _____________________________ __________________________________
(Please Print) (Taxpayer Identification or
Social Security Number)
Address __________________________ (See Substitute Form W-9)
(Zip Code)
__________________________________
(Taxpayer Identification or
Social Security Number)
(See Substitute Form W-9)
[_] Credit shares of Common
Stock delivered by book-
entry transfer and not
purchased to the Book-Entry
Transfer Facility account.
Account number ___________________
5
<PAGE>
IMPORTANT
SIGN HERE
(Complete Substitute Form W-9 below)
----------------------------------------------------------------------------
----------------------------------------------------------------------------
(Signature(s) of Owner(s))
Name(s) ____________________________________________________________________
Name of Firm _______________________________________________________________
(Please Print)
Capacity (full title) ______________________________________________________
(See Instruction 5)
Address ____________________________________________________________________
----------------------------------------------------------------------------
(Zip Code)
Area Code and Telephone Number _____________________________________________
Taxpayer Identification or Social Security Number __________________________
(See Substitute Form W-9)
Dated , 2000
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
stock certificate(s) or on a security position listing or by the person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by a trustee, executor,
administrator, guardian, attorney-in-fact, agent, officer of a corporation
or other person acting in a fiduciary or representative capacity, please
set forth full title and see Instruction 5).
GUARANTEE OF SIGNATURE(S)
(See Instructions 1 and 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE
BELOW.
Authorized signature(s) ____________________________________________________
Name(s) ____________________________________________________________________
----------------------------------------------------------------------------
Name of Firm _______________________________________________________________
(Please Print)
Address ____________________________________________________________________
----------------------------------------------------------------------------
(Zip Code)
Area Code and Telephone Number _____________________________________________
Dated: , 2000
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Section, includes any
participant in any of the Book-Entry Transfer Facility's systems whose name
appears on a security position listing as the owner of the Securities) of
Securities tendered herewith, unless such registered holder(s) has completed
either the box entitled "Special Payment Instructions" or the box entitled
"Special Delivery Instructions" on the Letter of Transmittal or (b) if such
Securities are tendered for the account of a financial institution (including
most commercial banks, savings and loan associations and brokerage houses)
that is a participant in the Security Transfer Agents Medallion Program, the
New York Stock Exchange Medallion Signature Guarantee Program or the Stock
Exchange Medallion Program or by any other "eligible guarantor institution,"
as such term is defined in Rule 17Ad-15 under the Exchange Act (each, an
"Eligible Institution"). In all other cases, all signatures on this Letter of
Transmittal must be guaranteed by an Eligible Institution. See Instruction 5.
2. Delivery of Letter of Transmittal and Securities; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed by securityholders
of the Company either if certificates are to be forwarded herewith or, unless
an Agent's Message is utilized, if delivery of shares of Common Stock is to be
made by book-entry transfer pursuant to the procedures set forth herein and in
Section 3 of the Offer to Purchase. For a securityholder validly to tender
Securities pursuant to the Offer, either (a) a properly completed and duly
executed Letter of Transmittal (or a manually signed facsimile thereof),
together with any required signature guarantees or an Agent's Message (in
connection with book-entry transfer of shares of Common Stock) and any other
required documents, must be received by the Depositary at one of its addresses
set forth herein prior to the Expiration Date and either (i) certificates for
tendered Securities must be received by the Depositary at one of such
addresses prior to the Expiration Date or (ii) shares of Common Stock must be
delivered pursuant to the procedures for book-entry transfer set forth herein
and in Section 3 of the Offer to Purchase and a Book-Entry Confirmation must
be received by the Depositary prior to the Expiration Date or (b) the
tendering securityholder must comply with the guaranteed delivery procedures
set forth herein and in Section 3 of the Offer to Purchase.
Securityholders whose certificates for Securities are not immediately
available or who cannot deliver their certificates and all other required
documents to the Depositary prior to the Expiration Date or who cannot comply
with the book-entry transfer procedures on a timely basis may tender their
Securities by properly completing and duly executing the Notice of Guaranteed
Delivery pursuant to the guaranteed delivery procedures set forth herein and
in Section 3 of the Offer to Purchase.
Pursuant to such guaranteed delivery procedures, (i) such tender must be
made by or through an Eligible Institution, (ii) a properly completed and duly
executed Notice of Guaranteed Delivery, substantially in the form provided by
Purchaser, must be received by the Depositary prior to the Expiration Date and
(iii) the certificates for all tendered Securities, in proper form for
transfer (or a Book-Entry Confirmation with respect to all tendered
Securities), together with a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof), with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message, and any other required documents must be received by the Depositary
within three trading days after the date of execution of such Notice of
Guaranteed Delivery. A "trading day" is any day on which the Nasdaq National
Market is open for business.
The term "Agent's Message" means a message, transmitted by the 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 of Common Stock, 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 the participant.
The signatures on this Letter of Transmittal cover the Securities tendered
hereby.
The method of delivery of the Securities, this Letter of Transmittal and all
other required documents, including delivery through the Book-Entry Transfer
Facility, is at the election and risk of the tendering securityholder. The
Securities will be deemed delivered only when actually received by the
Depositary (including, in the case of a book-entry transfer, by Book-Entry
Confirmation). If delivery is by mail, registered mail with return receipt
requested, properly insured, is recommended. In all cases, sufficient time
should be allowed to ensure timely delivery.
7
<PAGE>
No alternative, conditional or contingent tenders will be accepted, and no
fractional Securities will be purchased. All tendering securityholders, by
executing this Letter of Transmittal (or a manually signed facsimile thereof),
waive any right to receive any notice of acceptance of their Securities for
payment.
3. Inadequate Space. If the space provided herein under "Description of
Securities Tendered" is inadequate, the number of Securities tendered and the
certificate numbers with respect to such Securities should be listed on a
separate signed schedule attached hereto.
4. Partial Tenders. (Not applicable to securityholders who tender by book-
entry transfer). If fewer than all the Securities evidenced by any certificate
delivered to the Depositary herewith are to be tendered hereby, fill in the
number of Securities that are to be tendered in the box entitled "Number of
Securities Tendered." In any such case, new certificate(s) for the remainder
of the Securities that were evidenced by the old certificates will be sent to
the registered holder, unless otherwise provided in the appropriate box on
this Letter of Transmittal, as soon as practicable after the Expiration Date
or the termination of the Offer. All Securities 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
Securities tendered hereby, the signature(s) must correspond with the name(s)
as written on the face of the certificate(s) without alteration, enlargement
or any change whatsoever.
If any of the Securities tendered hereby are held of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any of the tendered Securities are registered in different names on
several 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 or any stock 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 to
so act must be submitted. If this Letter of Transmittal is signed by the
registered holder(s) of the Securities listed and transmitted hereby, no
endorsements of certificates or separate stock powers are required unless
payment or certificates for Securities not tendered or not accepted for
payment are to be issued in the name of a 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 Securities evidenced by certificates listed and
transmitted hereby, the 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. Signature(s) on any such
certificates or stock powers must be guaranteed by an Eligible Institution.
6. Stock Transfer Taxes. Except as otherwise provided in this Instruction 6,
Purchaser will pay all stock transfer taxes with respect to the transfer and
sale of any Securities to it or its order pursuant to the Offer. If, however,
payment of the purchase price of any Securities purchased is to be made to, or
if certificates for Securities not tendered or not accepted for payment are to
be registered in the name of, any person other than the registered holder(s),
or if tendered certificates are registered in the name of any person other
than the person(s) signing this Letter of Transmittal, the amount of any stock
transfer taxes (whether imposed on the registered holder(s) or such other
person) payable on account of the transfer to such other person will be
deducted from the purchase price of such Securities purchased unless evidence
satisfactory to Purchaser of the payment of such taxes, or exemption
therefrom, is submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer tax stamps to be affixed to the certificates evidencing the
Securities tendered hereby.
7. Special Payment And Delivery Instructions. If a check for the purchase
price of any Securities accepted for payment is to be issued in the name of,
and/or certificates for Securities not accepted for payment or not tendered
are to be issued in the name of and/or returned to, a person other than the
signer of this Letter of Transmittal or if a check is to be
8
<PAGE>
sent, and/or such certificates are to be returned, to a person other than the
signer of this Letter of Transmittal, or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should be
completed. Any securityholder(s) delivering shares of Common Stock by book-
entry transfer may request that shares of Common Stock not purchased be
credited to such account maintained at the Book-Entry Transfer Facility as
such securityholder(s) may designate in the box entitled "Special Payment
Instructions." If no such instructions are given, any such shares of Common
Stock not purchased will be returned by crediting the account at the Book-
Entry Transfer Facility designated above as the account from which such shares
of Common Stock were delivered.
8. Requests For Assistance Or Additional Copies. Questions and requests for
assistance or additional copies of the Offer to Purchase, this Letter of
Transmittal, the Notice of Guaranteed Delivery and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
directed to the Information Agent or Dealer Manager at the addresses and phone
numbers set forth below, or from brokers, dealers, commercial banks or trust
companies.
9. Waiver Of Conditions. Subject to the Merger Agreement, Purchaser reserves
the absolute right in its sole discretion to waive, at any time or from time
to time, any of the specified conditions of the Offer, in whole or in part, in
the case of any Securities tendered.
10. Backup Withholding. In order to avoid "backup withholding" of Federal
income tax on payments of cash pursuant to the Offer, a securityholder
surrendering Securities in the Offer must, unless an exemption applies,
provide the Depositary with such securityholder's correct taxpayer
identification number ("TIN") on Substitute Form W-9 in this Letter of
Transmittal and certify, under penalties of perjury, that such TIN is correct.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the Federal income tax
liability of the person subject to the backup withholding, provided that the
required information is given to the IRS. If backup withholding results in an
overpayment of tax, a refund can be obtained by the securityholder upon filing
an income tax return.
The securityholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Securities. If the Securities are held in more than one name or are not in the
name of the actual owner, consult the enclosed "Guidelines for Certification
of Taxpayer Identification Number on Substitute Form W-9" for additional
guidance on which number to report.
If the tendering securityholder has not been issued a TIN and has applied
for a TIN or intends to apply for a TIN in the near future, such
securityholder should write "Applied For" in the space provided for the TIN in
Part 1 of the Substitute Form W-9 and sign and date the Substitute Form W-9,
and the securityholder or other payee must also complete the Certificate of
Awaiting Taxpayer Identification Number below in order to avoid backup
withholding. Notwithstanding that the Certificate of Awaiting Taxpayer
Identification Number is completed, the Depositary will withhold 31% on all
payments made prior to the time a properly certified TIN is provided to the
Depositary. However, such amounts will be refunded to such securityholder if a
TIN is provided to the Depositary within 60 days.
Certain securityholders (including, among others, all corporations and
certain foreign individuals and entities) are not subject to backup
withholding. Noncorporate foreign securityholders should complete and sign the
main signature form and a Form W-8, Certificate of Foreign Status, a copy of
which may be obtained from the Depositary, in order to avoid backup
withholding. See the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for more instructions.
11. Lost, Destroyed Or Stolen Certificates. If any certificate(s)
representing Securities has been lost, destroyed or stolen, the securityholder
should promptly notify the Depositary by checking the box immediately
preceding the special payment/special delivery instructions and indicating the
number of Securities lost. The securityholder will then be instructed as to
the steps that must be taken in order to replace the certificate(s). This
Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost, destroyed or stolen certificates have been
followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE
HEREOF) TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A
BOOK-ENTRY TRANSFER, AN AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS,
MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER
CERTIFICATES FOR TENDERED SECURITIES MUST BE RECEIVED BY THE DEPOSITARY OR
SECURITIES MUST BE DELIVERED PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY
TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION DATE, OR THE TENDERING
SECURITYHOLDER MUST COMPLY WITH THE PROCEDURES FOR GUARANTEED DELIVERY.
9
<PAGE>
IMPORTANT TAX INFORMATION
Under Federal income tax law, a securityholder whose tendered Securities are
accepted for payment is required to provide the Depositary (as payer) with
such securityholder's correct taxpayer identification number on Substitute
Form W-9 below. If such securityholder is an individual, the taxpayer
identification number is his social security number. If the Depositary is not
provided with the correct taxpayer identification number, the securityholder
may be subject to a $50 penalty imposed by the Internal Revenue Service. In
addition, payments that are made to such securityholder with respect to
Securities purchased pursuant to the Offer may be subject to backup
withholding.
Certain securityholders (including, among others, all corporations, and
certain foreign individuals) are not subject to these backup withholding and
reporting requirements. In order for a foreign individual to qualify as an
exempt recipient, that securityholder must submit a statement, signed under
penalties of perjury, attesting to that individual's exempt status. Such
statements can be obtained from the Depositary. Exempt securityholders, other
than foreign individuals, should furnish their TIN, write "Exempt" on the face
of the Substitute Form W-9 below, and sign, date and return the Substitute
Form W-9 to the Depositary. See the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional
instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payments made to the securityholder. Backup withholding is not an
additional tax. Rather, the tax liability of persons subject to backup
withholding will be reduced by the amount of tax withheld. If withholding
results in an overpayment of taxes, a refund may be obtained from the Internal
Revenue Service.
Purpose of Substitute Form W-9
To prevent backup withholding on payments that are made to a securityholder
with respect to Securities purchased pursuant to the Offer, the securityholder
is required to notify the Depositary of such securityholder's correct taxpayer
identification number by completing the form contained herein certifying that
the taxpayer identification number provided on Substitute Form W-9 is correct
(or that such securityholder is awaiting a taxpayer identification number).
What Number to Give the Depositary
The securityholder is required to give the Depositary the social security
number or employer identification number of the record owner of the
Securities. If the Securities are in more than one name or are not in the name
of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance
on which number to report. If the tendering securityholder has not been issued
a TIN and has applied for a TIN or intends to apply for a TIN in the near
future, such securityholder should write "Applied For" in the space provided
for the TIN in Part 1 of the Substitute Form W-9 and sign and date the
Substitute Form W-9, and the securityholder or other payee must also complete
the Certificate of Awaiting Taxpayer Identification Number below in order to
avoid backup withholding. Notwithstanding that the Certificate of Awaiting
Taxpayer Identification Number is completed, the Depositary will withhold 31%
on all payments made prior to the time a properly certified TIN is provided to
the Depositary. However, such amounts will be refunded to such securityholder
if a TIN is provided to the Depositary within 60 days.
10
<PAGE>
PAYER'S NAME: ChaseMellon Shareholder Services, L.L.C., as Depositary
Part I--PLEASE PROVIDE YOUR
TIN IN THE BOX AT THE RIGHT TIN: _________________
SUBSTITUTE AND CERTIFY BY SIGNING AND Social Security Number
Form W-9 DATING BELOW. or
Employer Identification
Number
Department of the Part II--For Payees exempt from backup withholding,
Treasury see the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9
and complete as instructed therein.
--------------------------------------------------------
Internal Revenue Certification--Under penalties of perjury, I certify
Service that the number shown on this form is my correct TIN
(or I am waiting for a number to be issued to me).
Payer's Request for
Taxpayer
Identification Number
(TIN) and
Certification
--------------------------------------------------------
SIGNATURE: _______________________ Date: ______, 2000
Certification Instructions--See the enclosed "Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9" for the appropriate TIN
and signature for the certification. Persons awaiting a taxpayer
identification number should complete the additional certification described
below. Foreign persons claiming exemption from these requirements should
consult the Depositary regarding proper establishment of the exemption.
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF
TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING YOUR TIN.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a TIN has not been issued to me,
and either (1) I have mailed or delivered an application to receive a TIN to
the appropriate IRS Center or Social Security Administration Officer or (2) I
intend to mail or deliver an application in the near future. I understand
that if I do not provide a TIN by the time of payment, 31% of all payments
pursuant to the Offer made to me thereafter will be withheld until I provide
a number.
SIGNATURE: ______________________________________ Date: _____________, 2000
11
<PAGE>
The Information Agent for the Offer is:
[GEORGESON SHAREHOLDER COMMUNICATIONS INC.]
17 State Street
New York, New York 10004
Call Collect (212) 440-9800
Call Toll Free (800) 223-2064
The Dealer Manager for the Offer is:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Call Collect (212) 902-1000
Call Toll Free (800) 323-5678
<PAGE>
EXHIBIT (a)(3)
<PAGE>
Notice of Guaranteed Delivery
for
Tender of Shares of Common Stock
and Shares of Series A Preferred Stock
of
Moore Products Co.
to
Malibu Acquisition Corp.
a wholly owned subsidiary of
Siemens Energy & Automation, Inc.
an indirect wholly owned subsidiary of
Siemens Aktiengesellschaft
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or a form substantially equivalent
hereto, must be used to accept the Offer (as defined below) (i) if
certificates for Securities (as defined below) are not immediately available,
(ii) if the procedure for book-entry transfer cannot be completed prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase described
below), or (iii) if time will not permit all required documents to reach the
Depositary prior to the Expiration Date. Such form may be delivered by hand,
transmitted by facsimile transmission or mailed to the Depositary. See Section
3 of the Offer to Purchase.
The Depositary for the Offer is:
ChaseMellon Shareholder Services, L.L.C.
By Registered Mail: By Hand Delivery: By Overnight Courier:
Reorganization Department Reorganization Department Reorganization Department
Post Office Box 3301 120 Broadway 85 Challenger Road
South Hackensack, NJ 13th Floor Mail Stop-Reorg
07606 New York, NY 10271 Ridgefield Park, NJ 07660
By Facsimile Transmission:
(201) 296-4293
(for eligible institutions only)
Confirm Facsimile by Telephone Only:
(201) 296-4860
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE NUMBER OTHER
THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A
LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE
INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST
APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE LETTER OF
TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Malibu Acquisition Corp., a Pennsylvania
corporation ("Purchaser") and a wholly owned subsidiary of Siemens Energy &
Automation, Inc. ("Parent"), a Delaware corporation and an indirect wholly
owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the
laws of the Federal Republic of Germany ("Siemens AG"), upon the terms and
subject to the conditions set forth in Purchaser's Offer to Purchase dated
January 21, 2000 (the "Offer to Purchase") and the related Letter of
Transmittal (which, together with any amendments or supplements thereto,
constitute the "Offer"), receipt of which is hereby acknowledged, the number
of shares set forth below of common stock, par value $1.00 per share (the
"Common Stock"), of Moore Products Co., a Pennsylvania corporation (the
"Company"), and the number of shares set forth below of Series A preferred
stock, par value $1.00 per share (the "Preferred Stock" and, together with the
Common Stock, the "Securities"), of the Company, pursuant to the guaranteed
delivery procedures set forth in Section 3 of the Offer to Purchase.
Signature(s) _______________________ Address(es) ________________________
____________________________________ ____________________________________
Zip Code
Name(s) of Record Holder(s) ________
Area Code and Tel. No.(s) __________
____________________________________
Please Print or Type Taxpayer Identification or
Social Security Number _____________
____________________________________
Check box if shares of Common Stock
Number of shares of Common Stock ___ will be tendered by book-entry
transfer: [_]
Certificate No.(s) (If Available)
Account Number _____________________
____________________________________
____________________________________
Number of shares of Preferred
Stock ______________________________
Certificate No.(s) (If Available)
____________________________________
____________________________________
Dated _______________________ , 2000
THE GUARANTEE SET FORTH BELOW MUST BE COMPLETED
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program,
the Stock Exchange Medallion Program or an "eligible guarantor institution"
as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended, hereby guarantees to deliver to the Depositary either
certificates representing the shares of Common Stock and shares of Preferred
Stock tendered hereby, in proper form for transfer, or, in the case of shares
of Common Stock, confirmation of book-entry transfer of such shares of Common
Stock into the Depositary's accounts at The Depository Trust Company, in each
case with delivery of a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof), with any required
signature guarantees, or an Agent's Message (as defined in the Offer to
Purchase), and any other required documents, within three trading days (as
defined in the Offer to Purchase) after the date hereof.
------------------------------------ ------------------------------------
Name of Firm Authorized Signature
------------------------------------ Name _______________________________
Address Please Print or Type
------------------------------------ Title ______________________________
Zip Code
Date ________________________ , 2000
Area Code and Tel. No. _____________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES OF COMMON STOCK OR SHARES OF
PREFERRED STOCK WITH THIS NOTICE. CERTIFICATES SHOULD BE SENT ONLY WITH
YOUR LETTER OF TRANSMITTAL.
<PAGE>
EXHIBIT (a)(4)
<PAGE>
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
and
All Outstanding Shares of Series A Preferred Stock
of
Moore Products Co.
at
$54.71 Net Per Share of Common Stock
and
$21.88 Net Per Share of Series A Preferred Stock
by
Malibu Acquisition Corp.
a wholly owned subsidiary of
Siemens Energy & Automation, Inc.
an indirect wholly owned subsidiary of
Siemens Aktiengesellschaft
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON THURSDAY, FEBRUARY 17, 2000, UNLESS THE OFFER IS EXTENDED.
January 21, 2000
To Brokers, Dealers, Commercial Banks,
Trust Companies And Other Nominees:
We have been appointed by Malibu Acquisition Corp., a Pennsylvania
corporation ("Purchaser") and a wholly owned subsidiary of Siemens Energy &
Automation, Inc. ("Parent"), a Delaware corporation and an indirect wholly
owned subsidiary of Siemens Aktiengesellschaft, a corporation formed under the
laws of the Federal Republic of Germany ("Siemens AG"), to act as Dealer
Manager in connection with Purchaser's offer to purchase all outstanding
shares of common stock, par value $1.00 per share (the "Common Stock"), of
Moore Products Co., a Pennsylvania corporation (the "Company"), at a price of
$54.71 per share of Common Stock, net to the seller in cash, without interest
thereon, and all outstanding shares of Series A preferred stock, par value
$1.00 per share (the "Preferred Stock" and, together with the Common Stock,
the "Securities") of the Company, at a price of $21.88 per share of Preferred
Stock, 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 January 21,
2000 (the "Offer to Purchase") and in the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer") enclosed herewith. Please furnish copies of the
enclosed materials to those of your clients for whose accounts you hold shares
of Common Stock or shares of Preferred Stock registered in your name or in the
name of your nominee.
The Offer is conditioned upon, among other things, (i) there being validly
tendered and not withdrawn immediately prior to the expiration of the Offer or
otherwise acquired by Parent or any of its affiliates prior to
<PAGE>
the expiration of the Offer a number of Securities representing at least a
majority of (A) the Fully Diluted Voting Power (as defined in the Offer to
Purchase) and (B) (x) the outstanding shares of Preferred Stock and (y) the
Fully Diluted Shares (as defined in the Offer to Purchase) and (ii) any
applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, having expired or been terminated. The Offer is also
subject to the other conditions set forth in the Offer to Purchase. See
Sections 1 and 15 of the Offer to Purchase.
The Board of Directors of the Company has unanimously approved the Merger
Agreement (as defined in the Offer to Purchase) and the transactions
contemplated thereby, including the Offer and the Merger (as defined in the
Offer to Purchase) and determined that the Offer and the Merger are fair to,
and in the best interests of, each class of the Company's securityholders and
unanimously recommends that securityholders accept the Offer and tender their
Securities pursuant to the Offer.
For your information and for forwarding to your clients for whom you hold
shares of Common Stock or shares of Preferred Stock registered in your name or
in the name of your nominee, we are enclosing the following documents:
1. Offer to Purchase dated January 21, 2000;
2. Letter of Transmittal for your use in accepting the Offer and tendering
shares of Common Stock and shares of Preferred Stock and for the
information of your clients;
3. Notice of Guaranteed Delivery to be used to accept the Offer if
certificates for shares of Common Stock or shares of Preferred Stock and
all other required documents cannot be delivered to ChaseMellon
Shareholder Services, L.L.C. (the "Depositary"), or if the procedures
for book-entry transfer cannot be completed, by the Expiration Date (as
defined in the Offer to Purchase);
4. A printed form of letter which may be sent to your clients for whose
accounts you hold shares of Common Stock or shares of Preferred Stock
registered in your name or in the name of your nominee, with space
provided for obtaining such clients' instructions with regard to the
Offer;
5. A letter to securityholders of the Company from Donald E. Bogle,
President and Chief Executive Officer of the Company, together with a
Solicitation/Recommendation Statement on Schedule 14D-9 dated January
21, 2000, which has been filed by the Company with the Securities and
Exchange Commission;
6. Guidelines of the Internal Revenue Service for Certification of Taxpayer
Identification Number on Substitute Form W-9; and
7. A return envelope addressed to the Depositary.
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 Securities which
are validly tendered prior to the Expiration Date and not theretofore properly
withdrawn when, as and if Purchaser gives oral or written notice to the
Depositary of Purchaser's acceptance of such Securities for payment pursuant
to the Offer. Payment for Securities purchased pursuant to the Offer will in
all cases be made only after timely receipt by the Depositary of (i)
certificates for Securities, or, in the case of shares of Common Stock, timely
confirmation of a book-entry transfer of such shares of Common Stock into the
Depositary's account at The Depository Trust Company, pursuant to the
procedures described in Section 3 of the Offer to Purchase, (ii) a properly
completed and duly executed Letter of Transmittal (or a properly completed and
manually signed facsimile thereof) or an Agent's Message (as defined in the
Offer to Purchase) in connection with a book-entry transfer and (iii) all
other documents required by the Letter of Transmittal.
<PAGE>
Purchaser will not pay any fees or commissions to any broker or dealer or
other person (other than the Depositary, the Information Agent and the Dealer
Manager as described in the Offer to Purchase) for soliciting tenders of
Securities pursuant to the Offer. Purchaser will, however, upon request,
reimburse brokers, dealers, commercial banks and trust companies for customary
mailing and handling costs incurred by them in forwarding the enclosed
materials to their customers.
Purchaser will pay or cause to be paid all stock transfer taxes applicable
to its purchase of Securities pursuant to the Offer, except as otherwise
provided in Instruction 6 of the Letter of Transmittal.
We urge you to contact your clients as promptly as possible. Please note
that the Offer and withdrawal rights expire at 12:00 Midnight, New York City
time, on Thursday, February 17, 2000 unless the Offer is extended.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal (or a manually signed facsimile thereof), with
any required signature guarantees, or an Agent's Message in connection with a
book-entry transfer of shares of Common Stock, and any other required
documents, should be sent to the Depositary, and certificates representing the
tendered shares of Common Stock or shares of Preferred Stock should be
delivered or, in the case of shares of Common Stock, such shares of Common
Stock should be tendered by book-entry transfer, all in accordance with the
Instructions set forth in the Letter of Transmittal and in the Offer to
Purchase.
If holders of Securities wish to tender, but it is impracticable for them to
forward their certificates or other required documents or to complete the
procedures for delivery by book-entry transfer prior to the expiration of the
Offer, a tender may be effected by following the guaranteed delivery
procedures specified in Section 3 of the Offer to Purchase.
Any inquiries you may 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.
Very truly yours,
GOLDMAN, SACHS & CO.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU THE
AGENT OF SIEMENS AG, PARENT, PURCHASER, THE COMPANY, THE DEALER MANAGER, THE
INFORMATION AGENT, THE DEPOSITARY, OR ANY AFFILIATE OF ANY OF THE FOREGOING,
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>
EXHIBIT (a)(5)
<PAGE>
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
and
All Outstanding Shares of Series A Preferred Stock
of
Moore Products Co.
at
$54.71 Net Per Share of Common Stock
and
$21.88 Net Per Share of Series A Preferred Stock
by
Malibu Acquisition Corp.
a wholly owned subsidiary of
Siemens Energy & Automation, Inc.
an indirect wholly owned subsidiary of
Siemens Aktiengesellschaft
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON THURSDAY, FEBRUARY 17, 2000, UNLESS THE OFFER IS EXTENDED.
January 21, 2000
To Our Clients:
Enclosed for your consideration are the Offer to Purchase dated January 21,
2000 (the "Offer to Purchase") and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute
the "Offer") in connection with the offer by Malibu Acquisition Corp., a
Pennsylvania corporation ("Purchaser") and a wholly owned subsidiary of
Siemens Energy & Automation, Inc. ("Parent"), a Delaware corporation and an
indirect wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation
formed under the laws of the Federal Republic of Germany ("Siemens AG"), to
purchase all outstanding shares of common stock, par value $1.00 per share
(the "Common Stock"), of Moore Products Co., a Pennsylvania corporation (the
"Company"), at a price of $54.71 per share of Common Stock, net to the seller
in cash, without interest thereon, and all outstanding shares of Series A
preferred stock, par value $1.00 per share (the "Preferred Stock" and,
together with the Common Stock, the "Securities"), at a price of $21.88 per
share of Preferred Stock, net to the seller in cash, without interest thereon,
upon the terms and subject to the conditions set forth in the Offer to
Purchase and in the related Letter of Transmittal enclosed herewith.
We are the holder of record of Securities held for your account. A tender
of such Securities can be made only by us as the holder of record and pursuant
to your instructions. The enclosed Letter of Transmittal is furnished to you
for your information only and cannot be used by you to tender Securities held
by us for your account.
<PAGE>
We request instructions as to whether you wish us to tender any or all of
the Securities held by us for your account, upon the terms and subject to the
conditions set forth in the Offer to Purchase. Your attention is invited to
the following:
1. The tender price for shares of Common Stock is $54.71 per share of
Common Stock, net to you in cash without interest.
2. The tender price for shares of Preferred Stock is $21.88 per share of
Preferred Stock, net to you in cash without interest.
3. The Offer is being made for all outstanding shares of Common Stock and
shares of Preferred Stock.
4. The Board of Directors of the Company has unanimously approved the
Merger Agreement (as defined in the Offer to Purchase) and the
transactions contemplated thereby, including the Offer and the Merger
(each as defined in the Offer to Purchase), and has unanimously
determined that the Offer and the Merger are fair to, and in the best
interests of, each class of the Company's securityholders and
unanimously recommends that securityholders accept the Offer and tender
their Securities pursuant to the Offer.
5. The Offer and withdrawal rights expire at 12:00 Midnight, New York City
time, on Thursday, February 17, 2000, unless the Offer is extended.
6. The Offer is conditioned upon, among other things, (i) there being
validly tendered and not withdrawn immediately prior to the expiration
of the Offer or otherwise acquired by Parent or any of its affiliates
prior to the expiration of the Offer a number of Securities representing
at least a majority of (A) the Fully Diluted Voting Power (as defined in
the Offer to Purchase) and (B) (x) the outstanding shares of Preferred
Stock and (y) the Fully Diluted Shares (as defined in the Offer to
Purchase) and (ii) any applicable waiting period under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended, having expired or
been terminated. The Offer is also subject to the other conditions set
forth in the Offer to Purchase. See Sections 1 and 15 of the Offer to
Purchase.
7. Any stock transfer taxes applicable to the sale of Securities to
Purchaser pursuant to the Offer will be paid by Purchaser, except as
otherwise provided in Instruction 6 of the Letter of Transmittal.
The Offer is being made solely by the Offer to Purchase and the related
Letter of Transmittal and is being made to all holders of Securities.
Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of the Securities pursuant thereto,
Purchaser shall make a good faith effort to comply with such statute or seek
to have such statute declared inapplicable to the Offer. If, after such good
faith effort, Purchaser cannot comply with such state statute, the Offer will
not be made to (nor will tenders be accepted from or on behalf of) holders of
Securities in such state. In those jurisdictions where the securities, blue
sky or other laws require the Offer to be made by a licensed broker or dealer,
the Offer is being made on behalf of Purchaser by the Dealer Manager or one or
more registered brokers or dealers licensed under the laws of such
jurisdictions.
If you wish to have us tender any or all of your Securities, please so
instruct us by completing, executing and returning to us the instruction form
set forth on the reverse side of this letter. An envelope to return your
instructions to us is enclosed. If you authorize the tender of your shares of
Common Stock or shares of Preferred Stock, all such shares of Common Stock or
shares of Preferred Stock will be tendered unless otherwise specified on the
reverse side of this letter. Your instructions should be forwarded to us in
ample time to permit us to submit a tender on your behalf prior to the
expiration of the Offer.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK OF
MOORE PRODUCTS CO. AND ALL OUTSTANDING SHARES OF
PREFERRED STOCK OF MOORE PRODUCTS CO.
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase dated January 21, 2000 and the related Letter of Transmittal
in connection with the Offer by Malibu Acquisition Corp., a Pennsylvania
corporation and a wholly owned subsidiary of Siemens Energy & Automation, Inc.
("Parent"), a Delaware corporation and an indirect wholly owned subsidary of
Siemens Aktiengesellschaft, a corporation formed under the laws of the Federal
Republic of Germany ("Siemens AG"), to purchase all outstanding shares of
common stock, par value $1.00 per share (the "Common Stock"), of Moore
Products Co., a Pennsylvania corporation (the "Company"), and all outstanding
shares of Series A preferred stock, par value $1.00 per share (the "Preferred
Stock"), of the Company.
This will instruct you to tender the number of shares of Common Stock and
shares of Preferred Stock indicated below (or if no number is indicated below,
all shares of Common Stock and shares of Preferred Stock) held by you for the
account of the undersigned, upon the terms and subject to the conditions set
forth in the Offer.
Number of shares of Common Stock tendered:* _________________________________
Certificate Nos. (if available): ____________________________________________
Check the box if shares of Common Stock will be tendered by book-entry
transfer: [_]
Account No: _________________________________________________________________
Dated: _________________________________________, 2000
Number of shares of Preferred Stock tendered:** ____
Certificate Nos. (if available): ___________
SIGN HERE
Signature(s): _______________________________________________________________
Please type or print address(es): ___________________________________________
Area Code and Telephone Number: _____________________________________________
Taxpayer Identification or Social Security Number(s): _______________________
* Unless otherwise indicated, it will be assumed that all shares of Common
Stock held by us for your account are to be tendered.
** Unless otherwise indicated, it will be assumed that all shares of Preferred
Stock held by us for your account are to be tendered.
3
<PAGE>
EXHIBIT (a)(6)
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the
Payer -- Social Security numbers have nine digits separated by two hyphens:
i.e. 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e. 00-0000000. The table below will help determine the
number to give the payer.
- ----------------------------------- -----------------------------------
<TABLE>
<CAPTION>
Give the name and
TAXPAYER
IDENTIFICATION
For this type of account: number of--
- ---------------------------------------------
<S> <C>
1. An individual's account The individual
2. Two or more individuals The actual owner
(joint account) of the account
or, if combined
funds, any one
of the
individuals(2)
3. Husband and wife (joint The actual owner
account) of the account
or, if joint
funds, either
person(2)
4. Custodian account of a The minor(3)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if
account) the minor is
only
contributor, the
minor(1)
6. Account in the name of The ward, minor,
guardian or committee or incompetent
for a designated ward, person(4)
minor, or incompetent
person
7. a. The usual revocable The grantor-
savings trust account trustee(1)
(grantor is also
trustee)
b. So-called trust The actual
account that is not a owner(1)
legal or valid trust
under State law
8. Sole proprietorship The owner(5)
account
- ---------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
Give the name and
TAXPAYER
IDENTIFICATION
For this type of account: number of--
---
<S> <C>
9. A valid trust, estate, Legal entity (Do
or pension trust not furnish the
identifying
number of the
personal
representative
or trustee
unless the legal
entity itself is
not designated
in the account
title.)(1)
10. Corporate account The organization
11. Religious, charitable, The organization
or educational
organization account
12. Partnership account The partnership
held in the name of the
business
13. Association, club, or The organization
other tax-exempt
organization
14. A broker or registered The broker or
nominee nominee
15. Account with the The public
Department of entity
Agriculture in the name
of a public entity
(such as a State or
local government,
school district, or
prison) that receives
agricultural program
payments
---
</TABLE>
(1) List first and circle the name of the legal trust, estate, or pension
trust.
(2) List first and circle the name of the person whose number you furnish.
(3) Circle the minor's name and furnish the minor's social security number.
(4) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(5) Show the name of the owner.
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 ON SUBSTITUTE FORM W-9
Page 2
Obtaining a Number
If you don't have a TIN or you don't know your number, obtain Internal Revenue
Service Form SS-5, Application for a Social Security Number Card, or Form SS-
4, Application for Employer Identification Number, at your local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
Payees Exempt from Backup Withholding
Payees specifically exempted from backup withholding on ALL payments include
the following:
. A corporation.
. A financial institution.
. An organization exempt from tax under section 501(a), or an individual
retirement plan.
. The United States or any agency or instrumentality thereof.
. A State, the District of Columbia, a possession of the United States, or
any subdivision or instrumentality thereof.
. A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
. An international organization, or any agency or instrumentality thereof.
. A registered dealer in securities or commodities registered in the U.S. or
a possession of the U.S.
. A real estate investment trust.
. A common trust fund operated by a bank under section 584(a).
. An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a)(1).
. An entity registered at all times under the Investment Company Act of
1940.
. A foreign central bank of issue.
. A middleman known in the investment community as a nominee or who is
listed in the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee List.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and which have at least one nonresident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may
be subject to backup withholding if this interest is $600 or more and is
paid in the course of the payer's trade or business and you have not
provided your correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
. Payments described in section 6049(b)(5) to nonresident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT
TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS,
ALSO SIGN AND DATE THE FORM. IF YOU ARE A NONRESIDENT ALIEN OR A FOREIGN
ENTITY NOT SUBJECT TO BACKUP WITHHOLDING, FILE WITH PAYER A COMPLETED INTERNAL
REVENUE FORM W-8 (CERTIFICATE OF FOREIGN STATUS).
Certain payments other than interest dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
Privacy Act Notice.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Beginning January 1, 1984, payers must generally
withhold 31% of taxable interest, dividend, and certain other payments to a
payee who does not furnish a taxpayer identification number to a payer.
Certain penalties may also apply.
Penalties
(1) Penalty for Failure to Furnish Taxpayer Identification Number.--If you
fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due
to reasonable cause and not to willful neglect.
(2) Failure to Report Certain Dividend and Interest Payments.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an
under-payment attributable to that failure unless there is clear and
convincing evidence to the contrary.
(3) Civil Penalty for False Information With Respect To Withholding.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) Criminal Penalty for Falsifying Information.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
<PAGE>
EXHIBIT (a)(7)
<PAGE>
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Securities. The Offer is being made solely by the Offer to Purchase
dated January 21, 2000 and the related Letter of Transmittal, and is being made
to all holders of Securities. Purchaser is not aware of any state where the
making of the Offer is prohibited by administrative or judicial action pursuant
to any valid state statute. If Purchaser becomes aware of any valid state
statute prohibiting the making of the Offer or the acceptance of the Securities
pursuant thereto, Purchaser shall make a good faith effort to comply with such
statute or seek to have such statute declared inapplicable to the Offer. If,
after such good faith effort, Purchaser cannot comply with such state statute,
the Offer will not be made to (nor will tenders be accepted from or on behalf
of) holders of Securities in such state. In those jurisdictions where the
securities, blue sky or other laws require the Offer to be made by a licensed
broker or dealer, the Offer is being made on behalf of Purchaser by the Dealer
Manager or one or more registered brokers or dealers licensed under the laws of
such jurisdictions.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
and
All Outstanding Shares of Series A Preferred Stock
of
Moore Products Co.
at
$54.71 Net Per Share of Common Stock
and
$21.88 Net Per Share of Series A Preferred Stock
by
Malibu Acquisition Corp.
a wholly owned subsidiary of
Siemens Energy & Automation, Inc.
an indirect wholly owned subsidiary of
Siemens Aktiengesellschaft
Malibu Acquisition Corp., a Pennsylvania corporation ("Purchaser") and a
wholly owned subsidiary of Siemens Energy & Automation, Inc. ("Parent"), a
Delaware corporation and an indirect wholly owned subsidiary of Siemens
Aktiengesellschaft, a corporation formed under the laws of the Federal Republic
of Germany ("Siemens AG"), is offering to purchase all outstanding shares of
common stock, par value $1.00 per share (the "Common Stock"), of Moore Products
Co., a Pennsylvania corporation (the "Company"), at a price of $54.71 per share
of Common Stock, net to the seller in cash, without interest thereon, and all
outstanding shares of Series A preferred stock, par value $1.00 per share (the
"Preferred Stock" and, together with the Common Stock, the "Securities"), of the
Company, at a price of $21.88 per share of Preferred Stock, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Offer to Purchase and in the related Letter of Transmittal (which,
as amended or supplemented from time to time, collectively constitute the
"Offer").
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON THURSDAY, FEBRUARY 17, 2000, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, (i) there being validly
tendered and not withdrawn immediately prior to the expiration of the Offer or
otherwise acquired by Parent or any of its affiliates prior to the expiration of
the Offer a number of Securities representing at least a majority of (A) the
Fully Diluted Voting Power (as defined in the Offer to Purchase) and (B) (x) the
outstanding shares of Preferred Stock and (y) the Fully Diluted Shares (as
defined in the Offer to Purchase) and (ii) any applicable waiting period under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, having
expired or been terminated. The Offer is also subject to the other conditions
set forth in the Offer to Purchase. See Sections 1 and 15 of the Offer to
Purchase.
<PAGE>
The Offer is being made pursuant to an Agreement and Plan of Merger, dated as
of January 16, 2000 (the "Merger Agreement"), by and among Parent, Purchaser and
the Company. Pursuant to the Merger Agreement and the Pennsylvania Business
Corporation Law (the "PBCL"), as promptly as practicable after the completion of
the Offer and satisfaction or waiver, if permissible, of all conditions
contained in the Merger Agreement, Purchaser (or another wholly owned subsidiary
of Parent) will be merged with and into the Company (the "Merger") and the
Company will be the surviving corporation in the Merger. At the effective time
of the Merger (the "Effective Time"), (i) each share of Common Stock then
outstanding, other than shares of Common Stock held by (A) the Company or any of
its subsidiaries, (B) Parent or Purchaser or any of their subsidiaries and (C)
holders of shares of Common Stock who properly perfect their dissenters' rights
under the PBCL, if applicable, will be converted into the right to receive
$54.71 in cash, without interest thereon and (ii) each share of Preferred Stock
then outstanding, other than shares of Preferred Stock held by (A) the Company
or any of its subsidiaries, (B) Parent or Purchaser or any of their
subsidiaries, and (C) holders of shares of Preferred Stock who properly perfect
their dissenters' rights under the PBCL, if applicable, will be converted into
the right to receive $21.88 in cash, without interest thereon. The Merger
Agreement is more fully described in Section 12 of the Offer to Purchase.
The Board of Directors of the Company has unanimously approved the Merger
Agreement and the transactions contemplated thereby, including the Offer and the
Merger, and has unanimously determined that the Offer and the Merger are fair
to, and in the best interests of, each class of the Company's securityholders
and unanimously recommends that securityholders accept the Offer and tender
their Securities pursuant to the Offer.
Simultaneously with the execution and delivery of the Merger Agreement,
Parent and Purchaser, on the one hand, and certain securityholders on the other
hand (the "Certain Securityholders"), entered into a Tender and Option Agreement
dated as of January 16, 2000 (the "Tender and Option Agreement"). The Tender and
Option Agreement relates to the 1,196,379 shares of Common Stock and 175,950
shares of Preferred Stock owned by the Certain Securityholders, as well as
274,360 shares of Common Stock subject to Options (as defined in the Offer to
Purchase), of which 216,750 such Options are presently exercisable. The issued
and outstanding Securities subject to the Tender and Option Agreement currently
represent approximately 49.8% of the Fully Diluted Voting Power, 100% of the
outstanding shares of Preferred Stock and 36.3% of the Fully Diluted Shares. The
issued and outstanding Securities and presently exercisable Options subject to
the Tender and Option Agreement together represent approximately 54.9% of the
Fully Diluted Voting Power, 100% of the outstanding shares of Preferred Stock
and 42.9% of the Fully Diluted Shares. Pursuant to the Tender and Option
Agreement, each Certain Securityholder has agreed, among other things, to grant
Purchaser an option to purchase the Securities subject thereto upon the
occurrence of certain "Trigger Events" (as defined in the Offer to Purchase) and
to tender in the Offer, and not to withdraw therefrom, the Securities owned by
such Certain Securityholders, as well as any other Securities acquired prior to
the expiration of the Offer including pursuant to the exercise of Options. The
Tender and Option Agreement is more fully described in Section 12 of the Offer
to Purchase.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Securities properly tendered to Purchaser and
not withdrawn, if, as and when Purchaser gives oral or written notice to the
Depositary (as defined in the Offer to Purchase) of its acceptance for payment
of such Securities. Upon the terms and subject to the conditions of the Offer,
payment for Securities accepted for payment pursuant to the Offer will be made
by deposit of the purchase price therefor with the Depositary, which will act as
agent for tendering securityholders for the purpose of receiving payment from
Purchaser and transmitting payment to tendering securityholders. In all cases,
payment for Securities accepted for payment pursuant to the Offer will be made
only after timely receipt by the Depositary of (i) certificates for such
Securities (or a timely Book-Entry Confirmation (as defined in the Offer to
Purchase) with respect thereto), (ii) a Letter of Transmittal (or a manually
signed 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 (as defined in the Offer to Purchase) and (iii) any other
documents required by the Letter of Transmittal. Accordingly, payment may be
made to tendering securityholders at different times if delivery of the
certificates and other required documents occur at different times. The per
share consideration paid to any holder of shares of Common Stock pursuant to the
Offer will be the highest per share consideration paid to any other holder of
such shares of Common Stock pursuant to the Offer. The per share consideration
paid to any holder of shares of Preferred Stock pursuant to the Offer will be
the highest per share consideration paid to any other holder of such shares of
Preferred Stock pursuant to the Offer.
Under no circumstances will interest be paid on the purchase price to be paid
by Purchaser for the Securities, regardless of any extension of the Offer or any
delay in making such payment.
The term "Expiration Date" shall mean 12:00 Midnight, New York City time, on
Thursday, February 17, 2000, unless and until Purchaser (in accordance with the
terms of the Merger Agreement), 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.
Subject to the terms of the Merger Agreement and applicable rules and
regulations of the Securities and Exchange Commission, Purchaser expressly
reserves the right, in its sole discretion, at any time or from time to time, to
(a) extend the period of time during which the Offer is open and thereby delay
acceptance for payment of and the payment for any Securities, by giving oral or
written notice of such extension to the Depositary and (b) amend the Offer in
any other respect by giving oral or written notice of such amendment to the
Depositary. Any extension, delay, waiver, amendment or termination of the Offer
will be followed as promptly as practicable by public announcement thereof, the
announcement in
<PAGE>
the case of an extension to be issued no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
Except as otherwise provided in the Offer to Purchase, tenders of Securities
are irrevocable. Shares of Common Stock tendered pursuant to the Offer may be
withdrawn at any time prior to the Expiration Date and, unless theretofore
accepted for payment by Purchaser pursuant to the Offer, may also be withdrawn
at any time after March 20, 2000. For a withdrawal to be effective, a written,
telegraphic 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. Any such notice of withdrawal must specify the name of the person who
tendered the shares of Common Stock to be withdrawn, the number of shares of
Common Stock to be withdrawn and the name of the registered holder of the shares
of Common Stock to be withdrawn, if different from the name of the person who
tendered the shares of Common Stock. If certificates evidencing shares of Common
Stock to be withdrawn have been delivered or otherwise identified to the
Depositary, then, prior to the physical release of such certificates, the serial
numbers shown on such certificates must be submitted to the Depositary and,
unless such shares of Common Stock have been tendered for the account of an
Eligible Institution (as defined in the Offer to Purchase), the signatures on
the notice of withdrawal must be guaranteed by an Eligible Institution. If
shares of Common Stock have been delivered pursuant to the procedures for book-
entry transfer as set forth in Section 3 of the Offer to Purchase, any notice of
withdrawal must also specify the name and number of the account at the Book-
Entry Transfer Facility (as defined in the Offer to Purchase) to be credited
with the withdrawn shares of Common Stock and otherwise comply with such Book-
Entry Transfer Facility's procedures. Withdrawals of tendered shares of Common
Stock may not be rescinded, and any shares of Common Stock properly withdrawn
will thereafter be deemed not validly tendered for purposes of the Offer.
However, withdrawn shares of Common Stock may be retendered by again following
one of the procedures described in Section 3 of the Offer to Purchase at any
time prior to the Expiration Date. All questions as to the form and validity
(including time of receipt) of notices of withdrawal will be determined by
Purchaser, in its sole discretion, which determination will be final and
binding.
The information required to be disclosed by paragraph (e)(1)(vii) of Rule
14d-6 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 securityholder lists
and security position listings for the purpose of disseminating the Offer to
securityholders. The Offer to Purchase, the related Letter of Transmittal and
other relevant documents will be mailed to record holders of Securities whose
names appear on the securityholder lists, and will be furnished to brokers,
dealers, banks, trust companies and similar persons whose names, or the names of
whose nominees, appear on the Company's securityholder lists, or, if applicable,
who are listed as participants in a clearing agency's security position listing,
for subsequent transmittal to beneficial owners of Securities.
The Offer to Purchase and the related Letter of Transmittal contain important
information and should be read carefully before any decision is made with
respect to the Offer.
Questions and requests for assistance or additional copies of the Offer to
Purchase, Letter of Transmittal and other tender offer documents may be directed
to the Information Agent or the Dealer Manager at their respective addresses and
telephone numbers set forth below, and copies will be furnished promptly at
Purchaser's expense. None of Siemens AG, Parent or Purchaser will pay any fees
or commissions to any broker or dealer or other person other than the
Depositary, the Information Agent and the Dealer Manager for soliciting tenders
of Securities pursuant to the Offer.
The Information Agent for the Offer is:
GEORGESON
SHAREHOLDER
COMMUNICATIONS INC.
17 State Street
New York, New York 10004
Call Collect (212) 440-9800
Call Toll Free (800) 223-2064
The Dealer Manager for the Offer is:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Call Collect (212) 902-1000
Call Toll Free (800) 323-5678
January 21, 2000
<PAGE>
EXHIBIT (a)(8)
<PAGE>
CONTACTS: Mike Ruggeri
Siemens Corporation
(770) 751-2255
Linda Torelli
Moore Products Co.
(215) 283-2802
SIEMENS TO ACQUIRE MOORE PRODUCTS
ATLANTA, GA and PHILADELPHIA, PA, Jan. 17, 2000 -- Siemens Energy &
Automation, Inc., which is a wholly owned subsidiary of Siemens AG, and Moore
Products Co. (NASDAQ: MORP; operating as Moore Process Automation Solutions)
today announced they have entered into a definitive agreement providing for the
acquisition of Moore by Siemens Energy & Automation for $170 million.
Under the terms of the agreement, a wholly owned subsidiary of Siemens
Energy & Automation will commence by January 21, 2000 an all-cash tender offer
for all of Moore's outstanding common stock at a price of $54.71 per share and
all of its outstanding preferred stock at a price of $21.88 per share.
Following successful completion of the tender offer, any remaining shares of
common and preferred stock of Moore will be acquired in a cash merger at the
same respective prices. The offer price for the common stock represents an
approximate 118% premium to the November 19, 1999 closing price for Moore common
stock, preceding Moore's announcement on November 23, 1999 that it had hired a
financial advisor to explore strategic alternatives, and an approximate 28%
premium to the January 14, 2000 closing price.
The Moore Board of Directors has unanimously approved the tender offer.
Certain shareholders of Moore (including members of the Moore family) holding in
the aggregate common and preferred stock representing approximately 55% of the
total voting power of Moore on a fully diluted basis, have entered into a
definitive agreement with Siemens Energy & Automation under which they have
agreed to tender their shares into the offer and also have granted Siemens
Energy & Automation an option to purchase such shares at a purchase price equal
to that paid to shareholders in the offer, exercisable upon the occurrence of
certain events.
The tender offer will be conditioned upon, among other things, there being
tendered and not withdrawn prior to the expiration date of the tender offer at
least a majority of each of the shares of common stock and preferred
<PAGE>
2
stock representing a majority of the total voting power of Moore on a fully
diluted basis, as well as expiration of the waiting period under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976.
"This acquisition unites one of the largest electrical engineering and
electronics companies in the world with a company that offers leading automation
technology and services to process industries," said Donald E. Bogle, President
& CEO of Moore Process Automation Solutions.
Thomas J Malott, President & CEO of Siemens Energy & Automation added:
"Moore's expertise and advanced technologies will enhance our portfolio of
process automation solutions to key customers around the world."
Headquartered in Atlanta, Ga., Siemens Energy & Automation manufactures
and markets the world's broadest range of electrical and electronic products,
systems and services to industrial and construction market customers. Its
technologies range from circuit protection and energy management systems to
process control, industrial software and totally integrated automation
solutions. The company also has expertise in electronic placement equipment,
systems integration, technical services and turnkey industrial systems. Its
Internet site is www.sea.siemens.com.
Siemens AG, the parent of Siemens Energy & Automation, is based in Munich,
Germany. It designs, develops, manufactures and markets a wide range of
electrical and electronic parts and systems.
Founded in 1940, Moore Products Co. operates under the name "Moore Process
Automation Solutions." The company is a global leader in providing innovative
solutions to process measurement and control applications. Its instruments and
control systems help to increase plant safety and productivity, reduce time to
market and improve product quality in industries such as chemical and
hydrocarbon processing, oil and gas, pharmaceutical, power generation, and pulp
and paper. The company employs approximately 1,200 persons worldwide and had
1998 revenue of $168 million. Its Internet site is www.mooreproducts.com.
###
<PAGE>
3
This release contains forward-looking statements, including statements
about future business operations, financial performance and market conditions.
Such forward-looking statements involve risks and uncertainties inherent in
business forecasts. This release is neither an offer to purchase nor a
solicitation of an offer to sell securities of Moore Products Co. The tender
offer will be made solely by an offer to purchase and related letter of
transmittal to be disseminated upon the commencement of the tender offer.
<PAGE>
EXHIBIT (a)(9)
<PAGE>
CONTACTS: Mike Ruggeri
Siemens Corporation
(770) 751-2255
Linda Torelli
Moore Products Co.
(215) 646-7400, ext. 2231
Georgeson Shareholder
Communications Inc.
(212) 440-9800
SIEMENS INITIATES TENDER OFFER FOR MOORE PRODUCTS
ATLANTA, and PHILADELPHIA, Jan. 21, 2000 -- Siemens Energy & Automation,
Inc., which is a wholly owned subsidiary of Siemens AG, announced today that
its wholly owned subsidiary, Malibu Acquisition Corp., initiated its previously
announced tender offer for all of the outstanding shares of common stock and
Series A preferred stock of Moore Products Co. (NASDAQ: MORP) at a cash price of
$54.71 per share of common stock and $21.88 per share of preferred stock.
The tender offer will expire at 12:00 midnight, Eastern Standard Time, on
Thursday, February 17, 2000, unless extended. Following successful completion of
the tender offer, any remaining shares of common and preferred stock of Moore
will be acquired in a cash merger at the same respective prices.
The Moore Board of Directors has unanimously approved the tender offer.
Certain shareholders of Moore (including members of the Moore family) holding in
the aggregate common and preferred stock representing approximately 55% of the
total voting power of Moore on a fully diluted basis, have entered into a
definitive agreement with Siemens Energy & Automation under which they have
agreed to tender their shares into the offer and also have granted Siemens
Energy & Automation an option to purchase such shares at a purchase price equal
to that paid to shareholders in the offer, exercisable upon the occurrence of
certain events.
The tender offer is conditioned upon, among other things, there being
tendered and not withdrawn prior to the expiration date of the tender offer at
least a majority of each of the shares of common stock and preferred stock
representing a majority of the total voting power of Moore on a fully diluted
basis, as well as expiration of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976.
Goldman, Sachs & Co. will serve as dealer manager for the tender offer.
Georgeson Shareholder Communications Inc. is the information agent.
<PAGE>
2
Headquartered in Atlanta, Ga., Siemens Energy & Automation manufactures and
markets the world's broadest range of electrical and electronic products,
systems and services to industrial and construction market customers. Its
technologies range from circuit protection and energy management systems to
process control, industrial software and totally integrated automation
solutions. The company also has expertise in electronic placement equipment,
systems integration, technical services and turnkey industrial systems. Its
Internet site is www.sea.siemens.com.
Siemens AG, the parent of Siemens Energy & Automation, is based in Munich,
Germany. It designs, develops, manufactures and markets a wide range of
electrical and electronic parts and systems.
Founded in 1940, Moore Products Co. operates under the name "Moore Process
Automation Solutions." The company is a global leader in providing innovative
solutions to process measurement and control applications. Its instruments and
control systems help to increase plant safety and productivity, reduce time to
market and improve product quality in industries such as chemical and
hydrocarbon processing, oil and gas, pharmaceutical, power generation, and pulp
and paper. The company employs approximately 1,200 persons worldwide and had
1998 revenue of $168 million. Its Internet site is www.mooreproducts.com.
###
<PAGE>
EXHIBIT (c)(1)
<PAGE>
================================================================================
AGREEMENT AND PLAN OF MERGER
AMONG
SIEMENS ENERGY & AUTOMATION, INC.
MALIBU ACQUISITION CORP.
AND
MOORE PRODUCTS CO.
Dated as of January 16, 2000
================================================================================
<PAGE>
Table of Contents
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ARTICLE I THE OFFER................................................................................ 2
Section 1.1. The Offer...................................................................... 2
Section 1.2. Company Actions................................................................ 4
Section 1.3. Stockholder Lists.............................................................. 5
Section 1.4. Directors; Section 14(f)....................................................... 5
ARTICLE II THE MERGER.............................................................................. 7
Section 2.1. The Merger..................................................................... 7
Section 2.2. Effective Time................................................................. 7
Section 2.3. Effects of the Merger.......................................................... 7
Section 2.4. Articles of Incorporation; Bylaws.............................................. 7
Section 2.5. Directors and Officers......................................................... 8
Section 2.6. Conversion of Securities....................................................... 8
Section 2.7. Dissenting Shares.............................................................. 8
Section 2.8. Surrender of Shares............................................................ 9
Section 2.9. No Further Transfer or Ownership Rights........................................ 10
Section 2.10. Treatment of Options........................................................... 10
Section 2.11. Closing........................................................................ 11
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY.......................................... 11
Section 3.1. Organization and Qualification................................................. 11
Section 3.2. Capitalization................................................................. 12
Section 3.3. Authority Relative to this Agreement........................................... 14
Section 3.4. Absence of Certain Changes..................................................... 14
Section 3.5. Reports........................................................................ 15
Section 3.6. Proxy Statement................................................................ 16
Section 3.7. Consents and Approvals; No Violation........................................... 16
Section 3.8. Brokerage Fees and Commissions................................................. 17
Section 3.9. Schedule 14D-9; Offer Documents................................................ 17
Section 3.10. Litigation..................................................................... 18
Section 3.11. Absence of Changes in Benefit Plans............................................ 18
Section 3.12. ERISA Compliance............................................................... 18
Section 3.13. Taxes.......................................................................... 22
Section 3.14. No Excess Parachute Payments; Termination Payments;
Section 162(m) of the Code..................................................... 23
Section 3.15. Compliance with Applicable Laws................................................ 23
Section 3.16. State Takeover Statutes........................................................ 25
Section 3.17. Contracts...................................................................... 26
Section 3.18. Labor Matters.................................................................. 27
Section 3.19. Title to Properties............................................................ 27
Section 3.20. Undisclosed Liabilities........................................................ 28
Section 3.21. Opinion of Company Financial Advisor........................................... 28
Section 3.22. Intellectual Property.......................................................... 28
Section 3.23. Insurance...................................................................... 30
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Section 3.24. Affiliate Transactions......................................................... 30
Section 3.25. Indemnification Claims......................................................... 31
Section 3.26. Absence of Questionable Payments............................................... 31
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER.................................. 31
Section 4.1. Organization and Qualification................................................. 31
Section 4.2. Authority Relative to this Agreement........................................... 31
Section 4.3. Proxy Statement................................................................ 32
Section 4.4. Consents and Approvals; No Violation........................................... 32
Section 4.5. Financing...................................................................... 33
Section 4.6. Brokerage Fees and Commissions................................................. 33
Section 4.7. Schedule 14D-1; Offer Documents................................................ 33
ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER................................................... 34
Section 5.1. Conduct of Business of the Company Pending the Merger.......................... 34
Section 5.2. Prohibited Actions by the Company.............................................. 34
ARTICLE VI COVENANTS............................................................................... 37
Section 6.1. No Solicitation................................................................ 37
Section 6.2. Access to Information.......................................................... 40
Section 6.3. Confidentiality Agreement...................................................... 40
Section 6.4. Reasonable Best Efforts........................................................ 40
Section 6.5. Indemnification of Directors and Officers...................................... 41
Section 6.6. Event Notices and Other Actions................................................ 42
Section 6.7. Third Party Standstill Agreements.............................................. 43
Section 6.8. Employee Stock Options; Employee Plans and Benefits and Employment Contracts... 43
Section 6.9. Meeting of the Company's Shareholders.......................................... 46
Section 6.10. Proxy Statement................................................................ 46
Section 6.11. Public Announcements........................................................... 46
Section 6.12. Shareholder Litigation......................................................... 47
Section 6.13. FIRPTA......................................................................... 47
Section 6.14. Redemption of Company Preferred Stock.......................................... 47
Section 6.15. Foreign Subsidiaries........................................................... 47
ARTICLE VII CONDITIONS TO CONSUMMATION OF THE MERGER............................................... 47
Section 7.1. Conditions to Each Party's Obligation to Effect the Merger..................... 47
Section 7.2. Conditions to Obligations of Parent and Purchaser to Effect the Merger......... 48
ARTICLE VIII TERMINATION; AMENDMENT; WAIVER........................................................ 48
Section 8.1. Termination.................................................................... 48
Section 8.2. Effect of Termination.......................................................... 51
Section 8.3. Expenses; Termination Fee...................................................... 51
Section 8.4. Amendment...................................................................... 53
Section 8.5. Extension; Waiver.............................................................. 53
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ARTICLE IX MISCELLANEOUS........................................................................... 53
Section 9.1. Non-Survival of Representations and Warranties................................. 53
Section 9.2. Entire Agreement; Assignment................................................... 53
Section 9.3. Enforcement of the Agreement................................................... 54
Section 9.4. Severability................................................................... 54
Section 9.5. Notices........................................................................ 54
Section 9.6. Failure or Indulgence Not Waiver; Remedies Cumulative.......................... 55
Section 9.7. Governing Law; Consent to Jurisdiction......................................... 55
Section 9.8. Descriptive Headings........................................................... 56
Section 9.9. Parties in Interest............................................................ 56
Section 9.10. Counterparts................................................................... 56
Section 9.11. Certain Definitions............................................................ 56
Section 9.12. Interpretation................................................................. 58
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<PAGE>
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS IS AN AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of
January 16, 2000, among Siemens Energy & Automation, Inc., a Delaware
corporation ("Parent"), Malibu Acquisition Corp., a Pennsylvania corporation and
a wholly owned subsidiary of Parent ("Purchaser"), and Moore Products Co., a
Pennsylvania corporation (the "Company").
Background
----------
WHEREAS, the Board of Directors of the Company has determined that it is
fair to, advisable and in the best interests of the Company and each class of
the shareholders of the Company to enter into and consummate this Agreement with
Purchaser, providing for the merger (the "Merger") of Purchaser with and into
the Company, with the Company as the Surviving Corporation, in accordance with
the Pennsylvania Business Corporation Law of 1988, as amended (the "PBCL"), and
the other transactions contemplated hereby, upon the terms and subject to the
conditions set forth herein;
WHEREAS, the Board of Directors of Purchaser has approved the Merger of
Purchaser with and into the Company and such other transactions in accordance
with the PBCL upon the terms and subject to the conditions set forth herein;
WHEREAS, the Company and Purchaser have agreed that, upon the terms and
subject to the conditions contained herein, Purchaser shall commence an offer
(as amended or supplemented in accordance with this Agreement, the "Offer") to
purchase for cash all of the issued and outstanding (i) shares of common stock,
par value $1.00 per share (the "Company Common Stock"), of the Company, at a
price per share of $54.71, net to the seller in cash (the "Common Stock Price")
and (ii) shares of Series A preferred stock, par value of $1.00 per share (the
"Company Preferred Stock"), at a price par share of $21.88, net to the seller in
cash (the "Preferred Stock Price") (the Company Common Stock and the Company
Preferred Stock being collectively referred to as the "Securities").
WHEREAS, the Board of Directors of the Company has determined that the
consideration to be paid for each Security in the Offer and the Merger is fair
to the holders of each class of such Security and has resolved to recommend that
the holders of such Securities tender their Securities pursuant to the Offer and
approve and adopt this Agreement and the Merger upon the terms and subject to
the conditions set forth herein;
WHEREAS, the Company, Parent and Purchaser desire to make certain
representations, warranties, covenants and agreements in connection with the
Offer and the Merger;
WHEREAS, simultaneously with the execution and delivery of this Agreement
and in order to induce Parent and Purchaser to enter into this Agreement,
certain stockholders of the Company (the "Certain Stockholders") have executed
and delivered to Parent and Purchaser an agreement (the "Tender and Option
Agreement") pursuant to which the Certain Stockholders
<PAGE>
have agreed to take specified actions in furtherance of the transactions
contemplated by this Agreement, including tendering their Securities into the
Offer and granting Parent and Purchaser the Purchase Option (as such term is
defined in the Tender and Option Agreement) with respect to such Securities; and
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein and
intending to be legally bound hereby, Parent, Purchaser and the Company hereby
agree as follows:
ARTICLE I
THE OFFER
Section 1.1. The Offer.
---------
(a) Subject to the provisions of this Agreement, and provided that this
Agreement shall not have been terminated in accordance with Section 8.1 and so
long as none of the events or circumstances set forth in Annex A hereto shall
have occurred and be continuing, not later than the fifth business day from the
date of public announcement of the execution of this Agreement, Parent shall
cause Purchaser to commence (within the meaning of Rule 14d-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), the Offer at
(i) a price equal to the Common Stock Price for the Company Common Stock and
(ii) a price equal to the Preferred Stock Price for the Company Preferred Stock.
The obligation of Purchaser to consummate the Offer, to accept for payment and
to pay for any Securities tendered pursuant to the Offer shall be subject to
those conditions set forth in Annex A. It is agreed that the conditions to the
Offer set forth on Annex A are for the benefit of Purchaser and may be asserted
by Purchaser regardless of the circumstances giving rise to any such condition
(including any action or inaction by Purchaser) and Purchaser expressly reserves
the right, in its sole discretion, to waive any such condition; provided that,
without the consent of the Company, Parent or Purchaser shall not waive the
Minimum Condition (as defined in Annex A) or the condition set forth in
paragraph (h) of Annex A (except that Purchaser expressly reserves the right, in
its sole direction, to waive the condition set forth in clause (y) in the
definition of the Minimum Condition contained in the first paragraph of Annex
A). The initial expiration date of the Offer shall be the 20th business day
following the commencement of the Offer (determined using Rule 14d-1(c)(6) under
the Exchange Act).
(b) Purchaser expressly reserves the right, in its sole discretion, to
modify and make changes to the terms and conditions of the Offer, provided that
without the prior consent of the Company, no modification or change may be made
which (i) decreases the consideration payable in the Offer (except as permitted
by this Agreement), (ii) changes the form of consideration payable in the Offer
(other than by adding consideration), (iii) changes the Minimum Condition, (iv)
decreases the maximum number of Securities sought pursuant to the Offer, (v)
changes the material conditions to the Offer in a manner adverse to the Company
or its shareholders or option holders, or (vi) imposes additional material
conditions to the Offer (other than in respect of any consideration which is
payable in addition to the Common Stock Price and Preferred Stock Price).
Notwithstanding the foregoing, Purchaser may (but shall not be required under
this Agreement or otherwise to), without the consent of the Company, (i) extend
the Offer
-2-
<PAGE>
on one or more occasions for such period as may be determined by Purchaser in
its sole discretion (each such extension period not to exceed 10 business days
at a time), if at the then scheduled expiration date of the Offer any of the
conditions to Purchaser's obligations to accept for payment and pay for
Securities shall not be satisfied or waived, (ii) extend the Offer for any
period required by any rule, regulation, interpretation or position of the
Securities and Exchange Commission (the "SEC") or the staff thereof applicable
to the Offer, (iii) extend the Offer on one or more occasions for an aggregate
period of not more than 10 business days if the Minimum Condition has been
satisfied but less than 80% of each of the Company Common Stock and Company
Preferred Stock have been validly tendered and not properly withdrawn, and (iv)
extend the Offer for any reason on one occasion for an aggregate period of not
more than 10 business days beyond the latest expiration date that would
otherwise be permitted under clause (i), (ii) or (iii) of this sentence,
notwithstanding the prior satisfaction of the conditions to the Offer set forth
on Annex A. On the terms and subject to the conditions of the Offer and this
Agreement, promptly after expiration of the Offer Purchaser shall accept for
payment and pay for, and Parent shall cause Purchaser to accept for payment and
pay for, all Securities validly tendered and not withdrawn pursuant to the Offer
that Purchaser becomes obligated to purchase pursuant to the Offer.
Notwithstanding the foregoing, Purchaser may in its sole discretion elect to
provide for a subsequent offering period pursuant to, and on the terms required
by, Rule 14d-11 under the Exchange Act.
(c) On the date of commencement of the Offer, Parent and Purchaser shall
file with the SEC with respect to the Offer a Tender Offer Statement on Schedule
14D-1 (together with all amendments and supplements thereto and including the
exhibits thereto, the "Schedule 14D-1") with respect to the Offer which will
comply in all material respects with the provisions of applicable federal
securities laws, and will contain the offer to purchase relating to the Offer
(the "Offer to Purchase") and forms of related letters of transmittal and
summary advertisement (which documents, together with any supplements or
amendments thereto and including the exhibits thereto, are referred to herein
collectively as the "Offer Documents"). Parent shall deliver copies of the
proposed forms of the Schedule 14D-1 and the Offer Documents to the Company
within a reasonable time prior to the commencement of the Offer for review and
comment by the Company and its counsel. Parent agrees to provide the Company and
its counsel in writing any comments that Purchaser, Parent or their counsel may
receive from the SEC or its staff with respect to the Offer Documents promptly
after the receipt thereof. Each of the Company, Parent and Purchaser shall
promptly correct any information provided by it for use in the Schedule 14D-1 or
the Offer Documents that shall have become false or misleading in any material
respect and Parent and Purchaser further agree to take all steps necessary to
cause such Schedule 14D-1 or Offer Documents as so corrected to be filed with
the SEC and disseminated to the shareholders of the Company, as and to the
extent required by applicable federal securities laws.
(d) The parties understand and agree that the Common Stock Price and
Preferred Stock Price have been calculated based upon the accuracy of the
representation and warranty set forth in Section 3.2(a) and that, in the event
the number of outstanding shares of Company Common Stock or the number of shares
of Company Common Stock issuable upon the exercise or conversion of, or subject
to, options, warrants, securities or other agreements exceeds the amounts
specifically set forth in Section 3.2(a) (assuming for this purpose the
conversion of outstanding Company Preferred Stock into Company Common Stock)
(including without
-3-
<PAGE>
limitation as a result of any stock split, stock dividend, including any
dividend or distribution of securities convertible into shares of the Company
Common Stock, recapitalization, or other like change occurring after the date of
this Agreement) or the number of Options and exercise prices therefor set forth
in Section 3.2(a) of the Company Disclosure Schedule are inaccurately stated in
any manner adverse to Parent or Purchaser, the Common Stock Price and Preferred
Stock Price shall be appropriately adjusted downward. The provisions of this
paragraph (d) shall not, however, affect the representation set forth in Section
3.2(a). Notwithstanding the foregoing, there shall be no adjustment pursuant to
this paragraph (d) with respect to the issuance of shares of Company Common
Stock upon the exercise of Options disclosed on Section 3.2(a) of the Company
Disclosure Schedule.
(e) Notwithstanding any provision to the contrary contained in this
Agreement, Parent and Purchaser may terminate the Offer as it relates to the
Company Preferred Stock in the event that Parent or Purchaser has acquired all
of the outstanding shares of Company Preferred Stock, including pursuant to the
exercise of the Purchase Option pursuant to the Tender and Option Agreement.
Section 1.2. Company Actions
---------------
(a) The Company hereby consents to the Offer and represents and warrants
that (i) its Board of Directors, at a meeting duly called and held on January
14, 2000, has duly and by unanimous vote adopted resolutions approving the
Offer, the Merger, this Agreement and the Tender and Option Agreement and the
other transactions contemplated hereby and thereby (collectively, the
"Transactions"), determining that the terms of the Offer and the Merger are fair
to, and in the best interests of, each class of the Company's shareholders and
recommending acceptance of the Offer and adoption of the Merger and this
Agreement by the shareholders of the Company, (ii) the Company has taken all
necessary action to render the provisions of any anti-takeover statute, rule or
regulation that to the Company's knowledge may be applicable to the Transactions
(including Sections 2538 through 2588, inclusive, of the PBCL) inapplicable with
respect to the Transactions, and (iii) Houlihan Lokey Howard & Zukin Financial
Advisors, Inc. ("Houlihan Lokey") has delivered to the Company's Board of
Directors its opinion (the "Fairness Opinion") that each of the Common Stock
Price and the Preferred Stock Price to be received by the Company's shareholders
is fair, from a financial point of view, to such shareholders and a complete and
correct signed copy of such opinion has been delivered by the Company to Parent.
The Company has been authorized by Houlihan Lokey to permit the inclusion of the
Fairness Opinion (and, subject to prior review and consent by Houlihan Lokey, a
reference thereto) in the Offer Documents and in the Schedule 14D-9 referred to
below and the Proxy Statement. The Company hereby consents to the inclusion in
the Offer Documents of the recommendations of the Company's Board of Directors
described in this Section 1.2. The Company has been advised that all of its
directors and executive officers intend either to tender their Securities
pursuant to the Offer or (solely in the case of directors and executive officers
who would as a result of the tender incur liability under Section 16(b) of the
Exchange Act) to vote in favor of the Merger.
(b) The Company shall file with the SEC on the date of the commencement of
the Offer a Solicitation/Recommendation Statement on Schedule 14D-9 (together
with all amendments and supplements thereto and including the exhibits thereto,
the
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<PAGE>
"Schedule 14D-9") which shall comply in all material respects with the
provisions of applicable federal securities laws, and will contain such
recommendations of the Board in favor of the Offer and the Merger, and shall
disseminate the Schedule 14D-9 as required by Rule 14d-9 promulgated under the
Exchange Act and shall mail such Schedule 14D-9 together with the Offer
Documents. The Company shall deliver the proposed forms of the Schedule 14D-9
and the exhibits thereto to Parent within a reasonable time prior to the
commencement of the Offer for review and comment by Parent and its counsel.
Parent and its counsel shall be given a reasonable opportunity to review any
amendments and supplements to the Schedule 14D-9 prior to their filing with the
SEC or dissemination to shareholders of the Company. The Company agrees to
provide Parent and its counsel in writing any comments that the Company or its
counsel may receive from the SEC or its staff with respect to the Schedule 14D-9
promptly after receipt thereof. Each of the Company, Parent and Purchaser shall
promptly correct any information provided by it for use in the Schedule 14D-9
that shall have become false or misleading in any material respect and the
Company further agrees to take all steps necessary to cause such Schedule 14D-9
as so corrected to be filed with the SEC and disseminated to the shareholders of
the Company, as and to the extent required by applicable federal securities
laws.
Section 1.3. Stockholder Lists. In connection with the Offer, the Company
-----------------
shall promptly furnish to, or cause to be furnished to, Parent and Purchaser
mailing labels, security position listings, any non-objecting beneficial owner
lists and any available listing or computer file containing the names and
addresses of the record holders of the Securities as of a recent date and of
those persons becoming record holders subsequent to such date (to the extent
available), together with all other relevant, material information in the
Company's possession or control regarding the beneficial owners of Securities
and shall furnish Parent and Purchaser with such information and assistance as
Parent, Purchaser or their respective agents may reasonably request in
communicating the Offer to the record and beneficial holders of Securities.
Subject to the requirements of law, and except for such steps as are necessary
to disseminate the Offer Documents and any other documents necessary to
consummate the Merger, Parent and Purchaser shall, and shall cause each of their
affiliates to, hold the information contained in any of such labels and lists in
confidence, use such information only in connection with the Offer and the
Merger, and, if this Agreement is terminated, deliver to the Company all copies
of such information or extracts therefrom then in their possession or under
their control.
Section 1.4. Directors; Section 14(f).
------------------------
(a) Immediately upon the acceptance for payment of and
payment for any Securities by Purchaser or any of its affiliates pursuant to the
Offer, Purchaser shall be entitled to designate such number of directors,
rounded up to the next whole number, on the Board of Directors of the Company as
will give Purchaser, subject to compliance with Section 14(f) of the Exchange
Act, representation on the Board of Directors of the Company equal to the
product of (i) the total number of directors on the Board of Directors of the
Company (giving effect to the increase in the size of such Board pursuant to
this Section 1.4) and (ii) the percentage that the number of votes represented
by Securities beneficially owned by Purchaser and its affiliates (including
Securities so accepted for payment and purchased) bears to the number of votes
represented by Securities then outstanding. In furtherance thereof, concurrently
with such acceptance for payment and payment for such Securities the Company
shall, upon request of Parent and in compliance with Section 14(f) of the
Exchange Act and Rule 14f-1
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<PAGE>
promulgated thereunder, use its best efforts promptly either to increase the
size of its Board of Directors or to secure the resignations of such number of
its incumbent directors, or both, as is necessary to enable such designees of
Parent to be so elected or appointed to the Company's Board of Directors, and,
subject to applicable law, the Company shall take all reasonable actions
available to the Company to cause such designees of Parent to be so elected or
appointed. At such time, the Company shall, if requested by Parent and subject
to applicable law, also take all reasonable action necessary to cause persons
designated by Parent to constitute at least the same percentage (rounded up to
the next whole number) as is on the Company's Board of Directors of (i) each
committee of the Company's Board of Directors, (ii) each board of directors (or
similar body) of each subsidiary of the Company and (iii) each committee (or
similar body) of each such board.
(b) Notwithstanding the foregoing, the Company shall use its best efforts
to ensure that, in the event that Purchaser's designees are elected to the Board
of Directors of the Company, such Board of Directors shall have, at all times
prior to the Effective Time, at least two directors who are directors on the
date of this Agreement and who are not officers or affiliates of the Company (it
being understood that for purposes of this sentence, a director of the Company
shall not be deemed an affiliate of the Company solely as a result of his status
as a director of the Company), Parent or any of their respective subsidiaries
(the "Independent Directors"); and provided further, that, in such event, if the
number of Independent Directors shall be reduced below two for any reason
whatsoever the remaining Independent Director may designate a person to fill
such vacancy who is not an officer or affiliate of the Company, Parent, or any
of their respective subsidiaries and such person shall be deemed to be an
Independent Director for purposes of this Agreement or, if no Independent
Directors then remain, the other directors may designate two persons to fill
such vacancies who shall not be officers or affiliates of the Company, Parent or
any of their respective subsidiaries, and such persons shall be deemed to be
Independent Directors for purposes of this Agreement. Subject to applicable law,
the Company shall promptly take all action reasonably requested by Parent
necessary to effect any such election, including mailing to its shareholders the
information required by Section 14(f) of the Exchange Act and Rule 14(f)-1
promulgated thereunder (or, at Parent's request, furnishing such information to
Parent for inclusion in the Offer Documents initially filed with the SEC and
distributed to the stockholders of the Company) as is necessary to enable
Parent's designees to be elected to the Company's Board of Directors.
(c) From and after the time, if any, that Parent's designees constitute a
majority of the Company's Board of Directors and prior to the Effective Time,
any amendment of this Agreement materially adverse to the holders of the
Securities or any termination of this Agreement by the Company may be effected
only by the action of a majority of the Independent Directors of the Company,
which action shall be deemed to constitute the action of any committee
specifically designated by the Board of Directors of the Company to approve the
actions contemplated hereby and the full Board of Directors of the Company;
provided, that, if there shall be no Independent Directors, such actions may be
effected by majority vote of the entire Board of Directors of the Company.
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<PAGE>
ARTICLE II
THE MERGER
Section 2.1. The Merger. Upon the terms and subject to the conditions
----------
hereof, and in accordance with the relevant provisions of the PBCL, Purchaser
shall be merged with and into the Company as soon as practicable following the
satisfaction or waiver of the conditions set forth in Article VII. Following the
Merger, the Company shall continue as the surviving corporation (the "Surviving
Corporation") under the name "Moore Products Co." and shall continue its
existence under the laws of the Commonwealth of Pennsylvania, and the separate
corporate existence of Purchaser shall cease. At the election of Parent, any
direct or indirect wholly owned subsidiary of Parent may be substituted for
Purchaser as a constituent corporation in the Merger. Notwithstanding the
foregoing, Parent may elect at any time prior to the time that the notice of the
meeting of shareholders of the Company to consider approval of the Merger and
this Agreement (the "Shareholder Meeting") is first given to the Company's
shareholders that instead of merging Purchaser into the Company as hereinabove
provided, to merge the Company into Purchaser or another direct or indirect
wholly owned subsidiary of Siemens Aktiengesellschaft, a corporation organized
under the laws of the Federal Republic of Germany; provided, however, that the
Company shall not be deemed to have breached any of its representations,
warranties or covenants herein solely by reason of such election. In such event
the parties shall execute an appropriate amendment to this Agreement in order to
reflect the foregoing and to provide that Purchaser or such other subsidiary of
Parent shall be the Surviving Corporation and shall continue under the name
"Moore Products Co."
Section 2.2. Effective Time. As soon as practicable after the satisfaction
--------------
or waiver of the conditions set forth in Article VII, the parties hereto shall
cause the Merger to be consummated by filing articles of merger (the "Articles
of Merger") with the Department of State of the Commonwealth of Pennsylvania
(the "Department of State"), in such form as required by and executed in
accordance with the relevant provisions of the PBCL (the date and time of the
filing of the Articles of Merger with the Department of State (or such later
time as is specified in the Articles of Merger) being the "Effective Time").
Section 2.3. Effects of the Merger. The Merger shall have the effects set
---------------------
forth in the applicable provisions of the PBCL. Without limiting the generality
of the foregoing and subject thereto, at the Effective Time all the property,
rights, privileges, immunities, powers and franchises of the Company and
Purchaser shall vest in the Surviving Corporation, and all debts, liabilities
and duties of the Company and Purchaser shall become the debts, liabilities and
duties of the Surviving Corporation.
Section 2.4. Articles of Incorporation; Bylaws. (a) At the Effective Time
---------------------------------
and without any further action on the part of the Company and Purchaser, the
Articles of Incorporation of the Company, as in effect immediately prior to the
Effective Time until thereafter further amended as provided therein and under
the PBCL, shall be the articles of incorporation of the Surviving Corporation
following the Merger.
(b) At the Effective Time and without any further action on
the part of the Company and Purchaser, the Bylaws of the Purchaser shall be the
Bylaws of the Surviving
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<PAGE>
Corporation and thereafter may be amended or repealed in accordance with their
terms or the Articles of Incorporation of the Surviving Corporation and as
provided by law.
Section 2.5. Directors and Officers. The directors of Purchaser
----------------------
immediately prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation, and the officers of the
Company immediately prior to the Effective Time shall be the initial officers of
the Surviving Corporation, in each case until their respective successors are
duly elected or appointed (as the case may be) and qualified.
Section 2.6. Conversion of Securities. At the Effective Time, by virtue of
------------------------
the Merger and without any action on the part of Purchaser, the Company or the
holders of any of the following securities:
(a) Each share of common stock, par value $0.01 per share, of
Purchaser issued and outstanding immediately prior to the Effective Time shall
be converted into one validly issued, fully paid and nonassessable share of
common stock of the Surviving Corporation.
(b) Each share of Company Common Stock and Company Preferred
Stock held in the treasury of the Company and each share of Company Common Stock
and Company Preferred Stock owned by Parent or Purchaser or any direct or
indirect subsidiary of the Company, Parent or Purchaser, in each case
immediately prior to the Effective Time, shall be cancelled and retired without
any conversion thereof and no payment or distribution shall be made with respect
thereto.
(c) Each issued and outstanding share of (i) Company Common
Stock (other than shares cancelled pursuant to Section 2.6(b) and any Dissenting
Shares (as defined in Section 2.7(a))) shall be converted into the right to
receive the Common Stock Price or any higher price that may be paid for shares
of Company Common Stock pursuant to the Offer and (ii) Company Preferred Stock
(other than those shares cancelled pursuant to Section 2.6(b) and any Dissenting
Shares) shall be converted into the right to receive the Preferred Stock Price
or any higher price that may be paid for shares of Company Preferred Stock
pursuant to the Offer (the "Merger Consideration") payable to the holder
thereof, in each case without interest, upon surrender of the certificate
formerly representing such share in the manner provided in Section 2.8, less any
required withholding taxes.
Section 2.7. Dissenting Shares. (a) Notwithstanding any provision of this
-----------------
Agreement to the contrary, any issued and outstanding Securities ("Dissenting
Shares") held by a Dissenting Shareholder (as defined below) shall not be
converted into the Merger Consideration but shall become the right to receive
such consideration as may be determined to be due to such Dissenting Shareholder
pursuant to the PBCL; provided, however, that each share of Company Common Stock
or Company Preferred Stock outstanding immediately prior to the Effective Time
and held by a Dissenting Shareholder who, after the Effective Time, loses his or
her right of appraisal, pursuant to the PBCL, shall be deemed to be converted as
of the Effective Time into the right to receive the Merger Consideration,
without any interest thereon. As used in this Agreement, the term "Dissenting
Shareholder" means any record holder or beneficial owner of
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<PAGE>
shares of Company Common Stock or Company Preferred Stock who complies with all
provisions of the PBCL (including the provisions of Sections 1575 through 1580
and Section 1930 of the PBCL) concerning the right of holders of Company Common
Stock and Company Preferred Stock to dissent from the Merger and obtain fair
value for their shares.
(b) The Company shall give Parent (i) prompt notice of any
demands for appraisal pursuant to the applicable provisions of the PBCL received
by the Company, withdrawals of such demands, and any other instruments served
pursuant to the PBCL and received by the Company and (ii) the opportunity to
participate in all negotiations and proceedings with respect to demands for
appraisal under the PBCL. The Company shall not, except with the prior written
consent of Parent, make any payment with respect to any such demands for
appraisal or offer to settle or settle any such demands.
Section 2.8. Surrender of Shares. (a) Prior to the earlier of the mailing
-------------------
of the Proxy Statement and the Effective Time, Parent shall appoint a bank or
trust company which is reasonably satisfactory to the Company to act as paying
agent (the "Paying Agent") for the payment of the Merger Consideration. When and
as needed, Parent shall cause the Surviving Corporation to deposit with the
Paying Agent for the benefit of former holders of Securities sufficient funds to
make all payments pursuant to this Section 2.8. Such funds shall be invested by
the Paying Agent as directed by the Surviving Corporation. Any net profit
resulting from, or interest or income produced by, such investments will be
payable to the Surviving Corporation or as it directs.
(b) Promptly after the Effective Time, the Surviving
Corporation shall cause to be mailed to each record holder, as of the Effective
Time, of an outstanding certificate or certificates which immediately prior to
the Effective Time represented Securities (the "Certificates"), a form of letter
of transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Paying Agent) and instructions for use in effecting the
surrender of the Certificates for payment of the Merger Consideration therefor.
Upon surrender to the Paying Agent of a Certificate, together with such letter
of transmittal, duly completed and validly executed in accordance with the
instructions thereto, and such other documents as may be required pursuant to
such instructions, the holder of such Certificate shall be entitled to receive
in exchange therefor the aggregate amount of Merger Consideration into which the
number of Securities previously represented by such Certificate or Certificates
surrendered shall have been converted pursuant to this Agreement. If any Merger
Consideration is to be remitted to a person whose name is other than that in
which the Certificate for Securities surrendered for exchange is registered, it
shall be a condition of such exchange that the Certificate so surrendered shall
be properly endorsed, with signature guaranteed, or otherwise in proper form for
transfer, and that the person requesting such exchange shall have paid any
transfer and/or other taxes required by reason of the remittance of Merger
Consideration to a person whose name is other than that of the registered holder
of the Certificate surrendered, or the person requesting such exchange shall
have established to the satisfaction of the Surviving Corporation that such tax
either has been paid or is not applicable. No interest shall be paid or accrued,
upon the surrender of the Certificates, for the benefit of holders of the
Certificates on any Merger Consideration.
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<PAGE>
(c) At any time following six months after the Effective
Time, the Surviving Corporation shall be entitled to require the Paying Agent to
deliver to it any funds (including any interest received with respect thereto)
which had been deposited with the Paying Agent and which have not been disbursed
to holders of Certificates, and thereafter such holders shall be entitled to
look only to the Surviving Corporation (subject to abandoned property, escheat
or other similar laws) and only as general creditors thereof for payment of
their claim for Merger Consideration to which such holders may be entitled.
(d) Notwithstanding the provisions of Section 2.8(c), neither
the Surviving Corporation nor the Paying Agent shall be liable to any person in
respect of any Merger Consideration delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law. If any Certificates
representing Securities shall not have been surrendered prior to six months
after the Effective Time (or immediately prior to such earlier date on which any
Merger Consideration in respect of such Certificate would otherwise escheat to
or become the property of any governmental entity), any such cash shall, to the
extent permitted by applicable law, become the property of the Parent, free and
clear of all claims or interest of any person previously entitled thereto.
(e) Parent shall be entitled to deduct and withhold from the
consideration otherwise payable pursuant to this Agreement to any former holder
of Securities such amounts as Parent (or any affiliate thereof) is required to
deduct and withhold with respect to the making of such payment under the Code
(as defined herein), or any provision of any applicable state, local or foreign
law, rule or regulation. To the extent that amounts are so withheld by Parent
and paid by Parent to the applicable taxing authority, such withheld amounts
shall be treated for all purposes of this Agreement as having been paid to the
former holder of Securities in respect of which such deduction and withholding
was made by Parent.
Section 2.9. No Further Transfer or Ownership Rights. After the Effective
---------------------------------------
Time, there shall be no further transfer on the records of the Company (or the
Surviving Corporation) or its transfer agent of certificates representing
Securities which have been converted pursuant to this Agreement into the right
to receive Merger Consideration, and if such certificates are presented to the
Company for transfer, they shall be cancelled against delivery of the Merger
Consideration therefor. From and after the Effective Time, the holders of
Certificates evidencing ownership of Securities outstanding immediately prior to
the Effective Time shall cease to have any rights with respect to such
Securities except as otherwise provided for herein or by applicable law. All
Merger Consideration paid upon the surrender for exchange of Certificates
representing Securities in accordance with the terms of this Article II shall be
deemed to have been paid in full satisfaction of all rights pertaining to the
Securities exchanged for Merger Consideration theretofore represented by such
Certificates.
Section 2.10. Treatment of Options. Simultaneously with the execution of
--------------------
this Agreement, the Board of Directors of the Company (or, if appropriate, any
committee thereof) has adopted appropriate resolutions, and the Company hereby
agrees to take all other actions necessary after the date hereof, if any, to
provide that each outstanding stock option (each "Option") heretofore granted
under the Company's 1997 Non-Employee Directors' Equity Incentive Plan (the
"Directors' Plan") and the Company's 1994 Stock Option Plan (the "Management
Plan") (collectively, the "Company Stock Option Plans"), whether or not then
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<PAGE>
vested or exercisable, shall, at the Effective Time, be cancelled, and each
holder thereof shall be entitled to receive a payment in cash as provided in
Section 6.8 hereof (subject to any applicable withholding taxes, the "Cash
Payment"). As provided herein, the Company Stock Option Plans (and any feature
of any Benefit Plan or other plan, program or arrangement) providing for the
issuance or grant of any other interest in respect of the capital stock of the
Company or any subsidiary shall terminate as of the Effective Time. The Company
will take all steps necessary to ensure that none of the Company or any of its
subsidiaries is or will be bound by any Options, other options, warrants, rights
or agreements which would entitle any person, other than the current
shareholders of Purchaser or its affiliates, to acquire any capital stock of the
Surviving Corporation or any of its subsidiaries or, to receive any payment in
respect thereof (except for Cash Payments to be made as provided in Section 6.8
hereof to holders of Options outstanding immediately prior to the Effective
Time) and to cause such Options to be cancelled or cause the holders of the
Options to agree to such cancellation thereof as provided herein.
Section 2.11. Closing. Upon the terms and subject to the conditions hereof,
-------
as soon as practicable after consummation of the Offer, and to the extent
required by the PBCL after the vote of the shareholders of the Company in favor
of the approval of the Merger and this Agreement has been obtained, the Company
and Purchaser (or Parent if appropriate) shall execute and file with the
Department of State the Articles of Merger, and the parties shall take all such
other and further actions as may be required by law to make the Merger
effective. Prior to the filing referred to in this Section 2.11, a closing (the
"Closing") will be held at the offices of Dechert Price & Rhoads, 4000 Bell
Atlantic Tower, 1717 Arch Street, Philadelphia, PA 19103-2793 (or such other
place as the parties may agree) for the purpose of confirming all of the
foregoing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Purchaser as
follows:
Section 3.1. Organization and Qualification
------------------------------
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of Pennsylvania
and has the requisite corporate power and authority and possesses all
governmental franchises and Permits (as defined herein) necessary to enable it
to own, lease and operate its properties and assets and to carry on its business
as it is now being conducted except where failure to possess such franchises and
Permits, individually or in the aggregate, has not had and could not reasonably
be expected to have a Material Adverse Effect on the Company. The Company is
duly qualified as a foreign corporation or licensed to do business, and is in
good standing, in each jurisdiction where the character of its properties owned
or leased or the nature of its activities makes such qualification or licensing
necessary, except where the failure to be so qualified or licensed or in good
standing, individually or in the aggregate, has not had and could not reasonably
be expected to have a Material Adverse Effect on the Company.
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<PAGE>
(b) The only subsidiaries of the Company are those set forth
on Section 3.1(b) of the Company Disclosure Schedule. Each subsidiary of the
Company is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation and has the requisite
corporate power and authority and possesses all governmental franchises and
Permits necessary to enable it to own, lease and operate its properties and
assets and to carry on its business as it is now being conducted except where
failure to possess such franchises and Permits, individually or in the
aggregate, has not had and could not reasonably be expected to have a Material
Adverse Effect on the Company. Each subsidiary of the Company is duly qualified
as a foreign corporation or licensed to do business, and is in good standing, in
each jurisdiction where the character of its properties owned or leased or the
nature of its activities makes such qualification or licensing necessary, except
where the failure to be so qualified or licensed or in good standing,
individually or in the aggregate, has not had and could not reasonably be
expected to have a Material Adverse Effect on the Company.
(c) All of the outstanding shares of capital stock of each
such subsidiary have been validly issued and are fully paid and non-assessable
and, except as set forth in Section 3.1(c) of the Company Disclosure Schedule,
are owned by the Company, by another wholly owned subsidiary of the Company or
by the Company and another such wholly owned subsidiary, free and clear of all
pledges, claims, equities, options, liens, charges, call rights, rights of first
refusal, "tag" or "drag" along rights, encumbrances and security interests of
any kind or nature whatsoever (collectively, "Liens"). Except for the capital
stock of its subsidiaries or as set forth on Section 3.1(c)(i) of the Company
Disclosure Schedule, the Company does not own, directly or indirectly, any
capital stock or other ownership interest in any corporation, partnership,
limited liability company, joint venture or other entity. The Company has
delivered to Parent complete and correct copies of its Articles of Incorporation
and Bylaws and the comparable charters and bylaws or other organizational
documents of the subsidiaries set forth on Schedule 3.1(c)(ii) of the Company
Disclosure Schedule, in each case as amended to the date of this Agreement. The
Company represents that the subsidiaries of the Company other than those
subsidiaries listed on Schedule 3.1(c)(ii) of the Company Disclosure Schedule do
not have assets, revenues or income exceeding, 5% individually or 10% in the
aggregate, of the consolidated assets, revenues or income of the Company,
respectively (other than Moore Products Co. (S) Pte. Ltd. (Singapore) with
respect to income so long as the income from such subsidiary does not exceed 12%
of the consolidated income of the Company), or otherwise conduct or have
material operations or businesses of the Company.
Section 3.2. Capitalization.
--------------
(a) The authorized capital stock of the Company consists of
7,500,000 shares of Company Common Stock and 325,000 shares of preferred stock,
of which 176,000 shares of Company Preferred Stock are authorized. All of the
issued and outstanding Securities have been duly authorized and validly issued
and are fully paid and nonassessable and are not subject to preemptive rights.
As of the date hereof, 2,646,985 shares of Company Common Stock were issued and
outstanding, 175,950 shares of Company Preferred Stock were issued and
outstanding, 21,000 shares of Company Common Stock were reserved for issuance
pursuant to outstanding Options issued under the Directors Plan, and 625,060
shares of the Company Common Stock were reserved for issuance pursuant to
outstanding Options issued under the Management Plan. The Company Preferred
Stock entitles each holder to five votes per share and
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<PAGE>
the Company Common Stock entitles each holder to one vote per share, in the
election of directors and all other corporate matters submitted to a
shareholders' vote, without voting separately by series or classes except as
otherwise required by law or by the Company's Articles of Incorporation or
Bylaws. Each share of Company Preferred Stock is convertible into 0.4 shares of
Company Common Stock at a conversion price of $2.50 per share of Company
Preferred Stock. The redemption price for the Company Preferred Stock is $1.05
per share. Such shares of Company Common Stock reserved for issuance under the
Company Stock Option Plans have not been issued and will not be issued prior to
the Effective Time, and no commitment has been or will be made for their
issuance, other than possible issuances under the Options described in the
preceding sentence and issued and outstanding under the Company Stock Option
Plans as of the date of this Agreement. Except as otherwise provided in Section
2.10 of this Agreement, at the Effective Time, each Option shall be cancelled
and the holder thereof shall not be entitled to receive any consideration
therefor other than the cash payments provided by Section 2.10 of this
Agreement. Section 3.2(a) of the Company Disclosure Schedule sets forth the
exercise prices and number of Securities in respect of outstanding Options under
the Company Stock Option Plans. There are no bonds, debentures, notes or other
indebtedness of the Company having the right to vote (or convertible into, or
exchangeable for, securities having the right to vote) on any matters on which
shareholders of the Company may vote ("Voting Company Debt"). Except as set
forth above, there are no outstanding securities, options, warrants, calls,
rights, convertible or exchangeable securities, "phantom" stock rights, stock
appreciation rights ("SARs"), stock-based performance units, commitments,
agreements, arrangements or undertakings of any kind to which the Company or any
of its subsidiaries is a party or by which any of them is bound obligating the
Company or any of its subsidiaries to issue, deliver or sell, or cause to be
issued, delivered or sold, additional shares of capital stock or other voting
securities of the Company or any of its subsidiaries or obligating the Company
or any of its subsidiaries to issue, grant, extend or enter into any such
security, option, warrant, call, right, unit, commitment, agreement, arrangement
or undertaking. There are not any outstanding contractual obligations of the
Company or any of its subsidiaries to repurchase, redeem or otherwise acquire,
or providing preemptive or registration rights (except as filed or incorporated
by reference as an exhibit to the Company's Annual Report on Form 10-K for the
year ended December 31, 1998 (the "Company Form 10-K") and for the registration
rights provided for in the Tender and Option Agreement) with respect to, any
shares of, or any outstanding options, warrants or rights of any kind to acquire
any shares of, or any outstanding securities that are convertible into or
exchangeable for any shares of, capital stock of the Company or any of its
subsidiaries. The Company and its subsidiaries do not have outstanding any loans
to any person in respect of the purchase of securities issued by the Company and
its subsidiaries.
(b) There are no voting trusts, proxies or other agreements,
commitments or understandings of any character to which the Company or any of
its subsidiaries is a party or by 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 or with respect to the registration of the offering, sale or
delivery of any shares of capital stock of the Company or any of its
subsidiaries under the Securities Act of 1933, as amended (the "Securities Act")
except for the registration rights agreement filed as an exhibit to the Company
Form 10-K and for the registration rights provided for in the Tender and Option
Agreement.
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Section 3.3. Authority Relative to this Agreement.
------------------------------------
(a) The Company has all requisite corporate power and
authority to execute and deliver this Agreement and each instrument required
hereby to be executed and delivered by the Company prior to or at the Effective
Time, to perform its obligations hereunder and thereunder, and to consummate the
Transactions (subject to the Company Shareholder Approval (as defined herein)
with respect to the Merger). The execution and delivery of this Agreement and
each instrument required hereby to be executed and delivered by the Company
prior to or at the Effective Time and the performance of its obligations
hereunder and thereunder and the consummation by the Company of the Transactions
have been duly and validly authorized by the Board of Directors of the Company
and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the Transactions (other than the
Company Shareholder Approval and the filing and recordation of appropriate
merger documents as required by the PBCL). This Agreement has been duly and
validly executed and delivered by the Company, and, assuming this Agreement
constitutes a valid and binding obligation of Parent and Purchaser, this
Agreement constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(b) The only vote of holders of any class or series of
capital stock of the Company or any of its subsidiaries necessary to adopt or
approve this Agreement and the Merger is the adoption and approval of this
Agreement and the Merger by the holders of a majority of the votes cast by the
holders of the Securities at the Shareholder Meeting voting together as a single
class, with each share of Company Common Stock entitled to one vote per share
and each share of Company Preferred Stock entitled to five votes per share (the
"Company Shareholder Approval"), subject to Section 6.9(c). The affirmative vote
of the holders of any capital stock or other securities (or any separate class
thereof) of the Company or any of its subsidiaries, or any of them, is not
necessary to consummate the Offer or any transaction contemplated by this
Agreement other than as set forth in the preceding sentence.
Section 3.4. Absence of Certain Changes. Except as set forth in Section
--------------------------
3.4 of the Company Disclosure Schedule, since December 31, 1998, the Company and
its subsidiaries have conducted their business only in the ordinary course, and
during such period there has not been any event, change, effect or development
that, individually or in the aggregate, has had or could reasonably be expected
to have a Material Adverse Effect on the Company, and the Company and its
subsidiaries are not aware of any event, change, effect or development which may
reasonably be expected to occur or exist that, individually or in the aggregate,
would have a Material Adverse Effect on the Company. Except as specifically
disclosed in the Company's filings and reports (including proxy statements)
under the Exchange Act filed since December 31, 1998 and publicly available
prior to the date of this Agreement (the "Filed Company SEC Documents") or as
set forth in Section 3.4 of the Company Disclosure Schedule, since December 31,
1998 there has not been (a) any declaration, setting aside or payment of any
dividend or other distribution in respect of the capital stock of the Company or
any redemption or other acquisition by the Company of any capital stock of the
Company; (b) any entry into any agreement, commitment or transaction by the
Company or any of its subsidiaries which is material to the Company and its
subsidiaries taken as a whole, except agreements, commitments or transactions in
the ordinary course of business, consistent with prior practice; (c) any split,
combination or
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reclassification of the Company's capital stock or of any other equity interests
in the Company, or any issuance or the authorization of any issuance of any
other securities in respect of, in lieu of or in substitution for shares of its
capital stock or of any other equity interests in the Company; (d)(i) any
granting by the Company or any of its subsidiaries to any officer, director or
key employee of the Company or any of its subsidiaries of any increase in
compensation, except in the ordinary course of business consistent with prior
practice or as was required under employment agreements in effect as of the date
of the most recent audited financial statements included in the Filed Company
SEC Documents, (ii) any granting by the Company or any of its subsidiaries to
any such officer, director or key employee of any increase in severance or
termination pay, except as was required under employment, severance or
termination agreements in effect as of the date of the most recent audited
financial statements included in the Filed Company SEC Documents or (iii) any
entry by the Company or any of its subsidiaries into any employment, severance
or termination agreement with any such officer, director or key employee; (e)
any damage, destruction or loss, whether or not covered by insurance, that,
individually or in the aggregate, has had or could reasonably be expected to
have a Material Adverse Effect on the Company; or (f) any change in accounting
methods, principles or practices by the Company or any subsidiary materially
affecting the consolidated assets, liabilities, results of operations or
business of the Company or its subsidiaries, except insofar as may have been
required by a change in generally accepted accounting principles.
Section 3.5. Reports. (a) Since January 1, 1996, the Company has timely
-------
filed all required forms, reports and documents with the SEC required to be
filed by it pursuant to the federal securities laws and the SEC rules and
regulations thereunder (collectively, the "Company SEC Documents"), all of which
have complied as of their respective filing dates in all material respects with
all applicable requirements of the Securities Act and the Exchange Act, and the
rules promulgated thereunder. The Company has delivered copies of all such
forms, reports or documents to Parent. None of such forms, reports or documents
at the time filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading. Except to the extent that information contained in any
Company SEC Document has been revised or superseded by a later-filed Company SEC
Document filed and publicly available prior to the date hereof, none of the
Company SEC Documents contains any untrue statement of a material fact or omits
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. The financial statements of the Company included in
the Company SEC Documents (including the notes thereto) complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles (except, in the case of
unaudited statements, as permitted by Form 10-Q of the SEC) applied on a
consistent basis during the periods involved (except as may be indicated in the
notes thereto) and fairly present the consolidated financial position of the
Company and its consolidated subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for the periods then
ended (and include, in the case of any unaudited interim financial statements,
reasonable accruals for normal year-end adjustments). No subsidiaries of the
Company are required to file periodic reports with the SEC under the Exchange
Act.
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<PAGE>
(b) Since January 1, 1996, the Company and its subsidiaries
have filed all reports required to be filed with any Governmental Entity other
than the SEC, including state securities administrators, except where the
failure to file any such reports of the Company and its subsidiaries,
individually or in the aggregate, has not had and could not reasonably be
expected to have a Material Adverse Effect on the Company. Such reports of the
Company and its subsidiaries, including all those filed after the date of this
Agreement and prior to the Effective Time, were prepared in all material
respects in accordance with the requirements of applicable law.
Section 3.6. Proxy Statement. If a Proxy Statement is required for the
---------------
consummation of the Merger under applicable law, the Proxy Statement will comply
in all material respects with the Exchange Act, except that no representation is
made by the Company with respect to information supplied by or on behalf of
Parent or any affiliate of Parent specifically for inclusion in the Proxy
Statement. None of the information supplied by the Company specifically for
inclusion in the Proxy Statement shall, at the time the Proxy Statement is
mailed or at the time of the Shareholder Meeting or at the Effective Time,
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; provided however that the Company makes no representation or
warranty as to any of the information relating to and supplied by or on behalf
of Parent and Purchaser specifically for inclusion in the Proxy Statement. The
letter to shareholders, notice of meeting, proxy statement and form of proxy, or
the information statement, as the case may be, to be distributed to shareholders
in connection with the Merger, or any schedule required to be filed by the
Company with the SEC in connection therewith, together with any amendments or
supplements thereto, are collectively referred to herein as the "Proxy
Statement." If, at any time prior to the Effective Time, any event relating to
the Company or any of its affiliates, officers or directors is discovered by the
Company that should be set forth in a supplement to the Proxy Statement, the
Company will promptly inform Parent and Purchaser and prepare, file and
disseminate such supplement as may be required by applicable law.
Section 3.7. Consents and Approvals; No Violation. Subject to obtaining the
------------------------------------
Company Shareholder Approval (if required under the PBCL) and the taking of the
actions described in the immediately succeeding sentence, the execution,
delivery and performance of this Agreement do not, and the consummation of the
Transactions (including the changes in ownership of Securities or the
composition of the Board of Directors of the Company) and compliance with the
provisions of this Agreement will not, conflict with, or result in any violation
of, or default (with or without notice or lapse to time, or both) under, or give
rise to a right of termination, cancellation or acceleration of any obligation
or loss of a material benefit under, or result in the creation of any Lien upon
any of the material properties or assets of the Company or any of its
subsidiaries under, or result in the termination of, or require that any consent
be obtained or any notice be given with respect to, (i) the Articles of
Incorporation or Bylaws of the Company or the comparable charter or
organizational documents of any of its subsidiaries, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease, license or other agreement,
instrument, Contract or Permit applicable to the Company or any of its
subsidiaries or their respective properties or assets, (iii) any judgment,
order, writ, injunction, decree, law, statute, ordinance, rule or regulation
applicable to the Company or any of its subsidiaries or their respective
properties or assets or (iv) material license, sublicense, consent or
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<PAGE>
other agreement (whether written or otherwise) pertaining to Intellectual
Property (as defined herein) used by the Company in the conduct of its business,
and by which the Company licenses or otherwise authorizes a third party to use
any Intellectual Property (the "Licenses"), other than, in the case of clauses
(ii), (iii) or (iv), any such conflicts, violations, defaults, rights, Liens,
losses of a material benefit, consents or notices that, (x) individually or in
the aggregate, have not and could not reasonably be expected to have a Material
Adverse Effect on the Company or (y) have been set forth on Schedule 3.7 of the
Company Disclosure Schedule. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Federal, state or local government
or any court, administrative or regulatory agency or commission or other
governmental authority or agency, domestic or foreign (a "Governmental Entity")
is required by the Company or any of its subsidiaries in connection with the
execution and delivery of this Agreement by the Company or the consummation by
the Company of the Transactions, except for (i) the filing of a premerger
notification and report form by the Company under the Hart-Scott- Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), or filings and
consents under applicable foreign law, including, without limitation, the
antitrust laws or laws intended to prohibit, restrict or regulate actions having
the purpose or effect of monopolization or restraint of trade and any filings
and consents which may be required by any foreign environmental, health or
safety laws or regulations pertaining to any notification, disclosure or
required approval triggered by the Merger or the Transactions, (ii) the filing
with the SEC of (x) the Schedule 14D-9, (y) if required, the Proxy Statement
relating to the approval by the Company's shareholders of this Agreement and (z)
such reports under Section 13(a) of the Exchange Act as may be required in
connection with this Agreement and the Transactions contemplated by this
Agreement, (iii) the filing of the Articles of Merger pursuant to the PBCL and
(iv) such consents, approvals, orders, authorizations, registrations,
declarations or filings which, individually or in the aggregate, have not had
and could not be reasonably expected to have a Material Adverse Effect on the
Company.
Section 3.8. Brokerage Fees and Commissions. Except for those fees and
------------------------------
expenses payable to Houlihan Lokey and to the Company's financial advisor,
Conway DelGenio Gries & Co., LLC ("Conway DelGenio") pursuant to the letter
agreements, dated November 19, 1999 and November 12, 1999 respectively, and any
amendments or supplements thereto, no person is entitled to receive any
investment banking, brokerage or finder's fee or commission in connection with
this Agreement or the Transactions based upon arrangements made by or on behalf
of the Company or any of its subsidiaries or by any affiliate of the Company or
any of its subsidiaries. A copy of the above agreements and any amendments or
supplements thereto have previously been delivered to Parent. The estimated fees
and expenses incurred and to be incurred by the Company for counsel,
accountants, investment bankers, financial printers, experts and consultants in
connection with this Agreement and the Transactions are set forth in Section 3.8
of the Company Disclosure Schedule.
Section 3.9. Schedule 14D-9; Offer Documents. Neither the Schedule 14D-9,
-------------------------------
any other document required to be filed by the Company with the SEC in
connection with the Transactions, nor any information supplied by the Company in
writing for inclusion in the Offer Documents or the Schedule 14D-1 shall, at the
respective times the Schedule 14D-9, any such of other filings by the Company,
the Schedule 14D-1, the Offer Documents or any amendments or supplements thereto
are filed with the SEC or are first published, sent or given to stockholders of
the Company, as the case may be, contain any untrue statement of a material fact
or omit to state
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<PAGE>
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 are made,
not misleading. The Schedule 14D-9 and any other document required to be filed
by the Company with the SEC in connection with the Transactions will comply as
to form in all material respects with the requirements of the Exchange Act and
the rules and regulations thereunder. Notwithstanding the foregoing, no
representation or warranty is made by the Company with respect to statements
made or incorporated by reference therein based on information supplied by or on
behalf of Parent or Purchaser specifically for inclusion or incorporation by
reference therein.
Section 3.10. Litigation. Except as disclosed in Section 3.10 of the
----------
Company Disclosure Schedule, there is no claim, suit, action or proceeding
(including arbitration proceedings) pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries that, individually or
in the aggregate, has since December 31, 1998 had or could reasonably be
expected to have a Material Adverse Effect on the Company, nor is there any
judgment, decree, injunction, rule or order of any Governmental Entity or
arbitrator outstanding against the Company or any of its subsidiaries which,
individually or in the aggregate, has since December 31, 1998 had or could
reasonably be expected to have a Material Adverse Effect on the Company. The
most recent financial statements contained in the Filed Company SEC Documents
reflect an adequate reserve for all claims, suits, actions, proceedings,
judgment, decrees, injunctions, rules or orders pending or threatened against
the Company or any of its subsidiaries through the date of such financial
statements.
Section 3.11. Absence of Changes in Benefit Plans. Except as disclosed in
-----------------------------------
Section 3.11 of the Company Disclosure Schedule, or as contemplated in Section
2.10 and Section 6.8 of this Agreement or as required by applicable law, since
January 1, 1998, there has not been any adoption or amendment in any material
respect by the Company or any of its subsidiaries of any collective bargaining
agreement or any bonus, pension, profit sharing, deferred compensation,
incentive compensation, stock ownership, stock purchase, stock option, phantom
stock, retirement, vacation, severance, disability, death benefit,
hospitalization, medical or other plan, arrangement or understanding (whether or
not legally binding) providing benefits to any current or former employee,
officer or director of the Company or any of its subsidiaries or for which the
Company or any of its subsidiaries is liable. Except as filed or incorporated by
reference as an exhibit to the Company Form 10-K or disclosed in Section 3.11 of
the Company Disclosure Schedule, there exist no employment, consulting,
severance, termination or indemnification agreements, arrangements or
understandings between either of the Company or any of its subsidiaries and any
current or former officer or director of either of the Company or any of its
subsidiaries or for which either of the Company or any of its subsidiaries is
liable.
Section 3.12. ERISA Compliance. (a) Section 3.12(a) of the Company
---------------
Disclosure Schedule sets forth a complete list of all "employee benefit plans"
(as defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") including without limitation, all "multiemployer
pension plans" as defined in Section 3(37) of ERISA), employment contracts,
bonus, pension, profit sharing, deferred compensation, incentive compensation,
excess benefit, stock, stock option, severance, termination pay, change in
control or other employee benefit plans, programs or arrangements, including,
but not limited to, those providing medical, dental, vision, disability, life
insurance and vacation benefits (other than those required to be maintained by
law), whether written or unwritten, qualified or unqualified,
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<PAGE>
funded or unfunded, foreign or domestic currently maintained, or contributed to,
or required to be maintained or contributed to, by the Company or any other
person or entity that, together with the Company, is treated as a single
employer under Section 414 of the Internal Revenue Code of 1986, as amended (the
"Code") (each an "ERISA Affiliate") for the benefit of any current or former
employees, officers or directors of the Company or any of its subsidiaries or
with respect to which the Company or any of its subsidiaries has any liability
(collectively, the "Benefit Plans"). As applicable with respect to each Benefit
Plan, the Company has delivered to Purchaser, true and complete copies of (i)
each Benefit Plan, including all amendments thereto, and in the case of an
unwritten Benefit Plan, a written description thereof, (ii) all trust documents,
investment management contracts, custodial agreements and insurance contracts
relating thereto, (iii) the current summary plan description and each summary of
material modifications thereto, (iv) the three most recent annual reports (Form
5500 and all schedules thereto) filed with the Internal Revenue Service ("IRS"),
(v) the most recent IRS determination letter and each currently pending
application to the IRS for a determination letter, (vi) the three most recent
summary annual reports, financial statements and trustee reports, and (vii) all
records, notices and filing concerning IRS or Department of Labor audits or
investigations, "prohibited transactions" within the meaning of Section 406 of
ERISA or Section 4975 of the Code and "reportable events" within the meaning of
Section 4043 of ERISA.
(b) No event has occurred and, to the knowledge of the Company, there
exists no condition or set of circumstances in connection with which the Company
or any ERISA Affiliate could be subject to any liability under the terms of any
Benefit Plan, under ERISA, or, with respect to any Benefit Plan, under the Code
or any other applicable law, rule or regulation, domestic or foreign, other than
any condition or set of circumstances that, individually or in the aggregate has
not had and could not reasonably be expected to have a Material Adverse Effect
on the Company. Neither the Company nor any ERISA Affiliate has incurred or
would reasonably be expected to incur any liability in respect of any employee
benefit plan maintained by an ERISA Affiliate but not included within the term
"Benefit Plan" or by any person other than the Company or any ERISA Affiliate.
Each of the Benefit Plans has been administered in compliance with its terms and
all applicable laws. All contributions that are required to be made by the
Company or any ERISA Affiliate to any Benefit Plan have been made.
(c) The Benefit Plans which are "employee pension benefit plans" within the
meaning of Section 3(2) of ERISA and which are intended to meet the
qualification requirements of Section 401(a) of the Code (each a "Pension Plan")
now meet, and at all times since their inception have met the requirements for
such qualification, and the related trusts are now, and at all times since their
inception have been, exempt from taxation under Section 501(a) of the Code. All
Pension Plans have received determination letters from the IRS to the effect
that such Pension Plans are qualified and the related trusts are exempt from
federal income taxes and no determination letter with respect to any Pension
Plan has been revoked nor, to the best knowledge of the Company is there any
reason for such revocation, nor has any Pension Plan been amended, or failed to
be amended, since the date of its most recent determination letter in any
respect which would adversely affect its qualification. The Company has
furnished to Buyer the three most recent actuarial reports with respect to each
Benefit Plan that is a defined benefit pension plan, as defined by Section 3(35)
of ERISA. The information supplied to the actuary by the Company and its ERISA
Affiliates for use in preparing those reports was complete and accurate.
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<PAGE>
The conclusions expressed in those reports are complete and correct in all
material respects. No event has occurred since the date of the most recent such
actuarial report that had, or is likely to have, a materially adverse effect on
the ratio of plan assets to the actuarial present value of plan obligations for
accumulated benefits shown in such report.
(d) Section 3.12(d) of the Company Disclosure Schedule lists: (1) the
excess of the liabilities, determined using the accumulated benefit obligation
methodology of Statement of Financial Accounting Standards No. 87, of any
Benefit Plan subject to Title IV of ERISA over the fair market value of such
Benefit Plan's assets (2) the amount of any unfunded deferred compensation and
(3) the actuarially determined present value of any obligation to provide
retiree medical or life insurance benefits determined in accordance with
Statement of Financial Accounting Standard No. 106. For the purposes of this
Section 3.12(d) unfunded liabilities and projected costs have been determined by
the Company and its actuaries using actuarial methods and assumptions that are,
singly and in the aggregate, reasonable taking into account circumstances known
to them on the date of this Agreement, and, except as adjusted to satisfy the
requirements that such assumptions be reasonable, consistent with prior
practice.
(e) Multiemployer Plans.
(i) Section 3.12(e)(i) of the Company Disclosure Schedule lists each
Benefit Plan that is a multiemployer pension plan.
(ii) All required contributions, withdrawal liability payments or
other payments of any type that the Company or any ERISA Affiliate have been
obligated to make to any multiemployer pension plan have been duly and timely
made. Any withdrawal liability incurred with respect to any multiemployer
pension plan has been fully paid as of the date hereof.
(iii) Neither the Company nor any ERISA Affiliate has undertaken any
course of action that could reasonably be expected to lead to a complete or
partial withdrawal from any multiemployer pension plan.
(iv) Neither the Company nor any ERISA Affiliate is subject to any
liability, contingent or accrued, arising out of a transaction described in
Section 4204 of ERISA.
(v) Set forth next to each multiemployer pension plan listed on
Schedule 3.12(e)(i) of the Company Disclosure Schedule, is the amount of the
withdrawal liability that would be incurred by the Company or any ERISA
Affiliate with respect to such plan, under Section 4201 of ERISA, if the Company
or any ERISA Affiliate were to completely withdraw from such multiemployer
pension plan on the date hereof.
(f) Except as set forth on Section 3.12(f) of the Company Disclosure
Schedule, the execution and delivery of this Agreement do not, and the
consummation of the Transactions will not (i) require the Company, any ERISA
Affiliate or any of the Company's subsidiaries to pay greater compensation or
make a larger contribution to, or pay greater benefits or accelerate payment or
vesting of a benefit under, any Benefit Plan or any other program,
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<PAGE>
agreement, policy or arrangement or (ii) create or give rise to any additional
vested rights or service credits under any Benefit Plan or any other program,
agreement, policy or arrangement.
(g) Except as set forth in Section 3.12(g) of the Company Disclosure
Schedule, neither the Company nor any ERISA Affiliate or any of the Company's
subsidiaries is a party to or is bound by any severance agreement, program or
policy.
(h) Except as set forth in Section 3.12(h) of the Company Disclosure
Schedule, no Benefit Plan provides benefits, including without limitation, death
or medical benefits, beyond termination of employment or retirement other than
(i) coverage mandated by law or (ii) death or retirement benefits under a
Benefit Plan qualified under Section 401(a) of the Code. Neither the Company nor
any ERISA Affiliate or any of the Company's subsidiaries is contractually or
otherwise obligated (whether or not in writing) to provide any person with life,
medical, dental or disability benefits for any period of time beyond retirement
or termination of employment, other than as required by the provisions of
Sections 601 through 608 of ERISA and Section 4980B of the Code.
(i) With respect to any Benefit Plan that is an employee welfare benefit
plan (as defined in Section 3(1) of ERISA), (i) no such Benefit Plan in funded
through a "welfare benefit fund", as such term is defined in Section 419(e) of
the Code, (ii) each such Benefit Plan that is a "group health plan", as such
term is defined in Section 5000(b)(l) of the Code, complies in all material
respects with the applicable requirements of Sections 601 through 608 of ERISA
and Section 4980B(f) of the Code, and (iii) each such Benefit Plan (including
any such Plan covering retirees or other former employees) may be amended or
terminated without material liability to the Company or any ERISA Affiliate or
any of the Company's subsidiaries on or at any time after the consummation of
the Offer.
(j) Except as set forth in Schedule 3.12(a) of the Company Disclosure
Schedule, there is no material pension, welfare, bonus, stock purchase, stock
ownership, stock option, deferred compensation, incentive, severance,
termination or other compensation plan or arrangement, or other material
employee fringe benefit plan presently maintained by, or contributed to by the
Company, or any ERISA Affiliate which is for the benefit of any employee of the
Company or any ERISA Affiliate, including any such plan required to be
maintained or contributed to by the law of the relevant jurisdiction, maintained
outside the jurisdiction of the United States.
(k) The Company and its subsidiaries have not incurred any liability under,
and have complied in all respects with, the Worker Adjustment Retraining
Notification Act and the regulations promulgated thereunder (the "WARN Act") and
do not reasonably expect to incur any such liability as a result of actions
taken or not taken prior to the Effective Time. Section 3.12(k) of the Company
Disclosure Schedule lists (i) all the employees terminated or laid off by the
Company and its subsidiaries during the 90 days prior to the date hereof and
(ii) all the employees of the Company or its subsidiaries who have experienced a
reduction in hours of work of more than 50% (other than voluntary reductions in
hours per week) during any month during the 90 days prior to the date hereof and
describes all notices given by the Company and its subsidiaries in connection
with the WARN Act.
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Section 3.13. Taxes. (a) (i) All federal income Tax Returns and all other
-----
material Tax Returns (as defined herein) that are required to be filed by or
with respect to the Company or any of its subsidiaries have been timely filed,
and all such Tax Returns are true, complete and accurate in all material
respects and correctly reflect the income, or other measure of Tax (as defined
herein), required to be shown thereon in all material respects, (ii) except as
disclosed in Section 3.13(a)(ii) of the Company Disclosure Schedule, all Taxes
that are due have been paid in full, and (iii) the most recent financial
statements contained in the Filed Company SEC Documents reflect an adequate
reserve for all Taxes of the Company and its subsidiaries for all taxable
periods and portions thereof through the date of such financial statements.
(b) Except as set forth in Section 3.13(b) of the Company Disclosure
Schedule, no material Tax Return of the Company or any of its subsidiaries is
under audit or examination by any taxing authority, and no written notice of
such an audit or examination has been received by the Company or a subsidiary.
(c) Except as set forth in Section 3.13(c) of the Company Disclosure
Schedule, there is not in force any extension of time with respect to the due
date for the filing of any Tax Return or any waiver or agreement for any
extension of time for the assessment or payment of any Tax due with respect to
the period covered by any Tax Return.
(d) Except as set forth in Section 3.13(d) of the Company Disclosure
Schedule, there is no material issue raised or claim against the Company or any
of its subsidiaries for any Taxes, and no assessments, deficiency or adjustment
has been asserted or proposed with respect to any Tax Return and no material
issues relating to Taxes were raised in writing by a taxing authority in a
completed audit or examination that can reasonably be expected to recur in a
later taxable period.
(e) Except as set forth in Section 3.13(e) of the Company Disclosure
Schedule, since January 1, 1993, none of the Company and its subsidiaries, has
been a member of an affiliated group filing a consolidated federal income Tax
Return other than the affiliated group of which the Company is the common parent
corporation.
(f) There are no material Liens for Taxes on the assets of the Company or
any of its subsidiaries.
(g) Except as set forth in Section 3.13(g) of the Company Disclosure
Schedule, neither the Company nor any of its subsidiaries is bound by any tax
sharing, tax indemnity or similar agreement with respect to Taxes.
As used herein, "Tax Returns" shall mean all returns and reports of or
-----------
with respect to any Tax which are required to be filed by or with respect to the
Company or any of its subsidiaries, and "Taxes" shall mean (i) all taxes,
charges, imposts, tariffs, fees, levies or other similar assessments or
liabilities, including income taxes, ad valorem taxes, excise taxes, withholding
taxes, stamp taxes or other taxes of or with respect to gross receipts,
premiums, real property, personal property, windfall profits, sales, use,
transfers, licensing, employment, payroll and franchises imposed by or under any
statute, law, rule or regulation, and such terms shall include any interest,
fines, penalties, assessments or additions to tax resulting from, attributable
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to or incurred in connection with any such tax or any contest or dispute
thereof; (ii) liability of the Company or any fiduciary for the payment of any
amounts of the type described in clause (i) as a result of being a member of an
affiliated, combined consolidated or unitary group for any taxable period and
(iii) liability of the Company or any subsidiary for the payment of any amounts
of the type described in clauses (i) or (ii) as a result of any express or
implied obligation to indemnify any other person.
Section 3.14. No Excess Parachute Payments; Termination Payments; Section
-----------------------------------------------------------
162(m) of the Code. Except as set forth in Section 3.14 of the Company
- ------------------
Disclosure Schedule, any amount that could be received (whether in cash or
property or the vesting of property) as a result of any of the transactions
contemplated by this Agreement by any employee, officer or director of either of
the Company or any of their affiliates who is a "disqualified individual" (as is
defined in proposed Treasury Regulation Section 1.280G-1) under any employment,
severance or termination agreement, other compensation arrangement or Benefit
Plan would not be characterized as an "excess parachute payment" (as is defined
in Section 280G(b)(1) of the Code). Except as set forth in Section 3.14 of the
Company Disclosure Schedule, there are no payments that the Company or any of
its subsidiaries, or the Surviving Corporation is or would be required to make
to any of the Company's current or former employees or to any third party which
payment is contingent upon a change of control of the Company or any of its
subsidiaries or payable as a result of the Transactions, including, without
limitation, the termination of any of the Company's or any of its subsidiaries'
employees after the Effective Time. The disallowance of a deduction under
Section 162(m) of the Code for employee remuneration will not apply to any
amount paid or payable by the Company or any of its subsidiaries under any
commitment, program, arrangement or understanding.
Section 3.15. Compliance with Applicable Laws. Except for any of the
-------------------------------
following which, individually or in the aggregate, has not had and could not
reasonably be expected to have a Material Adverse Effect on the Company or which
are otherwise specifically disclosed in the Filed Company SEC Documents or set
forth on Section 3.15 of the Company Disclosure Statement:
(a) To the Company's knowledge, the Company and its subsidiaries has in
effect all Federal, state, local and foreign governmental approvals,
authorizations, certificates, filings, franchises, licenses, notices, permits
(including Environmental Permits (as defined herein)) and rights ("Permits")
necessary for it to own, lease or operate its properties and assets and to carry
on its business as now conducted, and there has occurred no default under any
such Permit. Each of the Company and its subsidiaries is in compliance with all
applicable statutes, laws, ordinances, rules, orders and regulations of any
Governmental Entity. "Environmental Permit" means any permit, license, approval
or other authorization issued under any applicable law, regulation and other
requirement of any country, state, municipality or other subdivision thereof
relating to pollution or protection of health or the environment, including
laws, regulations or other requirements relating to emissions, discharges,
releases of pollutants, contaminants, hazardous substances, toxic materials, or
wastes into ambient air, surface water, ground water or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment storage,
disposal, transport, or handling of chemical substances, pollutants,
contaminants or hazardous or toxic materials or wastes.
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(b) To the Company's knowledge, each of the Company and its subsidiaries
and their respective properties, assets, businesses and operations is, and has
been, and each of the Company's former subsidiaries, while subsidiaries of the
Company and their respective properties, assets, businesses and operations, was,
in compliance with all applicable Environmental Laws (as defined herein) and
Environmental Permits. The term "Environmental Laws" means any federal, state,
local or foreign statute, code, ordinance, rule, regulation, policy, guideline,
permit, consent, approval, license, judgment, order, writ, decree, injunction or
other authorization, including the requirement to register underground storage
tanks, relating to: (i) emissions, discharges, releases or threatened releases
of Hazardous Material (as defined herein) into the environment, including,
without limitation, into ambient air, soil, sediments, land surface or
subsurface, buildings or facilities, surface water, groundwater, publicly-owned
treatment works, septic systems or land; or (ii) the generation, treatment,
storage, recycling, disposal, use, handling, manufacturing, transportation or
shipment of Hazardous Material; including without limitation, the following
statutes, their implementing regulations and any state corollaries: 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
Comprehensive Environmental Response, Compensation and Liability Act, as amended
by the Superfund Amendments and Reauthorization Act, 42 U.S.C. Section 9601 et
seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the
Clean Water Act, 33 U.S.C. Section 1251 et seq. and the Clean Air Act, 42 U.S.C.
Section 7401 et seq.
(c) To the Company's knowledge, during the period of ownership or operation
by the Company and its subsidiaries of any of their respective current or
previously-owned or operated properties, there have been no Releases (as defined
herein) of Hazardous Material in, on, under, or from such properties which has
contaminated such properties or any surrounding site or any off-site location.
To the Company's knowledge, prior to the period of ownership or operation by the
Company and its subsidiaries of any of their respective current or
previously-owned or operated properties there were no releases of Hazardous
Material in, on or from such properties which has contaminated any such property
or any surrounding site or any off-site location. "Hazardous Materials" means
(l) hazardous materials, pollutants or contaminants, medical, hazardous or
infectious wastes, hazardous waste constituents, hazardous chemicals, hazardous
or toxic pollutants, and hazardous or toxic substances as those terms are
defined in or regulated by any Environmental Law, (2) petroleum, including crude
oil and any fractions thereof, (3) natural gas, synthetic gas and any mixtures
thereof, (4) radioactive materials including, without limitation, source
byproduct or special nuclear materials and (5) pesticides. "Releases" means
spills, leaks, discharges, disposal, pumping, pouring, emissions, injection,
emptying, leaching, dumping or allowing to escape.
(d) To the Company's knowledge, the Company and its subsidiaries and their
respective properties, assets, businesses and operations are not subject to any
Environmental Claims (direct or contingent) or Environmental Liabilities (as
such terms are defined herein) arising from or based upon any act, omission,
event, condition or circumstance occurring or existing on or prior to the date
hereof or for which the Company and its subsidiaries are responsible, including
without limitation, any such Environmental Claims or Environmental Liabilities
arising from or based upon the ownership or operation of assets, businesses or
properties of the Company or any subsidiary or their respective predecessors,
and (ii) neither the Company nor any of its subsidiaries has received any notice
of any violation of any
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<PAGE>
Environmental Law or Environmental Permit or any Environmental Claim in
connection with their respective assets, properties, businesses or operations,
or, in each case, those of their respective predecessors. Without regard to the
potential for a Material Adverse Effect on the Company, the Company has provided
to Purchaser and has disclosed on Section 3.15(d) of the Company Disclosure
Schedule all material environmental assessment reports prepared by, on behalf of
or, to the extent in the Company's or any subsidiary's possession or contract,
relating to the Company or any subsidiary since January 1, 1993 regarding the
environmental condition of the Company's properties or the environmental
compliance of the Company or any subsidiary. The term "Environmental Claim"
means any third party (including governmental agencies, regulatory agencies,
employees or other private parties) action, lawsuit, claim, investigation
proceeding (including claims or proceedings under the Occupational Safety and
Health Act or similar laws relating to safety of employees) which seeks to
impose liability for (i) noise; (ii) pollution or contamination of the air,
surface water, ground water, land or structure; (iii) solid (including
hazardous, waste), gaseous or liquid waste (including hazardous waste)
generation, handling, treatment, storage, disposal or transportation; (iv)
exposure to hazardous or toxic substances; (v) the safety or health of
employees; or (vi) the manufacture, processing, distribution in commerce, use,
or storage of chemical or other Hazardous Materials. An "Environmental Claim"
includes, but is not limited, to, a common law action, as well as a proceeding
to issue, modify or terminate an Environmental Permit of the Company or any of
its subsidiaries, or to adopt or amend a regulation to the extent that such a
proceeding attempts to redress violations of such an Environmental Permit as
alleged by a federal, state or local executive, legislative, judicial,
regulatory or administrative agency, board or authority. The term "Environmental
Liabilities" includes all costs arising from any Environmental Claim or
violation or alleged violation or circumstance or condition which would give
rise to a violation or liability under any Environmental Permit or Environmental
Law under any theory of recovery, at law or in equity, and whether based on
negligence, strict liability or otherwise, including but not limited to:
remedial, removal, response, abatement, investigative, monitoring, personal
injury and damage to property, and any other related costs, expenses, losses,
damages, penalties, fines, liabilities and obligations, including reasonable
attorney's fees and court costs.
(e) Notwithstanding anything to the contrary in this Agreement, neither the
Company nor Purchaser is required to: (i) with respect to the Plainville
Property (as defined herein), file any forms (other than as may be required
under the Connecticut Property Transfer Law) or (ii) with respect to any other
properties or assets owned, leased or operated by the Company, obtain any
consent, order, authorization or approval of, or make any registration,
declaration or filing with, any Governmental Entity under any Environmental Law
as a result of or in connection with the execution and delivery of this
Agreement or the consummation by the Company of the Transactions.
Section 3.16. State Takeover Statutes. The Company has taken all action
-----------------------
necessary to render the provisions of any anti-takeover statute, rule or
regulation that to the Company's knowledge may be applicable to the Transactions
(including Sections 2538 through 2588, inclusive, of the PBCL) inapplicable to
Parent, Purchaser and their respective affiliates, and to the Offer, the Merger
and the Tender and Option Agreement and this Agreement and the other
Transactions. The Board of Directors of the Company has approved the Merger and
the Tender and Option Agreement and this Agreement and the other Transactions.
Except for an exemptive filing under the Pennsylvania Takeover Disclosure Law,
no Pennsylvania anti-takeover statute,
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<PAGE>
rule or regulation (other than Sections 1921 through 1930 of the PBCL and
provisions of the PBCL generally applicable to the powers of a corporation and
the duties and powers of its board of directors in a takeover context, including
Sections 1502(a)(18), 1525(b), 1715 and 2513) is applicable to the Transactions,
including the Merger. To the Company's knowledge, no other "fair price,"
"moratorium," "control share acquisition," "business combination," or other
state takeover statute or similar statute or regulation applies or purports to
apply to the Company, Parent, Purchaser, affiliates of Parent or Purchaser, the
Offer, the Merger, the Tender and Option Agreement, this Agreement, or any of
the other Transactions based upon the Company's operations. As a result of the
foregoing actions, the only corporate action required to authorize the Merger is
the Company Shareholder Approval and no further action is required to authorize
the other Transactions.
Section 3.17. Contracts. Section 3.17 to the Company Disclosure Schedule
---------
lists, under the relevant heading, all oral or written contracts, agreements,
arrangements, guarantees, licenses, leases and executory commitments (each a
"Contract"), other than Benefit Plans, agreements disclosed on Section 3.11 to
the Company Disclosure Schedule and any Contracts heretofore filed as an exhibit
to any Filed Company SEC Document, that exist as of the date hereof to which the
Company or any of its subsidiaries is a party or by which it is bound and which
fall within any of the following categories: (a) Contracts not entered into in
the ordinary course of the Company's and its subsidiaries' businesses other than
those that individually or in the aggregate are not material to the business of
the Company and its subsidiaries, taken as a whole, (b) joint venture and
partnership agreements, (c) Contracts containing covenants purporting to limit
the freedom of the Company or any of its subsidiaries to compete in any line of
business in any geographic area or to hire any individual or group of
individuals, (d) Contracts which after the consummation of any of the
Transactions would have the effect of limiting the freedom of Parent or any of
its subsidiaries to compete in any line of business in any geographic area or to
hire any individual or group of individuals, (e) Contracts which contain minimum
purchase conditions in excess of $100,000 with respect to inventory purchases
for resale, and $100,000 in the case of everything else, or requirements or
other terms that restrict or limit the purchasing or distribution relationships
of the Company or its affiliates (including after consummation of any of the
Transactions), Parent or any of its affiliates, or any customer, licensee or
lessee thereof, (f) Contracts relating to any outstanding commitment for capital
expenditures in excess of $50,000, (g) indentures, mortgages, promissory notes,
loan agreements or guarantees of borrowed money, letters of credit or other
agreements or instruments of the Company or its subsidiaries or commitments for
the borrowing or the lending by the Company of amounts in excess of $100,000 in
the aggregate or providing for the creation of any charge, security interest,
encumbrance or lien upon any of the assets of the Company with an aggregate
value in excess of $100,000, (h) Contracts providing for "earn-outs" or other
contingent payments by the Company involving more than $100,000 per contract
over the terms of all such Contracts, (i) Contracts associated with off balance
sheet financing in excess of $100,000 in the aggregate, including but not
limited to arrangements for the sale of receivables, (j) Licenses, (k) stock
purchase agreements, asset purchase agreements or other acquisition or
divestiture agreements where the consideration in any individual transaction
exceeds $100,000 since January 1, 1998, (l) material Contracts with respect to
which a change in the ownership (whether directly or indirectly) of the
Securities or the composition of the Board of Directors of the Company may
result in a violation of or default under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of benefits
under such Contract or (m) any
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<PAGE>
other agreement which is material to the Company, irrespective of amount. All
Contracts to which the Company or any subsidiary is a party or by which it is
bound are valid and binding obligations of the Company or such subsidiary and,
to the knowledge of the Company, the valid and binding obligation of each other
party thereto except such Contracts which if not so valid and binding could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect on the Company. Neither the Company nor, to the knowledge of the
Company, any other party thereto is in violation of or in default in respect of,
nor has there occurred an event or condition which with the passage of time or
giving of notice (or both) would constitute a default under or permit the
termination of, any such Contract except such violations or defaults under or
terminations which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect on the Company. Set forth in Section
3.17(n) to the Company Disclosure Schedule is the amount of the annual premium
currently paid by the Company for its directors' and officers' liability
insurance. The Company has delivered true and correct copies of the Contracts
and Licenses set forth on Section 3.17(o) to the Company Disclosure Schedule and
the waivers and consents thereto as are necessary to provide that the
consummation of the transactions contemplated by this Agreement will not have
any affect on the Company's rights or obligations under such Contracts or
Licenses or conflict with, or result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of a
material benefit under, or result in the creation of any Lien upon any of the
material properties or assets of the Company or any subsidiaries under, or
result in the termination of such Contracts or Licenses.
Section 3.18. Labor Matters. Except to the extent set forth in Section 3.18
-------------
of the Company Disclosure Schedule, (a) no employee of the Company or any of its
subsidiaries is represented by any union or other labor organization; (b) the
Company and all of its subsidiaries are in material compliance with applicable
laws respecting employment and employment practices, terms and conditions of
employment and wages and hours, and are not engaged in any unfair labor
practice; (c) there is no unfair labor practice complaint against the Company or
any of its subsidiaries pending or, to the knowledge of the Company, threatened
by or before the National Labor Relations Board or any other Governmental
Entity; (d) there is no labor strike, material dispute, material slowdown,
representation campaign or work stoppage pending or, to the knowledge of the
Company, threatened against or affecting the Company or any of its subsidiaries;
(e) no grievance or arbitration proceeding arising out of or under collective
bargaining agreements is pending and no claim therefor has been asserted against
the Company or its subsidiaries; and (f) neither the Company or any of its
subsidiaries has experienced any material work stoppage since January 1, 1998.
The Company and its subsidiaries are in material compliance with all applicable
federal, state, local or foreign labor laws, rule and regulations.
Section 3.19. Title to Properties. (a) The Company and its subsidiaries
-------------------
have good, valid and marketable title to, or valid leasehold interests in, all
their material tangible properties and assets except for such as are no longer
used or useful in the conduct of their respective businesses or as have been
disposed of in the ordinary course of business and except for defects in title,
easements, restrictive covenants and similar encumbrances or impediments that,
in the aggregate, do not and will not materially interfere with their ability to
conduct their respective businesses as currently conducted or are otherwise set
forth on Section 3.19 of the Company Disclosure Statement. All such material
properties and assets, other than properties and assets in
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which the Company or any of its subsidiaries has leasehold interests, are free
and clear of all Liens, except for Liens that, individually or in the aggregate,
do not and will not materially interfere with the ability of the Company and its
subsidiaries to conduct their respective businesses substantially as currently
conducted. Section 3.19(a) of the Company Disclosure Schedule sets forth the
addresses of the real property owned by the Company and its subsidiaries.
(b) The Company and each of its subsidiaries has complied in all material
respects with the terms of all material leases to which it is a party and under
which it is in occupancy, and all such leases are in full force and effect. The
Company and each of its subsidiaries enjoy peaceful and undisturbed possession
under all such material leases.
Section 3.20. Undisclosed Liabilities. To the Company's knowledge, except
-----------------------
as and to the extent specifically disclosed in the Filed Company SEC Documents
or accrued on the September 30, 1999 balance sheet included in the Filed Company
SEC Documents, or as set forth in Section 3.20 of the Company Disclosure
Schedule, and except for liabilities incurred in the ordinary course of business
consistent with prior practice and otherwise not in contravention of this
Agreement, the Company does not have any liabilities or obligations of any
nature (whether absolute, contingent or otherwise, and whether or not required
to be reflected or reserved against in a consolidated balance sheet of the
Company and its subsidiaries prepared in accordance with United States generally
accepted accounting principles) that would, individually or in the aggregate,
have a Material Adverse Effect on the Company.
Section 3.21. Opinion of Company Financial Advisor. The Company has
------------------------------------
received the opinion of Houlihan Lokey, dated the date of this Agreement, to the
effect that, as of such date, the consideration to be received in the Offer and
the Merger by the Company's stockholders is fair to each class of the Company's
stockholders from a financial point of view, a signed copy of which opinion has
been delivered to Parent, and such opinion has not been amended, modified or
revoked in a manner adverse to Parent or Purchaser. The Company has been
authorized by the Company Financial Advisor to permit the inclusion of such
fairness opinion (and, subject to prior review and consent by such Company
Financial Advisor, a reference thereto) in the Offer Documents and in Schedule
14D-9 and the Proxy Statement.
Section 3.22. Intellectual Property.
---------------------
(a) Except to the extent the failure of any of the following
would not, individually or in the aggregate, have a Material Adverse Effect on
the Company:
(i) The Company and each of its subsidiaries owns free
and clear of any Liens, claims, or similar encumbrances, and has the right to
bring actions for the infringement, dilution, misappropriation or other
violation of, and/or is licensed to use all patents and patent applications,
trademarks, service marks, trade names, and registrations and applications for
registration of industrial designs, copyrights, mask works, trademarks, service
marks, trade names, trade dress, and all domain names, technology, inventions,
know-how, trade secrets, product designs, services procedures, processes and all
agreements and other rights with respect to intellectual property and computer
programs (collectively, "Intellectual Property") used in or necessary for the
conduct of Company's business as currently conducted in all material respects
and as proposed to be conducted.
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<PAGE>
(ii) To the extent that any works of authorship, materials,
products, technology or software have been developed or created independently or
jointly by any person other than the Company for which the Company has, directly
or indirectly, paid, the Company has a written agreement with such person with
respect thereto, and the Company thereby has obtained ownership of, and is the
exclusive owner of, all Intellectual Property therein or thereto by operation of
law or by valid assignment. In each case in which either the Company has
acquired any Intellectual Property from any person, the Company has obtained a
valid and enforceable assignment sufficient to irrevocably transfer all rights
in such Intellectual Property to the Company.
(iii) All of the patents, industrial design registrations,
trademark and service mark registrations, copyright registrations, mask work
registrations and domain name registrations, and all applications for such
registrations, owned by the Company are, and, to the knowledge of the Company,
those licensed to the Company are, valid and in full force, are (in the case of
those owned by the Company) held of record in the name of the Company, are not
the subject of any cancellation or reexamination proceeding or any other
proceeding challenging their extent or validity, and all necessary registration,
maintenance and renewal fees in connection with such patents and registrations
have been paid and all necessary documents and certificates in connection with
such patents and registrations have been filed with the relevant patent,
copyright, trademark or other authorities in the United States or foreign
jurisdictions, as the case may be, for the purposes of maintaining such patents
and registrations.
(iv) To the Company's knowledge, the use of such
Intellectual Property by the Company and its subsidiaries in the conduct of
their business as currently conducted and as proposed to be conducted does not
infringe on the rights of any party.
(v) To the Company's knowledge, no person is infringing on
any right of the Company or any of its subsidiaries with respect to such
Intellectual Property.
(vi) The Company and its subsidiaries are not, and the
consummation of the Transactions will not cause them to be, in breach or
violation of any agreement relating to the use of any of its Intellectual
Property, and they have not received any notification, written or oral, from any
third party that there is any such violation, breach, or inability to perform
under any such agreement.
(vii) There are no agreements, written or oral, which limit
any rights by the Company or any of its subsidiaries to use any of the
Intellectual Property owned by them.
(viii) To the Company's knowledge, none of the material
trade secrets, know- how or other confidential or proprietary information of the
Company or any Subsidiary has been disclosed to any person unless such
disclosure was necessary, and was made pursuant to an appropriate
confidentiality agreement.
(ix) Except as disclosed in Section 3.22(a)(ix) of the
Company Disclosure Schedule, the Company has not given any indemnification to
any third party against infringement of such Intellectual Property rights, and
the Company has not agreed to, or
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<PAGE>
assumed, any obligation or duty to indemnify, reimburse, hold harmless, guaranty
or otherwise assume or incur any obligation or liability or provide a right of
rescission to any third party with respect to the infringement, dilution,
misappropriation or other violation of the Intellectual Property of the Company
or any other third party.
(b) Except as disclosed in Section 3.22(b) of the Company Disclosure
Schedule, all products of the Company manufactured since January 1, 1996
(including products currently under development) and all of the Company's
Information Technology (as defined below) are capable of accurately processing,
calculating, manipulating, storing and exchanging date/time data from, into, and
between the twentieth and twenty-first centuries, including, without limitation,
the years 1999 and 2000 and any leap year calculations, provided that all other
information technology used in combination with such software properly exchanges
date/time date with such software, and will not cause a material interruption in
the ongoing operations of the Company's business on or after January 1, 2000.
For purposes of the foregoing, the term "Information Technology" shall mean and
include all software, hardware, firmware, telecommunications systems, network
systems, embedded systems and other systems, components and/or services (other
than general utility services including gas, electric, telephone and postal)
that are owned or used by the Company in the conduct of its business, or
purchased or otherwise obtained by the Company from third party suppliers.
(c) The Company and each of its affiliates requires employees to
execute, and has in fact received or will obtain prior to the expiration date of
the Offer from each such employee necessary to preserve the Licenses, as
amended, an executed Employee Confidentiality Agreement that, among other
things, obligates such employees to protect the Company's confidential
information and the confidential information the Company receives from its
customers and vendors. The Company further represents that any amendment,
alteration, improvement or other change to the Company's procedures involving
confidential information, including but not limited to such changes required as
a condition of consent to the transfer of the Wonderware OEM Master Software
License Agreement dated June 6, 1997, as amended, could not reasonably be
expected to have a Material Adverse Effect on the Company or result in a
material change in the Company's business as presently conducted and as proposed
to be conducted.
Section 3.23. Insurance. The Company and its subsidiaries maintain policies
---------
of fire and casualty, liability and other forms of insurance in such amounts,
with such deductibles and against such risks and losses as are in the Company's
judgment, reasonable for the assets and properties of the Company and its
subsidiaries and customary in the Company's industry. Except as set forth in
Section 3.23 of the Company's Disclosure Schedule, all such policies are in full
force and effect, all premiums due and payable thereon have been paid, and no
notice of cancellation or termination has been received with respect to any such
policy.
Section 3.24. Affiliate Transactions. Section 3.24 of the Company
----------------------
Disclosure Schedule sets forth a true and complete list (including names of
parties, amounts involved and brief descriptions) of all transactions,
agreements, arrangements or understandings (or series thereof), written or oral,
between the Company or any of its subsidiaries and any of its or their directors
or executive officers (including, in the case of natural persons, any of such
persons' relatives or affiliates, but excluding any dealings exclusively among
the Company and its subsidiaries)
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currently existing or effected or entered into since January 1, 1998 involving
amounts in excess of $60,000, other than any such transactions, agreements,
arrangements or understandings otherwise specifically disclosed in the Filed
Company SEC Documents.
Section 3.25. Indemnification Claims. Other than as set forth on Section
----------------------
3.25 of the Company Disclosure Schedule, the Company is not aware of any
indemnification, breach of contract or similar claims by or against the Company
or any of its subsidiaries which are pending or threatened (or which could be
reasonably expected to be made in the future), in each case in excess of $50,000
in amount, with respect to any acquisition or disposition by the Company of any
assets or businesses.
Section 3.26. Absence of Questionable Payments. To the Company's knowledge,
--------------------------------
neither the Company nor any of its subsidiaries nor any director, officer,
agent, employee or other person acting on behalf of the Company or any of its
subsidiaries, has used any corporate or other funds for unlawful contributions,
payments, gifts, or entertainment, or made any unlawful expenditures relating to
political activity to government officials or others or established or
maintained any unlawful or unrecorded funds in violation of Section 30A of the
Exchange Act. To the Company's knowledge, neither the Company nor any of its
subsidiaries nor any current director, officer, agent, employee or other person
acting on behalf of the Company or any of its subsidiaries, has accepted or
received any unlawful contributions, payments, gifts, or expenditures. To the
Company's knowledge, the Company and each of its subsidiaries which is required
to file reports pursuant to Section 12 or 15(d) of the Exchange Act is in
compliance with the provisions of Section 13(b) of the Exchange Act.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser represent and warrant to the Company as follows:
Section 4.1. Organization and Qualification. Each of Parent and Purchaser
------------------------------
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has the requisite corporate
power and authority to carry on its business as it is now being conducted. Each
of Parent and Purchaser is duly qualified as a foreign corporation or licensed
to do business, and is in good standing, in each jurisdiction where the
character of its properties owned or leased or the nature of its activities
makes such qualification or licensing necessary, except where the failure to be
so qualified or licensed and in good standing could not reasonably be expected
to prevent or materially delay the consummation of the Offer or the Merger.
Purchaser is a wholly owned subsidiary of Parent, and Parent is an indirect
wholly owned subsidiary of Siemens Aktiengesellschaft.
Section 4.2. Authority Relative to this Agreement. Each of Parent and
------------------------------------
Purchaser has all requisite corporate power and authority to execute and deliver
this Agreement and each instrument required hereby to be executed and delivered
by Parent or Purchaser prior to or at the Effective Time, to perform its
obligations hereunder and thereunder, and to consummate the Transactions. The
execution and delivery by Parent and Purchaser of this Agreement and each
instrument required hereby to be exercised and delivered by Parent or Purchaser
prior to or at the
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Effective Time and the performance of their respective obligations hereunder and
thereunder, and the consummation by Parent and Purchaser of the Transactions
have been duly and validly authorized by the respective Boards of Directors of
Parent and Purchaser, and the shareholder of Purchaser, and no other corporate
proceedings on the part of Parent or Purchaser are necessary to authorize this
Agreement, or commence the Offer or to consummate the Transactions (including
the Offer) other than filing and recordation of appropriate merger documents as
required by the PBCL or the merger filing required by the German Federal Cartel
Authority and publication after consummation of the offer of an ad-hoc
disclosure pursuant to Section 15 of the German Securities Trading Act. This
Agreement has been duly and validly executed and delivered by each of Parent and
Purchaser and, assuming this Agreement constitutes a valid and binding
obligation of the Company, this Agreement constitutes a valid and binding
agreement of each of Parent and Purchaser, enforceable against each of Parent
and Purchaser in accordance with its terms.
Section 4.3. Proxy Statement. None of the information supplied in writing
---------------
by Parent, Purchaser and their respective affiliates specifically for inclusion
in the Proxy Statement, if required, shall, at the time the Proxy Statement is
mailed, at the time of the Shareholder Meeting or at the Effective Time, 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; provided, however, that Parent and Purchaser make no representation
or warranty as to any of the information relating to and supplied by or on
behalf of the Company specifically for inclusion in the Proxy Statement. If, at
any time prior to the Effective Time, any event relating to Parent or any of its
affiliates, officers or directors is discovered by Parent that should be set
forth in a supplement to the Proxy Statement, Parent will promptly inform the
Company.
Section 4.4. Consents and Approvals; No Violation. Subject to the taking of
------------------------------------
the actions described in the immediately succeeding sentence, the execution and
delivery of this Agreement do not, and the consummation of the Transactions will
not, conflict with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or result in the creation of any Lien upon any of the material properties
or assets of Parent under (i) the certificate of incorporation or bylaws of
Parent or Purchaser, (ii) any loan or credit agreement, note, bond, indenture,
lease or other agreement, instrument or Permit applicable to Parent or Purchaser
or their respective properties or assets, (iii) any judgment, order, writ,
injunction, decree, law, statute, ordinance, rule or regulation applicable to
Parent or Purchaser or their respective properties or assets, other than, in the
case of clause (ii) and (iii), any such conflicts, violations, defaults, rights
or Liens that individually or in the aggregate would not (x) impair in any
material respect the ability of Parent and Purchaser to perform their respective
obligations under this Agreement or (y) prevent or impede the consummation of
any of the Transactions. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity or any other
person is required by Parent or Purchaser in connection with the execution and
delivery of this Agreement or the consummation by Parent or Purchaser, as the
case may be, of any of the Transactions, except (A) in connection with the HSR
Act or in connection with the German Act Against Restraints on Competition (the
"GWB Act") or under applicable foreign law, including, without limitation, the
antitrust laws or laws intended to prohibit, restrict or regulate actions having
the purpose or effect of monopolization or restraint
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of trade and any filings and consents which may be required by any foreign
environmental, health or safety laws or regulations pertaining to any
notification, disclosure or required approval triggered by the Merger or the
Transactions, (B) pursuant to the Securities Act, and the Exchange Act, (C) the
filing of the Articles of Merger pursuant to the PBCL, (D) such consents,
approvals, orders, authorizations, registrations and declarations as may be
required under the law of any foreign country in which the Parent or any of its
subsidiaries conducts any business or owns any assets, (E) such filings and
approvals as may be required under the "blue sky," takeover or securities laws
of various states, or (F) the filing of reports with the U.S. Department of
Commerce regarding foreign direct investment in the United States, (G)
publication after consummation of the Offer of an ad-hoc disclosure pursuant to
Section 15 of the German Securities Trading Act or (H) where the failure to
obtain any such consent, approval, authorization or permit, or to make any such
filing or notification, would not prevent or delay consummation of the Offer or
the Merger or would not otherwise prevent Parent from performing its obligations
under this Agreement or where the requirement to obtain such consent, approval,
authorization or permit, or to make such filing or notification arises from the
regulatory status of the Company or its subsidiaries.
Section 4.5. Financing. Parent will have at each of (i) the time of
---------
acceptance for purchase by Purchaser of Securities pursuant to the Offer and
(ii) the Effective Time, and will make available to Purchaser (or cause to be
made available), the funds necessary to consummate the Offer and the Merger on
the terms contemplated by this Agreement. In this connection, Parent has
previously provided the Company with financial information with respect to
Parent pursuant to a letter dated January 12, 2000 and Parent represents that
such financial information is materially accurate.
Section 4.6. Brokerage Fees and Commissions. Except for those fees and
------------------------------
expenses payable to Goldman, Sachs & Co. oHG, a German entity, no person is
entitled to receive any investment banking brokerage or finder's fee or
commission in connection with this Agreement or the Transactions based upon
arrangements may by or on behalf of Parent or Purchaser.
Section 4.7. Schedule 14D-1; Offer Documents. Neither the Schedule 14D-1,
-------------------------------
the Offer Documents nor any information supplied by Parent or Purchaser in
writing for inclusion in the Schedule 14D-9 shall, at the respective times the
Schedule 14D-9, the Schedule 14D-1, the Offer Documents or any amendments or
supplements thereto are filed with the SEC or are first published, sent or given
to shareholders of the Company, as the case may be, 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 are made, not misleading. The Schedule 14D-1 and
the Offer Documents will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing, no representation or warranty is made by Parent
or Purchaser with respect to statements made or incorporated by reference
therein based on information supplied by the Company specifically for inclusion
or incorporation by reference therein.
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ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
Section 5.1. Conduct of Business of the Company Pending the Merger. The
-----------------------------------------------------
Company hereby covenants and agrees that, prior to the Effective Time, unless
otherwise expressly contemplated by this Agreement or consented to in writing by
Parent, it will and will cause each of its subsidiaries to:
(a) operate its business in the usual and ordinary course
consistent with past practices;
(b) use its reasonable best efforts to preserve intact its
business organization, maintain its rights and franchises, retain the services
of its respective key employees and maintain its relationships with its
respective customers and suppliers and others having business dealings with it
to the end that its goodwill and ongoing business shall be unimpaired at the
Effective Time;
(c) maintain and keep its material properties and assets in as
good repair and condition as at present, ordinary wear and tear excepted, and
maintain supplies and inventories in quantities consistent with its customary
business practice; and
(d) use its reasonable best efforts to keep in full force and
effect insurance and bonds comparable in amount and scope of coverage to that
currently maintained.
Section 5.2. Prohibited Actions by the Company. Without limiting the
---------------------------------
generality of Section 5.1, except as set forth in Section 5.2 of the Company
Disclosure Schedule, the Company covenants and agrees that, except as expressly
contemplated by this Agreement or otherwise consented to in writing by Parent,
from the date of this Agreement until the Effective Time, it will not do, and
will not permit any of its subsidiaries to do, any of the following:
(a) (i) increase the compensation (or benefits) payable to or to
become payable to any director or employee, except for increases in salary or
wages of employees in the ordinary course of business and consistent with past
practice; (ii) grant any severance or termination pay (other than pursuant to
the normal severance policy or practice of the Company or its subsidiaries as
disclosed in Section 3.12 of the Company Disclosure Schedule and in effect on
the date of this Agreement) to, or enter into or amend in any material respect
any employment or severance agreement with, any employee; (iii) establish,
adopt, enter into or amend any collective bargaining agreement or Benefit Plan
of the Company or any Commonly Controlled Entity; or (iv) take any action to
accelerate any rights or benefits, or make any determinations not in the
ordinary course of business consistent with past practice, under any collective
bargaining agreement or Benefit Plan of the Company or any Commonly Controlled
Entity;
(b) declare, set aside or pay any dividend on, or make any other
distribution in respect of (whether in cash, stock or property), outstanding
shares of capital stock, except for regular quarterly dividends on the Company
Preferred Stock consistent with past practices (including as to declaration,
record and payment dates), each such quarterly dividend in
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no event to exceed $0.0125 per share of Company Preferred Stock and dividends by
a wholly owned subsidiary of the Company to the Company or another wholly owned
subsidiary of the Company;
(c) except as provided by Section 6.14 hereof, redeem, purchase
or otherwise acquire, or offer or propose to redeem, purchase or otherwise
acquire, any outstanding shares of capital stock (including, without limitation,
the Company Preferred Stock) of, or other equity interests in, or any securities
that are convertible into or exchangeable for any shares of capital stock of, or
other equity interests in, or any outstanding options, warrants or rights of any
kind to acquire any shares of capital stock of, or other equity interests in,
the Company or any of its subsidiaries (other than (i) any such acquisition by
the Company or any of its wholly owned subsidiaries directly from any wholly
owned subsidiary of the Company in exchange for capital contributions or loans
to such subsidiary, or (ii) any acquisition, purchase, forfeiture or retirement
of shares of Company Common Stock or the Options occurring pursuant to the terms
(as in effect on the date of this Agreement) of any existing Benefit Plan of the
Company or any of its subsidiaries, in a manner otherwise consistent with the
terms of this Agreement);
(d) effect any reorganization or recapitalization; or split,
combine or reclassify any of the capital stock of, or other equity interests in,
the Company or any of its subsidiaries or issue or authorize or propose the
issuance of any other securities in respect of, in lieu of or in substitution
for, shares of such capital stock or such equity interests;
(e) offer, sell, issue or grant, or authorize or propose the
offering, sale, issuance or grant of, any shares of capital stock of, or other
equity interests in, any securities convertible into or exchangeable for (or
accelerate any right to convert or exchange securities for) any shares of
capital stock of, or other equity interest in, or any options, warrants or
rights of any kind to acquire any shares of capital stock of, or other equity
interests in, or any Voting Company Debt or other voting securities of, the
Company or any of its subsidiaries, or any "phantom" stock, "phantom" stock
rights, SARs or stock-based performance units, other than issuances of shares of
Company Common Stock upon the exercise of the Options outstanding at the date of
this Agreement in accordance with the terms thereof (as in effect on the date of
this Agreement) and the acceleration of such Options as contemplated in Sections
2.10 and 6.8;
(f) acquire or agree to acquire, by merging or consolidating
with, by purchasing an equity interest in or a portion of the assets of, or in
any other manner, any business or any corporation, partnership, association or
other business organization or division thereof or otherwise acquire any assets
of any other person (other than the purchase of inventories and supplies from
suppliers or vendors in the ordinary course of business and consistent with past
practice and other than asset acquisitions which do not exceed $50,000 in any
individual transaction or $100,000 in the aggregate);
(g) sell, lease, exchange or otherwise dispose of, or grant any
Lien with respect to, any of the properties or assets of the Company or any of
its subsidiaries that are, individually or in the aggregate, material to the
business of the Company and its subsidiaries, except for dispositions of excess
or obsolete assets and sales of inventories in the ordinary course of business
and consistent with past practice;
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<PAGE>
(h) propose or adopt any amendments to its articles of
incorporation or bylaws or other organizational documents;
(i) effect any change in any accounting methods, principles or
practices in effect as of December 31, 1998 affecting the reported consolidated
assets, liabilities or results of operations of the Company, except as may be
required by a change in generally accepted accounting principles;
(j) (i) incur any indebtedness for borrowed money (other than
borrowings for working capital purposes under the Company's existing revolving
credit facility disclosed on Section 3.17 of the Company Disclosure Schedule
which aggregate borrowings shall not exceed $5,000,000 at any time), issue or
sell any debt securities or warrants or other rights to acquire any debt
securities of the Company or any of its subsidiaries, guarantee any such
indebtedness or debt securities of another person, enter into any "keep well" or
other agreement to maintain any financial statement condition of another person
or enter into any arrangement having the economic effect of any of the
foregoing, or (ii) make any loans, advances or capital contributions to, or
investments in, any other person, other than to or in the Company or any direct
or indirect wholly owned subsidiary of the Company;
(k) enter into any Contract described in Section 3.17;
(l) pay, discharge, settle or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge, settlement or satisfaction, in
the ordinary course of business consistent with past practice or in accordance
with their terms, of liabilities reflected or reserved against in the most
recent consolidated financial statements (or the notes thereto) of the Company
included in the Filed Company SEC Documents or incurred since the date of such
financial statements in the ordinary course of business consistent with past
practice;
(m) take any of the actions set forth in Section 3.4 not
otherwise specified herein;
(n) settle the terms of any material litigation affecting the
Company or any of its subsidiaries;
(o) make any Tax election except in a manner consistent with past
practice, change any method of accounting for Tax purposes, or settle or
compromise any material Tax liability;
(p) make or agree to make any new capital expenditures other than
capital expenditures which individually do not exceed $250,000 and which in the
aggregate do not exceed $500,000 and provided such are in accordance with the
capital expenditure budget previously provided to Parent; or
(q) agree in writing or otherwise to take any of the foregoing
actions or any action which would make any representation or warranty of the
Company in this Agreement or the Tender and Option Agreement untrue or incorrect
in any material respect or
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cause any condition set forth in Annex A to occur or any condition in
Article VII to be unsatisfied.
ARTICLE VI
COVENANTS
Section 6.1. No Solicitation.
---------------
(a) From and after the date hereof until the Effective Time or
the termination of this Agreement in accordance with Section 8.1, neither the
Company nor any of its subsidiaries will directly or indirectly initiate,
solicit or encourage (including by way of furnishing non-public information or
assistance), or take any other action to facilitate, any inquiries or the making
or submission of any Acquisition Proposal (as defined herein) or enter into or
maintain or continue discussions or negotiate with any person or group in
furtherance of such inquiries or to obtain or induce any person or group to make
or submit an Acquisition Proposal or agree to or endorse any Acquisition
Proposal or assist or participate in, facilitate or encourage, any effort or
attempt by any other person or group to do or seek any of the foregoing or
authorize or permit any of its officers, directors or employees or any of its
subsidiaries or affiliates or any investment banker, financial advisor,
attorney, accountant or other representative or agent retained by it or any of
its subsidiaries to take any such action; provided, however, that nothing
contained in this Agreement shall prohibit the Company or the Board of Directors
of the Company from, prior to the earlier to occur of acceptance for payment of
Securities pursuant to the Offer or adoption of this Agreement by the requisite
vote of the stockholders of the Company, furnishing information to or entering
into discussions or negotiations with any person or entity that makes an
unsolicited (i.e. not solicited after the date of this Agreement) written, bona
fide Acquisition Proposal that constitutes, or may reasonably be expected to
lead to, any Superior Proposal (as defined herein), if, and only to the extent
that (i) the Board of Directors of the Company, after consultation with and
based upon the opinion of independent legal counsel (who may be the Company's
regularly engaged independent legal counsel), determines reasonably and in good
faith that the failure to do so would reasonably be expected to constitute a
breach of the fiduciary duty of the Board of Directors of the Company under
applicable law and (ii) prior to taking such action the Company (x) delivers to
Parent and Purchaser the notice required pursuant to Section 6.1(c) stating that
it is taking such action and (y) receives from such person or group an executed
confidentiality agreement that is not, in any material respect, less restrictive
as to such person or entity than the Confidentiality Agreement and which, in any
event, contains customary confidentiality and standstill restrictions and shall
not contain any exclusivity provisions which would prohibit the Company from
complying with its obligations under this Section 6.1 or otherwise under this
Agreement. Without limiting the foregoing, it is understood that any violation
of the restrictions set forth in this Section 6.1 by any officer, director,
employee or affiliate of the Company or any of its subsidiaries or any
investment banker, attorney, accountant or other advisor, agent or
representative of the Company or any of its subsidiaries, whether or not such
person is purporting to act on behalf of the Company or any of its subsidiaries
or otherwise, shall be deemed to be a breach of this Section 6.1 by the Company.
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(b) Except as expressly permitted by this Section 6.1, neither
the Board of Directors of the Company nor any committee thereof shall (i)
withdraw, modify in a manner adverse to Parent or Purchaser or fail to make, or
propose to withdraw, modify in a manner adverse to Parent or Purchaser or fail
to make its approval or recommendation of the Offer or the Merger or of the
Tender and Option Agreement, this Agreement and the other Transactions, (ii)
approve or recommend, or propose to approve or recommend, any Acquisition
Proposal, (iii) take any action not previously taken to render the provisions of
any anti-takeover statute, rule or regulation (including Sections 2538 through
2588, inclusive, of the PBCL) inapplicable to any person (other than Parent,
Purchaser or their affiliates) or group or to any Acquisition Proposal, or (iv)
cause the Company to accept such Acquisition Proposal and/or enter into any
letter of intent, agreement in principle, acquisition agreement or other similar
agreement (each, an "Acquisition Agreement") related to any Acquisition
Proposal; provided, however, that prior to the earlier to occur of acceptance
for payment of Securities pursuant to the Offer or adoption of this Agreement by
the requisite vote of the stockholders of the Company, the Board of Directors of
the Company may terminate this Agreement pursuant to Section 8.1(d)(ii) if, and
only to the extent that (A) such Acquisition Proposal is a Superior Proposal,
(B) the Board of Directors of the Company, after consultation with and based
upon the written opinion of independent legal counsel (who may be the Company's
regularly engaged independent counsel), determines reasonably and in good faith
that the failure to do so would reasonably be expected to constitute a breach of
the fiduciary duty of the Board of Directors of the Company under applicable
law, (C) the Company shall, prior to or simultaneously with the taking of such
action, have paid or pay to Parent or Purchaser or their designee the
Termination Fee referred to in Section 8.3, (D) the Company is not in material
breach of this Agreement, including without limitation this Section 6.1, (E) the
Company shall have complied with its obligations under Section 8.1(d)(ii) and
(F) concurrently with such termination, the Company enters into a definitive
acquisition agreement with respect to such Superior Proposal.
(c) In addition to the obligations of the Company set forth in
paragraphs (a) and (b) above, the Company shall promptly (and in any event,
within one business day) advise Parent orally and in writing of any request for
information or the submission or receipt of any Acquisition Proposal, or any
inquiry with respect to or which could reasonably be expected to lead to any
Acquisition Proposal, the material terms and conditions of such request,
Acquisition Proposal or inquiry, and the identity of the person making any such
request, Acquisition Proposal or inquiry and the Company's response or responses
thereto. The Company will keep Parent fully informed of the status and details
(including amendments or proposed amendments) of any such request, Acquisition
Proposal or inquiry. Immediately following the execution of this Agreement, the
Company will cease and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted heretofore with respect
to any of the foregoing.
(d) "Acquisition Proposal" means an inquiry, offer or proposal
--------------------
regarding any of the following (other than the Transactions contemplated by this
Agreement) involving the Company: (i) any merger, consolidation, share exchange,
recapitalization, liquidation, dissolution, business combination or other
similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer
or other disposition of 20% or more of the assets of the Company and its
subsidiaries, taken as a whole, or of any Material Business (as defined herein)
or of any subsidiary or subsidiaries responsible for a Material Business in a
single transaction or
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series of related transactions; (iii) any tender offer (including a self tender
offer) or exchange offer that, if consummated, would result in any person or
group beneficially owning more than 20% of the outstanding shares of any class
of equity securities of the Company or its subsidiaries (or in the case of a
person or group which beneficially owns more than 20% of the outstanding shares
of any class of equity securities of the Company as of the date hereof, would
result in such person or group increasing the percentage or number of shares of
such class beneficially owned by such person or group) or the filing of a
registration statement under the Securities Act in connection therewith; (iv)
any acquisition of 20% or more of the outstanding shares of capital stock of the
Company or the filing of a registration statement under the Securities Act in
connection therewith or any other acquisition or disposition the consummation of
which would prevent or materially diminish the benefits to Parent of the Merger;
or (v) any public announcement by the Company or any third party of a proposal,
plan or intention to do any of the foregoing or of any agreement to engage in
any of the foregoing. "Superior Proposal" means any proposal made by one or more
third parties to acquire, directly or indirectly, including pursuant to a tender
offer, exchange offer, merger, consolidation, share exchange, business
combination, recapitalization, liquidation, dissolution or other similar
transaction, all the shares of Company Common Stock and Company Preferred Stock
then outstanding or all or substantially all of the assets of the Company and
its subsidiaries which the Board of Directors of the Company determines
reasonably and in good faith (based on the written opinion of Houlihan Lokey or
another financial advisor of nationally recognized reputation) to be superior to
each of (x) the holders of Company Common Stock and (y) the holders of Company
Preferred Stock from a financial point of view (taking into account any changes
to the terms of this Agreement and the Offer that have been proposed by Parent
in response to such proposal) and to be more favorable to the Company and each
of (x) the holders of Company Common Stock and (y) the holders of Company
Preferred Stock (taking into account all financial and strategic considerations,
including relevant legal, financial, regulatory and other aspects of such
proposal and the third party making such proposal and the conditions and
prospects for completion of such proposal) than the Offer, the Merger and the
other Transactions taken as a whole. "Material Business" means any business (or
the assets needed to carry out such business) that contributed or represented
15% or more of the net sales, the net income or the assets (including equity
securities) of the Company and its subsidiaries taken as a whole.
(e) Nothing contained in this Section 6.1 shall prohibit the
Company or the Board of Directors of the Company from taking and disclosing to
its stockholders a position contemplated by Rule 14e-2(a) promulgated under the
Exchange Act or from making any disclosure to the Company's stockholders if the
Board of Directors of the Company, after consultation with and based upon the
written opinion of independent legal counsel (who may be the Company's regularly
engaged independent counsel), determines reasonably and in good faith that the
failure to take such action would reasonably be expected to constitute a breach
of the fiduciary duty of the Board of Directors under applicable law; provided
that neither the Board of Directors of the Company nor any committee thereof
withdraws or modifies, or proposes to withdraw or modify, the approval or
recommendation of the Board of Directors of the Company of the Offer or the
Merger or approves or recommends, or publicly proposes to approve or recommend,
an Acquisition Proposal unless and until the Company and the Board of Directors
of the Company have complied with all the provisions of this Section 6.1.
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Section 6.2. Access to Information. Between the date of this Agreement and
---------------------
the Effective Time, the Company shall, and shall cause its subsidiaries to (a)
afford to Parent and its officers, directors, employees, accountants,
consultants, legal counsel, agents and other representatives full access during
normal business hours and at all other reasonable times to the officers,
employees, agents, properties, offices and other facilities of the Company and
its subsidiaries and to their books and records (including all Tax Returns and
all books and records related to Taxes and such returns), (b) permit Parent to
make such inspections as it may require (and the Company shall cooperate with
Parent in any inspections, including, without limitation, environmental due
diligence), and (c) furnish promptly to Parent and its representatives a copy of
each report, schedule, registration statement and other document filed by it
during such period pursuant to the requirements of federal or state securities
laws and such other information concerning the business, properties, contracts,
records and personnel of the Company and its subsidiaries (including financial,
operating and other data and information) in the possession of the Company or
the Company's counsel, accountants or other consultants or agents as may be
reasonably requested, from time to time, by or on behalf of Parent.
Section 6.3. Confidentiality Agreement. The parties agree that the
-------------------------
provisions of the Confidentiality Agreement dated November 15, 1999 (the
"Confidentiality Agreement") between Parent and the Company shall remain binding
and in full force and effect in accordance with its terms. The parties shall
comply with, and shall cause their respective representatives to comply with,
all of their respective obligations under the Confidentiality Agreement until
the Effective Time, at which time the Confidentiality Agreement shall terminate
and be of no further force and effect.
Section 6.4. Reasonable Best Efforts. (a) Subject to the terms and
-----------------------
conditions herein (including Section 6.1), each of the parties hereto agrees to
use its reasonable best efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
as soon as reasonably practicable the Transactions. In case at any time after
the Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement and the Tender and Option Agreement, the proper
officers and directors of each party to this Agreement shall take all such
necessary action. Such reasonable best efforts shall apply to, without
limitation, (i) the obtaining of all necessary consents, approvals or waivers
from third parties and Governmental Entities necessary to the consummation of
the Transactions and (ii) opposing vigorously any litigation or administrative
proceeding relating to this Agreement and the Tender and Option Agreement or the
transactions contemplated hereby and thereby, including, without limitation,
promptly appealing any adverse court or agency order. Notwithstanding the
foregoing or any other provisions contained in this Agreement or the Tender and
Option Agreement to the contrary, neither Parent nor any of its affiliates shall
be under any obligation of any kind to (i) respond to a second request for
information under the HSR Act or to enter into any negotiations or to otherwise
agree with or litigate against any Governmental Entity, including but not
limited to any governmental or regulatory authority with jurisdiction over the
enforcement of any applicable federal, state, local and foreign antitrust,
competition or other similar laws, or (ii) otherwise agree with any Governmental
Entity or any other party to sell or otherwise dispose of, agree to any
limitations on the ownership or control of, or hold separate (through the
establishment of a trust or otherwise) particular assets or categories of assets
or businesses of any of the Company, its subsidiaries, Parent or any of Parent's
affiliates.
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(b) The Company shall give and make all required and material
notices and reports to the appropriate persons with respect to the Permits and
Environmental Permits that may be necessary for the sale and purchase of the
business and the ownership, operation and use of the assets of Surviving
Corporation by Parent and Purchaser after the Effective Time. Subject to the
other terms of this Agreement, each of the Company, Parent and Purchaser shall
cooperate and use their respective reasonable best efforts to make all filings,
to obtain all actions or nonactions, waivers, Permits and orders of Governmental
Entities necessary to consummate the Transactions and to take all reasonable
steps as may be necessary to obtain an approval or waiver from, or to avoid an
action or proceeding by, any Governmental Entity. Each of the parties hereto
will furnish to the other parties such necessary information and reasonable
assistance as such other parties may reasonably request in connection with the
foregoing.
(c) The Company shall use its reasonable best efforts to complete
prior to the expiration of the Offer all activities, if any (including, without
limitation, all investigation, remediation, notifications and certifications)
required of the Company in connection with, and in compliance with, the
Connecticut Property Transfer Law (Sections 22a-134 through 22a-134e of the
Connecticut General Statutes, as amended by Public Act 95-183) (the "Connecticut
Property Transfer Law") with respect to the 74 Northwest Drive, Plainville,
Connecticut property (the "Plainville Property").
(d) The Company and its Board of Directors shall (i) use its
reasonable best efforts to ensure that no state takeover statute or similar
statute, rule or regulation (including Sections 2538 through 2588, inclusive, of
the PBCL) is or becomes applicable to the Offer, the Merger, this Agreement, the
Tender and Option Agreement or any of the other Transactions contemplated by the
foregoing and (ii) if any state takeover statute or similar statute, rule or
regulation becomes applicable to the Offer, the Merger, this Agreement, the
Tender and Option Agreement or any other Transactions, use its reasonable best
efforts to ensure that the Offer, the Merger and the other Transactions,
including the transactions contemplated by this Agreement and the Tender and
Option Agreement may be consummated as promptly as practicable on the terms
contemplated by this Agreement and the Tender and Option Agreement and otherwise
to minimize the effect of such statute or regulation on the Offer, the Merger
and the other Transactions, including the Transactions contemplated by this
Agreement, and the Tender and Option Agreement.
Section 6.5. Indemnification of Directors and Officers.
-----------------------------------------
(a) Parent and Purchaser agree that all rights to indemnification
for acts or omissions occurring prior to the Effective Time existing as of the
date hereof in favor of the current or former directors or officers of the
Company and its subsidiaries as provided in the Company and/or, if greater, such
subsidiaries' respective articles of incorporation or bylaws shall survive the
Merger and shall continue in full force and effect in accordance with their
terms for a period of six years from the Effective Time. Parent shall cause to
be maintained, if commercially available, for a period of six years from the
Effective Time the Company's current directors' and officers' insurance and
indemnification policy (the "D&O Insurance") (provided that Parent may
substitute therefor, at its election, policies or financial guarantees with the
same carriers or other obligors as insure Parent's directors and officers of at
least the same coverage and amounts containing terms and conditions which are
substantially similar to the existing
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D&O Insurance to the extent that such insurance policies provide coverage for
events occurring prior to the Effective Time for all persons who are or were
directors and/or officers of the Company at any time prior to the Effective
Time, so long as the annual premium to be paid by the Company after the
Effective Time for such D&O Insurance during such six-year period would not
exceed $133,875 per year. If, during such six- year period, such insurance
coverage cannot be obtained at all or can only be obtained for an amount in
excess of $133,875 per year, Parent shall use reasonable efforts to cause such
insurance coverage to be obtained for an amount equal to $133,875 per year, on
terms and conditions substantially similar to the existing D&O Insurance.
(b) If any claim or claims shall, subsequent to the Effective
Time and within six years thereafter, be made in writing against any present or
former director or officer of the Company or its subsidiaries based on or
arising out of the services of such person prior to the Effective Time in the
capacity of such person as a director or officer of the Company or its
subsidiaries (and such director or officer shall have given Parent written
notice of such claim or claims within such six year period), the provisions of
Section 6.5(a) respecting the rights to indemnify the current or former
directors or officers under the articles of incorporation and bylaws of the
Company and/or its subsidiaries shall continue in effect until the final
disposition of all such claims.
(c) Notwithstanding anything to the contrary in this Section
6.5, neither Parent nor the Surviving Corporation shall be liable for any
settlement effected without its written consent, which shall not be unreasonably
withheld.
Section 6.6. Event Notices and Other Actions. (a) From and after the date
-------------------------------
of this Agreement until the Effective Time, the Company shall promptly notify
Parent and Purchaser of (i) the occurrence or nonoccurrence of any event, the
occurrence or nonoccurrence of which has resulted in, or could reasonably be
expected to result in, any condition to the Offer set forth in Annex A, or any
condition to the Merger set forth in Article VII, not being satisfied, (ii) the
Company's failure to comply with any covenant or agreement to be complied with
by it pursuant to this Agreement which has resulted in, or could reasonably be
expected to result in, any condition to the Offer set forth in Annex A, or any
condition to the Merger set forth in Article VII, not being satisfied and (iii)
any representation or warranty made by the Company contained in this Agreement
that is qualified as to materiality becoming untrue or inaccurate in any respect
or any such representation or warranty that is not so qualified as to
materiality becoming untrue or inaccurate in any material respect. The Company's
delivery of any notice pursuant to this Section 6.6(a) shall not cure any breach
of any representation or warranty of the Company contained in this Agreement or
otherwise limit or affect the remedies available hereunder to Parent or
Purchaser.
(b) The Company shall use its reasonable best efforts not to,
and shall use its reasonable best efforts not to permit any of its subsidiaries
to, take any action or nonaction that will, or that could reasonably be expected
to, result in (i) any of the representations and warranties of the Company set
forth in this Agreement that is qualified as to materiality becoming untrue,
(ii) any of such representations and warranties that is not so qualified
becoming untrue in any material respect or (iii) except as otherwise permitted
by Section 6.1 and
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subject to Section 6.4(a), any condition to the Offer set forth in Annex A, or
any condition to the Merger set forth in Article VII, not being satisfied.
Section 6.7. Third Party Standstill Agreements. During the period from the
---------------------------------
date of this Agreement through the Effective Time, the Company shall not
terminate, amend, modify or waive any material provision of any confidentiality
or standstill or similar agreement to which the Company or any of its
subsidiaries is a party (other than any involving Parent or Purchaser). Subject
to the foregoing, during such period, the Company agrees to enforce and agrees
to permit (and, to the fullest extent permitted under applicable law, hereby
assigns its rights thereunder to Parent and Purchaser) Parent and Purchaser to
enforce on its behalf and as third party beneficiaries thereof, to the fullest
extent permitted under applicable law, the provisions of any such agreements,
including obtaining injunctions to prevent any breaches of such agreements and
to enforce specifically the terms and provisions thereof in any court or other
tribunal having jurisdiction. Notwithstanding the foregoing, nothing in this
Section 6.7 is intended to prevent the Company from exercising its rights under
Section 6.1 in accordance with the provisions of such Section. In addition, the
Company hereby waives any rights the Company may have under any standstill or
similar agreements to object to the transfer to Purchaser of all Securities held
by stockholders covered by such standstill or similar agreements and hereby
covenants not to consent to the transfer of any Securities held by such
stockholders to any other person unless (i) the Company has obtained the
specific, prior written consent of Parent with respect to any such transfer or
(ii) this Agreement has been terminated pursuant to Article VIII.
Section 6.8. Employee Stock Options; Employee Plans and Benefits and
-------------------------------------------------------
Employment Contracts.
- --------------------
(a) Company Stock Option Plans. Simultaneously with the
--------------------------
execution of this Agreement, the Board of Directors of the Company (or, if
appropriate, any committee administering the Company Stock Option Plans) shall
adopt such resolutions or take such other actions as are required to effect the
transactions contemplated by Section 2.10 in respect of all outstanding Options
and thereafter the Board of Directors of the Company (or any such committee)
shall adopt any such additional resolutions and take such additional actions as
are required in furtherance of the foregoing.
(b) Payments in Respect of Options. Each Option cancelled
------------------------------
pursuant to Section 2.10 shall, upon cancellation, be converted into the right
to receive an amount in cash equal to the product of (i) the number of
Securities subject to such Option and (ii) the excess, if any, of the Merger
Consideration for Company Common Stock over the exercise price per share subject
or related to such Option.
(c) Time of Payment. The amount described in subsection (b)
---------------
shall be paid by the Company immediately before the Effective Time.
(d) Taxes; Interest. All amounts payable pursuant to Section
---------------
2.10 and Section 6.8(b) and (c) shall be subject to any required withholding of
taxes and shall be paid without interest.
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(e) Termination of Equity-Based Compensation. No further
----------------------------------------
grants of Options shall be made under the Company Stock Option Plans after the
date of this Agreement, and the provision in any other Benefit Plan providing
for the potential issuance, transfer or grant of any capital stock of the
Company or any of its subsidiaries or any interest, or release of restrictions
in respect of any capital stock of the Company or any of its subsidiaries shall
be deleted, and the Company Stock Options Plans shall be terminated, as of the
Effective Time, and the Company shall ensure that following the Effective Time
no holder of an Option (whether or not outstanding as of the Effective Time),
restricted stock, derivative security, or any participant in any other Benefit
Plan shall have any right thereunder to acquire any capital stock of the Company
or any of its subsidiaries or the Surviving Corporation. No participant in the
Company Stock Option Plans shall be entitled to receive any other payment or
benefit thereunder except as provided in Section 2.10 and Section 6.8.
(f) Employment Agreement. From and after the Effective Time,
--------------------
Parent and Purchaser shall, and shall cause the Surviving Corporation to honor
in accordance with its terms the existing employment agreement listed in Section
6.8(f) of the Company Disclosure Schedule.
(g) Executive Incentive Plan. Parent and Purchaser shall and
------------------------
shall cause the Surviving Corporation to honor the amounts due to any officer,
director or employee of the Company pursuant to the Executive Incentive Plan
under any relevant calculation periods for such plan which closed prior to
January 1, 2000. Parent and Purchaser make no commitment that the Surviving
Corporation will continue the Executive Incentive Plan.
(h) No Right to Employment. Nothing contained in this
----------------------
Agreement shall confer upon any employee of the Company, any ERISA Affiliate or
any of the Company's subsidiaries any right with respect to employment by
Parent, the Purchaser or any of the Parent's subsidiaries, nor shall anything
herein interfere with the right of Parent, the Purchaser or any of the Parent's
subsidiaries to terminate the employment of any such employee at anytime, with
or without cause, or except as otherwise expressly provided in this Section 6.8
restrict Parent, the Purchaser or any of the Parent's subsidiaries in the
exercise of their independent business judgment in modifying any other terms and
conditions of the employment of any such employee.
(i) Amendments to the Pension Plan; Adoption of Separation
------------------------------------------------------
Plan.
- ----
(i) Subsequent to the Effective Time, Purchaser or
Parent shall cause appropriate action to be taken to amend the Company's Pension
Plan (the "Company Pension Plan") with respect to the benefit earned under the
Company Pension Plan by those participants in the Company Pension Plan who are
actively employed by the Company at the Effective Time ("Eligible
Participants"), as set forth in this Section 6.8(i). These amendments shall be
as follows: (A) the reduction in the amount of the Company Pension Plan benefit
that is payable to Eligible Participants due to the commencement of such
Eligible Participant's Company Pension Plan benefit prior to the Eligible
Participant attaining his or her normal retirement age under the Company Pension
Plan shall be changed to be the same as the reduction that is set forth in
Section 3 of Article IV of the Siemens Retirement Plan, provided that the
Eligible Participant is at least age 55 and has at least ten years of vesting
service under the Company Pension Plan at the time of his or her termination of
employment from the Surviving
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Corporation or an affiliate of the Surviving Corporation; and (B) a lump sum
optional form of benefit payment shall be added to the Company Pension Plan,
provided that the Eligible Participant is at least age 55 and has at least ten
years of vesting service under the Company Pension Plan at the time of his or
her termination of employment from the Surviving Corporation or an affiliate of
the Surviving Corporation. All of the other provisions of the Company Pension
Plan shall continue to apply in accordance with its terms.
(ii) Subsequent to the Effective Time, Purchaser or
Parent shall cause appropriate action to be taken to merge the assets and
liabilities of the Company Pension Plan into the Siemens Retirement Plan, or its
successor Plan.
(iii) If and when a cash balance formula becomes
effective under the Siemens Retirement Plan, Purchaser or Parent shall cause
appropriate action to be taken to have the calculation of the opening balances
for Eligible Participants who are actively employed with the Surviving
Corporation or any other U.S. affiliate of Parent at the time the conversion to
such formula becomes effective for such Eligible Participants to be made in
accordance with the provisions of this Section 6.8(i)(iii). The calculation of
the opening balance under the cash balance formula for an Eligible Participant
for whom the sum of his or her age and vesting service under the Moore Pension
Plan at the time of the conversion is less than 55, shall be done in accordance
with the terms of the Siemens Retirement Plan in effect at the time of the
conversion. For an Eligible Participant for whom the sum of his or her age and
vesting service under the Company Pension Plan at the time of the conversion is
equal to or more than 55, the opening balance shall be equal to the sum of (A)
the opening balance calculated in accordance with the provisions of the Siemens
Retirement Plan in effect at the time of the conversion and (B) the additional
amount that is necessary so that after taking into account future pay and
interest credits the projected age 65 benefit from the cash balance formula of
the Siemens Retirement Plan is equal to the projected age 65 benefit from the
Company Pension Plan. For purposes of calculating clause (A) under the
immediately preceding sentence, if the Eligible Participant is at least age 55
and has at least 10 years of vesting service under the Company Pension Plan at
the time of the conversion, the Participant's opening balance shall be based
upon the Eligible Participant's early retirement benefit under the Company
Pension Plan, and for all other Eligible Participants an age 65 benefit shall be
used. For purposes of calculating the amount under clause (B) in the second
preceding sentence, the following assumptions shall be used: (1) an interest
rate of 6.5%, (2) the prevailing commissioners' standard mortality table as
described in Section 807 (d) of the Internal Revenue Code used to determine
reserves for group annuity contracts issued on the date the conversion is
calculated, (3) a salary scale of 4%, and (4) pay credits ranging from 4 to 15%.
(iv) Subsequent to the Effective Time, Purchaser or
Parent shall cause appropriate action to be taken to have a separation plan
adopted with respect to the employees of the Company who are actively employed
by the Company at the Effective Time which will provide (A) one week of
separation pay for each full year of service, and (B) an additional payment of
eight weeks of separation pay if a general release acceptable to the employer of
such employees is executed, and for purposes of calculating benefits under this
separation plan, service with the Company that is recognized as vesting service
under the Company Pension Plan shall be included.
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(j) Statement of Principles. Parent and Purchaser shall, and
-----------------------
shall cause the Surviving Corporation to honor the obligations created by the
Company Employee Benefit and Severance Principles adopted by the Board of
Directors of the Company at a Special Meeting of such Board held on January 14,
2000 to the same extent as if they were set forth in this Agreement.
Section 6.9. Meeting of the Company's Shareholders.
-------------------------------------
(a) To the extent required by applicable law and subject to
the Company's rights under Section 6.1, the Company shall promptly after
consummation of the Offer take all action necessary in accordance with the PBCL
and its Articles of Incorporation and Bylaws to convene a Shareholder Meeting to
consider and vote on the Merger and this Agreement. At the Shareholder Meeting,
all of the Securities then owned by Parent, Purchaser or any other subsidiary of
Parent shall be voted to approve the Merger and this Agreement. The Board of
Directors of the Company shall recommend that the Company's shareholders vote to
approve the Merger and this Agreement if such vote is sought, shall use its best
efforts to solicit from shareholders of the Company proxies in favor of the
Merger and shall take all other action in its judgment necessary and appropriate
to secure the vote of shareholders required by the PBCL to effect the Merger.
(b) Parent and Purchaser shall not, and they shall cause
their subsidiaries not to, sell, transfer, assign, encumber or otherwise dispose
of the Securities acquired pursuant to the Offer or otherwise prior to the
Shareholder Meeting; provided, however, that this Section 6.9(b) shall not apply
to the sale, transfer, assignment, encumbrance or other disposition of any or
all such Securities in transactions involving solely Parent, Purchaser and/or
one or more of their wholly owned subsidiaries.
(c) Notwithstanding the foregoing, in the event that
Purchaser shall acquire at least 80% of each of the Company Common Stock and
Company Preferred Stock, the parties hereto agree, at the request of Purchaser,
to take all necessary and appropriate action to cause the Merger to become
effective, in accordance with Section 1924(b)(1)(ii) of the PBCL, as soon as
reasonably practicable after such acquisition, without a meeting of the
shareholders of the Company.
Section 6.10. Proxy Statement. If required under applicable law, the
---------------
Company and Parent shall prepare the Proxy Statement, file it with the SEC under
the Exchange Act as promptly as practicable after Purchaser purchases Company
Common Stock and/or Company Preferred Stock pursuant to the Offer, and use all
reasonable efforts to have it cleared by the SEC. As promptly as practicable
after the Proxy Statement has been cleared by the SEC, the Company shall mail
the Proxy Statement to the shareholders of the Company as of the record date for
the Shareholder Meeting.
Section 6.11. Public Announcements. Parent and the Company shall to the
--------------------
fullest extent practicable consult with each other before issuing any press
release or otherwise making any public statement with respect to the Offer, the
Merger and the other Transactions and shall not issue any such press release or
make any such public statement prior to such consultation, except as may be
required by law.
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Section 6.12. Shareholder Litigation. The Company shall give Parent the
----------------------
opportunity to participate in the defense or settlement of any shareholder
litigation against the Company and its directors relating to any of the
Transactions until the purchase of Securities pursuant to the Offer, and
thereafter, shall give Parent the opportunity to direct the defense of such
litigation and, if Parent so chooses to direct such litigation, Parent shall
give the Company and its directors an opportunity to participate in such
litigation; provided, however, that no such settlement shall be agreed to
without Parent's consent, which consent shall not be unreasonably withheld; and
provided further that no settlement requiring a payment by a director shall be
agreed to without such director's consent.
Section 6.13. FIRPTA. The Company shall deliver to Purchaser prior to the
------
expiration of the Offer a certified statement, prepared in accordance with
Sections 897 and 1445 of the Code, that the Securities are not "United States
real property interests" within the meaning of Section 897 of the Code.
Section 6.14. Redemption of Company Preferred Stock. Upon the occurrence of
-------------------------------------
a Trigger Event (as defined in the Tender and Option Agreement), or the
occurrence and continued existence of circumstances that would give Parent or
Purchaser the right to terminate this Agreement in circumstances where a
Termination Fee is paid or payable pursuant to Section 8.3, at the request of
Parent by written notice, the Company shall within two business days of such
notice deliver to the holders of Company Preferred Stock a notice of redemption
of such shares pursuant to Article Fifth of the Company's Articles of
Incorporation and take all other actions necessary to redeem such shares.
Section 6.15. Foreign Subsidiaries. Immediately prior to the consummation
--------------------
of the Offer, Purchaser shall have the right to cause such of its affiliates as
it shall select to purchase any or all of the non-United States subsidiaries of
the Company and, if Purchaser so elects, the Company shall sell or otherwise
cause such subsidiaries to be sold to such affiliates of Purchaser on such terms
and in such manner as Purchaser shall select provided that (a) such purchase and
sale transactions do not have an adverse effect on the Company and (b) no such
transactions will be deemed to constitute a breach of any representation,
warranty or covenant of the Company in this Agreement.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
Section 7.1. Conditions to Each Party's Obligation to Effect the Merger.
----------------------------------------------------------
The respective obligations of each party to effect the Merger are subject to the
satisfaction or waiver, where permissible, prior to the Effective Time, of the
following conditions:
(a) if required by the PBCL, this Agreement shall have been
approved by the requisite affirmative vote of the shareholders of the Company in
accordance with applicable law;
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(b) no statute, rule, regulation, executive order, decree or
injunction shall have been enacted, entered, promulgated, or enforced by any
court or Governmental Entity which is in effect and has the effect of
prohibiting the consummation of the Merger; and
(c) the waiting period (and any extension thereof) applicable
to the consummation of the Merger under the HSR Act, if any, shall have expired
or been terminated, and (x) in the case of the Company's obligations, all other
governmental consents, orders and approvals legally required for the
consummation of the Merger and the transactions contemplated hereby shall have
been obtained and be in effect at the Effective Time, except where the failure
to obtain any such consent would not reasonably be expected to subject any
officer, director, employee or shareholder of the Company to civil or criminal
liability in respect of the failure to obtain such consent, and (y) in the case
of Parent's and Purchaser's obligations, all other governmental consents, orders
and approvals legally required for the consummation of the Merger and the
transactions contemplated hereby (including merger control clearance by the
German Federal Cartel Office under the GWB Act) shall have been obtained and be
in effect at the Effective Time, except where the failure to obtain any such
consent would not reasonably be expected to have a Material Adverse Effect on
the Company or Parent, or materially impede the operation or use of any of the
Company's assets or business after the Closing.
Section 7.2. Conditions to Obligations of Parent and Purchaser to Effect
-----------------------------------------------------------
the Merger. The obligations of Parent and Purchaser to effect the Merger are
- ----------
further subject to the satisfaction or waiver pursuant to Section 1.1, prior to
the Effective Time, of the condition that Purchaser shall have accepted for
payment and paid for Securities tendered pursuant to the Offer.
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
Section 8.1. Termination. This Agreement may be terminated and the Merger
-----------
contemplated hereby may be abandoned at any time (notwithstanding approval
thereof by the shareholders of the Company) prior to the Effective Time:
(a) by mutual written consent duly authorized by the Boards
of Directors of the Company, Parent and Purchaser;
(b) by Parent, Purchaser or the Company if any court of
competent jurisdiction or other Governmental Entity shall have issued a final
order, decree or ruling or taken any other final action restraining, enjoining
or otherwise prohibiting the consummation of the Offer or the Merger and such
order, decree or ruling or other action is or shall have become nonappealable;
(c) by Parent or Purchaser, if due to an occurrence or
circumstance which would result in the occurrence and continued existence of any
of the conditions set forth in Annex A hereto, Purchaser shall have (i) failed
to commence the Offer within the time required by Regulation 14D under the
Exchange Act, (ii) terminated the Offer without purchasing any Securities
pursuant to the Offer or (iii) failed to accept for payment Securities pursuant
to the Offer prior to May 31, 2000;
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(d) by the Company (i) if there shall not have been and be
continuing a material breach of any representation, warranty, covenant or
agreement on the part of the Company, and Purchaser shall have (A) failed to
commence the Offer within the time required by Regulation 14D under the Exchange
Act, (B) subject to Section 1.1(e), terminated the Offer without purchasing all
the Securities validly tendered and not withdrawn pursuant to the Offer, or (C)
subject to Section 1.1(e), failed to accept for payment Securities pursuant to
the Offer prior to May 31, 2000, or (ii) prior to the purchase of Securities
pursuant to the Offer, concurrently with the execution of a definitive
acquisition agreement under the circumstances permitted by Section 6.1 provided,
that such termination under this clause (ii) shall not be effective unless (x)
the Company and its Board of Directors shall have complied in all material
respects with all their obligations under Section 6.1 and the Company shall have
paid the Termination Fee pursuant to Section 8.3 and (y) the Company shall have
provided Parent and Purchaser with at least five business days' prior written
notice prior to terminating this Agreement, which notice shall be accompanied by
(1) a copy of the proposed definitive acquisition agreement with respect to the
Superior Proposal that the Company proposes to accept and (2) the Company's
written certification that it has made the determinations with respect to such
Superior Proposal set forth in clauses (A) and (B) of the proviso in Section
6.1(b) and (3) the representation that the Company will, in the absence of any
other Superior Proposal, execute such a definitive acquisition agreement unless
Parent or Purchaser modify the Offer or this Agreement such that the Company's
Board of Directors determines that the Offer and the Merger (as so modified) are
at least as favorable as such Superior Proposal;
(e) by Parent or Purchaser prior to the purchase of
Securities pursuant to the Offer, if (i) any representations and warranties of
the Company contained in this Agreement which are qualified by materiality shall
not be true and correct at any time prior to the acceptance for payment of
Securities pursuant to the Offer (without regard to any knowledge qualifications
therein), or the representations and warranties of the Company contained in this
Agreement which are not qualified by materiality shall not be true and correct
in any material respect at any time prior to the acceptance for payment of
Securities pursuant to the Offer (without regard to any knowledge qualifications
therein) (other than to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties
shall not be true and correct as of such date), or (ii) the Company shall not
have performed and complied with, in all material respects (without reference to
any materiality qualifications therein), each covenant or agreement contained in
the Agreement and required to be performed or complied with by it, and which
breach, in the case of clause (i) and (ii) above, shall not have been cured
prior to the earlier of (A) 10 business days following notice of such breach to
the Company by Parent or Purchaser and (B) May 31, 2000; provided, however, that
the Company shall have no right to cure and Parent and Purchaser may immediately
terminate this Agreement in the event that such breach by the Company was
willful, in the event of a material breach of Section 6.1 (whether or not
willful), or in the event that such breach is not reasonably capable of being
cured within such period of time or (iii) the Board of Directors of the Company
or any committee thereof shall have withdrawn, or modified, amended or changed
(including by amendment of the Schedule 14D-9) in a manner adverse to Parent or
Purchaser its approval or recommendation of the Offer, the Merger, any of the
Transactions or this Agreement, or shall have approved or recommended to the
Company's stockholders an Acquisition Proposal or any other acquisition of
Securities other than the Offer and the Merger, or shall have adopted any
resolutions to effect any of the foregoing or (iv) the Board of Directors
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of the Company shall have failed to publicly reaffirm their approval or
recommendation of the Offer, the Merger, the Transactions or this Agreement
within two business days following Parent's or Purchaser's written request to do
so;
(f) by the Company prior to the purchase of any Securities pursuant to
the Offer if (i) there shall have been a material breach of any representation
or warranty in this Agreement on the part of Parent or Purchaser which
materially adversely affects (or materially delays) the consummation of the
Offer or the Merger or (ii) Parent or Purchaser shall not have performed or
complied with, in all material respects (without reference to any materiality
qualifications therein), each covenant or agreement contained in this Agreement
and required to be performed or complied with by them, and such breach
materially adversely affects the Company, its stockholders generally or its
employees generally or which materially adversely affects (or materially delays)
the consummation of the Offer or the Merger, and which breach, in the case of
both clause (i) and clause (ii) above, shall not have been cured prior to the
earlier of (A) 10 business days following notice of such breach to Parent and
Purchaser by the Company and (B) May 31, 2000; provided, however, that Parent
and Purchaser shall have no right to cure such breach and the Company may
immediately terminate this Agreement in the event that such breach by Parent or
Purchaser was willful or in the event such breach is not reasonably capable of
being cured within such period of time;
(g) by Parent or Purchaser prior to the purchase of Securities
pursuant to the Offer if any person or group (which includes a "person" or
"group" as such terms are defined in Section 13(d)(3) of the Exchange Act) other
than Parent, Purchaser, any of their affiliates, or any group of which any of
them is a member, shall have acquired beneficial ownership of more than 20% of
the outstanding shares of Company Common Stock or Company Preferred Stock or
shall have consummated or entered into a definitive agreement or an agreement in
principle to consummate an Acquisition Proposal or if any person or group which,
prior to the date of this Agreement, had a Schedule 13D or 13G on file with the
SEC shall have acquired or proposed to acquire beneficial ownership of
additional shares of any class or series of capital stock of the Company,
through the acquisition of stock, the formation of a group or otherwise,
constituting 10% or more of any such class or series, or shall have been granted
any option, right or warrant, conditional or otherwise, to acquire beneficial
ownership of additional shares of any class or series of capital stock of the
Company (including the Company Common Stock and Company Preferred Stock)
constituting 10% or more of any such class or series (it being understood that
the execution of the Tender and Option Agreement by the Company stockholders
that are parties thereto and the performance of their obligations thereunder
shall not, in itself, be deemed to constitute such an acquisition of beneficial
ownership triggering this provision); or
(h) by Parent or Purchaser if the Company or any shareholder or
shareholders party to the Tender and Option Agreement who beneficially own,
individually or in the aggregate, 10% of the Fully Diluted Voting Power or 10%
of the Fully Diluted Shares shall have breached in any material respect any of
its or their obligations under the Tender and Option Agreement and such breach
shall not have been cured, provided that there shall be no right to cure in
respect of breaches that are not reasonably capable of cure (which shall
include, without limitation, breaches of Sections 5, 8 or 9 of the Tender and
Option Agreement).
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Section 8.2. Effect of Termination. In the event of the termination and
---------------------
abandonment of this Agreement pursuant to Section 8.1, this Agreement, except
for the provisions of Sections 6.3, 8.2, 8.3, 9.3, 9.4 and 9.7, shall forthwith
become void and have no effect, without any liability on the part of any party
or its affiliates, directors, officers or shareholders except as provided in
Sections 8.3 and 9.3 of this Agreement. Notwithstanding anything herein to the
contrary, to the extent the Company then owes Parent a Termination Fee (as
defined herein) pursuant to the provisions of Section 8.3 hereof at the time of
such termination, termination by the Company pursuant to Section 8.1 shall not
be effective unless prior to or simultaneously therewith such Termination Fee is
paid to the Parent.
Section 8.3. Expenses; Termination Fee.
-------------------------
(a) Except as provided in Section 8.3(b), (c) and (d) of this
Agreement, all fees and expenses incurred by the parties hereto shall be borne
solely and entirely by the party which has incurred such fees and expenses (it
being understood that the filing fees under the HSR Act and under the GWB Act
shall be borne by Purchaser).
(b) If:
(i) (x) Parent or Purchaser terminates this Agreement
pursuant to Section 8.1(c) or the Company terminates this Agreement pursuant to
Section 8.1(d)(i), in either case, in circumstances when, prior to such
termination any third party shall have acquired beneficial ownership of 20% or
more of the outstanding shares of Company Common Stock or Company Preferred
Stock (or any person or group with a Schedule 13D or 13G on file with the SEC
(including the stockholders party to the Tender and Option Agreement except as
expressly permitted in that agreement) shall have acquired beneficial ownership
of additional shares of any class or series of capital stock of the Company
(including Company Common Stock and Company Preferred Stock), through the
acquisition of stock, the formation of a group or otherwise, constituting 10% or
more of any such class or series (it being understood that the execution of the
Tender and Option Agreement by the Company stockholders that are parties thereto
and the performance of their obligations thereunder shall not, in itself, be
deemed to constitute such an acquisition of beneficial ownership triggering this
provision)) or shall have made or consummated or announced an intention to make
or consummate an Acquisition Proposal (or with respect to any proposal that may
be existing on the date hereof, not withdrawn such Acquisition Proposal) or (y)
Parent or Purchaser terminates this Agreement pursuant to Section 8.1(g), and,
in any such case described in clauses (x) or (y) in this Section 8.3(b)(i),
within 12 months after such termination the Company or any of its subsidiaries
enters into or publicly announces an intention to enter into a definitive
agreement with respect to an Acquisition Proposal, or consummates or publicly
announces an intention to consummate an Acquisition Proposal;
(ii) Parent or Purchaser terminates this Agreement
pursuant to (x) clauses (i) or (ii) of Section 8.1(e) as a result of a willful
breach of this Agreement by the Company or any material breach of Section 6.1
(whether or not willful), (y) clauses (iii) or (iv) of Section 8.1(e) or (z)
Section 8.1(h);
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(iii) the Company terminates this Agreement pursuant to
Section 8.1(d)(ii); or
(iv) the Company terminates this Agreement pursuant to
Section 8.1(f) in circumstances when Parent or Purchaser shall also have the
right to terminate this Agreement pursuant to the circumstances described in
Section 8.3(b)(i) or 8.3(b)(ii);
then, in each case, the Company shall pay to Parent, within two business days
following the execution and delivery of such agreement or such occurrence, as
the case may be, or prior to or simultaneously with such termination by the
Company as contemplated by 8.3(b)(i), (iii) or (iv), a fee, in cash, of $5.5
million (a "Termination Fee"); provided, that the Company in no event shall be
obligated to pay more than one such Termination Fee with respect to all such
agreements and occurrences and such termination. Any payment required to be made
pursuant to this subsection (b) shall be made to Parent by wire transfer of
immediately available funds to an account designated by Parent. The provisions
of this Section 8.3 shall not derogate from any other rights or remedies which
Parent or Purchaser may possess under this Agreement (including as provided in
Section 9.3) or under applicable law, and the payment of the Termination Fee
shall not be deemed to constitute liquidated damages.
(c) If this Agreement is terminated as a result of a breach of
this Agreement by any party hereto and such breach is not a willful and material
breach by the breaching party or a material breach by the Company of Section
6.1, such breaching party shall have no liability to the non-breaching party (or
parties) under this Agreement except that: (i) no such breach shall relieve the
obligation of the Company to pay the Termination Fee if it is otherwise payable
pursuant to Section 8.3(b); (ii) no such breach shall affect the rights provided
to Parent or Purchaser pursuant to Section 9.3 to the extent available; and
(iii) the breaching party, irrespective of whether the breach is willful, shall
be responsible for the Expenses (as hereinafter defined) of the non-breaching
party (or parties), except with respect to a Specified Breach (as hereinafter
defined) as to which there shall be no liability. The parties acknowledge and
agree that no such limitation of liability or any other limitation of liability
shall apply to breaches which are willful and material or a material breach by
the Company of Section 6.1.
For purposes hereof:
"Expenses" shall mean the reasonable documented out of pocket costs
--------
and expenses (not to exceed an aggregate maximum of $3.0 million) incurred by
the non-breaching party (or parties) and its affiliates with respect to or
arising out of the negotiation and execution of this Agreement, the Tender and
Option Agreement, the Confidentiality Agreement and the performance of the
Transactions, including all fees and expenses of counsel, accountants,
investment bankers, printers, experts and consultants and travel expenses,
disbursements and other external or internal out of pocket costs or expenses.
"Specified Breach" shall mean a breach of a representation or warranty
----------------
contained in this Agreement (i) first occurring after the date hereof, (ii)
caused by an event or circumstance first occurring after the date hereof outside
of the breaching party's control, direction and ability to cure, and (iii) in
respect of which the breaching party had no knowledge of the likelihood of
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<PAGE>
occurrence prior to the date hereof (e.g., an act of God). A Specified Breach
shall not include, in any event, a material breach of a representation or
warranty as of the date of this Agreement.
(d) The Termination Fee shall not be refundable or subject to
offset or any other claim by the Company, provided that (i) if the Company shall
have paid any Expenses to Parent or Purchaser pursuant to Section 8.3(c), the
amount of such Expenses which have been so paid shall be credited against the
amount of any Termination Fee which is thereafter due and payable to Parent or
Purchaser pursuant to Section 8.3, (ii) if the Company shall have paid any
Termination Fee to Parent or Purchaser pursuant to Section 8.3, the amount of
such Termination Fee which has been so paid shall be credited against the amount
of any Expenses which thereafter are due and payable to Parent or Purchaser
pursuant to Section 8.3(c) and (iii) in connection with any suit or claim for
monetary damages brought by Parent or Purchaser with respect to a breach of this
Agreement by the Company, the amount of the Termination Fee paid by the Company,
if any, shall be credited against the amount of any monetary damages suffered by
Parent or Purchaser which the Company otherwise would be responsible for with
respect to such suit or claim.
Section 8.4. Amendment. To the extent permitted by applicable law, this
---------
Agreement may be amended by action taken by or on behalf of the Boards of
Directors of the Company, Parent and Purchaser at any time before or after
approval of this Agreement by the shareholders of the Company but, after any
such shareholder approval, no amendment shall be made that by law requires the
further approval of such shareholders without the approval of such shareholders.
This Agreement may not be amended except by an instrument in writing signed on
behalf of all the parties.
Section 8.5. Extension; Waiver. At any time prior to the Effective Time, a
-----------------
party may (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties of the other parties contained herein or in any
documents, certificate or writing delivered pursuant hereto, and (c) waive
compliance with any of the agreements or conditions of the other parties hereto
contained herein; provided that after the approval of the Merger by the
shareholders of the Company, no extensions or waivers shall be made that by law
require further approval by such shareholders without the approval of such
shareholders. Any agreement on the part of any party to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Non-Survival of Representations and Warranties. None of the
----------------------------------------------
representations and warranties made in this Agreement shall survive after the
Effective Time. This Section 9.1 shall not limit any covenant or agreement of
the parties hereto which by its terms contemplates performance after the
Effective Time.
Section 9.2. Entire Agreement; Assignment. This Agreement (including the
----------------------------
Company Disclosure Schedule), the Tender and Option Agreement and, to the extent
contemplated in
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<PAGE>
Section 6.3(b), the Confidentiality Agreement, (a) constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the parties or any of them with respect to the subject matter hereof and
(b) shall not be assigned by operation of law or otherwise, provided that Parent
or Purchaser may assign any of their rights and obligations to any direct or
indirect wholly owned subsidiary of Parent, but no such assignment shall relieve
Parent or Purchaser of its obligations hereunder. Any of Parent, Purchaser or
any direct or indirect wholly owned subsidiary of Parent may purchase Securities
under the Offer. Any attempted assignment in violation of this Section 9.2 shall
be void. Subject to the preceding sentences, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
Section 9.3. Enforcement of the Agreement. The Company agrees that
----------------------------
irreparable damage would occur to Parent and Purchaser in the event that any of
the provisions of this Agreement were not performed by the Company in accordance
with their specific terms or were otherwise breached. It is accordingly agreed
that Parent and Purchaser shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any federal or state court located in the State of New York
(as to which the parties agree to submit jurisdiction of the purposes of such
action), this being in addition to any other remedy to which they are entitled
at law or in equity including those set forth in Section 8.3 of this Agreement.
The Company further agrees to waive any requirement for the securing or posting
of any bond in connection with obtaining any such injunction or other equitable
relief.
Section 9.4. Severability. If any term or other provision of this
------------
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the Transactions is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that Transactions contemplated hereby are fulfilled to the extent possible. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provisions of this Agreement,
which shall remain in full force and effect.
Section 9.5. Notices. All notices and other communications hereunder shall
-------
be in writing and shall be deemed to have been duly given upon receipt if
delivered personally, mailed by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
or sent by electronic transmission to the telecopier number specified below (or
at such other address or telecopy number of a party as shall be specified by
like notice):
if to Parent or Purchaser:
Siemens Energy & Automation, Inc.
3333 Old Milton Parkway
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<PAGE>
Alpharetta, Georgia 30005
Attention: General Counsel
Telecopy: 770-740-2528
with a copy to:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: William G. Lawlor
Peter D. Cripps
Telecopy: 215-994-2222
if to the Company:
Moore Products Co.
1201 Sumneytown Ave.
Spring House, PA 19477
Attention: Robert E. Wisniewski
Telecopy: 215-653-0348
with a copy to:
Drinker Biddle & Reath LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103
Attention: John C. Bennett, Jr.
Henry S. Bryans
Telecopy: 215-988-2757
Notice given by telecopier shall be deemed received on the day the sender
receives telecopier confirmation that such notice was received at the telecopier
number of the addressee. Notice given by mail as set out above shall be deemed
received three days after the date the same is postmarked.
Section 9.6. Failure or Indulgence Not Waiver; Remedies Cumulative. No
-----------------------------------------------------
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right.
Section 9.7. Governing Law; Consent to Jurisdiction. Except for the PBCL
--------------------------------------
as it relates to the Transactions, this Agreement shall be governed by and
construed in accordance with the substantive laws of the State of New York
regardless of the laws that might otherwise govern
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<PAGE>
under principles of conflicts of laws applicable thereto. In addition, the
Company, Parent and Purchaser hereby (i) consent to submit to the personal
jurisdiction of the United States District Court for the Southern District of
New York or the Supreme Court of the State of New York, New York in the event
any dispute arises out of this Agreement or any of the Transactions, (ii) agree
not to attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) subject to the terms of the Tender
and Option Agreement, agree not to bring any action relating to this Agreement
or any of the Transactions in any court other than the United States District
Court for the Southern District of New York or the Supreme Court of the State of
New York, New York and (iv) waive any right to trial by jury with respect to any
claim or proceeding related to or arising out of this Agreement or any of the
Transactions. In furtherance of the foregoing, the Company, Parent and Purchaser
hereby irrevocably and unconditionally waive any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
Transactions in the courts of the United States District Court for the Southern
District of New York or the Supreme Court of the State of New York, New York,
and hereby further irrevocably and unconditionally waive and agree not to plead
or claim in any such court that any such action, suit or proceeding brought in
any such court has been brought in an inconvenient forum.
Section 9.8. Descriptive Headings. The descriptive headings herein are
--------------------
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Section 9.9. Parties in Interest. This Agreement shall be binding upon and
-------------------
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
Section 9.10. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
Section 9.11. Certain Definitions. For purposes of this Agreement
-------------------
(including Annex I hereto), the following terms shall have the meanings ascribed
to them below:
(a) "affiliate" of a person shall mean (i) a person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, the first-mentioned person and
(ii) an "associate", as that term is defined in Rule 12b-2 promulgated under the
Exchange Act as in effect on the date of this Agreement.
(b) "beneficial owner" (including the term "beneficially own"
or correlative terms) shall have the meaning ascribed to such term under Rule
13d-3(a) under the Exchange Act.
(c) "business day" shall have the meaning ascribed to such
term under Rule 14d-1 of the Exchange Act.
(d) "Company Disclosure Schedule" shall mean a letter dated
the date of the Agreement delivered by the Company to Parent and Purchaser
concurrently with the
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<PAGE>
execution of the Agreement, which, among other things, shall identify exceptions
to the Company's representations and warranties contained in Article III and
covenants contained in Article V by specific section and subsection references.
(e) "control" (including the terms "controlling," "controlled
by" and "under common control with" or correlative terms) shall mean the
possession, directly or indirectly or as trustee or executor, of the power to
direct or cause the direction of the management and policies of a person,
whether through ownership of voting securities or as trustee or executor, by
contract or credit arrangement, or otherwise.
(f) "Fully Diluted Shares" means all outstanding shares of
Company Common Stock on a fully diluted basis, after giving effect to the
exercise and conversion of all outstanding options (including the Options
(whether or not currently exercisable)), warrants and securities exercisable or
convertible (but excluding shares of Company Preferred Stock) into Company
Common Stock; provided, that Parent may, at its option exercisable in its sole
--------
discretion, exclude at any time from the above calculation any or all Options
(whether or not currently exercisable).
(g) "Fully Diluted Voting Power" means the voting power
represented by all of the outstanding Securities entitled generally to vote at
the Shareholder Meeting on a fully diluted basis, after giving effect to the
exercise of all outstanding options (including the Options (whether or not
currently exercisable)), warrants and securities exercisable or convertible into
such voting securities, except that outstanding shares of Company Preferred
Stock shall not be treated as having been converted into shares of Company
Common Stock, with each share of Company Common Stock having one vote per share
and each share of Company Preferred Stock having five votes per Share; provided,
--------
that Parent may, at its option exercisable in its sole discretion, exclude at
- ----
any time from the above calculation any or all Options (whether or not currently
exercisable).
(h) "group" shall have the meaning ascribed to such term
under Rule 13d-3(a) under the Exchange Act.
(i) "Material Adverse Effect" shall mean (i) any adverse
change or effect in the condition (financial or otherwise), assets, liabilities,
business, properties, results of operations or prospects of a specified person
or its subsidiaries, which change or effect is material, individually or in the
aggregate with any other changes or effects, to the specified person and its
subsidiaries taken as a whole, or (ii) any event, matter, condition or effect
which materially impairs the ability of a specified person to perform on a
timely basis its obligations under this Agreement, the Tender and Option
Agreement, or the consummation of the Transactions.
(j) "person" shall mean a natural person, company,
corporation, partnership, association, trust or any unincorporated organization.
(k) "subsidiary" shall mean, when used with reference to a
person means any corporation or other business entity of which such person
directly or indirectly owns (i) the majority of the outstanding voting
securities or (ii) voting securities or equity interests
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<PAGE>
which give such person the power to elect a majority of the board of directors
or similar governing body of such entity.
Section 9.12. Interpretation. (a) The words "hereof," "herein" and
--------------
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs, exhibits and
schedules of this Agreement unless otherwise specified. Whenever the words
"include," "includes" or "including" are used in this Agreement they shall be
deemed to be followed by the words "without limitation." All terms defined in
this Agreement shall have the defined meanings contained herein when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. Any agreement,
instrument, statute or rule defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument, statute
or rule as from time to time amended, modified or supplemented, including (in
the case of agreements and instruments) by waiver or consent and (in the case of
statutes and rules) by succession of comparable successor statutes and rules and
all attachments thereto and instruments incorporated therein. References to a
person are also to its permitted successors and assigns.
(b) The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, on the day and
year first above written.
SIEMENS ENERGY & AUTOMATION, INC.
By: /s/ Thomas J Malott
-------------------------------
Name: Thomas J Malott
Title: President and CEO
MALIBU ACQUISITION CORP.
By: /s/ Gary K. Gabriel
-------------------------------
Name: Gary K. Gabriel
Title: Treasurer
MOORE PRODUCTS CO.
By: /s/ Robert E. Wisniewski
-------------------------------
Name: Robert E. Wisniewski
Title: Secretary and Treasurer
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<PAGE>
ANNEX A
to
Agreement and Plan of Merger
----------------------------
Conditions to the Offer. Notwithstanding any other provision of the
Offer or the Merger Agreement, in addition to (and not in limitation of)
Purchaser's rights pursuant to the Agreement to extend and amend the Offer in
accordance with the Merger Agreement, Purchaser shall not be required to accept
for payment or, subject to Rule 14e-1(c) of the Exchange Act, pay for and may
delay the acceptance for payment of or, subject to Rule 14e-1(c) of the Exchange
Act, the payment for, any Securities not theretofore accepted for payment or
paid for, and Purchaser may terminate or amend the Offer (subject to Section 1.1
of the Merger Agreement) if in the sole judgment of Purchaser (i) a number of
Securities representing at least a majority of (x) the Fully Diluted Voting
Power and (y) (A) the outstanding shares of Company Preferred Stock and (B) the
Fully Diluted Shares, shall not have been validly tendered and not withdrawn
immediately prior to the expiration of the Offer or otherwise acquired by Parent
or any of its affiliates prior to the expiration of the Offer ("Minimum
Condition"), (ii) any applicable waiting period under the HSR Act shall not have
expired or been terminated or (iii) at any time on or after the date of the
Merger Agreement and prior to the time of acceptance of such Securities for
payment or the payment therefor, any of the following conditions has occurred
and continues to exist:
(a) any representations and warranties of the Company in the Agreement
which are qualified by materiality shall not be true and correct (determined
without regard to any knowledge qualifications therein) as of such time, or the
representations and warranties of the Company in the Agreement which are not
qualified by materiality shall not be true and correct (determined without
regard to any knowledge qualifications therein) in any material respect, as of
such time (other than to the extent such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties shall not be true and correct as of such date) and which breach shall
not have been cured prior to the earlier of (i) 10 business days following
notice of such breach and (ii) May 31, 2000; provided, however, that the Company
shall have no right to cure such breach in the event that such breach by the
Company was willful or in the event such breach is not reasonably capable of
being cured within such period of time;
(b) the Company shall not have performed and complied with, in all
material respects (without reference to any materiality qualifications therein),
each covenant or agreement contained in the Agreement and required to be
performed or complied with by it and which breach shall not have been cured
prior to the earlier of (i) 10 business days following notice of such breach and
(ii) May 31, 2000; provided, however, that the Company shall have no right to
cure such breach in the event that such breach by the Company was willful, if
such breach involves a material breach of Section 6.1 of the Agreement (whether
or not such breach was willful) or in the event such breach is not reasonably
capable of being cured within such period of time;
(c) there shall have occurred and be continuing (i) any general
suspension of trading in, or limitation on prices for, securities on the New
York Stock Exchange (excluding any coordinated trading halt triggered as a
result of a specified decrease in a market index), (ii)
<PAGE>
any extraordinary or material adverse change in the financial markets in the
United States or the Federal Republic of Germany, (iii) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States or the Federal Republic of Germany by any Governmental Entity,
(iv) any mandatory limitation, by any Governmental Entity on, or other event
that materially affects, the extension of credit by banks or other lending
institutions, (v) a commencement of a war, armed hostilities or other national
or international calamity directly or indirectly involving the United States or
the Federal Republic of Germany which could reasonably be expected to have a
Material Adverse Effect on the Company or materially adversely affect or delay
the consummation of the Offer, (vi) any material adverse change in United States
or the Federal Republic of Germany currency exchange rates or a suspension of,
or limitation on, the markets therefor, (vii) in the case of any of the
foregoing existing on the date of the Agreement, a material acceleration or
worsening thereof, or (viii) a decline in the Standard & Poor's Index of 500
Industrial Companies by an amount in excess of 25%, measured from the close of
business on the date of the Merger Agreement;
(d) there shall be threatened or pending any suit, action, or
proceeding by any Governmental Entity, or by any other person which has a
reasonable possibility of success, (i) challenging the acquisition by Parent or
Purchaser of the Securities, seeking to make illegal, materially delay, make
materially more costly or otherwise directly or indirectly restrain or prohibit
the making or consummation of the Offer and the Merger or the performance of any
of the other Transactions or seeking to obtain from the Company, Parent or
Purchaser any damages that are material in relation to the Company and its
subsidiaries taken as whole, (ii) seeking to prohibit or materially limit the
ownership or operation by the Company, Parent or any of their respective
subsidiaries or affiliates of any of the businesses or assets of the Company,
Parent or any of their respective subsidiaries or affiliates, or to compel the
Company, Parent or any of their respective subsidiaries or affiliates to dispose
of or hold separate any of the material businesses or assets of the Company,
Parent or any of their respective subsidiaries or affiliates, as a result of the
Offer, the Merger or any of the other Transactions, (iii) seeking to impose
material limitations on the ability of Parent or Purchaser to acquire or hold,
or exercise full rights of ownership of, any Securities accepted for payment
pursuant to the Offer including, without limitation, the right to vote the
Securities accepted for payment by it on all matters properly presented to the
shareholders of the Company, (iv) seeking to prohibit Parent or any of its
subsidiaries or affiliates from effectively controlling in any material respect
the business or operations of the Company or its subsidiaries, (v) requiring
divestiture by Purchaser or any of its affiliates of any Securities or (vi)
which otherwise is reasonably likely to have a Material Adverse Effect on the
Company or Parent;
(e) there shall be any statute, rule, regulation, judgment, order or
injunction (including with respect to competition or antitrust matters) enacted,
entered, enforced, promulgated or issued, or any statute, rule or regulation
which has been proposed by the relevant legislative or regulatory body and is
reasonably likely to be enacted, with respect to or deemed applicable to, or any
material consent or approval withheld or any other action shall be taken with
respect to (i) Parent, the Company or any of their respective subsidiaries or
affiliates or (ii) the Offer or the Merger or any of the other Transactions by
any Governmental Entity or court, including without limitation any required
approvals or waiting periods under the GWB Act and the HSR Act, other than
applicable waiting periods under the HSR Act as specified in the introductory
paragraph above, that has resulted or is reasonably likely to result, directly
or
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<PAGE>
indirectly, in any of the consequences referred to in clauses (i) though (vi) of
paragraph (d) above;
(f) since the date of the Agreement there shall have occurred any
events, changes, effects or developments that, individually or in the aggregate,
have had or are reasonably likely to have, a Material Adverse Effect on the
Company;
(g) (i) the Board of Directors of the Company or any other committee
thereof shall have (A) withdrawn, or modified, amended or changed (including by
amendment of the Schedule 14D-9) in a manner materially adverse to Parent or
Purchaser; its approval or recommendation of the Offer, the Merger Agreement and
the Merger or any of the other Transactions, (B) approved or recommended to the
Company's stockholders an Acquisition Proposal or any other acquisition of
Securities other than the Offer and the Merger, or (C) adopted any resolution to
effect any of the foregoing, or (ii) the Board of Directors of the Company shall
have failed to publicly reaffirm their approval or recommendation of the Offer,
the Merger, the Transactions or this Agreement within two business days
following Parent's or Purchaser's written request to do so;
(h) the Merger Agreement shall have been terminated in accordance with
its terms;
(i) any person or group (which includes a "person" or "group" as such
terms are defined in Section 13(d)(3) of the Exchange Act) other than Parent,
Purchaser, any of their affiliates, or any group of which any of them is a
member, shall have acquired beneficial ownership of more than 20% of the
outstanding shares of Company Common Stock or Company Preferred Stock or shall
have consummated or entered into a definitive agreement or an agreement in
principle to consummate an Acquisition Proposal or if any person or group which,
prior to the date of the Merger Agreement, had a Schedule 13D or 13G on file
with the SEC shall have acquired or proposed to acquire beneficial ownership of
additional shares of any class or series of capital stock of the Company,
through the acquisition of stock, the formation of a group or otherwise,
constituting 10% or more of any such class or series, or shall have been granted
any option, right or warrant, conditional or otherwise, to acquire beneficial
ownership of additional shares of any class or series of capital stock of the
Company (including the Company Common Stock and Company Preferred Stock)
constituting 10% or more of any such class or series (it being understood that
the execution of the Tender and Option Agreement by the Company stockholders
that are parties thereto shall not, in itself, be deemed to constitute such an
acquisition of beneficial ownership triggering this provision);
(j) the Company or any shareholder or shareholders beneficially
owning, indirectly or in the aggregate, more than 10% of the Fully Diluted
Voting Power or 10% of the Fully Diluted Shares shall have breached in any
material respect any of its or their obligations under the Tender and Option
Agreement;
(k) (i) all consents and approvals of and notices to or filings with
Governmental Entities and third parties required in connection with the Offer,
the Merger and any of the other Transactions shall not have been obtained or
made other than those the absence of which, individually or in the aggregate,
would not have a Material Adverse Effect or prevent
-3-
<PAGE>
or materially delay consummation of any of the Offer, the Merger or any of the
other Transactions, or (ii) all consents and approvals of third parties required
in connection with the Offer, the Merger and any of the other Transactions and
listed on Schedule 3.7 of the Company Disclosure Schedule shall not have been
obtained or made;
(l) the Company shall not have provided Parent and Purchaser with
documentation reasonably acceptable to them demonstrating the percentage
ownership of the outstanding capital stock or equity interests of its
subsidiaries listed on Section 3.1(b) of the Company Disclosure Schedule (other
than Malibu (Pty.) Ltd. South Africa) or all charters and bylaws or other
organizational documents of such subsidiaries which are reasonably satisfactory
to Parent and Purchaser; or
(m) the Company shall not have completed in all material respects all
obligations and activities required of it under the Connecticut Property
Transfer Law, including in connection with the Offer, the Merger and any of the
other Transactions, or Parent or Purchaser reasonably determines that any
remaining obligations under the Connecticut Property Transfer Law would have a
Material Adverse Effect on the Company;
which, in the sole judgment of Purchaser, in any such case, and regardless of
the circumstances giving rise to any such condition (including any action or
inaction by Parent or any of its affiliates), makes it inadvisable to proceed
with the Offer or with such acceptance for payment, purchase of, or payment for
Securities.
The foregoing conditions are for the sole benefit of Purchaser and
Parent and may be asserted by Purchaser or Parent regardless of the
circumstances giving rise to any such condition and may be waived by Purchaser
or Parent, in whole or in part, at any time and from time to time, in the sole
discretion of Purchaser or Parent. The failure by Purchaser or Parent or any of
their respective affiliates at any time to exercise any of the foregoing rights
will not be deemed a waiver of any right, the waiver of any such right with
respect to particular facts and circumstances shall not be deemed a waiver with
respect to any other facts and circumstances and each right will be deemed an
ongoing right which may be asserted at any time and from time to time.
-4-
<PAGE>
EXHIBIT (c)(2)
<PAGE>
CONFIDENTIALITY AGREEMENT
1. Parties. This Confidentiality Agreement (the "Agreement"), effective
the 15th day of November, 1999 is between Siemens Energy & Automation, Inc., a
corporation organized under the laws of the State of Delaware with its principal
place of business at 3333 Old Milton Parkway, Alpharetta, Georgia 30005 USA
("SE&A") and Moore Products Co., a company organized under the laws of the state
of Pennsylvania with its principal place of business at 1201 Sumneytown Pike,
Spring House, Pennsylvania 19477 ("Moore").
2. Purpose of Agreement. The parties intend to further their business
relationship, in accordance with the purpose(s) set forth in Exhibit A. The
discloser, as a party hereto, will disclose certain Confidential information to
recipient, as a party hereto, in connection with such purpose(s). This
Agreement is intended to define the rights and duties of the parties as either
discloser or recipient, with respect to such Confidential Information as may be
so disclosed from one party to the other.
3. Definitions. For purposes of this Agreement, the following definitions
apply:
3.1. "Confidential Information" means any of the discloser's trade
secrets and other competitively sensitive data or information disclosed under
this Agreement, including, without limitation: technical or non-technical data,
formulas, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product and marketing
plans or lists of actual or potential customers or suppliers.
3.2. Exclusions. Notwithstanding the definition of Confidential
Information above, Confidential Information shall not include any information or
data that is:
3.2.1. generally available from public sources or in the
public domain through no fault of the recipient;
3.2.2. received at any time from any third party without
breach of a nondisclosure obligation to the discloser;
3.2.3. shown through proper documentation (1) to have been
developed independently by employees of recipient who had no access to
Confidential Information of the discloser or (2) to have been known to the
recipient without any obligation of confidentiality prior to its disclosure by
the discloser;
3.2.4. required to be disclosed by law, except to the extent
eligible for special treatment under an appropriate protective order; and
recipient shall promptly notify discloser of any requirement to disclose by law
prior to such disclosure to allow discloser to seek an appropriate protective
order; or
3.2.5. approved for disclosure without any confidentiality
obligation by prior written consent of an authorized corporate representative of
the discloser.
Paragraph 4 omitted
<PAGE>
5. Restrictions on Confidential Information. The recipient agrees that,
with respect to any such disclosed Confidential Information:
5.1. the Confidential Information shall only be disclosed within the
recipient's organization on a "need-to-know" basis to individuals who have been
apprised of its confidential nature and shall not be further disclosed to any
third party outside of the recipients organization (except for employees of
Siemens AG or of any other company owned or controlled, directly or indirectly,
by Siemens AG, who have a need to know the Confidential Information) without the
discloser's prior written consent. (It is understood and agreed that by
reference to Siemens AG herein, Siemens AG is not submitting itself to the
jurisdiction of the United Sates Courts nor is this reference an admission that
Siemens AG is doing business in the United States);
5.2. the Confidential Information shall be treated at least
according to the same internal security procedures and with the same degree of
care regarding its confidentiality as similar information of the recipient is
treated within the recipient's organization;
5.3. the Confidential information shall remain the property of the
discloser, and the disclosure to the recipient hereunder creates only a limited
license to use such information for purposes related to the furtherance of the
parties' business relationship as anticipated hereunder and as set forth in
Exhibit A and for no other purpose. Upon receipt of a written request from the
discloser for return of the Confidential Information and, in any event, upon
termination of this Agreement, the recipient shall promptly, at its expense,
deliver to the discloser all such Confidential Information (including all copies
and facsimiles thereof, or copies and documents containing such Confidential
Information or portions thereof), together with the recipient's written
certification that no other copies of such Confidential Information have been
made or retained by the recipient or any other person.
5.4. in the event of the loss by the recipient of any Confidential
Information or recipient's awareness of the unauthorized possession, use or
knowledge of any Confidential Information, the recipient shall immediately
notify the discloser in writing of the full details of such loss, unauthorized
possession, use or knowledge.
6. General.
6.1. Governing Law. This Agreement shall be deemed to have been
executed and entered into in the State of Delaware, USA. This Agreement, and its
formation, operation and performance, shall be governed, construed, performed
and enforced in accordance with the substantive laws of the State of Delaware,
USA, without regard to its conflict of law rules.
6.2. Severability. In the event a court of law finds any provision
of this Agreement void and unenforceable, the remaining provisions shall remain
in full force and effect.
6.3. Waiver. Waiver of any breach or violation of this Agreement
shall not constitute a waiver of subsequent breach or violation of the same or
different kind.
-2-
<PAGE>
6.4. Entire Agreement. This Agreement and Exhibit A listed above,
which is incorporated herein by reference, constitute the entire agreement
between the parties as to the subject matter hereof and merge all prior
discussions between them. Neither of the parties shall be bound by any
conditions, definitions, warranties, understandings, or representations with
respect to such subject matter other than: (1) as expressly provided herein, or
(2) as duly set forth on or subsequent to the effective date hereof in writing
and signed by a proper and duly authorized representative of the party to be
bound thereby. Further, the terms of this Agreement are in lieu of and override
any contrary terms or conditions, preprinted or otherwise, that may appear on
any form used by (1) Moore to purchase or offer to purchase from SE&A or (2) by
SE&A to acknowledge such a purchase or accept such an offer.
6.5. Notices. All notices permitted or required hereunder by either
of the parties hereto shall be in writing and, unless otherwise specifically
provided, shall be given by sending such notice properly addressed to the other
party's last known address by prepaid registered mail, by a reputable and
established private courier or by telex or facsimile. All such notices shall be
deemed given three (3) days after the date of mailing or at the time of delivery
to the private courier or its agent for transmittal, or upon transmittal of a
telex or facsimile, as the case may be.
6.6. Termination. This Agreement shall continue in full force and
effect until terminated by either party giving thirty (30) days prior written
notice to the other party. Notwithstanding any such termination, the recipient's
obligations under this Agreement shall remain in full force and effect with
respect to Confidential Information for so long afterwards as the information or
data remains a trade secret or for a period of three (3) years after the
effective date of this Agreement, whichever is later.
6.7. Working with Others. This Agreement will not preclude either
party from working with others in any connection, so long as the obligations of
Section 5 are respected.
6.8. No Assignment. The recipient shall not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the discloser, except to a successor in ownership who shall expressly
assume in writing the performance of the terms and conditions of this Agreement.
6.9. Export Controls. The recipient represents and warrants that no
information of the type which may be subject to the International Traffic in
Arms Regulations or the Export Administration Act furnished to it by the
discloser shall be disclosed to any foreign national, firm, or country,
including foreign nationals employed by or associated with the recipient, nor
shall any such information be exported from the United States, except in full
compliance with the Export Administration Act, including the requirements for
obtaining any export license, if applicable. The recipient shall first obtain
the written consent of the discloser prior to submitting any request for
authority to export any such information.
6.10. No Warranty. Confidential Information, including all tangible
media in which Confidential Information is fixed and copies thereof, shall
remain the property of the originating party. Neither this Agreement nor the
disclosure of Confidential Information hereunder shall be construed as granting
any right or license under any invention or patent now
-3-
<PAGE>
or hereafter owned or controlled by either party, nor shall any such disclosure
constitute any representation, warranty, assurance, guaranty, or inducement by
the disclosing party to the recipient with respect to the infringement of any
patent or other rights of others. No warranty or representation as to the
accuracy, completeness or quality, including, but not limited to, technical or
scientific quality of any Confidential Information is provided herein. WITHOUT
RESTRICTING THE GENERALITY OF THE FOREGOING, NEITHER PARTY MAKES ANY
REPRESENTATION OR WARRANTIES EXPRESS OR IMPLIED INCLUDING BUT NOT LIMITED TO
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
COURSE OF DEALING OR USAGE OF TRADE REGARDING ANY CONFIDENTIAL INFORMATION
DISCLOSED HEREUNDER.
7. Exhibits. The following Exhibit is attached hereto and is incorporated
herein by this reference:
Exhibit A: Business Purpose of Confidential Disclosure
IN WITNESS WHEREOF, the parties hereby have caused this Agreement to be
executed by their duly authorized representatives at the places and on the dates
set forth below.
Siemens Energy & Automation Inc. Malibu Acquisition Corp.
By: /s/ Dr. Manfred R. Liska By: /s/ Robert E. Wisniewski
------------------------------ ---------------------------
Name: Dr. Manfred R. Liska Name: Robert E. Wisniewski
Title: Vice President, Title: Secretary and Treasurer
Strategic Planning & Coop.
-4-
<PAGE>
EXHIBIT "A"
Business Purpose of Confidential Disclosure
The Confidential Information to be disclosed under this Confidentiality
Agreement is in furtherance of the business purpose of:
To evaluate cooperation opportunities.
-5-
<PAGE>
Exhibit "B"
Nonsolicitation
During the term of this Agreement,
SE&A expressly agree not to initiate or maintain contact with any director,
officer, employee or agent of Moore other than Messrs. Hurd, Bogle and Curry or
any customer or vendor of Moore regarding Moore's business, operations,
prospects or finances, except with the prior consent of Messrs. Hurd, Bogle and
Curry. SE&A further agree that you will not knowingly: (i) solicit for
employment any employee now employed by Moore or (ii) as a result of or
utilizing any knowledge or information obtained from the Confidential
Information, divert or attempt to divert any business, customer or vendor of
Moore. However, a solicitation for employment shall not be deemed a breach of
this agreement if such solicitation is a general solicitation for employment not
specifically directed toward employees of Moore, and SE&A shall not be prevented
from hiring any person who is responding to any such solicitation or who is no
longer employed by Moore.
-6-
<PAGE>
EXHIBIT (c)(3)
<PAGE>
TENDER AND OPTION AGREEMENT
----------------------------
TENDER AND OPTION AGREEMENT, dated as of January 16, 2000 (the
"Agreement"), among Siemens Energy & Automation, Inc., a Delaware corporation
("Parent"), Malibu Acquisition Corp., a Pennsylvania corporation and a wholly
owned subsidiary of Parent ("Purchaser"), Moore Products Co., a Pennsylvania
corporation (the "Company") and the persons listed on Schedule A hereto (each a
"Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Purchaser and the Company, propose to enter into an
Agreement and Plan of Merger dated as of the date hereof (as the same may be
amended or supplemented, the "Merger Agreement") providing for, among other
things, the making of a cash tender offer (as such offer may be amended from
time to time as permitted under the Merger Agreement, the "Offer") by Purchaser
for (i) all of the issued and outstanding shares of common stock, par value
$1.00 per share, of the Company (the "Company Common Stock") and (ii) all of the
issued and outstanding shares of Series A preferred stock, par value $1.00 per
share, of the Company (the "Company Preferred Stock," and together with the
Company Common Stock, the "Shares") and the merger of the Company and Purchaser
on the terms and conditions set forth in the Merger Agreement (the "Merger");
WHEREAS, each Stockholder is the beneficial owner (as hereinafter
defined) of the Shares set forth opposite such Stockholder's name on Schedule A
hereto; such Shares, as such may be adjusted by stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the Company, together
with Shares that may be acquired after the date hereof by such Stockholder,
including shares of Company Common Stock issuable upon the exercise of options
(including the Options set forth in Schedule A) and upon conversion of Company
Preferred Stock, being collectively referred to herein as the "Securities" of
such Stockholder; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Purchaser have required that the Stockholders enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Purchaser to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein and intending to be legally bound hereby, the parties agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the Merger
Agreement.
Section 2. Representations and Warranties of the Stockholders. Each
Stockholder, severally and not jointly, represents and warrants to Parent and
Purchaser, as of the date hereof and as of the Closing (as defined herein), as
follows:
(a) Such Stockholder is the beneficial owner (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), which meaning
<PAGE>
will apply for all purposes of this Agreement) of, and has good title to,
all of the Securities, free and clear of any mortgage, pledge,
hypothecation, rights of others claim, security interest, charge,
encumbrance, title defect, title retention agreement, voting trust
agreement, interest, option, lien, charge or similar restriction or
limitation, including any restriction on the right to vote, sell or
otherwise dispose of the Securities (each, a "Lien"), except as set forth
in this Agreement or Schedule A (which Liens set forth on Schedule A shall
be fully released and extinguished without recourse no later than
immediately upon payment of the proceeds from the sale of such Shares to
Parent or Purchaser pursuant to this Agreement) and except with respect to
a Stockholder which is a trust or a pension plan, for the rights of its
beneficiaries and participants.
(b) The Securities set forth opposite his or its name on
Schedule A constitute all of the securities (as defined in Section 3(a)(10)
of the Exchange Act, which definition will apply for all purposes of this
Agreement) of the Company beneficially owned, directly or indirectly, by
such Stockholder.
(c) Except for the Securities, such Stockholder does not,
directly or indirectly, other than as disclosed on Schedule A, beneficially
own or have any option, warrant or other right to acquire any securities of
the Company that are or may by their terms become entitled to vote or any
securities that are convertible or exchangeable into or exercisable for any
securities of the Company that are or may by their terms become entitled to
vote, nor is such Stockholder subject to any Contract, commitment,
arrangement, understanding, restriction or relationship, other than this
Agreement, that provides for such Stockholder to vote or acquire any
securities of the Company. Such Stockholder holds exclusive power to vote
the Securities and has not granted a proxy to any other person (as defined
in the Merger Agreement, which meaning will apply for all purposes of this
Agreement) to vote the Shares, subject to the limitations set forth in this
Agreement.
(d) Such Stockholder has full legal capacity, power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and such execution delivery and performance have been
authorized by such Stockholder, and no other proceedings or actions by such
Stockholder are necessary therefor.
(e) This Agreement has been duly executed and delivered by such
Stockholder and, assuming this Agreement constitutes a valid and binding
agreement of Parent, Purchaser and the Company, is a valid and binding
obligation of such Stockholder enforceable against such Stockholder in
accordance with its terms.
(f) Neither the execution and delivery of this Agreement nor
the performance by such Stockholder of his or its obligations hereunder
will conflict with, result in a violation or breach of, or constitute a
default (or an event that, with notice or lapse of time or both, would
result in a default) or give rise to any right of termination, amendment,
cancellation, or acceleration or result in the creation of any Lien on any
Securities under, (i) any Contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Stockholder is a party
or by which such Stockholder is bound or (ii) any injunction, judgment,
writ, decree, order or ruling applicable to the Stockholder; except for
conflicts, violations,
<PAGE>
breaches, defaults, terminations, amendments, cancellations, accelerations
or Liens that would not individually or in the aggregate be reasonably
expected to prevent or materially impair or delay the performance by such
Stockholder of its obligations hereunder.
(g) Neither the execution and delivery of this Agreement nor
the performance by such Stockholder of his or its obligations hereunder
will violate any law, decree, statute, rule or regulation applicable to the
Stockholder or require any order, consent, authorization or approval of,
filing or registration with, or declaration or notice to, any court,
administrative agency or other governmental body or authority, the
violation of which or failure to take any such action could, individually
or in the aggregate, be reasonably expected to prevent or materially impair
or delay the performance by such Stockholder of its obligations hereunder,
other than any required notices or filings pursuant to the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder (the "HSR Act"), foreign antitrust or
competition laws or the federal or state securities laws.
(h) Except as set forth in Section 3.8 of the Merger
Agreement, 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 or the Merger Agreement based
upon arrangements made by or on behalf of such Stockholder that is or will
be payable by the Company or any of its subsidiaries.
(i) Such Stockholder understands and acknowledges that Parent
is entering into, and causing Purchaser to enter into, the Merger Agreement
in reliance upon such Stockholder's execution, delivery and performance of
this Agreement.
(j) To the extent such Stockholder is a trust, such
Stockholder has supplied to Parent or Purchaser true and correct copies of
all documents establishing, organizing, governing or controlling such trust
including any order, decree or other judicial pronouncement affecting such
trust documents, and all such documents remain in full force and effect.
Section 3. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to Parent and Purchaser, as of the date hereof and
as of the Closing, as follows:
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania, has the requisite corporate power and authority to execute
and deliver this Agreement and to perform its obligations hereunder, and
has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
(b) This Agreement has been duly executed and delivered by
the Company and, assuming this Agreement constitutes the valid and binding
agreement of each of the Stockholders, Parent and Purchaser, is a valid and
binding obligation of the Company, enforceable against it in accordance
with its terms.
(c) Neither the execution and delivery of this Agreement nor
the performance by the Company of its obligations hereunder will conflict
with, result in a violation
<PAGE>
or breach of, or constitute a default (or an event that, with notice or
lapse of time or both, would result in a default) or give rise to any right
of termination, amendment, cancellation, or acceleration or result in the
creation of any Lien on the assets or properties of the Company under, (i)
its articles of incorporation or bylaws, (ii) any Contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which
the Company is a party or by which the Company is bound or (iii) any
judgment, writ, decree, order or ruling applicable to the Company; except
in the case of clauses (ii) and (iii) for conflicts, violations, breaches
or defaults that would not individually or in the aggregate be reasonably
expected to prevent or materially impair or delay the performance by the
Company of its obligations hereunder.
(d) Neither the execution and delivery of this Agreement nor
the performance by the Company of its obligations hereunder will violate
any law, decree, statute, rule or regulation applicable to the Company or
require any order, consent, authorization or approval of, filing or
registration with, or declaration or notice to, any court, administrative
agency or other governmental body or authority, the violation of which or
failure to take any such action could, individually or in the aggregate, be
reasonably expected to prevent or materially impair or delay the
performance by the Company of its obligations hereunder, other than any
required notices or filings pursuant to the HSR Act, foreign antitrust or
competition laws or the federal or state securities laws.
(e) The Company has taken all necessary corporate or other
action (including approval by the Board of Directors of the Company) to
render the provisions of Sections 2538 through 2588, inclusive, of the PBCL
and, to its knowledge, any other applicable anti-takeover statutes, rules
or regulations inapplicable to this Agreement and the Merger Agreement and
the transactions contemplated hereby and thereby.
Section 4. Representations and Warranties of Parent and Purchaser. Parent
------------------------------------------------------
and Purchaser represent and warrant to the Stockholders, as of the date
hereof and as of the Closing, as follows:
(a) Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of their
respective jurisdiction of incorporation, has the requisite corporate power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate
action to authorize the execution, delivery and performance of this
Agreement.
(b) This Agreement has been duly executed and delivered by
Parent and Purchaser and, assuming this Agreement constitutes a valid and
binding agreement of the Company and each of the Stockholders, is a valid
and binding obligation of each of Parent and Purchaser, enforceable against
each of them in accordance with its terms.
(c) Neither the execution and delivery of this Agreement nor
the performance by Parent and Purchaser of their respective obligations
hereunder will conflict with, result in a violation or breach of, or
constitute a default (or an event that, with notice or lapse of time or
both, would result in a default) or give rise to any right of termination,
amendment, cancellation, or acceleration under, (i) their respective
certificates of incorporation or bylaws, (ii)
<PAGE>
any contract, commitment, agreement, understanding, arrangement or
restriction of any kind to which Parent or Purchaser is a party or by which
Parent or Purchaser is bound or (iii) any judgment, writ, decree, order or
ruling applicable to Parent or Purchaser; except in the case of clauses
(ii) and (iii) for conflicts, violations, breaches or defaults that would
not individually or in the aggregate be reasonably expected to prevent or
materially impair or delay the performance by Parent or Purchaser of their
obligations hereunder.
(d) Neither the execution and delivery of this Agreement nor
the performance by Parent and Purchaser of their respective obligations
hereunder will violate any law, decree, statute, rule or regulation
applicable to Parent or Purchaser or require any order, consent,
authorization or approval of, filing or registration with, or declaration
or notice to, any court, administrative agency or other governmental body
or authority, the violation of which or failure to take any such action
would not individually or in the aggregate be reasonably expected to
prevent or materially impair or delay the performance by Parent or
Purchaser of their obligations hereunder, other than any required notices
or filings pursuant to the HSR Act, foreign antitrust or competition laws
or the federal or state securities laws.
(e) Any Securities acquired upon exercise of the Purchase
Option (as defined herein) will be acquired for Parent's or Purchaser's own
account, and will not be, and the Purchase Option is not being, acquired by
Parent and Purchaser with a view to public distribution thereof in
violation of any applicable provisions of the Securities Act of 1933, as
amended (the "Securities Act").
Section 5. Transfer of the Shares. During the term of this Agreement,
----------------------
except with the written consent of Parent or Purchaser or as otherwise
expressly provided herein, each Stockholder agrees that such Stockholder
will not (a) tender into any tender or exchange offer or otherwise sell,
transfer, pledge, assign, hypothecate or otherwise dispose of, or encumber
with any Lien, any of the Securities, except for (i) transfers to any
spouse or descendant of such Stockholder, or any trust or retirement plan
or account for the benefit of such Stockholder, spouse or descendant;
provided that any such transferee agrees in writing to be bound by the
terms of this Agreement and (ii) transfers by operation of law provided
that any such transferee shall be bound by the terms of this Agreement, (b)
purchase or otherwise voluntarily acquire any Securities (otherwise than in
connection with a transaction of the type described in Section 6 or by
exercising any of the Options or, subject to clause (e) below, conversion
of Company Preferred Stock), (c) deposit the Securities into a voting
trust, enter into a voting agreement or arrangement with respect to the
Securities or grant any proxy or power of attorney with respect to the
Shares, (d) enter into any Contract, option or other arrangement (including
any profit sharing arrangement) or undertaking with respect to the direct
or indirect sale, transfer, pledge, assignment, hypothecation or other
disposition of any interest in or the voting of any Securities or any other
securities of the Company, (e) convert any shares of Company Preferred
Stock into shares of Company Common Stock unless directed to do so by
Parent or Purchaser or unless the Company Preferred Stock is called for
redemption by the Company not in violation of the Merger Agreement or (f)
take any other action that would in any way destroy, materially diminish or
impair the voting power or economic rights or other rights attributable to
such Stockholder's Shares or materially restrict, limit or interfere with
the performance of such
<PAGE>
Stockholder's obligations hereunder or the transactions contemplated hereby
or which would otherwise materially diminish the benefits of this Agreement
to Parent or Purchaser.
Section 6. Adjustments.
-----------
(a) In the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of
capital stock or other securities of the Company on, of or affecting the
Shares or the like or any other action that would have the effect of
changing a Stockholder's ownership of the Company's capital stock or other
securities or (ii) a Stockholder becomes the beneficial owner of any
additional Shares of or other securities of the Company, then the terms of
this Agreement will apply to the shares of capital stock held by such
Stockholder immediately following the effectiveness of the events described
in clause (i) or such Stockholder becoming the beneficial owner thereof, as
described in clause (ii), as though they were Securities hereunder.
(b) Each Stockholder hereby agrees, while this Agreement
is in effect, to promptly notify Parent and Purchaser of the number of any
new Securities acquired by such Stockholder, if any, after the date hereof,
provided that the acquisition of Company Common Stock upon the exercise of
Options set forth on Schedule A shall not require such notification. The
Company agrees that it shall promptly notify Parent and Purchaser upon the
exercise of Options set forth on Schedule A if the aggregate number of
shares of Company Common Stock in respect of such exercises exceeds 10,000
shares (subject to adjustment for stock dividends, stock splits,
recapitalization, combinations, exchange of shares or the like).
Section 7. Tender of Securities. Each Stockholder hereby agrees that
--------------------
such Stockholder will validly tender (or cause the record owner of such
shares to validly tender) and sell (and not withdraw, except in the event
the Purchase Option is exercised, in which case such withdrawal shall be
for the limited purpose of consummating the Purchase Option) pursuant to
and in accordance with the terms of the Offer as promptly as reasonably
possible and in any event prior to the tenth business day after
commencement of the Offer (or the earlier of the expiration date of the
Offer and the fifth business day after such Shares, as the case may be, are
acquired by such Stockholder if the Stockholder acquires Shares after the
date hereof), all of the then outstanding Shares beneficially owned by such
Stockholder (including the shares of Company Common Stock and Company
Preferred Stock outstanding as of the date hereof and set forth on Schedule
A opposite such Stockholder's name). In the event, notwithstanding the
provisions of the first sentence of this Section 7, any Shares beneficially
owned by a Stockholder are for any reason withdrawn from the Offer or are
not purchased pursuant to the Offer, such Shares will remain subject to the
terms of this Agreement. Each Stockholder acknowledges that Purchaser's
obligation to accept for payment and pay for Shares tendered in the Offer
is subject to all the terms and conditions of the Offer.
Section 8. Voting Agreement. Each Stockholder, by this Agreement, does
----------------
hereby (a) agree that at any annual, special, postponed or adjourned
meeting of the stockholders of the Company it will cause the Shares such
Stockholder beneficially owns to be counted as present (or absent if
requested by Parent or Purchaser) thereat for purposes of establishing a
quorum and to vote or consent and (b) except as provided below with regard
to the Company Pension Plan
<PAGE>
(the "Pension Plan"), constitute and appoint Parent and Purchaser, or any
nominee thereof, with full power of substitution, during and for the term
of this Agreement, as his true and lawful attorney and proxy for and in his
or its name, place and stead, to vote all the Shares such Stockholder
beneficially owns at the time of such vote, at any annual, special,
postponed or adjourned meeting of the stockholders of the Company (and this
appointment will include the right to sign his or its name (as stockholder)
to any consent, certificate or other document relating to the Company that
laws of the Commonwealth of Pennsylvania may require or permit), in the
case of both (a) and (b) above, (x) in favor of approval and adoption of
the Merger Agreement and approval and adoption of the Merger and the other
transactions contemplated thereby and (y) against (1) any Acquisition
Proposal, (2) any action or agreement that would result in a breach in any
respect of any covenant, agreement, representation or warranty of the
Company under the Merger Agreement or this Agreement and (3) the following
actions (other than the Merger and the other transactions contemplated by
the Merger Agreement): (i) any extraordinary corporate transaction, such as
a merger, consolidation or other business combination involving the Company
or any of its subsidiaries; (ii) a sale, lease or transfer of a material
amount of assets of the Company or any of its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company
or any of its subsidiaries; (iii) (A) any change in a majority of the
persons who constitute the board of directors of the Company or any of its
subsidiaries as of the date hereof; (B) any change in the present
capitalization of the Company or any amendment of the Company's or any of
its subsidiaries' articles or certificate of incorporation or bylaws, as
amended to date; (C) any other material change in the Company's or any of
its subsidiaries' corporate structure or business; or (D) any other action
that is intended, or could reasonably be expected, to impede, interfere
with, delay, postpone, or adversely affect the Offer, the Merger and the
other transactions contemplated by this Agreement and the Merger Agreement.
This proxy and power of attorney is a proxy and power coupled with an
interest, and each Stockholder declares that it is irrevocable until this
Agreement shall terminate in accordance with its terms. Each Stockholder
hereby revokes all and any other proxies with respect to the Shares that
such Stockholder may have heretofore made or granted. For Shares as to
which a Stockholder is the beneficial but not the record owner, such
Stockholder shall use his or its reasonable best efforts to cause any
record owner of such Shares to grant to Parent a proxy to the same effect
as that contained herein. As to the Pension Plan, each member of the
Benefits Committee of the Pension Plan agrees to direct the Trustee of the
Pension Plan to vote its Shares in the manner described in this Section 8
(and the Pension Plan represents to Parent and Purchaser that no other
direction, proxy or action is necessary to vote such Shares accordingly,
subject to the last sentence of Section 23 hereof). Each Stockholder hereby
agrees to permit Parent and Purchaser to publish and disclose in the Offer
Documents and the Proxy Statement and related filings under the securities
laws such Stockholder's identity and ownership of Shares and the nature of
his or its commitments, arrangements and understandings under this
Agreement. Notwithstanding the foregoing, Trust U/D Frances O. Moore,
Edward T. Hurd, Edward J. and Madeline J. Curry JTWROS, Edwin G. and Jean
G. Rorke JTWROS, Raymond M. Reed, Ralph H. and Ruth M. Owens JTWROS, Robert
B. Adams Trust, u/a dated 1/27/99 and F. Lawton Hindle are not bound by the
terms of this Section 8 and each of Robert E. Wisniewski and Edward J.
Curry are not bound by the terms of this Section 8 in his capacity as an
individual stockholder, but shall be bound by the terms of this Section 8
in his capacity as a member of the Benefits Committee of the Pension Plan.
<PAGE>
Section 9. No Solicitation. Each Stockholder agrees that neither such
---------------
Stockholder nor any of such Stockholder's officers, directors, employees,
trustees (in their capacities as such), representatives, agents or
affiliates (including, without limitation, any investment banker, attorney
or accountant retained by any of them) will directly or indirectly
initiate, solicit or encourage (including by way of furnishing non-public
information or assistance), or take any other action to facilitate, any
inquiries or the making or submission of any Acquisition Proposal, or enter
into or maintain or continue discussions or negotiate with any person or
entity in furtherance of such inquiries or to obtain or induce any person
to make or submit an Acquisition Proposal or agree to or endorse any
Acquisition Proposal or assist or participate in, facilitate or encourage,
any effort or attempt by any other person or entity to do or seek any of
the foregoing or authorize or permit any of its officers, directors,
employees, trustees (in their capacities as such) or any of its affiliates
or any investment banker, financial advisor, attorney, accountant or other
representative or agent retained by any of them to take any such action.
Each Stockholder shall promptly (and in any event within one business day)
advise Parent in writing of the receipt of request for information or any
inquiries or proposals relating to an Acquisition Proposal. The terms of
this Section 9 shall not restrict or limit the effect of Section 23 hereof.
Section 10. Grant of Purchase Option.
------------------------
(a) Each Stockholder hereby grants to Parent and
Purchaser an irrevocable option (the "Purchase Option") to purchase for
cash, in a manner set forth below, any or all of the Shares (and including
Shares acquired after the date hereof by such Stockholder) beneficially
owned by the Stockholder at a price (the "Exercise Price") per Share equal
to $54.71 per share of Company Common Stock and $21.88 per share of Company
Preferred Stock, as the case may be. In the event of any stock dividends,
stock splits, recapitalizations, combinations, exchanges of shares or the
like, the Exercise Price will be appropriately adjusted for the purpose of
this Section 10.
(b) In the event that (i) the Purchase Option has been
exercised, in whole or in part with respect to any Stockholder, (ii) the
Merger has not been consummated and (iii) within 12 months after the last
exercise of the Purchase Option with respect to any Stockholder Parent or
any affiliate of Parent sells the Shares acquired upon exercise of the
Purchase Option ("Purchase Option Shares") to a third party or parties
(other than an affiliate of Parent) or the Company consummates a merger or
consolidation with, or sells all or substantially all of its assets or
equity interests to, such a third party or parties (the events referred to
in this clause (iii) being referred to herein as a "Subsequent
Transaction"), Parent shall notify each Stockholder from whom or which
Parent or Purchaser acquired Purchase Option Shares within five business
days of the occurrence of such Subsequent Transaction and of the receipt by
Parent or any of its affiliates of proceeds from such Subsequent
Transaction with respect to such Purchase Option Shares. Within five
business days after such receipt of proceeds, whenever the same shall
occur, Parent shall pay to each such Stockholder, by certified check or
official bank check in immediately available funds or by wire transfer of
immediately available funds, as such Stockholder may direct, an amount in
cash and/or shall deliver an amount in kind to such Stockholder (in
accordance with the nature of the consideration received by Parent and any
of its affiliates from such Subsequent Transaction) equal to one-half of
the excess, if any, of (A) the total consideration received by Parent and
any of its affiliates with respect to such Purchase
<PAGE>
Option Shares acquired from such Stockholder resulting from such Subsequent
Transaction less the prorated amount of any expenses incurred by Parent or
its affiliates in connection with such Subsequent Transaction over (B) the
total consideration received by such Stockholder pursuant to Section 10(a)
upon exercise of the Purchase Option with respect to such Purchase Option
Shares acquired from such Stockholder. For the purposes of making this
calculation, any non-cash consideration to be paid to such Stockholder
shall be valued at fair market value, and in the event of a dispute over
such fair value, Parent and the Stockholders who or which are to receive
such consideration over such fair value, shall, in good faith, mutually
select an appraiser whose determination shall be final and binding, with
the expenses of the appraiser to be shared equally by Parent, on the one
hand, and such Stockholders proportionately on the other.
(c) In the event that (i) the Purchase Option has not been
exercised as to all of the Shares subject to the Purchase Option, (ii) the
Merger has not been consummated and (iii) at any time before the first
anniversary of the later of the termination of the Merger Agreement under
circumstances where a Termination Fee is payable thereunder or the last day
on which the Purchase Option is exercisable under the terms hereof, a
Stockholder or any affiliate of such Stockholder sells the Shares as to
which the Purchase Option has not been exercised ("Subject Shares") to a
third party or parties (other than an affiliate of Parent) in a Subsequent
Transaction or the Company consummates a Subsequent Transaction, such
Stockholder shall notify Parent within five business days of each of the
occurrence of such a Subsequent Transaction and of the receipt by such
Stockholder or any of its affiliates of proceeds from such a Subsequent
Transaction with respect to such Subject Shares. Within five business days
after such receipt of proceeds, whenever the same shall occur, such
Stockholder shall pay to Parent, by certified check or official bank check
in immediately available funds or by wire transfer of immediately available
funds, as Parent may direct, an amount in cash and/or shall deliver an
amount in kind to Parent (in accordance with the nature of the
consideration received by such Stockholder and any of its affiliates from
such Subsequent Transaction) equal to one-half of the excess, if any, of
(A) the total consideration received by such Stockholder and any of its
affiliates with respect to such Subject Shares resulting from such
Subsequent Transaction over (B) the total consideration which would have
been received by such Stockholder pursuant to Section 10(a) upon exercise
of the Purchase Option had the Purchase Option been so exercised. For the
purposes of making this calculation, any non-cash consideration to be paid
to Parent shall be valued at fair market value, and in the event of a
dispute over such fair value, Parent and the Stockholders who or which are
to pay to Parent such consideration shall, in good faith, mutually select
an appraiser whose determination shall be final and binding, with the
expenses of the appraiser to be shared equally by Parent, on the one hand,
and such Stockholders proportionately on the other. Notwithstanding the
foregoing, each Stockholder acknowledges that it shall not transfer its
Shares except as permitted by Section 5 hereof.
(d) In the event that (i) the Purchase Option has been
exercised, in whole or in part with respect to any Stockholder, (ii) the
Merger is consummated and (iii) Parent and Purchaser have increased the
price per share of either the Company Common Stock or the Company Preferred
Stock payable in the Merger above the Exercise Price set forth in Section
10(a) (it being understood that the payment of any amounts pursuant to the
exercise of dissenters' rights will not be considered for this purpose),
Parent shall pay to each Stockholder from whom Parent or Purchaser
purchased Purchase Option Shares, within two business days
<PAGE>
following the Effective Time of the Merger and in the manner set forth in
Section 10(b), an amount equal to the excess of (A) the price per share
paid for the Company Common Stock and Company Preferred Stock in the Merger
over (B) the Exercise Price of the Company Common Stock and/or Company
Preferred Stock, as the case may be, purchased by Parent or Purchaser from
such Stockholder upon exercise of the Purchase Option.
Section 11. Exercise of Purchase Option.
---------------------------
(a) Subject to the conditions set forth in Section 13
hereof, the Purchase Option may be exercised by Parent or Purchaser, in
whole or in part, at any time or from time to time after the occurrence of
any Trigger Event (as defined below). The Company shall notify Parent
promptly in writing of the occurrence of any Trigger Event, it being
understood that the giving of such notice by the Company or the Stockholder
is not a condition to the right of Parent or Purchaser to exercise the
Purchase Option. In the event Parent or Purchaser wishes to exercise the
Purchase Option, Parent shall deliver to each Stockholder a written notice
(an "Exercise Notice") specifying the total number of Shares it wishes to
purchase from such Stockholder. Each closing of a purchase of Shares (a
"Closing") will occur at a place, on a date and at a time designated by
Parent or Purchaser in an Exercise Notice delivered at least five business
days prior to the date of the Closing.
(b) A "Trigger Event" means any one of the following:
(i) the Merger Agreement becomes terminable under circumstances that
entitle Parent or Purchaser to receive the Termination Fee under Section
8.3(b) of the Merger Agreement (regardless of whether the Merger Agreement
is actually terminated or such Termination Fee is then actually paid), (ii)
the Offer has expired but, due to the failure of the Stockholder to validly
tender and not withdraw all of the then outstanding Shares beneficially
owned by such Stockholder, the Purchaser has not accepted for payment or
paid for all of such Shares, (iii) a tender or exchange offer for some or
all Shares shall have been publicly proposed to be made or shall have been
made by another person, or (iv) it shall have been publicly disclosed or
Parent or Purchaser shall have otherwise learned that after the date of
this Agreement, (A) any person or "group" (as defined in Section 13(d)(3)
of the Exchange Act) (other than Parent or Purchaser or their affiliates)
shall have acquired or proposed to acquire beneficial ownership of more
than 20% of any class or series of capital stock of the Company (including
the Company Common Stock and Company Preferred Stock), through the
acquisition of stock, the formation of a group or otherwise, or shall have
been granted any option, right or warrant, conditional or otherwise, to
acquire beneficial ownership of more than 20% of any class or series of
capital stock of the Company, (B) any such person or group which, prior to
the date of this Agreement, had a Schedule 13D or 13G on file with the SEC
shall have acquired or proposed to acquire beneficial ownership of
additional shares of any class or series of capital stock of the Company,
through the acquisition of stock, the formation of a group or otherwise,
constituting 10% or more of any such class or series, or shall have been
granted any option, right or warrant, conditional or otherwise, to acquire
beneficial ownership of additional shares of any class or series of capital
stock of the Company (including the Company Common Stock and Company
Preferred Stock) constituting 10% or more of any such class or series, (C)
any person (other than Parent or Purchaser or their affiliates) shall have
filed a Notification and Report Form under the HSR Act, or made a public
announcement reflecting an intent to acquire the Company or any assets or
securities of the
<PAGE>
Company, or (D) any person or group (other than Parent and Purchaser or
their affiliates) shall have entered into or publicly offered to enter into
a definitive agreement with the Company with respect to a merger,
consolidation or other business combination including the Company.
Notwithstanding the foregoing, it is understood that the execution of this
Agreement by the Stockholders and the performance of their obligations
hereunder shall not, in itself, be deemed to constitute a Trigger Event.
(c) If requested by Parent and Purchaser in the Exercise
Notice, such Stockholder shall exercise all Options (to the extent
exercisable) and other rights (including conversion or exchange rights)
beneficially owned by such Stockholder and shall sell the Shares acquired
pursuant to such exercise to Parent or Purchaser as provided in this
Agreement.
(d) The Company agrees that immediately upon the
purchase of an aggregate of not less than 10% of the voting power of all
outstanding Shares by Purchaser or any of its affiliates pursuant to the
Purchase Option, Purchaser shall be entitled to designate such number of
directors, rounded up to the next whole number, on the Board of Directors
of the Company as will give Purchaser representation on the Board of
Directors of the Company equal to the product of (i) the total number of
directors on the Board of Directors of the Company (giving effect to the
increase in the size of such Board pursuant to this Section 11) and (ii)
the percentage that the number of votes represented by Shares beneficially
owned by Purchaser and its affiliates (including Shares so purchased
pursuant to the Purchase Option) bears to the number of votes represented
by Shares then outstanding. In furtherance thereof, the Company covenants
to Parent and Purchaser that it and its Board of Directors shall, upon the
request of Parent, use their reasonable best efforts promptly either to
increase the size of its Board of Directors or to secure the resignations
of such number of its incumbent directors, or both, as is necessary to
enable such designees of Parent to be so elected or appointed to the
Company's Board of Directors, and, subject to applicable law, the Company
shall take all reasonable actions available to the Company to cause such
designees of Parent to be so elected or appointed (including by calling a
special meeting of its stockholders if so requested by Parent or
Purchaser). At such time, the Company shall, if requested by Parent,
subject to applicable law, also take all reasonable action necessary to
cause persons designated by Parent to constitute at least the same
percentage (rounded up to the next whole number) as is on the Company's
Board of Directors of (i) each committee of the Company's Board of
Directors, (ii) each board of directors (or similar body) of each
subsidiary of the Company and (iii) each committee (or similar body) of
each such board. Such designees of Purchaser shall be assigned to the class
of directors having the latest expiration date for its term of office at
the time of such election.
Section 12. Termination of Purchase Option. The Purchase Option will
------------------------------
terminate upon the earliest of: (i) the Effective Time; (ii) termination of
the Merger Agreement other than upon, during or after the occurrence of a
Trigger Event; (iii) 90 days following any termination of the Merger
Agreement upon, during or after the occurrence of a Trigger Event (or if,
at the expiration of such 90 day period the Purchase Option cannot be
exercised or the Closing thereunder cannot occur by reason of any
applicable judgment, decree, order, injunction, law or regulation, 20
business days after such impediment to exercise or Closing has been removed
or has become final and not subject to appeal); or (iv) the exercise in
full of the Purchase Option and consummation of the Closing with respect
thereto. Upon the giving by Parent or Purchaser
<PAGE>
to a Stockholder of the Exercise Notice and the tender of the aggregate Exercise
Price, Parent or Purchaser, as the case may be, subject to applicable law and
the conditions of Section 13, will be deemed to be the holder of record of the
Shares transferable upon such exercise, notwithstanding that the stock transfer
books of the Company are then closed or that certificates representing such
Shares have not been actually delivered to Parent.
Section 13. Conditions To Closing. The obligation of each Stockholder to
---------------------
sell such Stockholder's Shares to Parent or Purchaser hereunder is subject to
the conditions that (i) all waiting periods, if any, under the HSR Act,
applicable to the sale of the Shares or the acquisition of the Shares by Parent
or Purchaser, as the case may be, hereunder have expired or have been
terminated; (ii) all material consents, approvals, orders or authorizations of,
or registrations, declarations or filings with, any court, administrative agency
or other Governmental Entity, if any, required in connection with sale of the
Shares or the acquisition of the Shares by Parent or Purchaser hereunder have
been obtained or made; and (iii) no preliminary or permanent injunction or other
order by any court of competent jurisdiction prohibiting or otherwise
restraining such sale or acquisition is in effect.
Section 14. Closing. At any Closing with respect to Shares beneficially
-------
owned by a Stockholder, (i) such Stockholder will deliver to Parent or
Purchaser, as the case may be, a certificate or certificates in definitive form
representing the number of the Shares specified by Parent or Purchaser, as the
case may be, in its Exercise Notice, such certificate to be registered in the
name of Parent or Purchaser, as the case may be, and (ii) Parent or Purchaser,
as the case may be, will deliver to the Stockholder the aggregate Exercise Price
for the Shares so specified and being purchased by wire transfer of immediately
available funds. Such Stockholder will pay all Stockholder's expenses, and any
and all United States federal, state and local transfer taxes and other similar
charges that may be payable in connection with the preparation, issue and
delivery of stock certificates under this Section 14 in the name of Parent or
Purchaser, as the case may be. At the Closing, each Stockholder shall deliver
to Parent or Purchaser, as the case may be, good title to all of the Securities
beneficially owned by it, free and clear of any Liens.
Section 15. Registration Rights.
-------------------
(a) Following termination of the Merger Agreement, Parent or
Purchaser may in their sole discretion (but shall not be required) by written
notice (the "Registration Notice") to the Company request the Company to
register under the Securities Act all or any part of the Shares acquired by
Purchaser or Parent under the Purchase Option (the "Registrable Securities");
provided that the Company shall not be required to register (i) shares of
Company Preferred Stock, or (ii) an amount of shares of Company Common Stock
which is less than the lesser of (x) 85% of the aggregate number of shares of
Company Common Stock (excluding shares in respect of unexercised Options)
covered by this Agreement or (y) 4% of the aggregate number of shares of Company
Common Stock then outstanding.
(b) The Company shall use its reasonable best efforts to
effect, as promptly as practicable, the registration under the Securities Act of
the Registrable Securities; provided, however, that (i) Parent and Purchaser
will be entitled to no more than one effective registration statement hereunder
and (ii) the Company will not be required to file any such
<PAGE>
registration statement at any time after May 31, 2001 or during any period of
time (not to exceed 20 days after such request in the case of clause (A) below
or 45 days in the case of clauses (B) and (C) below) when (A) the Company is in
possession of material non-public information that it reasonably believes would
be detrimental to be disclosed at such time and that such information would have
to be disclosed if a registration statement were filed at that time; (B) the
Company is required under the Securities Act to include audited financial
statements for any period in such registration statement and such financial
statements are not yet available for inclusion in such registration statement;
or (C) the Company determines, in its reasonable judgment, that such
registration would interfere with any proposed financing, acquisition or other
material transaction involving the Company or any of its affiliates. The Company
shall use its reasonable best efforts to cause any Registrable Securities
registered pursuant to this Section 15 to be qualified for sale under the
securities or blue-sky laws of such jurisdictions as Parent or Purchaser may
reasonably request and shall continue such registration or qualification in
effect in such jurisdiction; provided, however, that the Company will not be
required to qualify to do business in, or to consent to general service of
process in, any jurisdiction by reason of this provision.
(c) The registration rights set forth in this Section 15 are
subject to the condition that Parent and Purchaser promptly shall provide the
Company with such information with respect to their Registrable Securities, the
plans for the distribution thereof, and such other information with respect to
such holder as, in the reasonable judgment of counsel for the Company, is
necessary to enable the Company to include in such registration statement all
material facts required to be disclosed with respect to a registration
thereunder.
(d) A registration effected under this Section 15 will be
effected at the Company's expense, except for underwriting discounts and
commissions and the fees and the expenses of counsel to Parent and Purchaser
(which will be paid by Parent and Purchaser), and the Company promptly shall
provide to the underwriters (in connection with an underwritten offering) such
documentation (including certificates, opinions of counsel and "comfort" letters
from auditors) as are customary in connection with underwritten offerings as
such underwriters may reasonably require. In connection with any such
registration, the Company, Parent and Purchaser, as the case may be, agree (i)
to indemnify each other and the underwriters in the customary manner, (ii) to
enter into an underwriting agreement in form and substance customary for
transactions of such type with the underwriters participating in such offering
and (iii) to take all further actions that will be reasonably necessary to
effect such registration and sale (including, if the underwriters deem it
necessary, participating in road-show presentations).
Section 16. No Impairment. The Company will not take any action that will
-------------
in any way destroy or materially diminish or impair the rights and preferences
attributable to the Shares (including the voting rights and power, economic
rights and the percentage ownership interest represented by the Shares)
purchased pursuant to or subject to the Purchase Option, including, without
limitation, the redemption of Company Preferred Stock, issuance of additional
capital stock of the Company or securities convertible, exercisable or
representing a right to such capital stock, amending the Articles of
Incorporation or Bylaws of the Company, declaring a stock dividend, declaring a
stock split, recapitalizing the Company, reclassifying the capital stock of
<PAGE>
the Company, reorganizing the Company, or combining or exchanging shares of
capital stock or other securities of the Company.
Section 17. No Inconsistent Agreements. No Stockholder shall enter into any
--------------------------
agreement or understanding with any person or entity the effect of which would
be inconsistent or violative of the provisions of this Agreement.
Section 18. Termination. Subject to Section 25(a), this Agreement will
-----------
terminate (a) upon the later to occur of (i) the termination of the Purchase
Option pursuant to clause (i), (ii) or (iii) of Section 12 or (ii) 90 days after
the final Closing, except for Sections 10, 11, 12, 13, 14 and 15 hereof, which
will only terminate as and when provided therein, or (b) by the mutual consent
of each Stockholder as to its rights and obligations hereunder, the Board of
Directors of the Company and the Board of Directors of Parent.
Section 19. Expenses. Except as otherwise expressly provided herein or in
--------
the Merger Agreement, all costs and expenses incurred by any of the parties
hereto will be borne by the party incurring such costs and expenses. Parent and
Purchaser, on the one hand, and the Company and the Stockholders, on the other
hand, will indemnify and hold harmless the other from and against any and all
claims or liabilities for finder's fees or brokerage commissions or other like
payments incurred by reason of action taken by him, it or any of them, as the
case may be, provided that no Stockholder shall have any obligation to so
indemnify and hold harmless Parent or Purchaser from and against any such claims
by reason of any action taken otherwise than by such Stockholder.
Section 20. Further Assurances. Each party hereto will execute and deliver
------------------
all such further documents and instruments and take all such further action as
may be reasonably necessary in order to consummate the transactions contemplated
hereby. The Company covenants to Parent and Purchaser that it and its Board of
Directors shall (i) use its reasonable best efforts to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
the Purchase Option and the Transactions and (ii) if any state takeover statute
or similar statute or regulation becomes applicable to any of the Transactions,
use its reasonable best efforts to ensure that the Purchase Option and the other
Transactions may be consummated as promptly as practicable on the terms
contemplated by this Agreement and the Merger Agreement and otherwise to
minimize the effect of such statute or regulation on the Purchase Option and the
other Transactions. The Company agrees with each Stockholder to comply with the
provisions of Section 5.2(c) and Section 6.14 of the Merger Agreement with
respect to redemption of the Company Preferred Stock.
Section 21. Publicity. A Stockholder shall not issue any press release or
---------
otherwise make any public statements with respect to this Agreement or the
Merger Agreement or the other transactions contemplated hereby or thereby
without the consent of Parent and Purchaser, except as may be required by law or
applicable stock exchange or NASDAQ rules.
Section 22. Stop Transfer Order; Legend. The Company agrees with, and
---------------------------
covenants to, Parent and Purchaser that the Company shall not register the
transfer of any certificate representing any Stockholder's Securities unless
such transfer is made in accordance with the
<PAGE>
terms of this Agreement. Each Stockholder agrees to the extent such
Stockholder's Securities are in certificate form and in such Stockholder's
possession or are otherwise reasonably available to such Stockholder to place
the following legend on any and all certificates evidencing the Securities:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER PURSUANT TO THAT CERTAIN TENDER AND OPTION AGREEMENT,
DATED AS OF JANUARY 16, 2000, BY AND AMONG SIEMENS ENERGY & AUTOMATION, INC.,
MALIBU ACQUISITION CORP., MOORE PRODUCTS CO. AND CERTAIN STOCKHOLDERS OF MOORE
PRODUCTS CO. ANY TRANSFER OF SUCH SECURITIES IN VIOLATION OF THE TERMS OF SUCH
AGREEMENT SHALL BE NULL AND VOID AND OF NO EFFECT WHATSOEVER.
To the extent such Stockholder's Securities are not in certificate form, the
Company and such Stockholder agree to take all reasonable steps to place with
the Company's transfer agent a stop transfer order on such Securities.
Section 23. Stockholder Capacity. No person executing this Agreement makes
--------------------
any agreement or understanding herein in such Stockholder's capacity as a
director or officer of the Company or any subsidiary of the Company. Each
Stockholder signs solely in such Stockholder's capacity as the beneficial owner
of such Stockholder's Shares and nothing herein shall limit or affect any
actions taken by a Stockholder in such Stockholder's capacity as an officer or
director of the Company or any subsidiary of the Company to the extent
specifically permitted by the Merger Agreement (including Section 6.1 of the
Merger Agreement). Notwithstanding any provision to the contrary contained in
this Agreement, the obligations of the Pension Plan under this Agreement are
subject to the applicable provisions of ERISA and the rules and regulations
thereunder and, in the event performance by the Pension Plan of its obligations
hereunder would contravene the applicable provisions of ERISA and the rules and
regulations thereunder and the Pension Plan and Parent receive the written
opinion of independent counsel to the Pension Plan to such effect, the Pension
Plan will be deemed not to be in breach of its obligations under this Agreement
to the extent it will be required to take or not take any action in compliance
with ERISA and the rules and regulations thereunder.
Section 24. Enforcement. Each Stockholder and the Company acknowledge that
-----------
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached by any Stockholder or the Company. It is accordingly agreed
that Parent and Purchaser will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity. Each Stockholder and the Company further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. The provisions
of this paragraph are without prejudice to any other rights that another party
hereto may have against the another party hereto for any failure to perform its
obligations under this Agreement. In addition, each Stockholder hereto (i)
consents to submit such party to the personal jurisdiction of the United States
District Court for the Eastern District of Pennsylvania
<PAGE>
and the Court of Common Pleas of Montgomery County, Pennsylvania in the event
any dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) agrees not to attempt to deny or defeat such personal jurisdiction
by motion or other request for leave from any such court, (iii) agrees not to
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than the courts specified in clause (i)
above and (iv) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
Transactions. In furtherance of the foregoing, each Stockholder and the Company
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in the courts specified in clause (i) above,
and hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. The Company
and each Stockholder hereby designates, appoints and empowers the Company as
their true and lawful agent and attorney in-fact in their name, place and stead
to receive and accept on their behalf service of process in any action, suit or
proceeding with respect to any matters as to which it has submitted to
jurisdiction as set forth above.
Section 25. Miscellaneous.
-------------
(a) All representations and warranties contained herein will
terminate as provided in Section 18(a), except that the representations and
warranties contained in Section 2(a) shall survive forever and the
representations and warranties contained in Sections 2(b)-(g), inclusive, and
Section 3 and Section 4 will survive for one year after the termination of the
Purchase Option as set forth in Section 12. The covenants and agreements made
herein will survive in accordance with their respective terms. The
representations and warranties given by each Stockholder herein are not in
derogation or limitation of the representations and warranties given by such
Stockholder in any letters of transmittal or similar documents executed and
delivered by such Stockholder pursuant to the Offer or the Merger.
(b) Any provision of this Agreement may be waived at any time
by the party that is entitled to the benefits thereof. No such waiver, amendment
or supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement or one or more sections hereof will not be considered a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(c) This Agreement, together with the Merger Agreement and the
other agreements referred to herein and therein, constitute the entire agreement
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements among the parties with respect to such matters.
<PAGE>
(d) This Agreement will be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to
the conflicts of laws principles thereof.
(e) The words "hereof," "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
article, section, paragraph, exhibit and schedule references are to the
articles, sections, paragraphs, exhibits and schedules of this Agreement unless
otherwise specified. Whenever the words "include," "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation." All terms defined in this Agreement shall have the defined meanings
contained herein when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. Any agreement, instrument, statute or rule defined or
referred to herein or in any agreement or instrument that is referred to herein
means such agreement, instrument, statute or rule as from time to time amended,
modified or supplemented, including (in the case of agreements and instruments)
by waiver or consent and (in the case of statutes and rules) by succession of
comparable successor statutes and rules and all attachments thereto and
instruments incorporated therein. References to a person are also to its
permitted successors and assigns.
(f) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to the Company to:
Moore Products Co.
1201 Sumneytown Ave.
Spring House, PA 19477
Attention: Robert E. Wisniewski
Telecopy: 215-653-0348
With a copy to:
Drinker Biddle & Reath LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103
Attention: John C. Bennett, Jr.
Henry S. Bryans
Telecopy: 215-988-2757
<PAGE>
If to Parent or Purchaser to:
Siemens Energy & Automation, Inc.
3333 Old Milton Parkway
Alpharetta, GA 30005
Attention: General Counsel
Telecopy: 770-751-2204
with copies to:
Dechert Price & Rhoads
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: William G. Lawlor
Peter D. Cripps
Telecopy: 215-994-2222
If to a Stockholder, at the address set forth on the signature pages
hereto or, if no such address is specified, c/o the Company to the Company's
address as set forth above; or in each case to such other address as any party
may have furnished to the other parties in writing in accordance herewith.
(g) This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original, but all of which
together will constitute one agreement .
(h) This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned by any of the
parties hereto without the prior written consent of the other parties, except
that Parent and Purchaser will have the right to assign to any direct or
indirect wholly owned subsidiary of Parent or Purchaser any or all rights and
obligations of Parent or Purchaser under this Agreement, provided that any such
assignment will not relieve either Parent or Purchaser from any of its
obligations hereunder.
(i) In the event any term or provision of this Agreement is
determined to be invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other terms and provisions of this Agreement will
nevertheless remain in full force and effect. Upon any such determination that
any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto will negotiate in good faith to modify this Agreement so as
to effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated by this
Agreement are consummated to the fullest extent possible.
(j) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative,
<PAGE>
and the exercise of any thereof by either party will not preclude the
simultaneous or later exercise of any other such right, power or remedy by such
party.
(k) The parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Agreement.
<PAGE>
IN WITNESS WHEREOF, each of the Company, Parent and Purchaser has
caused this Agreement to be signed by its officer or director thereunto duly
authorized and each Stockholder has signed this Agreement, all as of the date
first written above.
SIEMENS ENERGY & AUTOMATION, INC.
By: /s/ Thomas J Malott
---------------------------------
Name: Thomas J Malott
Title: President and CEO
MALIBU ACQUISITION CORP.
By: /s/ Gary K. Gabriel
---------------------------------
Name: Gary K. Gabriel
Title: Treasurer
MOORE PRODUCTS CO.
By: /s/ Robert E. Wisniewski
---------------------------------
Name: Robert E. Wisniewski
Title: Secretary and Treasurer
<PAGE>
STOCKHOLDERS:
Trust Under Will of Coleman B. Moore
MELLON BANK, N.A., Trustee
Under the Will of Coleman B.
Moore, deceased
By: /s/ Robert A. Chappelear
---------------------------------
Name: Robert M. Chappelear
Title First Vice President
1735 Market Street, 3rd Floor
Philadelphia, PA 19103
Attn: Robert Chappelear
/s/ Frances Oakford Moore
--------------------------------------
Frances Oakford Moore, Trustee under the
Will of Coleman B. Moore, deceased
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
Trusts Under Deed of Coleman B. Moore (I)
and (II)
MELLON BANK, N.A., Trustee under
Deeds of Trust, dated July 7, 1966, of
Coleman B. Moore, Settlor
By: /s/ Robert M. Chappelear
---------------------------------
Name: Robert M. Chappelear
Title: First Vice President
1735 Market Street, 3rd Floor
Philadelphia, PA 19103
Attn: Robert Chappelear
<PAGE>
/s/ James O. Moore
--------------------------------------
James O. Moore, Trustee under Deeds of
Trust, dated July 7, 1966, of Coleman B.
Moore, Settlor
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Thomas C. Moore
--------------------------------------
Thomas C. Moore, Trustee under Deeds of
Trust, dated July 7, 1966, of Coleman B.
Moore, Settlor
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ William B. Moore
--------------------------------------
William B. Moore, Trustee under Deeds of
Trust, dated July 7, 1966, of Coleman B.
Moore, Settlor
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
Trust Under Deed of Frances O. Moore
/s/ James O. Moore
--------------------------------------
James O. Moore, Trustee under Deed of
Trust, dated January 15, 1988, of Frances
Oakford Moore, Settlor, f/b/o James O.
Moore, et al.
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
<PAGE>
/s/ Thomas C. Moore
---------------------------------------------
Thomas C. Moore, Trustee under Deed of
Trust, dated January 15, 1988, of Frances
Oakford Moore, Settlor, f/b/o Thomas C.
Moore, et al.
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ William B. Moore
---------------------------------------------
William B. Moore, Trustee under Deed of
Trust, dated January 15, 1988, of Frances
Oakford Moore, Settlor, f/b/o William B.
Moore, et al.
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
Moore Products Co. Pension Plan
MELLON BANK, N.A., Trustee under
the Amended and Restated Trust
Agreement of Moore Products Co.
Pension Plan
By: /s/ William J. McCabe
-----------------------------------------
Name: WILLIAM J. MCCABE
Title: VICE PRESIDENT
1735 Market Street, 3rd Floor
Philadelphia, PA 19103
Attn: William J. McCabe
<PAGE>
MOORE PRODUCTS CO. PENSION
PLAN BENEFITS COMMITTEE
By: /s/ Donald E. Bogle
------------------------
Name: Donald E. Bogle
Title: Chairman
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
Attn: Robert E. Wisniewski
OTHER STOCKHOLDERS
/s/ James O. Moore
-----------------------------------------
James O. Moore
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Thomas C. Moore
-----------------------------------------
Thomas C. Moore
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Thomas C. Moore
-----------------------------------------
Thomas C. Moore, as Custodian for Trusts
under the California Gifts to Minor Act
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
<PAGE>
/s/ Thomas C. Moore
-----------------------------------------
Thomas C. Moore, Trustee under the 1977 Moore
Family Trust
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Nancy M. Hull
-----------------------------------------
Nancy M. Hull, Trustee under the 1977 Moore
Family Trust
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ William B. Moore
-----------------------------------------
William B. Moore
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Donald E. Bogle
-----------------------------------------
Donald E. Bogle
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Edward T. Hurd
-----------------------------------------
Edward T. Hurd
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
-25-
<PAGE>
/s/ Edward J. Curry
-----------------------------------------
Edward J. Curry
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Madeline J. Curry
-----------------------------------------
Madeline J. Curry
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Edwin G. Rorke
-----------------------------------------
Edwin G. Rorke
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Raymond M. Reed
-----------------------------------------
Raymond M. Reed
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Ralph H. Owens
-----------------------------------------
Ralph H. Owens
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
-26-
<PAGE>
/s/ Ruth M. Owens
-----------------------------------------
Ruth M. Owens
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Robert B. Adams
-----------------------------------------
Robert B. Adams, Trustee
Under the Robert B. Adams Trust, u/a dated
1/27/99
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ F. Lawton Hindle
-----------------------------------------
F. Lawton Hindle
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Robert E. Wisniewski
-----------------------------------------
Robert E. Wisniewski
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
/s/ Jean G. Rorke
-----------------------------------------
Jean G. Rorke
c/o Moore Products Co.
1201 Sumneytown Pike
Spring House, PA 19477
-27-
<PAGE>
SCHEDULE A
----------
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Exercisable Unexercisable
Stockholder Common Stock Preferred Stock Options Options
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------------
Trust U/W Coleman B. Moore 252,698 172,890 0 0
- --------------------------------------------------------------------------------------------------------------------
Trust U/D Coleman B. Moore (I) 240,000 0 0 0
- --------------------------------------------------------------------------------------------------------------------
Trust U/D Coleman B. Moore (II) 60,000 0 0 0
- --------------------------------------------------------------------------------------------------------------------
Trust U/D Frances O. Moore TCM 4,334 0 0 0
JOM 4,333 0 0 0
WBM 4,333 0 0 0
- --------------------------------------------------------------------------------------------------------------------
Pension Plan 500,000 0 0 0
- --------------------------------------------------------------------------------------------------------------------
James O. Moore* 38,412 1,020 1,500 500
- --------------------------------------------------------------------------------------------------------------------
Thomas C. Moore 16,859 1,020 3,000 0
- --------------------------------------------------------------------------------------------------------------------
Thomas C. Moore, custodian 4,225 0 0 0
- --------------------------------------------------------------------------------------------------------------------
1977 Moore Family Trust 10,000 0 0 0
- --------------------------------------------------------------------------------------------------------------------
William B. Moore** 41,470 1,020 3,250 1,750
- --------------------------------------------------------------------------------------------------------------------
Donald E. Bogle 5,000 0 75,000 25,000
- --------------------------------------------------------------------------------------------------------------------
Edward T. Hurd 0 0 38,000 15,000
- --------------------------------------------------------------------------------------------------------------------
Edward J. and Madeline J. Curry 1,092 0 58,400 4,600
JTWROS
- --------------------------------------------------------------------------------------------------------------------
Edwin G. and Jean G. Rorke 6,022 0 3,000 0
JTWROS
- --------------------------------------------------------------------------------------------------------------------
Raymond M. Reed 0 0 9,000 4,000
- --------------------------------------------------------------------------------------------------------------------
Ralph H. and Ruth M. Owens 4,331 0 3,000 0
JTWROS
- --------------------------------------------------------------------------------------------------------------------
Robert B. Adams Trust, u/a dated 2,633 0 3,000 0
1/27/99 ***
- --------------------------------------------------------------------------------------------------------------------
F. Lawton Hindle 0 0 6,360 0
- --------------------------------------------------------------------------------------------------------------------
Robert E. Wisniewski 637 0 13,240 6,760
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
* 20,800 shares of common stock subject to pledge.
** 32,682 shares of common stock subject to pledge.
*** Does not include shares of common stock held in the RCA (Mr. Adams' wife)
Trust, u/a dated 11/18/99, for which Mr. Adams is the trustee.
-28-
