<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE TO
(RULE 14D-100)
TENDER OFFER STATEMENT
UNDER SECTION 14(D)(1) OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
OEA, INC.
(Name of Subject Company (Issuer))
AUTOLIV, INC.
OEA MERGER CORPORATION
(Names of Filing Persons (Offerors))
COMMON STOCK, $0.10 PAR VALUE PER SHARE
(INCLUDING ASSOCIATED RIGHTS)
(Title of Class of Securities)
670826106
(CUSIP Number of Class of Securities)
------------------------
JORGEN SVENSSON
VICE PRESIDENT--LEGAL AFFAIRS,
GENERAL COUNSEL AND SECRETARY
WORLD TRADE CENTER
KLARABERGSVIADUKTEN 70
S-107 24 STOCKHOLM, SWEDEN
46(8) 587 20 600
(Name, Address and Telephone Number
of Person Authorized to Receive Notices and
Communications on behalf of Filing Persons)
COPY TO:
SCOTT V. SIMPSON
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
ONE CANADA SQUARE
CANARY WHARF, LONDON E14 5DS
44 (20) 7519 7040
CALCULATION OF FILING FEE
<TABLE>
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TRANSACTION VALUATION*: AMOUNT OF FILING FEE:
<S> <C>
$219,493,280 $43,899
</TABLE>
* Estimated for purposes of calculating the amount of the filing fee only.
This calculation assumes the purchase of all outstanding shares of common
stock, par value $0.10 per share of OEA, Inc. (the "Common Stock"),
including associated rights to purchase common stock (the "Rights" and
together with the Common Stock, the "Shares"), at a price per Share of
$10.00 in cash. As of March 23, 2000, there were (i) 20,621,691 Shares
outstanding and (ii) 1,327,637 Shares reserved for issuance for outstanding
options, warrants and other rights to acquire Shares from the Company. The
amount of the filing fee, calculated in accordance with Rule 0-11 of the
Securities Exchange Act of 1934, as amended, equals 1/50(th) of one percent
of the value of the transaction.
/ / Check the 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> <C> <C>
Amount previously paid: Not applicable Filing Party: Not applicable
Form or registration no.: Not applicable Date Filed: Not applicable.
</TABLE>
/ / Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
/X/ third-party tender offer subject to Rule 14d-1.
/ / issuer tender offer subject to Rule 13e-4.
/ / going-private transaction subject to Rule 13e-3.
/ / amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results
of the tender offer: / /
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<PAGE>
This Tender Offer Statement on Schedule TO relates to the third-party tender
offer by OEA Merger Corporation, Inc., a Delaware corporation ("Purchaser") and
an indirect wholly owned subsidiary of Autoliv, Inc., a Delaware corporation
("Parent"), to purchase all of the issued and outstanding shares of common
stock, par value $0.10 per share (the "Common Stock"), of OEA, Inc., a Delaware
corporation (the "Company"), and the associated rights to purchase Common Stock
(the "Rights" and, together with the Common Stock, the "Shares"), at a purchase
price of $10.00 per Share, net to the seller in cash, without interest thereon,
upon the terms and subject to the conditions set forth in the Offer to Purchase
dated March 24, 2000 (the "Offer to Purchase"), a copy of which is attached
hereto as Exhibit (a)(1)(A), and in the related Letter of Transmittal (the
"Letter of Transmittal"), a copy of which is attached hereto as
Exhibit (a)(1)(B) (which, together with the Offer to Purchase, as amended or
supplemented from time to time, constitute the "Offer").
The information in the Offer to Purchase, including all schedules and
annexes thereto, is hereby expressly incorporated herein by reference in
response to all the items of this Schedule TO, except as otherwise set forth
below.
ITEM 1. SUMMARY TERM SHEET.
The information set forth in the Summary Term Sheet in the Offer to Purchase
is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) The name of the subject company is OEA, Inc., a Delaware corporation.
The Company's executive offices are located at 34501 East Quincy Avenue,
P.O. Box 100488 Denver, Colorado, 80250, telephone (303) 693-1248.
(b) The class of securities to which this statement relates is the Common
Stock, par value $0.10 per share, including the associated Rights, of the
Company, of which 20,621,691 shares were issued and outstanding as of March 12,
2000. The information set forth on the cover page and in the "Introduction" of
the Offer to Purchase is incorporated herein by reference.
(c) The information set forth in Section 6 ("Price Range of Shares;
Dividends") of the Offer to Purchase is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) This Tender Offer Statement is filed by Parent and Purchaser. The
information set forth in Section 8 ("Certain Information Concerning Parent and
Purchaser") of the Offer to Purchase and on Schedule I thereto is incorporated
herein by reference.
(b) The information set forth in Section 8 ("Certain Information Concerning
Parent and Purchaser") of the Offer to Purchase and on Schedule I thereto is
incorporated herein by reference.
(c) The information set forth in Section 8 ("Certain Information Concerning
Parent and Purchaser") of the Offer to Purchase and on Schedule I thereto is
incorporated herein by reference. During the last five years, none of Purchaser
or Parent or, to the best knowledge of Purchaser or Parent, any of the persons
listed on Schedule I to the Offer to Purchase (i) has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors) or
(ii) was a party to any judicial or administrative proceeding (except for
matters that were dismissed without sanction or settlement) that resulted in a
judgment, decree or final order enjoining the person from future violations of,
or prohibiting activities subject to, federal or state securities laws, or a
finding of any violation of such laws.
2
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(d) The information set forth in the Offer to Purchase is incorporated
herein by reference. Information concerning the Offer to Purchase can be found
on the World Wide Web at http:// www.autoliv.com.
ITEM 4. TERMS OF THE TRANSACTION.
The information set forth in the Offer to Purchase is incorporated herein by
reference.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(a) The Company is a Delaware corporation with its principal executive
offices located at 34501 East Quincy Avenue, P.O. Box 100488, Denver, Colorado,
80250. The Company's telephone number is (303) 693-1248. The Company produces
high-reliability, propellant-actuated safety devices for the automotive and
aerospace industries. Its automotive safety products division designs, develops,
tests and manufactures propellant-actuated devices for use in automotive safety
products, which are currently single-stage hybrid inflators (passenger, driver
and side-impact) and electric initiators. These products are sold to automotive
module and inflator manufacturers, which in turn sell their products directly to
automobile manufacturers. The Company's aerospace division, among other things,
designs, develops, and manufactures propellant and explosive-actuated devices
used by the United States Government and major military and aerospace companies.
The Company is a supplier of airbag initiators and airbag inflators to the
Parent. Parent purchased approximately 8.8 million and 9.3 million airbag
initiators during the calendar years ended December 31, 1999 and December 31,
1998 for an aggregate price of approximately $14.5 million and $19.6 million
respectively. Parent purchased approximately 200,000 airbag inflators from the
Company during the calendar year ended December 31, 1999 for an aggregate
purchase price of $2.7 million. Parent purchased no airbag inflators from the
Company during the calendar year ended December 31, 1998. Except as disclosed
above in this Item 5(a), during the past two years, there have been no
transactions that would be required to be disclosed under this Item 5(a) between
any of Purchaser or Parent or, to the best knowledge of Purchaser and Parent,
any of the persons listed on Schedule I to the Offer to Purchase, and the
Company or any of its executive officers, directors or affiliates.
(b) The information set forth in the Introduction, Section 10 (Background
of the Offer and the Merger; Past Contacts or Negotiations with the Company) and
Section 11 (The Merger Agreement) of the Offer to Purchase is incorporated
herein by reference. Except as set forth in the Introduction, Section 10 and
Section 11 of the Offer to Purchase, there have been no material contacts,
negotiations or transactions during the past two years which would be required
to be disclosed under this Item 5(b) between any of Purchaser or Parent or any
of their respective subsidiaries or, to the best knowledge of Purchaser and
Parent, any of those persons listed on Schedule I to the Offer to Purchase and
the Company or its affiliates concerning a merger, consolidation or acquisition,
a tender offer or other acquisition of securities, an election of directors or a
sale or other transfer of a material amount of assets.
ITEM 6. PURPOSE OF THE TRANSACTION AND PLANS OR PROPOSALS.
The information set forth in the Introduction, Section 10 ("Background of
the Offer and the Merger; Past Contacts or Negotiations with the Company"),
Section 11 ("The Merger Agreement"), Section 12 ("Purpose of the Offer and the
Merger; Plans for the Company"), Section 13 ("Certain Effects of the Offer") and
Section 14 ("Dividends and Distributions") of the Offer to Purchase is
incorporated herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in Section 9 ("Source and Amount of Funds") of the
Offer to Purchase is incorporated herein by reference.
3
<PAGE>
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
The information set forth in the Introduction and Section 8 ("Certain
Information Concerning Parent and Purchaser") of the Offer to Purchase is
incorporated herein by reference.
ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
The information set forth in the Introduction and Section 17 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
Not applicable.
ITEM 11. ADDITIONAL INFORMATION.
(a) The information set forth in Section 11 ("The Merger Agreement"),
Section 13 ("Certain Effects of the Offer") and Section 16 ("Certain Legal
Matters") of the Offer to Purchase is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase and Letter of
Transmittal is incorporated herein by reference.
ITEM 12. EXHIBITS.
(a)(1)(A) Offer to Purchase dated March 24, 2000.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Letter from the Information Agent to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(1)(E) Letter to clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Nominees.
(a)(1)(F) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(1)(G) Summary Advertisement as published on March 24, 2000.
(a)(1)(H) Press Release dated March 13, 2000.
(b) Credit Agreement dated March 22, 2000 among Autoliv ASP, Inc. as
Borrower, Autoliv, Inc. as Guarantor, Skandinaviska Enskilda Banken AB (publ) as
Lender and SEB Debt Capital Markets as Arranger.
(d) The Amended and Restated Agreement and Plan of Merger, dated as of
March 12, 2000, by and among Autoliv, Inc., OEA Merger Corporation and
OEA, Inc.
(g) None.
(h) None.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
Not applicable.
4
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
<TABLE>
<S> <C> <C>
AUTOLIV, INC.
By: /s/ JORGEN SVENSSON
-----------------------------------------
Name: Jorgen Svensson
Title: VICE PRESIDENT--LEGAL AFFAIRS,
GENERAL COUNSEL AND SECRETARY
</TABLE>
<TABLE>
<S> <C> <C>
OEA MERGER CORPORATION
By: /s/ JORGEN SVENSSON
-----------------------------------------
Name: Jorgen Svensson
Title: VICE PRESIDENT AND TREASURER
</TABLE>
Date: March 24, 2000
5
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EXHIBIT INDEX
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EXHIBIT NO. DESCRIPTION
- ----------- -----------
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(a)(1)(A) Offer to Purchase dated March 24, 2000.
(a)(1)(B) Letter of Transmittal.
(a)(1)(C) Notice of Guaranteed Delivery.
(a)(1)(D) Letter from the Information Agent to Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.
(a)(1)(E) Letter to clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(1)(F) Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.
(a)(1)(G) Summary Advertisement as published on March 24, 2000.
(a)(1)(H) Press Release dated March 13, 2000.
(b) Credit Agreement dated March 22, 2000 among Autoliv ASP,
Inc. as Borrower, Autoliv, Inc. as Guarantor, Skandinaviska
Enskilda Banken AB (publ) as Lender and SEB Debt Capital
Markets as Arranger.
(d) Amended and Restated Agreement and Plan of Merger, dated as
of March 12, 2000, by and among Autoliv, Inc., OEA Merger
Corporation and OEA, Inc.
</TABLE>
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING ASSOCIATED RIGHTS)
OF
OEA, INC.
AT
$10.00 NET PER SHARE
BY
OEA MERGER CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
AUTOLIV, INC.
- ----------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, APRIL 24, 2000, UNLESS THE OFFER IS EXTENDED.
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THE OFFER (AS HEREINAFTER DEFINED) IS BEING MADE IN CONNECTION WITH THE
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, DATED AS OF MARCH 12, 2000
(THE "MERGER AGREEMENT"), BY AND AMONG OEA, INC. (THE "COMPANY"), AUTOLIV, INC.
("PARENT") AND OEA MERGER CORPORATION ("PURCHASER"). THE BOARD OF DIRECTORS OF
THE COMPANY UNANIMOUSLY (I) DETERMINED THAT THE OFFER, THE MERGER (AS
HEREINAFTER DEFINED) AND THE MERGER AGREEMENT ARE ADVISABLE, FAIR TO, AND IN THE
BEST INTERESTS OF THE COMPANY'S STOCKHOLDERS, (II) APPROVED THE MERGER, THE
OFFER, THE MERGER AGREEMENT AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT AND (III) RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS ACCEPT THE
OFFER AND TENDER THEIR SHARES (AS HEREINAFTER DEFINED) PURSUANT THERETO AND
APPROVE AND ADOPT THE MERGER AGREEMENT.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE OF THE OFFER A
NUMBER OF SHARES OF COMMON STOCK PAR VALUE $0.10 PER SHARE (THE ``COMMON STOCK")
OF THE COMPANY, INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK (THE
"RIGHTS" AND TOGETHER WITH THE COMMON STOCK, THE "SHARES"), WHICH REPRESENTS
MORE THAN FIFTY PERCENT OF THE TOTAL ISSUED AND OUTSTANDING SHARES ON A FULLY
DILUTED BASIS (EXCLUDING ANY SHARES HELD BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES) AND (II) THE EXPIRATION OR TERMINATION OF ANY AND ALL WAITING
PERIODS APPLICABLE TO THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT
UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED. THE
OFFER IS ALSO SUBJECT TO OTHER CONDITIONS. SEE SECTION 15.
THE OFFER IS NOT CONDITIONED UPON PARENT OR PURCHASER OBTAINING FINANCING.
The Information Agent for the Offer is:
Georgeson Shareholder Communications Inc.
17 State Street, 10(th) Floor
New York, N.Y. 10004
Brokers and Bankers Call Collect (212) 440-9800
Or
All Others Call Toll Free (800) 223-2064
March 24, 2000
<PAGE>
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (1) complete and sign the Letter of Transmittal (or a
manually signed facsimile thereof) in accordance with the instructions in the
Letter of Transmittal; mail or deliver it and any other required documents to
the Depositary indicated thereon, and either deliver the certificate(s) for such
tendered Shares to the Depositary along with the Letter of Transmittal or tender
such Shares pursuant to the procedures for book-entry transfer set forth in
Section 2 of this Offer to Purchase, or (2) request such stockholder's broker,
dealer, commercial bank, trust company or other nominee to effect the
transaction for the stockholder. Stockholders having Shares registered in the
name of a broker, dealer, commercial bank, trust company or other nominee must
contact such broker, dealer, commercial bank, trust company or other nominee if
they desire to tender such Shares. Unless the context requires otherwise, all
references to Shares herein shall include the associated Rights.
The Rights are presently evidenced by the certificates for the Shares and a
tender by a stockholder of such stockholder's shares of Common Stock will also
constitute a tender of the associated Rights. A stockholder who desires to
tender Shares and whose certificate(s) for Shares is not immediately available,
or who cannot comply with the procedures for book-entry transfer on a timely
basis, may tender such Shares by following the procedures for guaranteed
delivery set forth in Section 2 of this Offer to Purchase.
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number set forth on the back cover of this
Offer to Purchase. Requests for additional copies of this Offer to Purchase, the
Letter of Transmittal and the Notice of Guaranteed Delivery may also be directed
to the Information Agent. Purchaser will not pay any fee or commission to any
broker or dealer or to any other person (other than to the Depositary and the
Information Agent) in connection with the solicitation of tenders of Shares
pursuant to the Offer.
2
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SUMMARY TERM SHEET
OEA Merger Corporation is offering to purchase all of the outstanding shares
of common stock of OEA, Inc. and the rights to purchase common stock associated
with the shares for $10.00 per share in cash. The following are some of the
questions that you, as a stockholder of OEA, Inc., may have and the answers to
those questions. We urge you to read carefully the remainder of this offer to
purchase and the letter of transmittal because the information in this summary
term sheet is not complete. Additional important information is contained in the
remainder of this offer to purchase and the letter of transmittal.
- - WHO IS OFFERING TO BUY MY SECURITIES?
Our name is OEA Merger Corporation. We are a Delaware corporation and have
carried on no business other than in connection with the merger agreement. We
are an indirect wholly owned subsidiary of Autoliv, Inc., a Delaware
corporation. See the "Introduction" and Section 8.
- - WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFER?
We are offering to purchase all of the outstanding common stock of
OEA, Inc. and the rights to purchase common stock associated with such shares.
See the "Introduction" and Section 1.
- - HOW MUCH ARE YOU OFFERING TO PAY, WHAT IS THE FORM OF PAYMENT AND WILL I HAVE
TO PAY ANY FEES OR COMMISSIONS?
We are offering to pay $10.00 per share, net to you, in cash. If you are the
record owner of your shares and you tender your shares to us in the offer, you
will not have to pay brokerage fees or similar expenses. If you own your shares
through a broker or other nominee, and your broker tenders your shares on your
behalf, your broker or nominee may charge you a fee for doing so. You should
consult your broker or nominee to determine whether any charges will apply. See
the "Introduction."
- - DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
Autoliv ASP, Inc., our direct parent company, will provide us with
sufficient funds to purchase all shares validly tendered and not withdrawn in
the offer and to provide funding for the merger which is expected to follow the
successful completion of the offer. We anticipate that a significant portion of
these funds will be obtained from the existing resources of Autoliv ASP, Inc.,
including short term borrowings in the ordinary course of business. For the
remainder, Autoliv, Inc. has obtained a credit agreement dated March 22, 2000
among Autoliv ASP, Inc. as borrower, Autoliv, Inc. as guarantor, Skandinaviska
Enskilda Banken AB (publ) as lender and SEB Debt Capital Markets as arranger.
The offer, however, is not conditioned upon any financing arrangements. See
Section 9.
- - IS YOUR FINANCIAL CONDITION RELEVANT TO MY DECISION TO TENDER IN THE OFFER?
We do not think our financial condition is relevant to your decision whether
to tender in the offer because the form of payment consists solely of cash.
Autoliv, Inc. has arranged for a significant portion of our funding to come from
the existing resources of Autoliv ASP, Inc., including short term borrowings in
the ordinary course of business. For the remainder, Autoliv, Inc. has obtained a
credit agreement dated March 22, 2000 among Autoliv ASP, Inc. as borrower,
Autoliv, Inc. as guarantor, Skandinaviska Enskilda Banken AB (publ) as lender
and SEB Debt Capital Markets as arranger. Additionally, the offer is not subject
to any financing condition. See Section 9.
3
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- - HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE OFFER?
You will have at least until 12:00 midnight, New York City time, on Monday,
April 24, 2000 to tender your shares in the offer. Further, if you cannot
deliver everything that is required in order to make a valid tender by that
time, you may be able to use a guaranteed delivery procedure, which is described
later in this offer to purchase. See Section 1 and Section 2.
- - CAN THE OFFER BE EXTENDED AND UNDER WHAT CIRCUMSTANCES?
Subject to the terms of the merger agreement, we can extend the offer. We
have agreed in the merger agreement that we may extend the offer without
OEA, Inc.'s consent in the following circumstances:
- If necessary to satisfy any condition of the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, we may extend for 40 business days;
or
- If any of the conditions to the offer, other than the condition that more
than 50% of the outstanding shares of OEA, Inc. on a fully diluted basis
(excluding shares held by OEA, Inc. or any of its subsidiaries), be
validly tendered and not properly withdrawn, have not been satisfied or
waived, we may extend the offer for up to 20 business days;
- If all conditions to the offer have been satisfied or waived but less than
90% of the outstanding shares of OEA, Inc. on a fully diluted basis
(excluding shares held by OEA, Inc. or any of its subsidiaries) have been
validly tendered and not properly withdrawn, we may extend the offer for
up to four successive five business day periods (i.e., up to 20 business
days);
- If any conditions to the offer have not been satisfied or waived, and
another takeover proposal has been made or publicly disclosed by a person
other than us, including OEA, Inc. and any of its subsidiaries and
affiliates, or if we otherwise learn that such a takeover proposal has
been made or publicly proposed, we may extend the offer until ten days
after the termination of such other takeover proposal, but not later than
the earlier of June 30, 2000 and the minimum time period necessary to
satisfy all conditions that have not been satisfied or waived.
- - HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
If we extend the offer, we will inform First Chicago Trust Company of New
York (which is the depositary for the offer) of that fact and will make a public
announcement of the extension, not later than 9:00 a.m., New York City time, on
the next business day after the day on which the offer was scheduled to expire.
See Section 1.
- - WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
- We are not obligated to purchase any shares which are validly tendered
unless the number of shares validly tendered and not properly withdrawn
before the expiration date of the offer represents more than 50% of the
outstanding shares of OEA, Inc. on a fully diluted basis (excluding shares
held by OEA, Inc. or any of its subsidiaries). We call this condition the
"minimum condition".
- We are not obligated to purchase shares which are validly tendered if
there is a material adverse change in the financial condition, business,
operations, liquidity, property or assets of OEA, Inc. and its
subsidiaries (considered as one enterprise) or if any applicable waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, has not expired or been terminated.
The offer is also subject to a number of other conditions. We can waive any
of the conditions to the offer without OEA, Inc.'s consent other than the
minimum condition. See Section 15.
4
<PAGE>
- - HOW DO I TENDER MY SHARES?
To tender shares, you must deliver the certificates representing your
shares, together with a completed and duly executed letter of transmittal, to
First Chicago Trust Company of New York, the depositary for the offer, not later
than the time the tender offer expires. If your shares are held in street name,
the shares can be tendered by your nominee through The Depository Trust Company.
If you cannot get any document or instrument that is required to be delivered to
the depositary by the expiration of the tender offer, you may get a little extra
time to do so by having a broker, a bank or other fiduciary which is an eligible
institution guarantee that the missing items will be received by the depositary
within three New York Stock Exchange trading days. For the tender to be valid,
however, the depositary must receive the missing items within that three trading
day period. See Section 2.
- - UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You can withdraw shares at any time until the offer has expired and, if we
have not agreed by April 24, 2000 (or such later date as may apply if the offer
is extended) to accept your shares for payment, you can withdraw them at any
time after such time until we accept shares for payment. See Section 3.
- - HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
To withdraw shares, you must deliver a written notice of withdrawal, or a
facsimile of one, with the required information to the depositary while you
still have the right to withdraw the shares. See Section 3.
- - WHAT DOES OEA, INC.'S BOARD OF DIRECTORS THINK OF THE OFFER?
We are making the offer pursuant to the merger agreement, which has been
unanimously approved by the board of directors of OEA, Inc. The board of
directors of OEA, Inc. unanimously (1) determined that the offer, the merger and
the merger agreement are advisable, fair to, and in the best interests of, its
stockholders, (2) approved the merger, the offer, the merger agreement and the
other transactions contemplated by the merger agreement and (3) recommends that
its stockholders accept the offer and tender their shares pursuant thereto and
approve and adopt the merger agreement. See the "Introduction."
- - IF A MAJORITY OF THE SHARES ARE TENDERED AND ACCEPTED FOR PAYMENT, WILL
OEA, INC. CONTINUE AS A PUBLIC COMPANY?
No. Following the purchase of shares in the offer we expect to consummate
the merger, and following the merger, OEA, Inc. no longer will be publicly
owned. Even if for some reason the merger does not take place, if we purchase
all the tendered shares, there may be so few remaining stockholders and publicly
held shares that OEA, Inc. common stock will no longer be eligible to be traded
on the New York Stock Exchange or on any other securities exchange, there may
not be a public trading market for OEA, Inc. stock, and OEA, Inc. may cease
making filings with the SEC or otherwise cease being required to comply with SEC
rules relating to publicly held companies. See Section 13.
- - WILL THE TENDER OFFER BE FOLLOWED BY A MERGER IF ALL THE OEA, INC. SHARES ARE
NOT TENDERED IN THE OFFER?
Yes. If we accept for payment and pay for more than 50% of the outstanding
shares of OEA, Inc., we will be merged with and into OEA, Inc. If that merger
takes place, Autoliv ASP, Inc. (which in turn is owned by Autoliv, Inc.) will
own all of the shares of OEA, Inc. and all remaining stockholders of
5
<PAGE>
OEA, Inc. (other than us and stockholders properly exercising dissenters'
rights) will receive $10.00 per share in cash. See the "Introduction" and
Section 11.
- - IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
If the merger described above takes place, stockholders not tendering in the
offer will receive the same amount of cash per share that they would have
received had they tendered their shares in the offer, subject to any rights of
appraisal properly exercised under Delaware law. Therefore, if the merger takes
place, the only difference to you between tendering your shares and not
tendering your shares is that you will be paid earlier and will not have
appraisal rights if you tender your shares. However, if for some reason the
merger does not take place, the number of stockholders of OEA, Inc. and the
number of shares of OEA, Inc. which are still in the hands of the public may be
so small that there no longer will be an active public trading market (or,
possibly, there may not be any public trading market) for OEA, Inc. common
stock. Also, as described above, OEA, Inc. may cease making filings with the SEC
or otherwise being required to comply with the SEC rules relating to publicly
held companies. See the "Introduction" and Section 13.
- - WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
On March 10, 2000, the last trading day before we announced the tender offer
and the possible subsequent merger, the closing price of OEA, Inc. common stock
reported on the New York Stock Exchange was $7.06 per share. On March 23, 2000,
the last trading day before we commenced the tender offer, the closing price of
OEA, Inc. common stock reported on the New York Stock Exchange was $9.63 share.
We advise you to obtain a recent quotation for shares of OEA, Inc. common stock
in deciding whether to tender your shares. See Section 6.
- - WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
You can call Georgeson Shareholder Communications Inc. at (800) 223 2064
(toll free). Georgeson Shareholder Communications Inc. is acting as the
information agent for our tender offer. See the back cover of this offer to
purchase.
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To the Holders of Common Stock of
OEA, Inc.:
INTRODUCTION
OEA Merger Corporation ("Purchaser"), a Delaware corporation and an indirect
wholly owned subsidiary of Autoliv, Inc., a Delaware corporation ("Parent"),
hereby offers to purchase all outstanding shares of common stock, par value
$0.10 per share (the "Common Stock"), of OEA, Inc., a Delaware corporation (the
"Company" or "OEA, Inc."), together with the associated rights to purchase
Common Stock issued pursuant to the Rights Agreement, as amended, dated as of
March 25, 1998 (the "Rights Agreement"), between the Company and LaSalle Bank,
N.A., as Rights Agent (the "Rights" and, together with the Common Stock, the
"Shares"), at a price of $10.00 per Share (the "Offer Price"), net to the
selling stockholder in cash, upon the terms and subject to the conditions set
forth in this Offer to Purchase and in the related Letter of Transmittal (which,
together with any amendments or supplements hereto or thereto, collectively
constitute the "Offer").
Stockholders of record who hold Shares registered in their own name and
tender their Shares directly to the Depositary (as defined below) will not be
obligated to pay brokerage fees, commissions, solicitation fees or, subject to
Instruction 6 of the Letter of Transmittal, stock transfer taxes, if any, on the
purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold
their Shares through a bank or broker should check with such institution as to
whether they will be charged any service fees. However, any tendering
stockholder or other payee who fails to complete and sign the Substitute
Form W-9 that is included in the Letter of Transmittal may be subject to a
required federal backup withholding tax of 31% of the gross proceeds payable to
such stockholder or other payee pursuant to the Offer. See Section 2. Purchaser
will pay all charges and expenses of Georgeson Shareholder Communications Inc.,
as Information Agent (the "Information Agent"), and First Chicago Trust Company
of New York, as Depositary (the "Depositary"), incurred in connection with the
Offer. See Section 17.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION DATE OF THE OFFER
THAT NUMBER OF SHARES WHICH REPRESENTS MORE THAN FIFTY PERCENT OF THE TOTAL
ISSUED AND OUTSTANDING SHARES ON A FULLY DILUTED BASIS (EXCLUDING ANY SHARES
HELD BY THE COMPANY OR ANY OF ITS SUBSIDIARIES) (THE "MINIMUM CONDITION") AND
(II) THE EXPIRATION OR TERMINATION OF ANY AND ALL WAITING PERIODS APPLICABLE TO
THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED (THE "HSR
ACT"). THE OFFER IS ALSO SUBJECT TO OTHER TERMS AND CONDITIONS. SEE SECTION 15.
For purposes of the Offer, "on a fully diluted basis" means, as of any time,
on a basis that includes the number of Shares that are actually issued and
outstanding plus the maximum number of Shares that the Company may be required
to issue pursuant to obligations under stock options, warrants and other rights
or securities convertible into shares of Common Stock, whether or not currently
exercisable.
The Offer is being made pursuant to an Amended and Restated Agreement and
Plan of Merger, dated as of March 12, 2000 (the "Merger Agreement"), by and
among Parent, Purchaser and the Company. The Merger Agreement provides, among
other things, that, upon the terms and subject to the conditions therein, as
soon as practicable after the consummation of the Offer, Purchaser will be
merged with and into the Company (the "Merger"), with the Company being the
corporation surviving the Merger (the "Surviving Corporation"). At the effective
time of the Merger (the "Effective Time"), each outstanding Share (other than
Shares held in the Company's treasury immediately before the Effective Time, and
each Share held by Parent, Purchaser, any other subsidiary of Parent or any
subsidiary of the Company immediately before the Effective Time, all of which
will be cancelled, and other than Shares ("Dissenting Shares") with respect to
which appraisal rights are properly exercised
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under the Delaware General Corporation Law (the "DGCL")) will be converted into
and represent the right to receive the Offer Price, subject to any applicable
withholding taxes, without interest. See Section 11.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "BOARD") UNANIMOUSLY
(I) DETERMINED THAT THE OFFER, THE MERGER AND THE MERGER AGREEMENT ARE
ADVISABLE, FAIR TO AND IN THE BEST INTERESTS OF, THE COMPANY'S STOCKHOLDERS,
(II) APPROVED THE MERGER, THE OFFER, THE MERGER AGREEMENT AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND (III) RECOMMENDS THAT THE
COMPANY'S STOCKHOLDERS ACCEPT THE OFFER, AND TENDER THEIR SHARES PURSUANT
THERETO AND APPROVE AND ADOPT THE MERGER AGREEMENT.
The Board has received the written opinion of Deutsche Bank
Securities, Inc. ("Deutsche Bank") stating that the proposed consideration to be
received by the holders of shares of Common Stock pursuant to the Offer and the
Merger is fair to such holders from a financial point of view. A copy of the
written opinion of Deutsche Bank, which set forth the assumptions made,
procedures followed, matters considered and limitations on the reviews
undertaken, are included as annexes to the Company's Solicitation/Recommendation
Statement on Schedule 14D-9 filed with the Securities and Exchange Commission
(the "Commission") in connection with the Offer, a copy of which is being
furnished to stockholders concurrently herewith. Stockholders are urged to read
the full text of such opinion carefully.
The Company has represented to Parent that as of March 12, 2000, there were
20,621,691 Shares outstanding and there were options and warrants to acquire
1,327,637 Shares outstanding. Neither Parent, Purchaser nor any person listed on
Schedule I hereto beneficially owns any Shares. Accordingly, the Minimum
Condition will be satisfied if 10,974,665 Shares are tendered in the Offer.
The Merger Agreement provides that, promptly following the purchase of and
payment for a number of Shares that satisfies the Minimum Condition, and from
time to time thereafter, Purchaser shall be entitled to designate the number of
directors, rounded up to the next whole number, on the Board that equals the
product of (i) the total number of directors on the Board (giving effect to any
additional directors elected by Purchaser) and (ii) the percentage that the
number of Shares beneficially owned by Parent and Purchaser following the Offer
bears to the total number of outstanding Shares, and the Company will take all
action within its power to cause Purchaser's designees to be elected or
appointed to the Board, including, without limitation, increasing the number of
directors, and seeking and accepting resignations of incumbent directors;
PROVIDED, HOWEVER, that before the Effective Time, the Board will have at least
three directors who are directors on March 12, 2000. See Section 11. The
designation of directors by Parent is subject to compliance with the
requirements of Section 14(f) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
In connection with the Offer and the Merger, the Board has approved an
amendment to the Company's Rights Agreement to assure that the Rights are not
exercisable as a result of the Offer or the Merger.
The information contained herein concerning or attributed to the Company has
been supplied by the Company, and all other information contained herein has
been supplied by Parent and Purchaser. Although neither the Company nor Parent
or Purchaser have any knowledge that would indicate that any statements
contained herein based on the information provided by the other are untrue,
neither the Company nor Parent or Purchaser take any responsibility for the
accuracy or completeness of any information provided by the other or for any
failure by the other to disclose events that may have occurred and may affect
the significance or accuracy of such information but which are unknown to the
Company or Parent and Purchaser, respectively.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND YOU SHOULD READ THEM IN THEIR ENTIRETY BEFORE MAKING
ANY DECISION WITH RESPECT TO THE OFFER.
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THE TENDER OFFER
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and pay for all Shares which are
validly tendered and not properly withdrawn on or prior to the Expiration Date,
as soon as practicable after the Expiration Date. The term "Expiration Date"
means 12:00 midnight, New York City time, on Monday, April 24, 2000, unless and
until Purchaser (subject to the terms and conditions of the Merger Agreement)
shall have extended the period of time for which the Offer is open, in which
event the term "Expiration Date" shall mean the latest time and date at which
the Offer, as so extended by Purchaser, shall expire prior to the purchase of
any Shares by Purchaser.
The Offer is conditioned upon the satisfaction of the Minimum Condition and
the other conditions set forth in Section 15 (collectively, the "Offer
Conditions"). Subject to the provisions of the Merger Agreement, Purchaser may
waive any or all of the conditions to its obligation to purchase Shares pursuant
to the Offer other than the Minimum Condition. If by the initial Expiration Date
or any subsequent Expiration Date any or all of the conditions to the Offer have
not been satisfied or waived, subject to the provisions of the Merger Agreement,
Purchaser may elect to (i) terminate the Offer and return all tendered Shares to
tendering stockholders, (ii) waive all of the unsatisfied conditions and,
subject to any required extension, purchase all Shares validly tendered by the
Expiration Date and not properly withdrawn or (iii) extend the Offer and,
subject to the right of stockholders to withdraw Shares until the new Expiration
Date, retain the Shares that have been tendered until the expiration of the
Offer as extended.
Under the terms of the Merger Agreement, neither Parent nor Purchaser may,
without the prior written consent of the Company, (i) decrease the Offer Price,
(ii) decrease the number of Shares subject to the Offer, (iii) change the form
of consideration payable in the Offer, (iv) impose conditions to the Offer in
addition to the conditions set forth in Section 15, (v) except as provided in
the Merger Agreement or as required by any rule, regulation, interpretation or
position of the SEC, change the Expiration Date or (vi) otherwise amend any term
of the Offer in a manner adverse to the holders of Shares. In addition,
Purchaser may not, without the prior written consent of the Company, waive or
amend the Minimum Condition.
Notwithstanding the foregoing, Purchaser may, without the consent of the
Company, extend the Offer beyond the initial Expiration Date in the following
events: (i) if necessary to satisfy any condition of the HSR Act, for a period
not to exceed forty (40) business days, (ii) if any of the Offer Conditions
(other than the Minimum Condition) shall not have been satisfied or waived for a
period not to exceed twenty (20) business days, (iii) if all the Offer
Conditions are satisfied or waived, but the number of Shares validly tendered
and not withdrawn is less than 90% of the number of then-outstanding Shares on a
fully diluted basis (excluding Shares held by the Company or any of its
subsidiaries), for four successive five (5) business day periods for an
aggregate period not to exceed twenty (20) business days, or (iv) if any of the
Offer Conditions (other than the Minimum Condition) shall not have been
satisfied or waived and a proposal or offer for a merger or certain other
extraordinary transactions (a "Takeover Proposal") has been made or publicly
disclosed by a person other than Parent or Purchaser (including the Company and
any of its subsidiaries and affiliates), or if Parent or Purchaser otherwise
learn that a Takeover Proposal has been made or publicly proposed, for a period
of up to ten (10) days after the withdrawal or termination of such Takeover
Proposal, such date in no event to exceed the earlier of (x) June 30, 2000, and
(y) the minimum time necessary to satisfy all such outstanding Offer Conditions.
Subject to the applicable rules and regulations of the SEC and the
provisions of the Merger Agreement, Purchaser also expressly reserves the right,
in its sole discretion, at any time or from time to time, (i) to terminate the
Offer if any of the Offer Conditions have not been satisfied and (ii) to
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<PAGE>
waive any Offer Condition (other than the Minimum Condition) or otherwise amend
the Offer in any respect, in each case by giving oral or written notice of such
extension, termination, waiver or amendment to the Depositary and by making a
public announcement thereof. If Purchaser accepts for payment any Shares
pursuant to the Offer, it will accept for payment all Shares validly tendered
prior to the Expiration Date and not properly withdrawn, and will promptly pay
for all Shares so accepted for payment.
The rights reserved by Purchaser in the preceding paragraph are in addition
to Purchaser's rights pursuant to Section 15. Any extension, delay, termination
or amendment of the Offer will be followed as promptly as practicable by public
announcement thereof, such announcement in the case of an extension to be issued
no later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date, in accordance with the public announcement
requirements of Rule 14e-1(d) under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). Subject to applicable law (including
Rules 14d-4(d) and 14d-6(c) under the Exchange Act, which require that any
material change in the information published, sent or given to stockholders in
connection with the Offer be promptly disseminated to stockholders in a manner
reasonably designed to inform stockholders of such change), and without limiting
the manner in which Purchaser may choose to make any public announcement,
Purchaser shall have no obligation to publish, advertise or otherwise
communicate any such public announcement other than by making a release to the
Dow Jones News Service.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, Purchaser will disseminate additional tender offer materials (including
by public announcement as set forth above) and extend the Offer to the extent
required by Rules 14d-4(d) and 14e-1 under the Exchange Act. The minimum period
during which an offer must remain open following material changes in the terms
of the Offer, other than a change in price, percentage of securities sought or
inclusion of or change to a dealer's soliciting fee, will depend upon the facts
and circumstances, including the materiality, of the changes. In the SEC's view,
an offer should remain open for a minimum of five (5) business days from the
date the material change is first published, sent or given to stockholders, and,
if material changes are made with respect to information that approaches the
significance of price and share levels, a minimum of ten (10) business days may
be required to allow for adequate dissemination and investor response. With
respect to a change in price or, subject to certain limitations, a change in the
percentage of securities sought or inclusion of or change to a dealer's
soliciting fee, a minimum ten (10) business day period from the date of such
change is generally required to allow for adequate dissemination to
stockholders. Accordingly, if, prior to the Expiration Date, Purchaser decreases
the number of Shares being sought or increases or decreases the consideration
offered pursuant to the Offer, and if the Offer is scheduled to expire at any
time earlier than the tenth business day from the date that notice of such
increase or decrease is first published, sent or given to stockholders, the
Offer will be extended at least until the expiration of such tenth business day.
For purposes of the Offer, a "business day" means any day other than a Saturday,
Sunday or a federal holiday and consists of the time period from 12:01 a.m.
through 12:00 midnight, New York City time.
In connection with the Offer, the Company has provided Purchaser with the
names and addresses of all record holders of Shares and security position
listings of Shares held in stock depositories. This Offer to Purchase, the
related Letter of Transmittal and other relevant materials will be mailed to
registered holders of Shares and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the stockholder list or, if applicable, who are
listed as participants in a clearing agency's security position listing, for
subsequent transmittal to beneficial owners of Shares.
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2. PROCEDURE FOR ACCEPTING THE OFFER AND TENDERING SHARES.
VALID TENDERS. Except as set forth below, in order for Shares to be validly
tendered pursuant to the Offer, the Letter of Transmittal (or a manually signed
facsimile thereof), properly completed and duly executed, together with any
required signature guarantees, or an Agent's Message (as hereinafter defined) in
connection with a book-entry transfer of Shares, and any other documents
required by the Letter of Transmittal, must be received by the Depositary at one
of its addresses set forth on the back cover of this Offer to Purchase on or
prior to the Expiration Date, and either (i) certificates representing tendered
Shares must be received by the Depositary, or such Shares must be tendered
pursuant to the procedure for book-entry transfer set forth below (and
confirmation of receipt of such delivery must be received by the Depositary), in
each case on or prior to the Expiration Date, or (ii) the guaranteed delivery
procedures set forth below must be complied with. No alternative, conditional or
contingent tenders will be accepted.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal (i) if such Letter of Transmittal is signed by the registered holder
of the Shares tendered therewith, unless such holder has completed the box
entitled "Special Payment Instructions" in the Letter of Transmittal, or
(ii) if Shares are tendered for the account of a firm that is a member in good
standing of the Security Transfer Agent's Medallion Program, (each being
hereinafter referred to as an "Eligible Institution"). In all other cases, all
signatures on a Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instruction 1 of the Letter of Transmittal.
If a certificate representing Shares is registered in the name of a person
other than the signatory of the Letter of Transmittal (or a manually signed
facsimile thereof), or if payment is to be made, or Shares not accepted for
payment or not tendered are to be registered in the name of a person other than
the registered holder, the certificate must be endorsed or accompanied by an
appropriate stock power, in either case signed exactly as the name(s) of the
registered holder(s) appears on the certificate, with the signature(s) on the
certificate or stock power guaranteed by an Eligible Institution. If the Letter
of Transmittal or stock powers are signed or any certificate is endorsed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and, unless waived by Purchaser, proper
evidence satisfactory to Purchaser of their authority to so act must be
submitted. See Instruction 5 of the Letter of Transmittal.
BOOK-ENTRY TRANSFER The Depositary will establish accounts with respect to
the Shares at The Depository Trust Company ("DTC") for purposes of the Offer
within two (2) business days after the date of this Offer to Purchase, and any
financial institution that is a participant in DTC's system may make book-entry
delivery of the Shares by causing DTC to transfer such Shares into the
Depositary's account in accordance with DTC's procedure for such transfer.
However, although delivery of Shares may be effected through book-entry transfer
at DTC, 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 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
guaranteed delivery procedures described below must be complied with.
The term "Agent's Message" means a message transmitted through electronic
means by DTC to, and received by, the Depositary and forming a part of a
book-entry confirmation, which states that DTC has received an express
acknowledgment from the participant in DTC tendering the Shares that such
participant has received, and agrees to be bound by, the terms of the Letter of
Transmittal.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
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GUARANTEED DELIVERY. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates representing Shares 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 Shares may nevertheless
be tendered, PROVIDED that all of the following conditions are satisfied:
(1) such tender is made by or through an Eligible Institution;
(2) the Depositary receives, prior to the Expiration Date, a properly
completed and duly executed Notice of Guaranteed Delivery, substantially
in the form provided by Purchaser; and
(3) the certificates representing all tendered Shares in proper form for
transfer (or confirmation of a book-entry transfer of such Shares into
the Depositary's account at DTC), together with a properly completed and
duly executed Letter of Transmittal (or a manually signed facsimile
thereof) with any required signature guarantees (or, in connection with a
book-entry transfer, an Agent's Message) and any other documents required
by the Letter of Transmittal are received by the Depositary within three
trading days after the date of such Notice of Guaranteed Delivery. A
"trading day" is any day on which the New York Stock Exchange is open for
business.
The Notice of Guaranteed Delivery may be delivered by hand, or may be
transmitted by facsimile transmission or mail, to the Depositary and must
include a guarantee by an Eligible Institution in the form set forth in such
Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES,
IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND THE DELIVERY WILL BE
DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY
MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
DETERMINATION OF VALIDITY. All questions as to the form of documents and
the validity, eligibility (including time of receipt) and acceptance for payment
of any tendered Shares will be determined by Purchaser in its sole discretion,
and its determination shall be final and binding on all persons. Purchaser
reserves the absolute right to reject any or all tenders of any Shares that it
determines are not in appropriate form or the acceptance for payment of or
payment for which may, in the opinion of Purchaser's counsel, be unlawful.
Purchaser also reserves the absolute right to waive any defect or irregularity
in any tender with respect to any particular Shares or any particular
stockholder, and Purchaser's interpretation of the terms and conditions of the
Offer will be final and binding on all persons. No tender of Shares will be
deemed to have been validly made until all defects or irregularities relating
thereto have been expressly waived or cured to the satisfaction of Purchaser.
None of Purchaser, Parent, the Depositary, the Information Agent or any other
person will be under any duty to give notification of any defects or
irregularities in tenders, nor shall any of them incur any liability for failure
to give any such notification.
OTHER REQUIREMENTS. By executing the Letter of Transmittal as set forth
above, a tendering stockholder irrevocably appoints designees of Purchaser as
such stockholder's proxy, in the manner set forth in the Letter of Transmittal,
with full power of substitution, to the full extent of such stockholder's rights
with respect to the Shares tendered by such stockholder and accepted for payment
by Purchaser (and any and all other Shares or other securities or rights issued
or issuable in respect of such Shares on or after the date of this Offer to
Purchase), effective if, when and to the extent that Purchaser accepts such
Shares for payment pursuant to the Offer. Upon such acceptance for payment, all
prior proxies given by such stockholder with respect to such Shares or other
securities accepted for payment will, without further action, be revoked, and no
subsequent proxies may be given by such stockholder nor any subsequent written
consents executed (and, if given or executed, will not be deemed effective).
Such designees of Purchaser will, with respect to such Shares and other
securities or
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rights issuable in respect thereof, be empowered to exercise all voting and
other rights of such stockholder as it, in its sole discretion, may deem proper
in respect of any annual, special or adjourned meeting of the Company's
stockholders, action by written consent in lieu of any such meeting or
otherwise. Purchaser reserves the right to require that, in order for Shares to
be deemed validly tendered, Purchaser must be able to exercise full voting
rights with respect to the Shares accepted by Purchaser for payment immediately
upon such acceptance.
Purchaser's acceptance for payment of Shares tendered pursuant to any of the
procedures described above will constitute a binding agreement between the
tendering stockholder and Purchaser upon the terms and subject to the conditions
of the Offer.
To prevent federal backup withholding tax on payments made to stockholders
with respect to Shares purchased pursuant to the Offer, each stockholder must
provide the Depositary with his correct taxpayer identification number ("TIN")
and certify that he is not subject to backup withholding by completing the
Substitute Form W-9 included in the Letter of Transmittal. Non-United States
holders must submit a completed Form W-8BEN to avoid backup withholding. These
forms may be obtained from the Depositary. See Instructions 10 and 11 of the
Letter of Transmittal.
3. WITHDRAWAL RIGHTS.
Tenders of Shares made pursuant to the Offer will be irrevocable, except
that Shares tendered may be withdrawn at any time prior to the Expiration Date,
and, unless theretofore accepted for payment by Purchaser as provided herein,
may also be withdrawn on or after May 22, 2000 (or such later date as may apply
if the Offer is extended).
For a withdrawal of Shares tendered to be effective, a written or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase or
sent by facsimile transmission to the Depositary at the following numbers:
(201) 324-3402 or (201) 324-3403 (please call (201) 222-4707 to confirm receipt
of facsimile only). Any notice of withdrawal must specify the name of the person
who tendered the Shares to be withdrawn, the number of Shares to be withdrawn
and the name(s) in which the certificate(s) representing such Shares are
registered, if different from that of the person who tendered such Shares. If
certificates for Shares to be withdrawn have been delivered or otherwise
identified to the Depositary, the name of the registered holder and the serial
numbers shown on the particular certificates evidencing such Shares to be
withdrawn must also be furnished to the Depositary prior to the physical release
of the Shares to be withdrawn. The signature(s) on the notice of withdrawal must
be guaranteed by an Eligible Institution (except in the case of Shares tendered
by an Eligible Institution). If Shares have been tendered pursuant to the
procedures for book-entry transfer set forth in Section 2, any notice of
withdrawal must specify the name and number of the account at DTC to be credited
with such withdrawn Shares and must otherwise comply with DTC's procedures.
If Purchaser extends the Offer, is delayed in its acceptance for payment of
any Shares tendered, or is unable to accept for payment or pay for Shares
tendered pursuant to the Offer, for any reason whatsoever, then, without
prejudice to Purchaser's rights set forth herein, the Depositary may,
nevertheless, on behalf of Purchaser, retain tendered Shares, and such Shares
may not be withdrawn except to the extent that the tendering stockholder is
entitled to and duly exercises withdrawal rights as described in this Section.
Any such delay will be accompanied by an extension of the Offer to the extent
required by law.
Withdrawals of tenders of Shares may not be rescinded, and Shares properly
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, withdrawn Shares may be retendered by again following the
procedures described in Section 2 at any time prior to the Expiration Date.
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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,
and its determination will be final and binding on all persons. None of Parent,
Purchaser, 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, nor shall any of them incur any liability for failure to
give any such notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR SHARES.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any extension or
amendment), Purchaser will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn, as
soon as practicable after the Expiration Date. Purchaser expressly reserves the
right to delay acceptance for payment of, or payment for, Shares in order to
comply in whole or in part with any applicable law. If Purchaser desires to
delay payment for Shares accepted for payment pursuant to the Offer, and such
delay would otherwise be in contravention of Rule 14e-1(c) of the Exchange Act,
Purchaser will extend the Offer. See Section 1.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) certificates
representing such Shares (or a timely confirmation of a book-entry transfer of
such Shares into the Depositary's account at DTC, as described in Section 2),
(ii) a properly completed and duly executed Letter of Transmittal (or a manually
signed facsimile thereof) with any required signature guarantees (or, in
connection with a book-entry transfer, an Agent's Message), and (iii) any other
documents required by the Letter of Transmittal.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares tendered prior to the Expiration Date
when, as and if Purchaser gives oral or written notice to the Depositary, as
agent for the tendering stockholders, of Purchaser's acceptance for payment of
such Shares. Payment for Shares so accepted for payment will be made by the
deposit of the purchase price therefor with the Depositary, which will act as
agent for the tendering stockholders for the purpose of receiving such payment
from Purchaser and transmitting such payment to tendering stockholders. If, for
any reason whatsoever, acceptance for payment of any Shares tendered pursuant to
the Offer is delayed, or Purchaser is unable to accept for payment Shares
tendered pursuant to the Offer, then, without prejudice to Purchaser's rights
under Section 1, the Depositary may, nevertheless, on behalf of Purchaser,
retain tendered Shares, and such Shares may not be withdrawn, except to the
extent that the tendering stockholders are entitled to withdrawal rights as
described in Section 3 and as otherwise required by Rule 14e-1(c) under the
Exchange Act. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE
BY REASON OF ANY DELAY IN MAKING SUCH PAYMENTS.
If any tendered Shares are not accepted for payment and paid for,
certificates representing such Shares will be returned (or, in the case of
Shares delivered by book-entry transfer with DTC as permitted by Section 2, such
Shares will be credited to an account maintained with DTC) without expense to
the tendering stockholder as promptly as practicable following the expiration or
termination of the Offer.
If, prior to the Expiration Date, Purchaser increases the consideration to
be paid for Shares pursuant to the Offer, Purchaser will pay such increased
consideration for all Shares accepted for payment or paid for pursuant to the
Offer, whether or not such Shares have been tendered, accepted for payment or
paid for prior to such increase in the consideration.
Purchaser reserves the right to transfer or assign in whole or in part to
one or more affiliates of Purchaser the right of Purchaser to purchase Shares
tendered pursuant to the Offer, but any such transfer or assignment will not
relieve Purchaser of its obligations under the Offer and will in no way
14
<PAGE>
prejudice the rights of tendering stockholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer.
5. CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES.
The receipt of cash for Shares 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 state, local, or foreign tax laws. In general, a
stockholder who tenders Shares in the Offer or receives cash in exchange for
Shares in the Merger will recognize gain or loss for U.S. federal income tax
purposes equal to the difference, if any, between the amount of cash received
and the stockholder's tax basis in the Shares sold. Gain or loss will be
determined separately for each block of Shares (i.e., Shares acquired at the
same time and price) exchanged pursuant to the Offer or the Merger. Such gain or
loss will generally be capital gain or loss if the Shares disposed of were held
as capital assets by the stockholder and will be long-term capital gain or loss
if such Shares have been held for more than one year.
A stockholder who perfects his or her stockholder's appraisal rights, if
any, under the DGCL will probably recognize gain or loss at the Effective Time
in an amount equal to the difference between the "amount realized" and such
stockholder's adjusted tax basis of such Shares. For this purpose, although
there is no authority to this effect directly on point, the amount realized
should generally equal the trading value per share of the Shares at the
Effective Time. Ordinary interest income and/or capital gain (capital loss),
assuming that the Shares were held as capital assets, should be recognized by
such stockholder at the time of actual receipt of payment, to the extent that
such payment exceeds (or is less than) the amount realized at the Effective
Time.
A stockholder who is a non-U.S. Holder will not be subject to United States
federal income or withholding tax on the receipt of cash for Shares pursuant to
the Offer or the Merger unless (i) the income from the Shares is effectively
connected with the conduct by the non-U.S. Holder of a trade or business in the
United States or (ii) in the case of an individual non-U.S. Holder, the non U.S.
Holder is present in the United States for 183 days or more in the taxable year
in which cash is received for the Shares pursuant to the Offer or the Merger and
certain other conditions are met. As used herein, a "U.S. Holder" is a
beneficial owner of a Share who is (i) an individual citizen or resident of the
United States, (ii) a corporation or partnership organized in or under the laws
of the United States or any state thereof or the District of Columbia, (iii) an
estate the income of which is subject to U.S. federal income tax regardless of
source or (iv) a trust if a court within the United States is able to control
all substantial decisions of the trust. A "Non-U.S. Holder" is a beneficial
owner of a Share who is not a U.S. Holder.
The foregoing summary is for general information purposes only and is based
on the U.S. federal income tax law now in effect, which is subject to change,
possibly retroactively. This summary does not discuss all aspect of U.S. federal
income taxation which may be important to particular stockholder in light of
their individual investment circumstances or to certain types of stockholder
subject to special tax rules (including, but not limited to, insurance
companies, tax-exempt organizations, financial institutions, or broker dealers,
foreign stockholder and stockholder who have acquired their Shares pursuant to
the exercise of employee stock options or otherwise as compensation), nor does
it address state, local, or foreign tax consequences. Each stockholder is urged
to consult his or her tax advisor regarding the specific U.S. federal, state,
local and foreign income and other tax consequences of the Offer and Merger.
6. PRICE RANGE OF SHARES; DIVIDENDS.
The Company's Common Stock is listed and traded on the New York Stock
Exchange ("NYSE") under the symbol "OEA". The following table sets forth, for
the fiscal periods indicated, the high and low sales prices for the Common Stock
on the NYSE with respect to periods occurring in fiscal years
15
<PAGE>
1998, 1999 and 2000 as reported by published financial sources. On November
24, 1998, the Company paid a cash dividend on its Common Stock of $0.08 per
share of Common Stock. The Merger Agreement prohibits the Company from
declaring, setting aside or paying any cash dividends prior to the earlier of
the termination of the Merger Agreement or the Offer Completion Date.
<TABLE>
<CAPTION>
COMMON STOCK
-------------------
FISCAL YEAR HIGH LOW
- ----------- -------- --------
<S> <C> <C>
FISCAL 1998:
First Quarter............................................... $29.56 $ 17.5
Second Quarter.............................................. $20.63 $14.94
Third Quarter............................................... $16.38 $ 7.75
Fourth Quarter.............................................. $14.06 $ 8.06
FISCAL 1999
First Quarter............................................... $15.44 $ 8.25
Second Quarter.............................................. $11.56 $ 7.81
Third Quarter............................................... $ 9.38 $ 6.63
Fourth Quarter.............................................. $ 8.31 $ 4.31
FISCAL 2000
First Quarter............................................... $ 9.75 $ 4.50
</TABLE>
The Rights trade together with the Common Stock. On March 10, 2000, the last
full trading day prior to the public announcement of the execution of the Merger
Agreement, the closing price per Share reported on the NYSE was $7.06. On
March 23, 2000, the last full trading day before the commencement of the Offer,
the closing price per Share reported on the NYSE was $9.63. STOCKHOLDERS ARE
URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE SHARES.
7. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or is based upon
reports and other documents on file with the SEC or otherwise publicly
available. Although neither Purchaser nor Parent have any knowledge that would
indicate that any statements contained herein based upon such reports and
documents are untrue, neither Purchaser nor Parent takes any responsibility for
the accuracy or completeness of the information contained in such reports and
other documents or for any failure by the Company to disclose events that may
have occurred and may affect the significance or accuracy of any such
information but that are unknown to Purchaser or Parent.
GENERAL
The Company is a Delaware corporation with its principal executive offices
located at 34501 East Quincy Avenue, P.O. Box 100488, Denver, Colorado, 80250.
The Company's telephone number is (303) 693-1248. The Company produces
high-reliability, propellant-actuated safety devices for the automotive and
aerospace industries. Its automotive safety products division designs, develops,
tests and manufactures propellant-actuated devices for use in automotive safety
products, which are currently single-stage hybrid inflators (passenger, driver
and side-impact) and electric initiators. These products are sold to automotive
module and inflator manufacturers, which in turn sell their products directly to
automobile manufacturers. The Company's aerospace division, among other things,
designs, develops, and manufactures propellant and explosive-actuated devices
used by the United States Government and major military and aerospace companies.
16
<PAGE>
FINANCIAL INFORMATION Set forth below is certain selected consolidated
financial information relating to the Company and the Company Subsidiaries which
has been excerpted or derived from the audited financial statements contained in
the Company's Annual Report on Form 10-K for the fiscal year ended July 31, 1999
and for the quarters ended January 30, 2000 and January 29, 1999, as contained
in the Company's Quarterly Report on Form 10-Q for the quarters ended January
30, 2000 and January 29, 1999, which are incorporated by reference herein. More
comprehensive financial information is included in such reports and other
documents filed by the Company with the Commission. The financial information
that follows is qualified in its entirety by reference to such reports and other
documents, including the financial statements and related notes contained
therein. Such reports and other documents may be examined and copies may be
obtained from the offices of the Commission in the manner set forth below.
OEA, INC.
SELECTED CONSOLIDATED FINANCIAL DATA
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
6 MONTHS ENDED YEAR ENDED JULY 31,
--------------------------- ------------------------------
JANUARY 30, JANUARY 29,
2000 1999 1999 1998 1997
----------- ------------- -------- -------- --------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net Sales.................................... $119,592 $ 116,227 $248,805 $245,375 $211,557
Operating Profit (Loss)...................... (9,164) (3,198) 527 (5,588) 49,559
Earnings (Loss) Before Minority Interest and
Income Taxes............................... (11,325) (5,415) (4,154) (13,931) 55,304
Minority Interest............................ -- -- -- -- --
Income Tax Expense (Benefit)................. (4,200) (1,697) 1,746 4,655 (19,863)
-------- ------------- -------- -------- --------
Net Earnings (Loss) Before Cumulative Effect
of a Change in Accounting Principle........ (7,125) (3,718) (2,408) (9,276) 35,441
Cumulative Effect of a Change in Accounting
Principle.................................. -- -- -- (10,040) --
-------- ------------- -------- -------- --------
Net Earnings (Loss)...................... $ (7,125) (3,718) (2,408) (19,316) 35,441
======== ============= ======== ======== ========
Basic Earnings (Loss) Per Share Before
Cumulative Effect of a Change in Accounting
Principle.................................. $ (.35) (.18) (.12) (.45) 1.73
======== ============= ======== ======== ========
Basic Earnings (Loss) Per Share.......... $ (.35) (.18) (.12) (.94) 1.73
======== ============= ======== ======== ========
Cash Dividends Per Share..................... $ -- .08 .08 .33 .30
======== ============= ======== ======== ========
Weighted Average Number of Shares Outstanding
During Period.............................. 20,615 20,598 20,602 20,581 20,540
======== ============= ======== ======== ========
Total Number of Shares Outstanding at Year
End........................................ -- -- 20,610 20,595 20,552
======== ============= ======== ======== ========
BALANCE SHEET DATA:
Current Assets............................... $116,272 108,302 95,875 117,578 127,319
Current Liabilities.......................... $147,834 29,824 34,192 31,461 36,031
Working Capital.............................. $(31,562) 78,478 61,683 86,117 91,288
Working Capital Ratio........................ 0.8 to 1 3.6 to 1 2.8 to 1 3.7 to 1 3.5 to 1
Total Assets................................. $311,054 319,664 298,358 328,759 331,556
Shareholders' Equity......................... $146,773 157,061 156,574 161,506 186,778
Book Value Per Share......................... $ 7.12 $ 7.62 7.60 7.84 9.09
</TABLE>
17
<PAGE>
AVAILABLE INFORMATION The Shares are registered under the Exchange Act.
Accordingly, the Company is subject to the informational filing requirements of
the Exchange Act and, in accordance therewith, is obligated to file periodic
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, stock options granted to them, the principal holders of the
Company's securities and any material interest of such persons in transactions
with the Company is required to be disclosed in such proxy statements and
distributed to the Company's stockholders and filed with the Commission. Such
reports, proxy statements and other information should be available for
inspection at the public reference facilities at the Commission's principal
office at 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and
at the regional offices of the Commission located at 7 World Trade Center, Suite
1300, New York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. The Commission maintains a site on the World Wide Web, and the
reports, proxy statements and other information filed by the Company with the
Commission may be accessed electronically on the World Wide Web at
http://www.sec.gov. Copies of such material may also be obtained by mail, upon
payment of the Commission's customary fees, from the Commission's principal
office at 450 Fifth Street, N.W., Washington, D.C. 20549.
CERTAIN PROJECTIONS. The Company does not, as a matter of course, make
public any forecasts as to its future financial performance. However, in
connection with Parent's review of the transactions contemplated by the Offer
and the Merger, the Company has provided Parent with certain projected financial
information concerning the Company. Such information included, among other
things, the Company's projections of revenue, earnings before interest, income
taxes, depreciation and amortization, and capital expenditure for the Company
for the years 2000 through 2002. Set forth below is a summary of such
projections. These projections should be read together with the financial
statements of the Company referred to herein.
<TABLE>
<CAPTION>
YEAR ENDED JULY 31,
2000 2001 2002
-------- -------- ---------
(IN THOUSANDS)
<S> <C> <C> <C>
Revenue..................................................... $260,871 $353,667 $ 395,525
EBITDA(1)................................................... $ 29,906 $ 66,160 $ 75,120
Capital Expenditure......................................... $ 24,663 $ 24,929 $ 33,501
</TABLE>
(1) Earnings before interest, income taxes, depreciation and amortization.
It is the understanding of Parent and Purchaser that the projections were
not prepared with a view to public disclosure or compliance with published
guidelines of the Commission or the guidelines established by the American
Institute of Certified Public Accountants regarding projections or forecasts and
are included herein only because such information was provided to Parent and
Purchaser. The projections do not purport to present operations in accordance
with generally accepted accounting principles and the Company's independent
auditors have not examined or compiled the projections presented herein, and
accordingly assume no responsibility for them. These forward-looking statements
(as that term is defined in the Private Securities Litigation Reform Act of
1995) are subject to certain risks and uncertainties that could cause actual
results to differ materially from the projections. The Company has advised
Purchaser and Parent that its internal financial forecasts (upon which the
projections provided to Parent and Purchaser were based in part) 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 interpretations and periodic revision based on actual experience and business
developments. The projections also reflect numerous assumptions (not all of
which were provided to Parent and Purchaser) all made by management of the
Company with respect to industry performance, general business, economic, market
and financial conditions and other matters, including effective tax rates
consistent with historical levels for the Company, all of which are difficult to
predict, many of which are beyond the Company's control and none of which were
subject to approval by
18
<PAGE>
Parent or Purchaser. Accordingly, there can be no assurance that the assumptions
made in preparing the projections will prove accurate, and actual results may be
materially greater or less than those contained in the projections. The
inclusion of the projections herein should not be regarded as an indication that
any of Parent, Purchaser, the Company or their respective affiliates or
representatives considered or consider the projections to be a reliable
prediction of future events, and the projections should not be relied upon as
such. None of Parent, Purchaser, the Company or any of their respective
affiliates or representatives has made, or makes any representation to any
person regarding the ultimate performance of the Company compared to the
information contained in the projections and none of them intends to update or
otherwise revise the projections to reflect circumstances existing after the
date when made or to reflect the occurrence of future events even in the event
that any or all of the assumptions underlying the projections are shown to be in
error. It is expected that there will be differences between actual and
projected results, and actual results may be materially higher or lower than
those projected. For further information on risks associated with
forward-looking statements, please refer to the Company's 8-K filed with the
Commission on June 4, 1998.
8. CERTAIN INFORMATION CONCERNING PARENT AND PURCHASER.
Parent is a Delaware holding corporation with principal executive offices at
World Trade Center, Klarabergsviadukten 70, SE-107 24 Stockholm, Sweden. The
telephone number of Parent is +46 8 587 20 600. Parent, through its two wholly
owned operating subsidiaries, Autoliv AB, a Swedish corporation, and Autoliv
ASP, Inc., an Indiana corporation, is one of the world's leading suppliers of
automotive occupant safety restraint systems with a broad range of product
offerings including modules and components for passenger and driver-side
airbags, side-impact airbag protection systems, seat belts, steering wheels,
safety seats and other safety systems and products.
Parent has production facilities in 26 countries and has as its customers
almost all of the world's largest car manufacturers. Parent employs
approximately 22,500 people and had sales in 1999 of $3.8 billion, approximately
70% of which consisted of airbags and associated products and approximately 30%
of which consisted of seat belts and associated products. Parent's major markets
are in Europe and the United States.
Purchaser is a Delaware corporation with its principal offices located at
1320 Pacific Drive, Auburn Hills, MI 48326. The telephone number of Purchaser is
(248) 475-0442. Purchaser is an indirect wholly owned subsidiary of Parent.
Purchaser has not carried on any activities other than in connection with the
Merger Agreement.
The name, citizenship, business address, business phone number, principal
occupation or employment and five-year employment history for each of the
directors and officers of Parent and Purchaser are set forth in Schedule I
hereto.
Except as provided in the Merger Agreement or as otherwise described in this
Offer to Purchase, none of Parent, Purchaser nor, to the best knowledge of
Parent and Purchaser, any of the persons listed in Schedule I to this Offer to
Purchase, 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 voting of such securities, finder's fees, joint ventures, loan
or option arrangements, puts or calls, guarantees of loans, guarantees against
loss or the giving or withholding of proxies.
The Company is a supplier of airbag initiators and airbag inflators to the
Parent. Parent purchased approximately 8.8 million and 9.3 million airbag
initiators during the calendar years ended December 31, 1999 and December 31,
1998 for an aggregate price of approximately $14.5 million and $19.6 million,
respectively. Parent purchased approximately 200,000 airbag inflators from the
Company during the calendar year ended December 31, 1999 for an aggregate price
of $2.7 million. Parent purchased no airbag inflators from the Company during
the calendar year ended December 31, 1998.
19
<PAGE>
Except as set forth in this Offer to Purchase, none of Parent, Purchaser nor, to
the best knowledge of Parent and Purchaser, any of the persons listed on
Schedule I hereto, has had any business relationship or transaction with the
Company or any of its executive officers, directors or affiliates that is
required to be reported under the rules and regulations of the SEC applicable to
the Offer. Except as set forth in this Offer to Purchase, there have been no
contacts, negotiations or transactions between Parent or any of its subsidiaries
or, to the best knowledge of Parent, any of the persons listed in Schedule I to
this Offer to Purchase, on the one hand, and the Company or its affiliates, on
the other hand, concerning a merger, consolidation or acquisition, tender offer
or other acquisition of securities, an election of directors or a sale or other
transfer of a material amount of assets. None of the persons listed in
Schedule I have, during the past five years, been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors). None of the
persons listed in Schedule I have, during the past five years, been a party to
any judicial or administrative proceeding (except for matters that were
dismissed without sanction or settlement) that resulted in a judgment, decree or
final order enjoining the person from future violations of, or prohibiting
activities subject to federal or state securities, laws, or a finding of any
violation of federal or state securities laws.
9. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by Purchaser to purchase Shares pursuant
to the Offer and the Merger is estimated to be approximately $219,493,280.
Purchaser will obtain such funds from Autoliv ASP, Inc., a Delaware corporation
which is the direct parent of Purchaser and a wholly owned subsidiary of Parent
("Autoliv ASP") who will obtain a significant portion of such funds from its
existing resources, including short term borrowings in the ordinary course of
business. For the remainder, Autoliv, Inc. has obtained a $300 million Credit
Agreement dated March 22, 2000 among Autoliv ASP as Borrower, the Parent as
Guarantor, Skandinaviska Enskilda Banken AB (publ) as Lender and SEB Debt
Capital Markets as Arranger (the "Credit Agreement"). The term of the Credit
Agreement is from April 25, 2000 until September 25, 2000, subject to extension
by mutual agreement and the interest rate for the loans borrowed under the
Credit Agreement is LIBOR plus 0.5% and other applicable costs. In addition
Autoliv ASP is not required to supply collateral to the Lender for any loan
borrowed under the Credit Agreement. The Offer is not conditioned on any
financing arrangements.
10. BACKGROUND OF THE OFFER AND THE MERGER; PAST CONTACTS OR NEGOTIATIONS WITH
THE COMPANY.
Executives of Parent are familiar with the business and operations of the
Company because the Company is a significant supplier of Parent and because each
of Parent and the Company conduct business in the same markets.
In December 1999 Parent was initially contacted by Deutsche Bank, acting at
the Company's instruction as the Company's financial advisors, with a view to
determining whether Parent was interested in potentially acquiring the Company.
Deutsche Bank informed Parent that several potential strategic buyers had been
contacted to solicit their interest in the Company.
On January 5(th) the Company and Parent entered into a confidentiality
agreement and Parent subsequently received an offering memorandum and related
materials about the Company. On January 22(nd) representatives of Parent
attended a management presentation by the Company held in Denver, Colorado. As
requested in the Company's bid sale process instructions, Parent submitted a
preliminary, non-binding indication of interest on February 7(th). In February,
representatives of Parent conducted a due diligence investigation of the
Company.
On March 9(th) in response to an invitation from the Company, Parent
submitted a final written proposal to acquire the Company through a cash tender
offer of $9.00 per Share for all outstanding
20
<PAGE>
Shares. Parent's proposal included revisions to a form of merger agreement
distributed by the Company.
During March 9(th) and 10(th), a representative of Deutsche Bank and the
management of the Company had discussions with management of Parent regarding
outstanding due diligence issues and the economics and structure of Parent's
proposal. During those discussions, Parent was requested by Deutsche Bank to
revise its proposal and increase its offer price. On March 10(th), Parent was
informed that the Board of the Company was scheduled to meet that afternoon and
would consider any revision to Parent's proposal made at that time. Prior to the
Board meeting, the chief executive officer of Parent contacted Deutsche Bank to
modify the final proposal and increase the price of the offer per Share.
On March 11(th) and 12(th), representatives of Parent and the Company
negotiated the terms of the definitive merger agreement.
On March 12(th) the Board of the Company met to review and unanimously
approved the Offer and the Merger and the form of Merger Agreement, which was
subsequently finalized. Following such meeting, Parent and the Company executed
the Merger Agreement on March 12(th). Thereafter, the Company and Parent issued
separate press releases announcing the transaction.
On March 24(th), 2000, in accordance with the Merger Agreement, Parent
commenced the Offer.
11. THE MERGER AGREEMENT.
THE MERGER AGREEMENT. The following is a summary of the material provisions
of the Merger Agreement, a copy of which is filed as an exhibit to the Tender
Offer Statement on Schedule TO filed by Parent and Purchaser pursuant to
Rule 14d-3 of the General Rules and Regulations under the Exchange Act with the
Commission in connection with the Offer (the "Schedule TO"). The summary is
qualified in its entirety by reference to the Merger Agreement, which is deemed
to be incorporated by reference herein.
THE OFFER. The Merger Agreement provides for the making of the Offer. The
obligation of Purchaser to accept for payment and pay for Shares tendered
pursuant to the Offer is subject to the satisfaction or waiver of the Minimum
Condition and certain other conditions that are described in
Section 15--"Certain Conditions of the Offer." Pursuant to the Merger Agreement,
without the consent of the Company, Purchaser may not extend the Offer beyond
April 24, 2000, except in the following circumstances: (i) if necessary to
satisfy any condition of the HSR Act, for a period not to exceed forty
(40) business days, (ii) if any of the Offer Conditions (other than the Minimum
Condition) shall not have been satisfied or waived for a period not to exceed
twenty (20) business days, (iii) if all the Offer Conditions are satisfied or
waived, but the number of Shares validly tendered and not withdrawn is less than
90% of the number of then-outstanding Shares on a fully diluted basis (excluding
shares held by the Company or any of its subsidiaries), for four successive five
(5) business day periods for an aggregate period not to exceed twenty
(20) business days, or (iv) if any of the Offer Conditions (other than the
Minimum Condition) shall not have been satisfied or waived and a Takeover
Proposal has been made or publicly disclosed by a person other than Parent or
Purchaser (including the Company and any of its subsidiaries and affiliates), or
if Parent or Purchaser otherwise learn that a Takeover Proposal has been made or
publicly proposed, for a period of up to ten (10) days after the withdrawal or
termination of such Takeover Proposal, such date in no event to exceed the
earlier of (x) June 30, 2000, and (y) the minimum time period necessary to
satisfy all such outstanding Offer Conditions.
Subject to the foregoing restrictions, Purchaser has the right (but is not
obligated), in its sole discretion, to extend the period during which the Offer
is open by giving oral or written notices of extension to the Depositary in such
offer and by making a public announcement of such extension.
21
<PAGE>
The Purchaser will not, without the prior consent of the Company, decrease
the Offer Price or the number of Shares sought pursuant to the Offer, or change
the form of consideration in the offer, or otherwise amend or add any term or
condition of or to the Offer, except as otherwise expressly permitted in or
contemplated by the Merger Agreement. The Purchaser can waive any other
condition to the Offer in its discretion.
For information concerning directors of the Company prior to consummation of
the Merger, see Section 12--"Purpose of the Offer; Plans for the Company."
DIRECTORS. The Merger Agreement provides that effective upon the acceptance
for payment of Shares, Purchaser shall be entitled to designate at least such
number of directors, rounded up to the next whole number, on the Board that
equals the product of (i) the total number of directors on the Board (determined
after giving effect to the directors elected pursuant to this sentence) and
(ii) the percentage that the aggregate number of Shares beneficially owned by
Parent or Purchaser (including Shares accepted for payment pursuant to the
Offer) bears to the total number of Shares then outstanding and the Company
will, upon request of the Purchaser promptly take all actions necessary to cause
the Purchaser's designees to be so elected, including, if necessary, seeking the
resignations of one or more existing directors; PROVIDED, HOWEVER, that before
the Effective Time, the Board will always have at least three members who have
been in place since March 12, 2000 (the "Continuing Directors"). Following the
election or appointment of the Purchaser's designees and before the Effective
Time, any amendment or termination of the Merger Agreement by the Company, or
any extension by the Company of the time for the performance of any of the
obligations or other acts of Parent or Purchaser or waiver of any of the
Company's rights thereunder, will require the concurrence of a majority of the
directors of the Company then in office who are Continuing Directors.
OPTIONS. Prior to the Expiration Date, the Company will use its reasonable
best efforts to cause each person who holds an option to acquire Shares from the
Company ("Options") to exercise, terminate or consent to their cancellation. As
of the Effective Time, all remaining Options will be canceled, redeemed or
repurchased by the Company, and each holder of Options will receive the
aggregate Offer Price that such holder would have received pursuant to this
Offer if the holder had tendered the Shares underlying such Options, less the
aggregate exercise or purchase price of such underlying Shares (subject to any
applicable withholding tax).
THE MERGER. The Merger Agreement provides that as soon as practicable after
the satisfaction or waiver of each of the conditions to the Merger set forth
therein, Purchaser will be merged with and into the Company. Following the
Merger, the separate existence of Purchaser will cease, and the Company will
continue as the Surviving Company, wholly owned by Parent.
If required by the DGCL, the Company shall call and hold a meeting of its
stockholders (the "Company Stockholders' Meeting") promptly following
consummation of the Offer for the purpose of voting upon the approval of the
Merger Agreement. At any such meeting all outstanding Shares then owned by
Parent or Purchaser or any subsidiary of Parent shall be voted in favor of
approval of the Merger.
Pursuant to the Merger Agreement, each Share outstanding immediately before
the Effective Time (other than Shares owned beneficially or of record by Parent
or any subsidiary of Parent or held in the treasury of the Company, all of which
will be cancelled, and other than Shares which are held by stockholders, if any,
who properly exercise their appraisal rights under the DGCL) will be converted
into the right to receive the Offer Price except as described below.
Shareholders who perfect their right to appraisal of their Shares under the DGCL
shall be entitled to the amounts determined pursuant to such proceedings. See
Section 12--"Purpose of the Offer; Plans for the Company."
REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains customary
representations and warranties of the parties thereto, including representations
by the Company as to its corporate
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existence and power, capitalization, corporate authorizations, Commission
filings, financial statements, absence of certain changes (including: (i) any
material adverse effect in the financial condition, business, operations or
assets would be reasonably expected to have, either individually or in the
aggregate, a Company Material Adverse Effect (as defined in the Merger
Agreement) on the Company and its subsidiaries, taken as a whole; (ii) entry by
the Company into an agreement which, under the rules and regulations of the
Exchange Act, would be required to be filed as an exhibit to an Exchange Act
filing; or (iii) changes by the Company in its accounting principles),
government authorizations, absence of litigation, compliance with laws, employee
matters, certain contracts, taxes, environmental, intellectual property,
brokers, the opinion of the Company's financial advisor, noncontravention,
product liability, recalls, required shareholder vote and rights agreement.
COMPANY COVENANTS. The Merger Agreement contains various customary
covenants of the parties thereto. A description of certain of these covenants
follows:
CONDUCT OF BUSINESS. Prior to the Effective Time, except as otherwise set
forth in the Merger Agreement or approved by Parent, the Company will:
(1) conduct its business in the ordinary course of business and consistent
with past practices and such that, as of the Effective Time, the closing
conditions set forth in the Merger Agreement will be met;
(2) use reasonable efforts to (a) maintain the business organizations of the
Company and its subsidiaries, (b) maintain all significant customer,
supplier, contractor, distributor, licensor, licensee and other business
relationships, and (c) retain officers and employees;
(3) not engage in an extraordinary corporate transaction;
(4) not amend its certificate of incorporation or bylaws;
(5) not (a) authorize, issue or provide for the issuance of or sell, pledge,
dispose of or encumber its capital stock or Options (other than with
respect to disclosed Option plans), (b) enter into any contract with
respect to the purchase or voting of capital stock, (c) split, combine or
reclassify capitalization any material term of its capital stock or
(d) make any other change in its capitalization;
(6) not declare, set aside or pay dividends or distributions or purchase or
redeem any capital stock or Options;
(7) maintain its accounting policies in accordance with past practice and
generally accepted accounting principles and not adopt any material
changes in its reporting regarding taxation or accounting procedures
except in accordance with such generally accepted accounting principles;
(8) not: (a) modify the terms of any existing indebtedness or incur any new
indebtedness unless such indebtedness (1) is in the ordinary course of
business and (2) does not exceed the sum of total indebtedness on
January 31, 2000 and $10,000,000; (b) make loans of more than $100,000
(except intercompany loans); (c) pay or discharge any claims, liens or
liabilities involving more than $100,000 individually and $500,000 in the
aggregate; or (d) write off any accounts or notes receivable other than
in the ordinary course of business;
(9) not take any action with respect to employees that would: (a) grant or
increase any severance or termination pay; (b) adopt or establish a new
employee benefit plan or make any material amendment with respect to an
existing benefit plan; or (c) enter into or materially amend any
employment or employment related agreement (including union or labor
agreements) with any employees, directors, officers or consultants;
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(10) not settle or compromise any suit or claim for an amount which would
exceed $250,000 individually; and
(11) not take any action or fail to take action that would result in:
(a) any condition to the Offer not being satisfied; (b) a breach of any
representation or warranty in the Merger Agreement or (c) an impairment
by any party to the Merger Agreement to consummate the transactions
contemplated in the Merger Agreement.
NO SOLICITATION. The Company will not directly or indirectly (1) solicit,
initiate or encourage any Takeover Proposal, (2) engage in negotiations or
discussions concerning, provide any information to any third party relating to,
or take any other actions to facilitate a Takeover Proposal or (3) enter into
any agreement relating to a Takeover Proposal. The term "Takeover Proposal" is
defined in the Merger Agreement to mean any proposal or offer for a merger or
certain other extraordinary transactions. The foregoing will not prohibit the
Company from complying with Rule 14e-2 under the Exchange Act.
Notwithstanding the foregoing, the Company may furnish, at any time before
the closing of the Offer, non-public information to, or enter discussions with
respect to any unsolicited bona fide written proposal for a Takeover Proposal,
but only to the extent (1) the Board determines after consultation with outside
counsel and financial advisors that doing so is required by its fiduciary
duties, (2) the Board reasonably determines that the Takeover Proposal is likely
to lead to a Superior Proposal and (3) before taking action on such Takeover
Proposal the Company receives an executed customary (as determined by outside
counsel) confidentiality agreement. The term "Superior Proposal" is defined in
the Merger Agreement to mean any Takeover Proposal: (a) which is more favorable
to the Company's stockholders than the Offer and the Merger as determined by the
Board based upon the written opinion of the Company's financial advisors;
(b) in which the person making such proposal has or is reasonably likely to
obtain the necessary funds to make the Superior Proposal; and (c) that will have
a consideration greater than the Offer Price.
The Board may not withdraw or modify its approval of the Offer and the
Merger or approve any Takeover Proposal unless the Board determines after
consultation with outside counsel and financial advisors that doing so is
required by its fiduciary duties and such Takeover Proposal is a Superior
Proposal. However, the Company may not enter into an agreement with respect to
the Superior Proposal unless the Merger Agreement is terminated and the
Termination Fee (as defined below) is paid to Parent and Purchaser
simultaneously with the Board's approval of a Superior Proposal.
The Company has agreed to notify Parent promptly after receiving a Takeover
Proposal.
INDEMNIFICATION. The Merger Agreement provides that for four (4) years
after the Effective Time, the Surviving Corporation will indemnify and hold
harmless each present and former director, officer, employee, fiduciary and
agent from liabilities for acts or omissions occurring at or prior to the
Effective Time to the fullest extent required under applicable law and the
Company's certificate of incorporation and bylaws; and that the bylaws of the
Surviving Corporation after the Effective Time will provide the same
indemnification protection as the bylaws of the Company in effect on the date of
the Merger Agreement.
EMPLOYEES, EMPLOYEE BENEFITS. The Merger Agreement contains certain
covenants relating to the treatment of employees of the Company for one year
after the consummation of the Offer. Parent: (a) intends to cause the Surviving
Corporation to provide benefits to employees who were employed by the Company on
the date of the consummation of the Offer that are no less favorable than those
for employees in comparable positions in the Surviving Corporation; (b) will
honor all legally imposed obligations relating to employment matters; and
(c) will recognize time served with the Company for determination of
eligibility, vesting and level under benefit plans of the Surviving Corporation.
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CONDITIONS TO THE MERGER. The obligations of Parent, Purchaser and the
Company to consummate the Merger are subject to the satisfaction of the
following conditions at or prior to the Effective Time:
(1) if required by the DGCL, the approval of the Merger Agreement by the
shareholders of the Company, the Parent and the Purchaser in accordance
with such law;
(2) the termination of any waiting period with respect to the HSR Act; and
(3) the absence of any injunction, order, statute, regulation, rule order or
judgment that shall prohibit consummation of the Offer or the Merger.
In addition, the obligations of Parent and Purchaser to consummate the
Merger are further subject to the satisfaction of the following condition at or
prior to the Effective Time:
(1) the Company shall have obtained all material consents, waivers,
approvals or authorizations.
The obligations of the Company to consummate the Merger are further subject
to the satisfaction of the following condition at or prior to the Effective
Time:
(1) the Purchaser shall have purchased all shares validly tendered and not
withdrawn pursuant to the Offer.
TERMINATION. The Merger Agreement may be terminated at any time prior to
the Effective Time:
(1) by mutual written consent of Purchaser, Parent and the Company;
(2) by Purchaser, Parent or the Company, if the Merger shall not have been
consummated by June 30, 2000 (provided that the right to terminate shall
not be available to any party whose failure to fulfill any obligation
under the Merger Agreement has caused or resulted in the failure of the
Merger to occur on or before such date, and such time periods shall be
tolled for any time during which any party is subject to a non-final
order or decree restraining, enjoining or otherwise prohibiting the
consummation of the Merger);
(3) by Purchaser, Parent or the Company, if any court or governmental entity
prohibits the transaction by final, nonappealable order, decree or ruling
permanently restraining, enjoining or otherwise prohibiting the
consummation of the Merger;
(4) by Parent if, as a result of the failure of the conditions to the Offer,
the Offer is terminated or expires without Purchaser purchasing Shares;
(5) by the Company, if the Company executes an agreement relating to a
Superior Proposal; or
(6) by Parent, if (a) the Company has entered into an agreement with a third
party to sell all or substantially all of the assets, any substantial
equity in or enter into a business combination with, the Company or any
of its subsidiaries, or (b) if the Board has withdrawn or modified its
recommendation of the Offer or the Merger in a manner materially adverse
to Parent or Purchaser.
If the Merger Agreement is terminated, it will become void and there will be
no liability on the part of the Company, Parent or Purchaser, except for
obligations regarding the confidentiality agreement and certain fees and
expenses payable pursuant to the Merger Agreement (see "Fees and Expenses"),
PROVIDED, HOWEVER, that no such termination shall relieve any party from
liability for any breach of the Merger Agreement prior to such termination.
FEES AND EXPENSES. Except as otherwise specified in the following sentence,
all costs and expenses incurred in connection with the Merger Agreement and the
transactions contemplated thereby shall be paid by the party incurring such cost
or expense.
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If this Merger Agreement is terminated as set forth below, the Company shall
promptly pay to Parent, by wire transfer in immediately available funds, a fee
of $6 million (the "Termination Fee"), plus interest from the date the
Termination Fee is payable until paid at an interest rate of 8% calculated per
annum. The Termination Fee applies where the Merger Agreement is terminated:
(1) as a result of the Company executing an agreement relating to a Superior
Proposal;
(2) as a result of the Company entering into an agreement with a third party
to sell all or substantially all of the assets or any substantial equity
in or enter into a business combination with, the Company or any of its
subsidiaries, or the Board withdrawing or modifying its recommendation of
the Offer or the Merger in a manner materially adverse to Parent or
Purchaser.
AMENDMENTS AND WAIVERS. Any provision of the Merger Agreement may be
amended or waived at any time; provided, however, that after adoption of the
Merger Agreement by the shareholders of the Company, no amendment may be made
which changes the form or decreases the Offer Price or in any other way
materially and adversely affects the rights of such shareholders (other than
termination in accordance with its terms) without the approval of such
shareholders.
12. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY.
PURPOSE OF THE OFFER AND THE MERGER. The purpose of the Offer and the
Merger is for Parent to acquire the entire equity interest in the Company.
Through the Offer, Purchaser intends to acquire control of, and a majority
equity interest in, the Company. Following the completion of the Offer, Parent
intends to acquire any outstanding Shares not owned by Purchaser by consummating
the Merger.
Under the DGCL the approval of the Board and the affirmative vote of a
majority of the holders of outstanding Shares are required to adopt the Merger
Agreement. The Board has unanimously approved the transactions contemplated by
the Merger Agreement, including the Offer and the Merger, and, unless the Merger
is consummated pursuant to the short form merger provisions of the DGCL
described below, the only remaining required corporate action necessary to
consummate the Merger is the adoption of the Merger Agreement by the affirmative
vote of the holders of a majority of the then outstanding Shares. If the Minimum
Condition is satisfied, Purchaser will have sufficient voting power to cause the
adoption of the Merger Agreement by the requisite vote of stockholders of the
Company without the affirmative vote of any other stockholder.
Under the DGCL, if Purchaser acquires at least 90% of the outstanding
Shares, Purchaser will be able to adopt the Merger Agreement without a vote of
the Company's other stockholders. The Merger Agreement provides that if
Purchaser, or any other direct or indirect subsidiary of Parent, acquires at
least 90% of the outstanding Shares, Parent, Purchaser and the Company will take
all necessary and appropriate action to cause the Merger to become effective as
soon as practicable after the expiration of the Offer without action by the
other stockholders of the Company, in accordance with Section 253 of the DGCL.
In the event that all of the conditions to Purchaser's obligation to purchase
Shares in the Offer is satisfied or waived and the number of Shares tendered is
less than 90% of the outstanding Shares on a fully diluted basis, Purchaser may
extend the Offer for the purpose of attempting to reach the 90% threshold
required for a short form merger. Under these circumstances, the Offer may be
extended for four successive five (5) business day periods for an aggregate
period not to exceed twenty (20) business days. See Section 1. If Purchaser is
unable to satisfy the requirements for a short form merger, a significantly
longer period of time may be required to effect the Merger, because a vote of
the Company's stockholders would be required under the DGCL.
PLANS FOR THE COMPANY. Except as otherwise set forth in this Offer to
Purchase, it is expected that, initially following the Merger, the business and
operations of the Company will be continued by the
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Surviving Corporation substantially as they are currently being conducted. The
directors of Purchaser will be the initial directors of the Surviving
Corporation, and the officers of the Purchaser will be the initial officers of
the Surviving Corporation.
Upon completion of the Offer and the Merger, Parent intends to conduct a
detailed review of the Company and its assets, corporate structure,
capitalization, operations, policies, management and personnel. After such
review, Parent will determine what actions or changes, if any, would be
desirable in light of the circumstances which then exist. Thereafter Parent will
implement any such actions or changes in accordance with, among other things,
its corporate strategy.
Except as described in this Offer to Purchase, neither Parent nor Purchaser
has any present plans or proposals that would relate to or result in (i) any
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries, (ii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries, (iii) any change in the Board or management, (iv) any material
change in the Company's capitalization or dividend policy, or (v) any other
material change in the Company's corporate structure or business, (vi) a class
of securities of the Company being delisted from a national securities exchange
or ceasing to be authorized to be quoted in an inter-dealer quotation system of
a registered national securities association, or (vii) a class of equity
securities of the Company becoming eligible for termination of registration
pursuant to Section 12(g) of the Exchange Act.
APPRAISAL RIGHTS. No appraisal rights are available in connection with the
Offer. However, if the Merger is consummated, stockholders of the Company may
have certain rights under the DGCL to dissent, and demand appraisal of, and to
obtain payment for the fair value of their Shares. Such rights, if the statutory
procedures are complied with, could lead to a judicial determination of the fair
value of the Shares (excluding any element of value arising from the
accomplishment or expectation of the Merger) required to be paid in cash to such
dissenting stockholders for their Shares. In addition, such dissenting
stockholders would be entitled to receive payment of a fair rate of interest
from the date of consummation of the Merger on the amount determined to be the
fair value of their Shares. In determining the fair value of the Shares, a
Delaware court would be required to take into account all relevant factors.
Accordingly, such determination could be based upon considerations other than,
or in addition to, the market value of the Shares, including, among other
things, asset value and earning capacity. In WEINBERGER V. UOP, INC., the
Delaware Supreme Court stated, among other things, that "proof of value by any
techniques or methods which are generally considered acceptable in the financial
community and otherwise admissible in court" should be considered in an
appraisal proceeding. Therefore, the value so determined in any appraisal
proceeding could be higher or lower than the Offer Price.
13. CERTAIN EFFECTS OF THE OFFER.
EFFECT ON THE MARKET FOR THE SHARES. The purchase of Shares pursuant to the
Offer will reduce the number of holders of Shares and the number of Shares that
might otherwise trade publicly. Consequently, depending upon the number of
Shares purchased and the number of remaining holders of Shares, the purchase of
Shares pursuant to the Offer may adversely affect the liquidity and market value
of the remaining Shares held by the public. Purchaser cannot predict whether the
reduction in the number of Shares that might otherwise trade publicly would have
an adverse or beneficial effect on the market price for, or marketability of,
the Shares or whether it would cause future market prices to be greater or less
than the Offer Price.
STOCK QUOTATIONS. The Shares are currently listed and traded on the NYSE,
which constitutes the principal trading market for the Shares. Depending upon
the aggregate market value and the number of Shares not purchased pursuant to
the Offer, the Shares may no longer meet the standards for continued listing on
the NYSE. According to its published guidelines, the NYSE would give
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consideration to delisting the Shares if, among other things, the number of
publicly held Shares falls below 600,000, the number of holders of round lots of
Shares falls below 400 (or below 1,200 if the average monthly trading volume is
below 100,000 for the last twelve months) or the aggregate market value of such
publicly held Shares falls below $8,000,000. Shares held by officers or
directors of the Company or their immediate families, or by any beneficial owner
of more than 10% or more of the Shares, ordinarily will not be considered as
being publicly held for this purpose.
If, as a result of the purchase of Shares pursuant to the Offer, the Shares
no longer meet the requirements for continued listing on the NYSE, the market
for the Shares could be adversely affected. In the event the Shares are no
longer eligible for listing on the NYSE, quotations might still be available
from other sources. The extent of the public market for the Shares and the
availability of such quotations would, however, depend upon the number of
holders of such Shares at such time, the interest in maintaining a market in
such Shares on the part of securities firms, the possible termination of
registration of such Shares under the Exchange Act as described below and other
factors.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Such registration may be terminated upon application of the
Company to the Commission if such Shares are not listed on a national securities
exchange and there are fewer than 300 holders of record of the Shares. The
termination of the registration of the Shares under the Exchange Act would
substantially reduce the information required to be furnished by the Company to
its stockholders and to the Commission, and would make certain of the provisions
of the Exchange Act, such as the short-swing profit recovery provisions of
Section 16(b) and the requirement of furnishing a proxy statement in connection
with stockholders meetings and the related requirement of an annual report to
stockholders, and the requirements of Rule 13e-3 with respect to going private
transactions, no longer applicable with respect to the Shares or to the Company.
Furthermore, if registration of the Shares under the Exchange Act were
terminated, 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, may be
impaired or, with respect to certain persons, eliminated. If the Shares were no
longer registered under the Exchange Act, the Shares would no longer be eligible
for NYSE listing. Parent and Purchaser intend to cause the Company to make an
application for termination of registration of the Shares as soon as possible
after consummation of the Offer if the Shares are then eligible for such
termination.
MARGIN SECURITIES. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on such Shares as collateral. Depending on factors
similar to those described above regarding listing and market quotations, it is
possible the Shares would no longer constitute "margin securities" for purposes
of the Federal Reserve Board's margin regulations and therefore could no longer
be used as collateral for loans made by brokers. If registration of the Shares
under the Exchange Act were terminated, the Shares would no longer be "margin
securities."
14. DIVIDENDS AND DISTRIBUTIONS.
As discussed in Section 11, pursuant to the Merger Agreement, without the
prior approval of Parent or as otherwise contemplated in the Merger Agreement,
the Company has agreed to not (i) declare, set aside, make or pay any dividend
or other distribution in respect of any of its capital stock, except that a
wholly owned subsidiary of the Company may declare and pay a dividend to its
parent, (ii) split, combine or reclassify any of its capital stock or issue or
authorize or propose the issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock or (iii) except as
required by the terms of any security as in effect on the date of the Merger
Agreement or expressly permitted under the Merger Agreement, amend the terms or
change the period of exercisability of, purchase, repurchase, redeem or
otherwise acquire, or permit any subsidiary
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to amend the terms or change the period of exercisability of, purchase,
repurchase, redeem or otherwise acquire, any of its securities or any securities
of its subsidiaries, including, without limitation, shares of Common Stock or
any option, warrant or right, directly or indirectly, to acquire any such
securities, or propose to do any of the foregoing.
15. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the Offer, Purchaser will not be
required to accept for payment or, subject to the Merger Agreement and any
applicable rules and regulations of the Commission, including Rule 14e-1(c)
promulgated under the Exchange Act, pay for, and (subject to any such rules or
regulations) may postpone the acceptance for payment of or the payment for any
tendered Shares and (except as provided in the Merger Agreement) amend or
terminate the Offer if:
(1) the Minimum Condition has not been satisfied prior to the expiration of
the Offer;
(2) any applicable waiting period under the HSR Act has not expired or been
terminated prior to the expiration of the Offer; or
(3) any of the following conditions exist at the expiration date of the
Offer:
(a) the representations and warranties of the Company set forth in the
Merger Agreement shall not have been true or correct in any material
respect as of the date of the Merger Agreement or there has been a
breach by the Company which would have a Company Material Adverse
Effect of any covenant or agreement set forth in the Merger Agreement
which is not remedied within five (5) days (or by the date of
expiration of the Offer if sooner) of written notice specifying the
breach;
(b) (i) there shall be any action taken, or any statute, rule,
regulation, decree, order or injunction promulgated, enacted, entered
into or enforced by any state, federal or foreign government or
governmental agency or authority or by any court (domestic or
foreign) that would (a) make the acceptance for payment of, the
payment for, or the purchase of, some or all of the Shares by
Purchaser illegal or otherwise materially restrict or prohibit
consummation of the Offer or the Merger, (b) restrict or prohibit the
ability of Purchaser, or render Purchaser unable, to accept for
payment, pay for or purchase some or all of Shares in a manner that
is adverse in any material respect to the transactions contemplated
by the Offer or the Merger, (c) require the divestiture by Parent,
Purchaser or the Company or any of their subsidiaries of material
portions of their business, assets or property or any Shares, or
impose any material limitation on their ability to conduct their
business and own their assets, properties and Shares, (d) impose
material limitations on the ability of Purchaser or Parent to acquire
or hold or to exercise effectively all rights of ownership of Shares,
including, without limitation, the right to vote any Shares purchased
by Purchaser on all matters properly presented to the stockholders of
the Company or (e) impose any limitations on the ability of Parent or
Purchaser or any of their subsidiaries effectively to control in any
material respect the business or operations of the Company or its
subsidiaries; (ii) there shall have been instituted, pending or
threatened (in writing or by public announcement) an action by a
governmental entity seeking (a) to restrain or prohibit the making or
consummation of the Offer or the consummation of the Merger or
(b) to impose any other restriction, prohibition or limitation
referred to in the foregoing sub-paragraph (i);
(c) since the date of the Merger Agreement there shall have occurred any
material adverse effect in the financial condition, business,
operations, liquidity, property or assets of the Company and its
Subsidiaries taken as a whole; PROVIDED, HOWEVER, that events or
conditions that affect the automotive supply industry generally and
affect all other
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similarly situated companies in the automotive supply industry shall
not be deemed a material adverse change for purposes of this
paragraph (c);
(d) there shall have occurred: (i) any general suspension of trading in,
or limitation on prices for, securities on any national securities
exchange or in the over-the-counter market, (ii) a declaration of a
banking moratorium or any suspension of payments in respect of banks
in the United States, (iii) any material limitation (whether or not
mandatory) by any governmental authority on the extension of credit
by commercial banks or other commercial lending institutions, (iv) a
commencement of a war or armed hostilities or other national or
international calamity directly or indirectly involving the United
States, or (v) in the case of any of the foregoing existing at the
time of the commencement of the Offer a material acceleration or
worsening thereof;
(e) the Merger Agreement shall have been terminated in accordance with
its terms;
(f) the Board shall have withdrawn, modified or amended in any respect
adverse to Parent or Purchaser its recommendation of the Offer and
the Merger or resolved to do so in any manner adverse to Parent or
shall have withdrawn its recommendation of the Offer, or shall have
recommended acceptance of any Takeover Proposal or shall have
resolved to do any of the foregoing; or
(g) any corporation, entity or group (as defined in the Exchange Act),
other than Parent and Purchaser shall have acquired beneficial
ownership of more than 20% of the outstanding Shares, or shall have
been granted any options or rights, conditional or otherwise, to
acquire a total of more than 20% of the outstanding Shares and does
not tender the Shares beneficially owned by it in the Offer;
(h) the Rights have not been exercised;
which in the reasonable judgment of Parent or the Purchaser, in any such case,
and regardless of the circumstances giving rise to such condition, makes it
inadvisable to proceed with the Offer and/or with such acceptance for payment or
payments.
The foregoing conditions are for the sole benefit of Parent and Purchaser
and may be asserted by Parent and Purchaser regardless of the circumstances
giving rise to any such condition, and, subject to the terms of the Merger
Agreement, may be waived by Parent and Purchaser, in whole or in part, at any
time and from time to time, in the sole discretion of Parent and Purchaser. The
failure by Parent and Purchaser at any time to exercise any of the foregoing
rights shall not be deemed a waiver of any right, the waiver of such right with
respect to any particular facts or circumstances shall not be deemed a waiver
with respect to any other facts or circumstances, and each right shall be deemed
an ongoing right which may be asserted at any time and from time to time. Should
the Offer be terminated pursuant to the foregoing provisions, all tendered
Shares not theretofore accepted for payment pursuant thereto shall forthwith be
returned to the tendering stockholders.
16. CERTAIN LEGAL MATTERS.
GENERAL. Except as described in this Section 16, based on a review of
publicly available filings by the Company with the Commission and other publicly
available information concerning the Company, Purchaser is not aware of any
license or regulatory permit that appears to be material to the business of the
Company and that might be adversely affected by Purchaser's acquisition of
Shares pursuant to the Offer, or of any approval or other action by any
governmental, administrative or regulatory agency or authority, domestic or
foreign, that would be required for the acquisition or ownership of Shares by
Purchaser pursuant to the Offer. Should any such approval or other action be
required, it is presently contemplated that such approval or action would be
sought, except as described below under "--State Takeover Laws." While Purchaser
does not currently intend to delay acceptance for payment of Shares
30
<PAGE>
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 required, would be
obtained without substantial conditions or that adverse consequences would not
result to the Company's business or that certain parts of the Company's business
would not have to be disposed of 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 may decline to accept for
payment or pay for any Shares tendered. See Section 15.
STATE TAKEOVER LAWS. The Company and certain of its subsidiaries conduct
business in a number of states throughout the United States, some of which have
adopted laws and regulations applicable to offers to acquire shares of
corporations that are incorporated or have substantial assets, stockholders
and/or a principal place of business in such states. In EDGAR V. MITE CORP., the
Supreme Court of the United States held that the Illinois Business Takeover
Statute, which involved state securities laws that made the takeover of certain
corporations more difficult, imposed a substantial burden on interstate commerce
and was therefore unconstitutional. In CTS CORP. V. DYNAMICS CORP. OF AMERICA,
however, the Supreme Court of the United States held that a state may, as a
matter of corporate law and, in particular, those laws concerning corporate
governance, constitutionally disqualify a potential acquiror from voting on the
affairs of a target corporation without prior approval of the remaining
stockholders, PROVIDED that such laws were applicable only under certain
conditions, in particular, that the corporation has a substantial number of
stockholders in and is incorporated under the laws of such state. Subsequently,
in TLX ACQUISITION CORP. V. TELEX CORP., a federal district court in Oklahoma
ruled that the Oklahoma statutes were unconstitutional insofar as they applied
to corporations incorporated outside Oklahoma in that they would subject such
corporations to inconsistent regulations. Similarly, in TYSON FOODS, INC. V.
MCREYNOLDS, a federal district court in Tennessee ruled that four Tennessee
takeover statutes were unconstitutional as applied to corporations incorporated
outside Tennessee. This decision was affirmed by the United States Court of
Appeals for the Sixth Circuit.
The Company is incorporated under the laws of the State of Delaware. In
general, Section 203 of the DGCL ("Section 203") prevents an "interested
stockholder" (including a person who owns or has the right to acquire 15% or
more of the corporation's outstanding voting stock) from engaging in a "business
combination" (defined to include mergers and certain other actions) with a
Delaware corporation for a period of three years following the date such person
became an interested stockholder. The Board has taken all appropriate action so
that neither Parent nor Purchaser is or will be considered an "interested
stockholder" pursuant to Section 203.
Neither Parent nor Purchaser has determined whether any other state takeover
laws and regulations will by their terms apply to the Offer or the Merger, and,
except as set forth above, neither Parent nor Purchaser has presently sought to
comply with any state takeover statute or regulation. Parent and Purchaser
reserve the right to challenge the applicability or validity of any state law or
regulation purporting to apply to the Offer or the Merger, and neither anything
in this Offer to Purchase nor any action taken in connection herewith is
intended as a waiver of such right. In the event it is asserted that one or more
state takeover statutes is applicable to the Offer or the Merger and an
appropriate court does not determine that such statute is inapplicable or
invalid as applied to the Offer or the Merger, Parent or Purchaser might be
required to file certain information with, or to receive approval from, the
relevant state authorities, and Purchaser might be unable to accept for payment
or pay for Shares tendered pursuant to the Offer, or be delayed in consummating
the Offer.
ANTITRUST. Under the HSR Act and the rules that have been promulgated
thereunder by the Federal Trade Commission (the "FTC"), certain acquisition
transactions may not be consummated unless certain information has been
furnished to the Antitrust Division of the Department of Justice (the "Antitrust
Division") and the FTC and certain waiting period requirements have been
satisfied. The purchase of Shares pursuant to the Offer is subject to such
requirements.
31
<PAGE>
Pursuant to the requirements of the HSR Act, Purchaser filed a Notification
and Report Form with respect to the Offer and Merger with the Antitrust Division
and the FTC on March 21, 2000. As a result, the waiting period applicable to the
purchase of Shares pursuant to the Offer is scheduled to expire at 11:59 p.m.,
New York City time, fifteen (15) days after such filing. However, prior to such
time, the Antitrust Division or the FTC may extend the waiting period by
requesting additional information or documentary material relevant to the Offer
from Purchaser. If such a request is made, the waiting period will be extended
until 11:59 p.m., New York City time, on the tenth day after substantial
compliance by Purchaser with such request. Thereafter, such waiting period can
be extended only by court order.
A request is being made pursuant to the HSR Act for early termination of the
waiting period applicable to the Offer. There can be no assurance, however, that
the applicable 15-day HSR Act waiting period will be terminated early. Shares
will not be accepted for payment or paid for pursuant to the Offer until the
expiration or early termination of the applicable waiting period under the HSR
Act. See Section 15. Any extension of the waiting period will not give rise to
any withdrawal rights not otherwise provided for by applicable law. See
Section 3. If Purchaser's acquisition of Shares is delayed pursuant to a request
by the Antitrust Division or the FTC for additional information or documentary
material pursuant to the HSR Act, the Offer will be extended in certain
circumstances. See Section 1.
The Antitrust Division and the FTC scrutinize the legality under the
antitrust laws of transactions such as the acquisition of Shares by Purchaser
pursuant to the Offer. At any time before or after the consummation of any such
transactions, the Antitrust Division or the FTC could take such action under the
antitrust laws of the United States as it deems necessary or desirable in the
public interest, including seeking to enjoin the purchase of Shares pursuant to
the Offer or seeking divestiture of the Shares so acquired or divestiture of
substantial assets of Parent or the Company. Private parties (including
individual States) may also bring legal actions under the antitrust laws of the
United States. Purchaser does not believe that the consummation of the Offer
will result in a violation of any applicable antitrust laws. However, there can
be no assurance that a challenge to the Offer on antitrust grounds will not be
made, or if such a challenge is made, what the result will be. See Section 15
for certain conditions to the Offer, including conditions with respect to
certain governmental actions and Section 11 for certain termination rights.
NON-U.S. ANTITRUST The German Act Against Restraints of Competition
prohibits the Purchaser from purchasing and voting the Shares until notification
has been filed with the German Federal Cartel Office (the "Cartel Office") and
the Cartel Office has cleared the transaction. Upon receipt of the notification,
the Cartel Office conducts a preliminary review with a maximum duration of 30
days. Upon conclusion of the preliminary review, the Cartel Office may either
approve the transaction or initiate an in-depth review which may, at a maximum,
take an additional 90 days if further examination is necessary to determine
whether the transaction is compatible with the German Act Against Restraints of
Competition. The Purchaser and the Company plan to jointly file the notification
with the Cartel Office. There can be no assurances that the Cartel Office might
not open an
in-depth review to further examine the transaction under the German Act Against
Restraints of Competition.
17. FEES AND EXPENSES.
Parent and Purchaser have retained Georgeson Shareholder
Communications Inc. to be the Information Agent and First Chicago Trust Company
of New York to be the Depositary in connection with the Offer. The Information
Agent may contact holders of Shares by mail, telephone, telecopy, telegraph and
personal interview and may request banks, brokers, dealers and other nominees to
forward materials relating to the Offer to beneficial owners of Shares.
32
<PAGE>
The Information Agent and the Depositary each will receive reasonable and
customary compensation for their respective services in connection with the
Offer, will be reimbursed for reasonable out-of-pocket expenses, and will be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities under federal securities laws.
None of Parent or Purchaser will pay any fees or commissions to any broker
or dealer or to any other person (other than to the Depositary and the
Information Agent) in connection with the solicitation of tenders of Shares
pursuant to the Offer. Brokers, dealers, commercial banks and trust companies
will, upon request, be reimbursed by Purchaser for customary mailing and
handling expenses incurred by them in forwarding offering materials to their
customers.
18. MISCELLANEOUS.
The Offer is being made to all holders of Shares. Purchaser is not aware of
any jurisdiction 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 Shares pursuant thereto, Purchaser will make a good faith effort
to comply with any such state statute or seek to have such statute declared
inapplicable to the Offer. If, after such good faith effort, Purchaser cannot
comply with any such state statute, the Offer will not be made to (nor will
tenders be accepted from or on behalf of) the holders of Shares in such state.
In any jurisdiction where the securities, blue sky or other laws require the
Offer to be made by a licensed broker or dealer, the Offer will be deemed to be
made on behalf of Purchaser by one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF PARENT OR PURCHASER NOT CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE RELATED LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
Parent and Purchaser have filed with the SEC a Tender Offer Statement on
Schedule TO, together with all exhibits thereto, pursuant to Rule 14d-3 of the
General Rules and Regulations under the Exchange Act, furnishing certain
additional information with respect to the Offer. In addition, the Company has
filed a Solicitation/Recommendation Statement on Schedule 14D-9, together with
all exhibits thereto, pursuant to Rule 14d-9 of the General Rules and
Regulations of the Exchange Act setting forth its recommendation with respect to
the Offer and the reasons for such recommendations and furnishing certain
additional related information. Such Schedules and any amendments thereto,
including exhibits, may be inspected and copies may be obtained from the offices
of the Commission in the manner set forth in Section 7 (except that they will
not be available at the regional offices of the Commission).
OEA Merger Corporation
March 24, 2000
33
<PAGE>
SCHEDULE I
INFORMATION CONCERNING THE DIRECTORS AND EXECUTIVE
OFFICERS OF PARENT AND PURCHASER
1. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT.
Set forth in the table below are the name and the present principal
occupations or employment and citizenship and the name, principal business and
address of any corporation or other organization in which such occupation or
employment is conducted, and the five-year employment history of each of the
directors and executive officers of Parent. The principal business address of
Parent, and, unless otherwise indicated, the business address of each person
identified below, is World Trade Center, Klarabergsviadukten 70, SE-107 24
Stockholm, Sweden.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT, CITIZENSHIP AND MATERIAL
NAME POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------------------------------------
<S> <C>
Gunnar Bark Chairman of the Board and Chief Executive Officer from
May 1, 1997 until January 31, 1999. He has been
Chairman of the Board since May 1, 1997. He is a
Swedish citizen.
Lars Westerberg President and Chief Executive Officer since February
1, 1999. Director of the Board. He is a Swedish
citizen.
Leif Berntsson Vice President Purchasing since May 1, 1997. He has
been Vice President Quality of Autoliv AB since 1988
and Vice President Purchasing of Autoliv AB since
1992. He is a Swedish citizen.
Hans Biorck Vice President and Chief Financial Officer since April
1, 1999. He has been Vice President, Treasurer since
September 1998. Prior to such time, he held CFO
positions in Esselte AB and EBS Inc. He is a Swedish
citizen.
Wilhelm Kull Vice President IT and Chief Financial Officer from May
1, 1997 until March 31, 1999. He is a Swedish citizen.
Claes Humbla Vice President Human Resources since May 1, 1997. He
has been Vice President Human Resources of Autoliv AB
since 1989. He is a Swedish citizen.
Yngve Haland Vice President Research since May 1, 1997. He has been
Vice President Research of Autoliv AB since 1994.
Prior to such time, he was Group Manager Research for
Autoliv AB since 1989. He is a Swedish citizen.
Benoit Marsaud Vice President Manufacturing since February 4, 1998.
He has been Vice President Manufacturing of Autoliv AB
since 1992 and was appointed President of Autoliv
France in May 1997. He is a French citizen.
Mats Odman Director of Investor Relations since May 1, 1997. He
has been Director of Investor Relations of Autoliv AB
since 1994. He previously held the same position in
Fermenta AB and Gambro AB. Prior to such time, he was
Investor Relations Manager of Pharmacia AB. He is a
Swedish citizen.
</TABLE>
34
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT, CITIZENSHIP AND MATERIAL
NAME POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------------------------------------
<S> <C>
Jan Olsson Vice President Engineering since October 1, 1997. He
has been Manager of Engineering of Autoliv Sverige AB
since 1989 and President of such company since August
1994. He is a Swedish citizen.
Hans-Goran Persson Vice President Purchasing since July 1, 1999. He
previously held the same positions at SKF, Volvo Cars
and in the passenger car division of Saab-Scania. He
is a Swedish citizen.
Jorgen I. Svensson Vice President Legal Affairs, General Counsel and
Secretary since May 1, 1997. He has been Legal Counsel
of Autoliv AB since 1989, General Counsel since 1991
and Vice President Legal Affairs and General Counsel
since 1994. He has also been Vice President and
Treasurer of Purchaser since March 13, 2000. He is a
Swedish citizen.
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER.
Set forth in the table below are the name and the present principal
occupations or employment and citizenship and the name, principal business and
address of any corporation or other organization in which such occupation or
employment is conducted, and the five-year employment history of each of the
directors and executive officers of Purchaser. The principal business address of
Purchaser and, unless otherwise indicated, the business address of each person
identified below, is the World Trade Center, Klarabergsviadukten 70, SE-107 24
Stockholm, Sweden.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT, CITIZENSHIP AND MATERIAL
NAME POSITIONS HELD DURING THE PAST FIVE YEARS
- ---- ------------------------------------------------------
<S> <C>
Hans Biorck President since March 13, 2000. He has been Vice
President and Chief Financial Officer of Parent since
April 1, 1999 and Vice President, Treasurer since
September 1998. Prior to such time, he held CFO
positions in Esselte AB and EBS Inc. He is a Swedish
citizen.
Jorgen I. Svensson Vice President and Treasurer of Purchaser since March
13, 2000. He has been Vice President Legal Affairs,
General Counsel and Secretary of Parent since May 1,
1997. He has also been Legal Counsel of Autoliv AB
since 1989, General Counsel since 1991 and Vice
President Legal Affairs and General Counsel since
1994. He is a Swedish citizen.
Michael Anderson Vice President and Secretary since March 13, 2000. He
has also been Vice President and General Counsel of
Autoliv ASP since March 31, 1998. He was previously
Vice President and Special Counsel of Autoliv ASP from
May 1, 1997 to March 31, 1998 and Vice President and
General Counsel of Autoliv North America, Inc. from
August 1994 to May 1, 1997. His business address is
1320 Pacific Drive, Auburn Hills, Michigan 48326. He
is a U.S. citizen.
</TABLE>
35
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. Letters of Transmittal and certificates for Shares should be sent or
delivered by each stockholder of the Company or his broker, dealer, commercial
bank, trust company or other nominee to the Depositary at one of its addresses
set forth below:
The Depositary for the Offer is:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C> <C>
BY HAND: BY MAIL: BY OVERNIGHT COURIER:
First Chicago Trust Company First Chicago Trust Company First Chicago Trust Company
of New York of New York of New York
Attention: Corporate Actions Attention: Corporate Actions Attention: Corporate Actions
c/o Securities Transfer and Suite 4660 Suite 4660
Reporting Services Inc. P.O. Box 2565 525 Washington Boulevard
100 William Jersey City, NJ 07303-2565 Jersey City, NJ 07310
Street--Galleria J
New York, NY 10038
FOR INFORMATION CALL:
(800) 251-4215
</TABLE>
Any questions or requests for assistance may be directed to the Information
Agent at its address and telephone numbers set forth below. Requests for
additional copies of this Offer to Purchase and the Letter of Transmittal may be
directed to the Information Agent. Stockholders may also contact their brokers,
dealers, commercial banks, trust companies or other nominees for assistance
concerning the Offer.
The Information Agent for the Offer is:
[LOGO]
17 State Street, 10(th) Floor
New York, N.Y. 10004
Brokers and Bankers Call Collect (212) 440-9800
Or
All Other Call Toll Free (800) 223-2064
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
OEA, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED MARCH 24, 2000
BY
OEA MERGER CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
AUTOLIV, INC.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, APRIL 24, 2000,
UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
THE DEPOSITARY FOR THE OFFER IS:
FIRST CHICAGO TRUST COMPANY OF NEW YORK
<TABLE>
<S> <C> <C>
BY HAND: BY MAIL: BY OVERNIGHT COURIER:
First Chicago Trust Company First Chicago Trust Company First Chicago Trust Company
of New York of New York of New York
Attention: Corporate Actions Attention: Corporate Actions Attention: Corporate Actions
c/o Securities Transfer and Suite 4660 Suite 4660
Reporting Services Inc. P.O. Box 2565 525 Washington Boulevard
100 William Jersey City, NJ 07303-2565 Jersey City, NJ 07310
Street--Galleria J
New York, NY 10038
FOR INFORMATION CALL:
(800) 251-4215
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE DOES
NOT CONSTITUTE A VALID DELIVERY. 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 ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<TABLE>
<CAPTION>
DESCRIPTION OF SHARES TENDERED
<S> <C> <C> <C>
Name(s) and Address(es) of Registered Holder(s) Share Certificate(s) and Share(s)
(Please Fill in Exactly as Name(s) Appears on Share Tendered
Certificate(s)) (Attach Additional List If Necessary)
Shares
Share Represented by Number of
Certificate Share Shares
Number(s)* Certificate(s)* Tendered**
Total Shares
</TABLE>
<TABLE>
<S> <C>
* Need not be completed by stockholders tendering by
book-entry transfer.
** Unless otherwise indicated, all Shares represented by
certificates delivered to the Depositary will be deemed to
have been tendered.
See Instruction 4.
IF CERTIFICATES HAVE BEEN LOST, DESTROYED OR STOLEN PLEASE
SEE INSTRUCTION 8.
</TABLE>
<PAGE>
This Letter of Transmittal is to be completed by stockholders either if
certificates representing Shares (as defined below) are to be forwarded herewith
or, unless an Agent's Message (as defined in Instruction 2) is utilized, if
delivery is to be made by book-entry transfer to the account maintained by the
Depositary at The Depository Trust Company ("DTC") pursuant to the procedures
set forth in Section 2 of the Offer to Purchase dated March 24, 2000 (the "Offer
to Purchase"). Stockholders whose certificates are not immediately available, or
who cannot deliver their certificates or confirmation of the book-entry transfer
of their Shares into the Depositary's account at DTC ("Book-Entry Confirmation")
and all other documents required hereby to the Depositary on or prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase), must tender
their Shares according to the guaranteed delivery procedures set forth in
Section 2 of the Offer to Purchase. See Instruction 2. DELIVERY OF DOCUMENTS TO
DTC DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
<TABLE>
<S> <C>
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE
DEPOSITARY AT DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
Account Number Transaction Code Number
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE
DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Holders(s):
Window Ticket Number (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution that Guaranteed Delivery:
</TABLE>
2
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to OEA Merger Corporation, a Delaware
corporation ("Purchaser") and an indirect wholly owned subsidiary of
Autoliv, Inc., a Delaware corporation ("Parent"), the above-described shares of
common stock, par value $0.10 per share, including the associated rights to
purchase shares of common stock (collectively, the "Shares"), of OEA, Inc. (the
"Company"), pursuant to Purchaser's offer to purchase all of the outstanding
Shares at a price of $10.00 per Share, net to the tendering stockholder in cash,
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated March 24, 2000 (the "Offer to Purchase"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which, including any amendments
or supplements thereto collectively constitute the "Offer"). Purchaser reserves
the right to transfer or assign, in whole or from time to time in part, to one
or more of its affiliates or subsidiaries, the right to purchase Shares tendered
pursuant to the Offer.
Subject to, and effective upon, acceptance for payment of and payment for
the Shares tendered herewith in accordance with the terms and subject to the
conditions of the Offer, the undersigned hereby sells, assigns, and transfers
to, or upon the order of, Purchaser all right, title and interest in, to and
under all of the Shares that are being tendered hereby (and any and all
dividends, distributions and all other Shares or other securities or rights
issued or issuable in respect thereof on or after March 24, 2000) and
irrevocably appoints the Depositary the true and lawful agent and
attorney-in-fact of the undersigned with respect to such Shares (and any such
other Shares or securities or rights), with full power of substitution (such
power of attorney being deemed to be an irrevocable power coupled with an
interest), to (a) deliver certificates representing such Shares (and any such
other Shares or securities or rights), or transfer ownership of such Shares (and
any such other Shares or securities or rights) on the account books maintained
by DTC, together in either such case with all accompanying evidences of transfer
and authenticity, to or upon the order of Purchaser upon receipt by the
Depositary, as the undersigned's agent, of the purchase price (adjusted, if
appropriate, as provided in the Offer to Purchase), (b) present such Shares (and
any such other Shares or securities or rights) for registration and transfer on
the books of the Company, and (c) receive all benefits and otherwise exercise
all rights of beneficial ownership of such Shares (and any such other Shares or
securities or rights), all in accordance with the terms of the Offer.
The undersigned hereby irrevocably appoints Jorgen Svensson, Michael
Anderson and any other designee of Purchaser, the attorneys-in-fact and proxies
of the undersigned, each with full power of substitution and resubstitution, to
vote in such manner as each such attorney-in-fact and proxy or his substitute
shall, in his sole discretion, deem proper, and otherwise act (including
pursuant to written consent) with respect to all the Shares tendered hereby
which have been accepted for payment by Purchaser prior to the time of such vote
or action (and any and all dividends, distributions and all other Shares or
securities or rights issued or issuable in respect thereof on or after
March 24, 2000), which the undersigned is entitled to vote at any meeting of
stockholders (whether annual or special and whether or not an adjourned meeting)
of the Company, or by consent in lieu of any such meeting, or otherwise. This
proxy and power of attorney is coupled with an interest in the Shares tendered
hereby, is irrevocable, is granted in consideration of, and is effective upon,
the acceptance for payment of such Shares (and any such other Shares or
securities or rights) by Purchaser in accordance with the terms of the Offer.
Such acceptance for payment shall revoke all prior proxies granted by the
undersigned at any time with respect to such Shares (and any such other Shares
or securities or rights) and no subsequent proxies will be given (and if given
will be deemed to be ineffective) with respect thereto by the undersigned. The
undersigned acknowledges that in order for Shares to be deemed validly tendered,
immediately upon the acceptance for payment of such Shares, Purchaser or
Purchaser's designee must
3
<PAGE>
be able to exercise full voting and other rights of a record and beneficial
holder with respect to such Shares.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares tendered
hereby (and any and all dividends, distributions and all other Shares or
securities or rights issued or issuable in respect thereof on or after
March 24, 2000), and that, when the same are accepted for payment by Purchaser,
Purchaser will acquire good and unencumbered title thereto, free and clear of
all liens, restrictions, charges and encumbrances and the same will not be
subject to any adverse claim. The undersigned, upon request, will execute and
deliver any additional documents deemed by the Depositary or Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby (and any such other Shares or securities or rights).
No authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall be affected by, and all such authority shall survive, the
death or incapacity of the undersigned, and any obligation of the undersigned
hereunder shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned. Except as stated in
the Offer to Purchase, this tender is irrevocable.
The undersigned understands that tenders of Shares pursuant to any one of
the procedures described in Section 2 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. 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
Shares tendered hereby.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price and/or return any certificates
representing Shares not tendered or accepted for payment in the name(s) of the
registered holder(s) appearing under "Description of Shares Tendered."
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please mail the check for the purchase price and/or return any certificates
representing Shares not tendered or accepted for payment (and accompanying
documents, as appropriate) to the registered holder(s) appearing under
"Description of Shares Tendered" at the address shown below such registered
holder(s) name(s). In the event that either or both the Special Delivery
Instructions and the Special Payment Instructions are completed, please issue
the check for the purchase price and/or return any certificates representing
Shares not tendered or accepted for payment in the name(s) of, and deliver such
check and/or return such certificates to, the person or persons so indicated.
Stockholders tendering Shares by book-entry transfer may request that any Shares
not accepted for payment be returned by crediting such stockholder's account
maintained at DTC. The undersigned recognizes that Purchaser has no obligation
pursuant to the "Special Payment Instructions" to transfer any Shares from the
name of the registered holder(s) thereof if Purchaser does not accept for
payment any of the Shares so tendered hereby.
4
<PAGE>
-------------------------------------------SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased (less the amount of any federal income and backup withholding tax
required to be withheld) or certificates for Shares not tendered or not
purchased are to be issued in the name of someone other than the
undersigned.
Issue: / / check
/ / certificate(s) to:
Name(s): _______________________________________________________________________
________________________________________________________________________________
(PLEASE PRINT)
Address: _______________________________________________________________________
________________________________________________________________________________
(ZIP CODE)
________________________________________________________________________________
(TAXPAYER IDENTIFICATION NO.)
- ------------------------------------------------------
- ------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 5, 6 AND 7)
To be completed ONLY if the check for the purchase price of Shares
purchased (less the amount of any federal income and backup withholding tax
required to be withheld) or certificates for Shares not tendered or not
purchased are to be mailed to someone other than the undersigned or to the
undersigned at an address other than that shown below the undersigned's
signature(s).
Mail: / / check
/ / certificate(s) to:
Name: __________________________________________________________________________
(PLEASE PRINT)
Address: _______________________________________________________________________
________________________________________________________________________________
(ZIP CODE)
________________________________________________________________________________
(TAXPAYER IDENTIFICATION NO.)
- -----------------------------------------------------
5
<PAGE>
SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
- --------------------------------------------------------------------------------
SIGN HERE
(PLEASE COMPLETE SUBSTITUTE FORM W-9 BELOW)
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
Signature(s) of Owners
Dated ___________________, 2000
Name(s) ____________________________________________________________________
____________________________________________________________________________
(Please Print)
Capacity (Full Title) ______________________________________________________
Address ____________________________________________________________________
____________________________________________________________________________
(Include Zip Code)
Daytime Area Code and Telephone Number ( )________________________________
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
stock certificate(s) or on a security position listing or by person(s)
authorized to become registered holder(s) by certificates and documents
transmitted herewith. If signature is by a trustee, executor, administrator,
guardian, attorney-in-fact, 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)
(IF REQUIRED; SEE INSTRUCTIONS 1 AND 5)
FOR USE BY FINANCIAL INSTITUTIONS ONLY. PLACE MEDALLION GUARANTEE IN SPACE
BELOW:
Authorized Signature(s) ____________________________________________________
Name _______________________________________________________________________
Name of Firm _______________________________________________________________
Address ____________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number _____________________________________________
Dated __________________, 2000
- --------------------------------------------------------------------------------
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
(1) GUARANTEE OF SIGNATURES. No signature guarantee on this Letter of
Transmittal is required (i) if this Letter of Transmittal is signed by the
registered holder(s) of the Shares (which term, for purposes of this document,
shall include any participant in DTC whose name appears on a security position
listing as the owner of Shares) tendered herewith, unless such holder has
completed the box entitled "Special Payment Instructions" on this Letter of
Transmittal, or (ii) if such Shares are tendered for the account of a firm that
is a member in good standing of the Security Transfer Agent's Medallion Program
(each being hereinafter referred to as 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 CERTIFICATES. This Letter of
Transmittal is to be completed by stockholders either if certificates
representing Shares are to be forwarded herewith to the Depositary or, unless an
Agent's Message (as defined below) is utilized, if tenders of Shares are to be
made pursuant to the procedures for delivery by book-entry transfer set forth in
Section 2 of the Offer to Purchase. Certificates representing all physically
tendered Shares, or any book-entry confirmation of Shares, as the case may be,
together with a properly completed and duly executed Letter of Transmittal (or a
manually signed facsimile thereof), with any required signature guarantees, (or,
in connection with a book-entry transfer, an Agent's Message) and any other
documents required by this Letter of Transmittal must be received by the
Depositary at one of its addresses set forth herein on or prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase). If a
stockholder's certificate(s) representing Shares are not immediately available
(or the procedure for the book-entry transfer cannot be completed on a timely
basis) or time will not permit all required documents to reach the Depositary on
or prior to the Expiration Date, such stockholder's Shares may nevertheless be
tendered if the procedures for guaranteed delivery set forth in Section 2 of the
Offer to Purchase are followed. Pursuant to such procedure, (i) such tender must
be made by or through an Eligible Institution, (ii) a properly completed and
duly executed Notice of Guaranteed Delivery, substantially in the form provided
by Purchaser, must be received by the Depositary on or prior to the Expiration
Date, and (iii) the certificates representing all tendered Shares, in proper
form for transfer, or Book-Entry Confirmation of Shares, as the case may be, in
each case together with a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof), with any required
signature guarantees (or, in connection with a book-entry transfer, an Agent's
Message) and any other documents required by this Letter of Transmittal, must be
received by the Depositary within three New York Stock Exchange trading days
after the date of execution of such Notice of Guaranteed Delivery, all as
provided in Section 2 of the Offer to Purchase. The term "Agent's Message" means
a message transmitted through electronic means by DTC to, and received by, the
Depositary and forming a part of a Book-Entry Confirmation, which states that
DTC has received an express acknowledgment from the DTC participant tendering
the Shares that such participant has received, and agrees to be bound by, this
Letter of Transmittal.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, THE CERTIFICATE(S)
REPRESENTING SHARES AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH
DTC, IS AT THE OPTION AND SOLE RISK OF THE TENDERING STOCKHOLDER. THE DELIVERY
WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF SUCH
DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY
INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted, and no
fractional Shares will be purchased. All tendering stockholders, by execution of
this Letter of Transmittal (or a manually signed facsimile thereof), waive any
right to receive any notice of the acceptance of their Shares for payment.
(3) INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
signed schedule attached hereto.
7
<PAGE>
(4) PARTIAL TENDERS (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER SHARES BY
BOOK-ENTRY TRANSFER). If fewer than all the Shares represented by any
certificate submitted are to be tendered, fill in the number of Shares that are
to be tendered in the box entitled "Number of Shares Tendered." In such case,
new certificate(s) representing the remainder of the Shares that were
represented by the old certificate(s) will be sent to the registered holder(s),
unless otherwise provided in the appropriate box on this Letter of Transmittal,
as soon as practicable after the Expiration Date. All Shares represented by
certificate(s) delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
(5) SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond exactly with the name(s) as
written on the face(s) of the certificate(s) without alteration, enlargement or
any change whatsoever. If any of the Shares tendered hereby are owned of record
by two or more joint owners, all such owners must sign this Letter of
Transmittal. If any tendered Shares 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 is signed by the registered holder(s) of the
Shares listed and tendered hereby, no endorsements of certificates or separate
stock powers are required, unless payment or certificates for Shares not
tendered or accepted for payment are to be issued to a person other than the
registered holder(s). Signatures on such certificates or stock powers must be
guaranteed by an Eligible Institution.
If this Letter of Transmittal or any certificates or stock powers are signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
Purchaser of such person's authority so to act must be submitted.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered 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 on the certificates.
Signatures on such certificates or stock powers must be guaranteed by an
Eligible Institution, unless the signature is that of an Eligible Institution.
(6) STOCK TRANSFER TAXES. Except as set forth in this Instruction 6,
Purchaser will pay or cause to be paid any stock transfer taxes with respect to
the transfer and sale of purchased Shares to it or its order pursuant to the
Offer. If, however, payment of the purchase price is to be made to, or if
certificates representing Shares not tendered or 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 person will be deducted from the purchase
price, unless satisfactory evidence of the payment of such taxes or exemption
therefrom is submitted.
(7) SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check and/or
certificates representing Shares not tendered or accepted for payment are to be
issued in the name of a person other than the signer of this Letter of
Transmittal or if a check is to be sent and/or such certificates are to be
returned to someone 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. Stockholders tendering Shares by book-entry
transfer may request that Shares not accepted for payment be credited to such
account maintained at DTC as such stockholder may designate herein. If no such
instructions are given, such Shares not accepted for payment will be returned by
crediting the account at DTC designated above.
(8) LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate(s)
representing Shares has been lost, destroyed or stolen, the stockholder should
promptly contact LaSalle Bank N.A., which is the Company's transfer agent, by
calling 1-800-246-5761. The stockholder will then be instructed as to the
8
<PAGE>
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.
(9) WAIVER OF CONDITIONS. The conditions to the Offer may be waived by
Purchaser, in whole or in part, at any time and from time to time in Purchaser's
sole discretion (subject to the provisions of the Merger Agreement referred to
in the Offer to Purchase).
(10) TAXPAYER IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. U.S. federal
income tax law generally requires that a shareholder tendering Shares pursuant
to the Offer must provide the Depositary (the "Payor") with his correct Taxpayer
Identification Number ("TIN"), which, in the case of a shareholder who is an
individual, is his social security number. If the Payor is not provided with the
correct TIN or an adequate basis for an exemption, such shareholder may be
subject to a $50 penalty imposed by the Internal Revenue Service and backup
withholding at the rate of 31% may be imposed upon the gross proceeds of any
payment received hereunder. If withholding results in an overpayment of taxes, a
refund may be obtained.
To prevent backup withholding, each tendering shareholder must provide his
correct TIN by completing the "Substitute Form W-9" set forth herein, which
requires such shareholder to certify that the TIN provided is correct (or that
such shareholder is awaiting a TIN) and that (i) the shareholder has not been
notified by the Internal Revenue Service that he is subject to backup
withholding as a result of a failure to report all interest or dividends or
(ii) the Internal Revenue Service has notified the shareholder that he is no
longer subject to backup withholding.
Exempt shareholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. To prevent possible erroneous backup withholding, an exempt
shareholder must enter its correct TIN in Part 1 of Substitute Form W-9, write
"Exempt" in Part 2 of such form, and sign and date the form. See the enclosed
Guidelines for Certification of Taxpayer Identification Number of Substitute
Form W-9 (the "W-9 Guidelines") for additional instructions.
If Shares are held in more than one name or are not in the name of the
actual owner, consult the W-9 Guidelines for information on which TIN to report.
If you do not have a TIN, consult the W-9 Guidelines for instructions on
applying for a TIN, write "Applied For" in the space for the TIN in Part 1 of
the Substitute Form W-9, and sign and date the Substitute Form W-9 and the
Certificate of Awaiting Taxpayer Identification Number set forth herein. If you
do not provide your TIN to the Payor within 60 days, backup withholding will
begin and continue until you furnish your TIN to the Payor. NOTE: WRITING
"APPLIED FOR" ON THE FORM MEANS THAT YOU HAVE ALREADY APPLIED FOR A TIN OR THAT
YOU INTEND TO APPLY FOR ONE IN THE NEAR FUTURE.
(11) NON-UNITED STATES HOLDERS. Non-United States holders must submit a
completed Form W-8BEN to avoid backup withholding. Form W-8BEN may be obtained
by contacting the Payor at one of the addresses on the face of this Letter of
Transmittal.
(12) REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance
may be directed to the Information Agent at the address set forth below.
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 obtained from the
Information Agent at the address set forth below or from your broker, dealer,
commercial bank, trust company or other nominee.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY SIGNED FACSIMILE
THEREOF), TOGETHER WITH CERTIFICATES REPRESENTING SHARES OR CONFIRMATION OF
BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED DOCUMENTS, OR THE NOTICE OF
GUARANTEED DELIVERY, MUST BE RECEIVED BY THE DEPOSITARY ON OR PRIOR TO THE
EXPIRATION DATE.
9
<PAGE>
IMPORTANT TAX INFORMATION
Under United States federal income tax law, a stockholder whose tendered
Shares are accepted for payment is required to provide the Depositary (as payer)
with such stockholder's correct social security number, individual taxpayer
identification number, or employer identification number (each a Taxpayer
Identification Number or a "TIN") on Substitute Form W-9 provided below. If such
stockholder is an individual, the TIN is such person's social security number.
The TIN of a resident alien who does not have and is not eligible to obtain a
social security number is such person's IRS individual taxpayer identification
number. If a tendering stockholder is subject to United States federal backup
withholding, the stockholder must cross out item (2) of the Certification box on
the Substitute Form W-9. If the Depositary is not provided with the correct TIN,
the stockholder may be subject to a $50 penalty imposed by the IRS. In addition,
payments that are made to such stockholder with respect to Shares purchased
pursuant to the Offer may be subject to United States federal backup
withholding.
Certain stockholders (including, among others, all corporations and certain
non-United States individuals) are not subject to United States federal backup
withholding. In order for a non-United States individual to qualify as an exempt
recipient, that stockholder must submit to the Depositary a properly completed
IRS Form W-8BEN, signed under penalties of perjury, attesting to that
individual's exempt status. Such forms may be obtained from the Depositary.
Exempt stockholders, other than non-United States 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 United States federal backup withholding applies, the Depositary is
required to withhold 31% of any payments made to the stockholder. Federal 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 IRS.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent United States federal backup withholding on payments that are
made to a stockholder with respect to Shares purchased pursuant to the Offer,
the stockholder is required to notify the Depositary of such stockholder's
correct TIN by completing the Substitute Form W-9 below certifying that the TIN
provided on such form is correct (or that such stockholder is awaiting a TIN)
and that (i) such holder is exempt from federal backup withholding, (ii) such
holder has not been notified by the IRS that such holder is subject to federal
backup withholding as a result of a failure to report all interest or dividends,
or (iii) the IRS has notified such holder that such holder is no longer subject
to federal backup withholding (see Part 2 of Substitute Form W-9).
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the TIN of the record
owner of the Shares. If the Shares are in more than one name or are not in the
name of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidelines
on which number to report. If the tendering stockholder has not been issued a
TIN and has applied for a number or intends to apply for a number in the near
future, such stockholder should write "Applied For" in the space provided for in
the TIN in Part I, check the box in Part III, and sign and date the Substitute
Form W-9. If "Applied For" is written in Part I and the Depositary is not
provided with a TIN within 60 days, the Depositary may withhold 31% on all
payments of the purchase price until a TIN is provided to the Depositary.
10
<PAGE>
<TABLE>
<S> <C> <C> <C>
PAYER: FIRST CHICAGO TRUST COMPANY OF NEW YORK
PART II FOR PAYEES EXEMPT
SUBSTITUTE FROM BACKUP WITHHOLDING
FORM W-9 (SEE ENCLOSED GUIDELINES)
PART I TAXPAYER IDENTIFICATION NO.--FOR ALL ACCOUNTS
Enter your taxpayer identification ---------------- PART III
number in the appropriate box. For SOCIAL SECURITY AWAITING TIN / /
most individuals and sole NUMBER
DEPARTMENT OF THE proprietors, this is your Social OR
TREASURY INTERNAL Security Number. For other entities, ----------------
REVENUE SERVICE it is your Employer Identification EMPLOYEE
PAYER'S REQUEST FOR Number. If you do not have a number, IDENTIFICATION
TAXPAYER see "How to Obtain a TIN" in the NUMBER
IDENTIFICATION NO. enclosed GUIDELINES.
Note: If the account is in more than one name, see the
chart on page 2 of the enclosed GUIDELINES to determine
what number to enter.
CERTIFICATION--Under penalties of perjury, I certify that:
(1) The number shown on this form is my correct Taxpayer Identification Number (or I am waiting for a
number to be issued to me);
(2) I am not subject to backup withholding either because (a) I am exempt from backup withholding, or
(b) I have not been notified by the Internal Revenue Service ("IRS") that I am subject to backup
withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me
that I no longer subject to backup withholding; and
(3) Any information provided on this form is true, correct and complete.
YOU MUST CROSS OUT ITEM (2) ABOVE IF YOU HAVE BEEN NOTIFIED BY THE IRS THAT YOU ARE CURRENTLY SUBJECT TO
BACKUP WITHHOLDING BECAUSE OF UNDERREPORTING INTEREST OR DIVIDENDS ON YOUR TAX RETURN AND YOU HAVE NOT
RECEIVED A NOTICE FROM THE IRS ADVISING YOU THAT BACKUP WITHHOLDING HAS TERMINATED.
SIGNATURE
DATE
- -----------------------------------------------------------------------------------------------------------
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
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.
<TABLE>
<S> <C>
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number has not been issued to me, and either
(1) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office, or (2) I intend to mail or deliver an
application in the near future. I understand that if I do not provide a taxpayer identification number within (60)
days, 31% of all reportable payments made to me thereafter will be withheld until I provide a number.
Signature Date
</TABLE>
11
<PAGE>
THE INFORMATION AGENT FOR THE OFFER IS:
Georgeson Shareholder Communications Inc.
[LOGO]
17 State Street, 10(th) Floor
New York, N.Y. 10004
Brokers and Bankers Call Collect (212) 440-9800
All Other Call Toll Free (800) 223-2064
12
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
OEA, INC.
BY
OEA MERGER CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
AUTOLIV, INC.
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This form, or one substantially equivalent hereto, must be used to accept
the Offer (as defined below) if certificates representing shares of common
stock, par value $0.10 per share, including the associated rights to purchase
shares of common stock (collectively, the "Shares"), of OEA, Inc., a Delaware
corporation (the "Company"), are not immediately available (or if the procedure
for book-entry transfer cannot be completed on a timely basis), or if time will
not permit all required documents to reach the Depositary prior to the
Expiration Date (as defined in Section 1 of the Offer to Purchase (as defined
below)). Such form may be delivered by hand, transmitted by facsimile
transmission or mailed to the Depositary at the addresses and facsimile number
set forth below. See Section 2 of the Offer to Purchase.
THE DEPOSITARY FOR THE OFFER IS:
First Chicago Trust Company of New York
<TABLE>
<S> <C> <C>
BY HAND: BY MAIL: BY OVERNIGHT COURIER:
First Chicago Trust Company First Chicago Trust Company First Chicago Trust Company
of New York of New York of New York
Attention: Corporate Actions Attention: Corporate Actions Attention: Corporate Actions
c/o Securities Transfer and Suite 4660 Suite 4660
Reporting Services Inc. P.O. Box 2565 525 Washington Boulevard
100 William Street--Galleria Jersey City, NJ 07303-2565 Jersey City, NJ 07310
New York, NY 10038
BY FACSIMILE TRANSMISSION
(FOR ELIGIBLE INSTITUTIONS
ONLY):
(201) 324-3402
or
(201) 324-3403
CONFIRM RECEIPT OF FACSIMILE
BY
TELEPHONE ONLY:
(201) 222-4707
FOR INFORMATION CALL:
(800) 251-4215
</TABLE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION TO A
NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
letter of transmittal is required to be guaranteed by an "eligible institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the letter of transmittal.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal or an
Agent's Message (as defined in Section 2 of the Offer to Purchase) and
certificates representing the Shares to the Depositary within the time period
specified herein. Failure to do so could result in a financial loss to the
Eligible Institution.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to OEA Merger Corporation, a Delaware
corporation ("Purchaser") and an indirect wholly owned subsidiary of
Autoliv, Inc., a Delaware corporation ("Parent"), upon the terms and subject to
the conditions set forth in the Offer to Purchase dated March 24, 2000 (the
"Offer to Purchase") and the related Letter of Transmittal (which, including any
amendments or supplements thereto, collectively constitute the "Offer"), receipt
of which is hereby acknowledged, the number of Shares specified below pursuant
to the guaranteed delivery procedures set forth in Section 2 of the Offer to
Purchase.
<TABLE>
<S> <C>
Number of Shares: Name(s) of Record Holder(s):
Certificates No(s). (if available):
(Please Print)
/ / Check if securities will be tendered by Address(es):
book-entry transfer
Name of Tendering Institution:
(Zip Code)
Account No.: Area Code and Telephone No(s):
Dated: , 2000 Signature(s)
Dated: , 2000
</TABLE>
THE GUARANTEE ON THE REVERSE SIDE MUST BE COMPLETED
2
<PAGE>
<TABLE>
<S> <C>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member in good standing of the Security Transfer Agent's Medallion
Program (each, an "Eligible Institution"), (a) represents that the above named person(s)
own(s) the Shares tendered hereby within the meaning of Rule 14e-4 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (b) represents that such
tender of Shares complies with Rule 14e-4 under the Exchange Act, and (c) guarantees
delivery to the Depositary, at one of its addresses set forth above, of certificates
representing the Shares tendered hereby in proper form for transfer, or confirmation of
book-entry transfer of such Shares 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 in the case of a book-entry transfer, and any other required
documents, within three New York Stock Exchange trading days after the date hereof.
Name of Firm:
(AUTHORIZED SIGNATURE)
Address: Name:
(PLEASE TYPE OR PRINT)
Title:
Zip Code
Area Code and Tel. No. Date:, 2000
</TABLE>
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE OF GUARANTEED
DELIVERY. CERTIFICATES FOR SHARES SHOULD BE SENT WITH YOUR LETTER OF
TRANSMITTAL.
3
<PAGE>
<TABLE>
<S> <C>
17 STATE STREET, 10(TH) FLOOR
[LOGO] NEW YORK, N.Y. 10004
</TABLE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
OEA, INC.
BY
OEA MERGER CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
AUTOLIV, INC.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, APRIL 24, 2000, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
March 24, 2000
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
We have been appointed by OEA Merger Corporation, a Delaware corporation
("Purchaser") and an indirect wholly owned subsidiary of Autoliv, Inc., a
Delaware corporation ("Parent") to act as Information Agent in connection with
Purchaser's offer to purchase all of the outstanding shares of common stock, par
value $0.10 per share, including the associated rights to purchase common stock
(collectively, the "Shares"), of OEA, Inc., a Delaware corporation (the
"Company"), at a price of $10.00 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Offer to Purchase dated
March 24, 2000 (the "Offer to Purchase") and the related Letter of Transmittal
(which, together with any amendments or supplements thereto, collectively
constitute the "Offer"), copies of which are enclosed herewith. The Offer is
being made in connection with the Amended and Restated Agreement and Plan of
Merger, dated as of February 12, 2000 (the "Merger Agreement"), among Parent,
Purchaser and the Company. The Merger Agreement provides, among other things,
that Purchaser will be merged with and into the Company (the "Merger") following
the satisfaction or waiver of each of the conditions to the Merger set forth in
the Merger Agreement.
Please furnish copies of the enclosed materials to those of your clients for
whose accounts you hold Shares registered in your name or in the name of your
nominee.
For your information and for forwarding to your clients, we are enclosing
the following documents:
(1) The Offer to Purchase.
(2) The Letter of Transmittal to be used by stockholders of the Company in
accepting the Offer, including a Certification of Taxpayer Identification
Number on Substitute Form W-9. Facsimile copies of the Letter of
Transmittal (with manual signatures) may be used to tender Shares.
(3) A letter to stockholders of the Company from Dr. Charles B. Kafadar,
President and Chief Executive Officer of the Company, together with a
Solicitation/Recommendation Statement on Schedule 14D-9, dated March 24,
2000 filed by the Company with the Securities and Exchange Commission,
which includes the recommendation of the Board of Directors of the
Company that stockholders accept the Offer and tender their Shares to
Purchaser pursuant to the Offer.
(4) A printed form of letter which may be sent to your clients for whose
account you hold Shares in your name or in the name of your nominee with
space provided for obtaining such clients' instructions with regard to
the Offer.
<PAGE>
(5) The Notice of Guaranteed Delivery to be used to accept the Offer if
certificates representing Shares are not immediately available or if time
will not permit all required documents to reach the Depositary (as
defined below) prior to the Expiration Date (as defined in Section 1 of
the Offer to Purchase) or if the procedures for book-entry transfer
cannot be completed on a timely basis.
(6) Guidelines of the Internal Revenue Service for Certification of Taxpayer
Identification Number on Substitute Form W-9. Stockholders who fail to
complete and sign the Substitute Form W-9 may be subject to a required
federal backup withholding tax of 31% of the gross proceeds payable to
such stockholder or other payee pursuant to the Offer. See Section 2 of
the Offer to Purchase.
(7) A return envelope addressed to First Chicago Trust Company of New York
(the "Depositary") for your use only.
Your attention is directed to the following:
1. The tender price is $10.00 per Share, net to the seller in cash, without
interest, upon the terms and conditions set forth in the Offer to Purchase.
2. The Board of Directors of the Company unanimously (i) determined that the
Offer, the Merger and the Merger Agreement are advisable, fair to, and in the
best interests of, the Company's stockholders, (ii) approved the Merger, the
Offer, the Merger Agreement and the other transactions contemplated by the
Merger Agreement and (iii) recommends that the Company's stockholders accept the
Offer and tender their Shares pursuant thereto, and approve and adopt the Merger
Agreement.
3. The Offer and withdrawal rights will expire at 12:00 midnight, New York
City time, on Monday, April 24, 2000, unless the Offer is extended.
4. The Offer is being made for all of the outstanding Shares. The Offer is
conditioned upon, among other things (i) there being validly tendered and not
properly withdrawn prior to the expiration date of the Offer that number of
Shares which represents more than fifty percent of the total issued and
outstanding Shares on a fully diluted basis (excluding Shares held by the
Company or any of its subsidiaries) and (ii) the expiration or termination of
any and all waiting periods applicable to the transactions contemplated by the
Merger Agreement under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended. The Offer is also subject to other terms and conditions. See
Section 15 of the Offer to Purchase.
5. Stockholders who tender Shares will not be obligated to pay brokerage
fees or commissions to the Information Agent or the Depositary or, except as set
forth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the
purchase of Shares by Purchaser pursuant to the Offer.
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), Purchaser will accept for payment and pay for all Shares which are
validly tendered on or prior to the Expiration Date and not theretofore properly
withdrawn pursuant to the Offer. In all cases, payment for Shares accepted for
payment pursuant to the Offer will be made only after timely receipt by the
Depositary of (i) certificates representing such Shares (or a timely
confirmation of a book-entry transfer of such Shares into the Depositary's
account at The Depository Trust Company, pursuant to the procedures described in
Section 2 of the Offer to Purchase), (ii) a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof) with any required
signature guarantees (or, in connection with a book-entry transfer, an Agent's
Message (as defined in Section 2 of the Offer to Purchase)), and (iii) all other
documents required by the Letter of Transmittal.
If holders of Shares wish to tender, but it is impracticable for them to
forward their certificates or other required documents prior to the expiration
of the Offer, a tender may be effected by following the guaranteed delivery
procedures specified under Section 2 of the Offer to Purchase.
2
<PAGE>
Purchaser will not pay any fees or commissions to any broker or dealer or to
any other person (other than the Depositary and the Information Agent) in
connection with the solicitation of tenders of Shares pursuant to the Offer.
Purchaser will, however, upon request, reimburse you for customary mailing and
handling expenses incurred by you in forwarding the enclosed materials to your
clients. Purchaser will pay or cause to be paid any stock transfer taxes payable
on the transfer of Shares to it, except as otherwise provided in Instruction 6
of the Letter of Transmittal.
YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS AS
PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY, APRIL 24, 2000, UNLESS
THE OFFER IS EXTENDED.
Any inquiries you may have with respect to the Offer should be directed to,
and additional copies of the enclosed materials may be obtained by contacting,
the undersigned at (800) 223-2064 (call toll free).
Very truly yours,
Georgeson Shareholder Communications Inc.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU
OR ANY PERSON AS AN AGENT OF PURCHASER, PARENT, THE COMPANY, THE DEPOSITARY OR
THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY OF THE FOREGOING, OR AUTHORIZE
YOU OR ANY OTHER PERSON TO GIVE ANY INFORMATION OR USE ANY DOCUMENT OR MAKE ANY
STATEMENTS ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE
DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
3
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
OEA, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED MARCH 24, 2000
BY
OEA MERGER CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
AUTOLIV, INC.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, APRIL 24, 2000, UNLESS THE OFFER IS EXTENDED.
----------------------------------------------------------------------------
March 24, 2000
To Our Clients:
Enclosed for your consideration is an Offer to Purchase, dated March 24,
2000 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") relating to the offer by OEA Merger Corporation, a Delaware corporation
("Purchaser") and an indirect wholly owned subsidiary of Autoliv, Inc., a
Delaware corporation ("Parent"), to purchase all of the outstanding shares of
common stock, par value $0.10 per share, including the associated rights to
purchase common stock (collectively, the "Shares"), of OEA, Inc., a Delaware
corporation (the "Company"), at a price of $10.00 per Share, net to the seller
in cash, upon the terms and subject to the conditions set forth in the Offer.
The Offer is being made in connection with the Amended and Restated Agreement
and Plan of Merger, dated as of February 12, 2000 (the "Merger Agreement"),
among Parent, Purchaser and the Company. The Merger Agreement provides, among
other things, that Purchaser will be merged with and into the Company (the
"Merger") following the satisfaction or waiver of each of the conditions to the
Merger set forth in the Merger Agreement.
WE ARE THE HOLDER OF RECORD (DIRECTLY OR INDIRECTLY) OF SHARES FOR YOUR
ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US OR OUR NOMINEES AS THE
HOLDER OF RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS
FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER
SHARES HELD BY US FOR YOUR ACCOUNT.
We request instructions as to whether you wish to have us tender on your
behalf any or all of the Shares held by us for your account, pursuant to the
terms and subject to the conditions set forth in the Offer.
Your attention is directed to the following:
1. The tender price is $10.00 per Share, net to the seller in cash, without
interest, upon the terms and conditions set forth in the Offer to
Purchase
2. The Board of Directors of the Company unanimously (i) determined that
the Offer, the Merger and the Merger Agreement are advisable, fair to,
and in the best interests of, the Company's stockholders, (ii) approved
the Merger, the Offer, the Merger Agreement and the other transactions
contemplated by the Merger Agreement and (iii) recommends that the
Company's stockholders accept the Offer and tender their Shares pursuant
thereto and approve and adopt the Merger Agreement.
3. The Offer and withdrawal rights will expire at 12:00 midnight, New York
City time, on Monday, April 24, 2000, unless the Offer is extended.
<PAGE>
4. The Offer is being made for all of the outstanding Shares. The Offer is
conditioned upon, among other things (i) there being validly tendered and
not properly withdrawn prior to the expiration date of the Offer that
number of Shares which represents more than fifty percent of the total
issued and outstanding Shares on a fully diluted basis (excluding Shares
held by the Company or any of its subsidiaries) and (ii) the expiration
or termination of any and all waiting periods applicable to the
transactions contemplated by the Merger Agreement under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. The
Offer is also subject to other terms and conditions. See Section 15 of
the Offer to Purchase.
5. Stockholders who tender Shares will not be obligated to pay brokerage
fees or commissions to the Information Agent or the Depositary or, except
as set forth in Instruction 6 of the Letter of Transmittal, stock
transfer taxes on the purchase of Shares by Purchaser pursuant to the
Offer.
If you wish to have us tender any or all of your Shares, please complete,
sign and return the instruction form set forth below. An envelope to return your
instructions to us is enclosed. If you authorize the tender of your Shares, all
such Shares will be tendered unless otherwise specified on the instruction form
set forth below. Please forward your instructions to us as soon as possible to
allow us ample time to tender your Shares on your behalf prior to the expiration
of the Offer.
The Offer is made solely by the Offer to Purchase and the related Letter of
Transmittal and any supplements and amendments thereto. 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 Shares pursuant thereto, Purchaser will make a good faith effort to comply
with any such state statute or seek to have such statute declared inapplicable
to the Offer. If, after such good faith effort, Purchaser cannot comply with any
such state statute, the Offer will not be made to (nor will tenders be accepted
from or on behalf of) the holders of Shares in such state. In any jurisdiction
where the securities, blue sky or other laws require the Offer to be made by a
licensed broker or dealer, the Offer will be deemed to be made on behalf of
Purchaser by one or more registered brokers or dealers licensed under the laws
of such jurisdiction.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
OEA, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED MARCH 24, 2000
BY
OEA MERGER CORPORATION
AN INDIRECT WHOLLY OWNED SUBSIDIARY OF
AUTOLIV, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase, dated March 24, 2000, ("Offer to Purchase") and the related Letter
of Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the "Offer") relating to the offer by OEA Merger
Corporation, a Delaware corporation ("Purchaser") and an indirect wholly owned
subsidiary of Autoliv, Inc., a Delaware corporation ("Parent") to act as
Information Agent in connection with Purchaser's offer to purchase all of the
outstanding shares of common stock, par value $0.10 per share, including the
associated rights to purchase common stock (collectively, the "Shares"), of
OEA, Inc. (the "Company"), at a price of $10.00 per Share, net to the seller in
cash, upon the terms and subject to the conditions set forth in the Offer.
This will instruct you to tender to Purchaser the number of Shares indicated
below (or, if no number is indicated below, all Shares) held by you for the
account of the undersigned, upon the terms and subject to the conditions set
forth in the Offer.
<TABLE>
<S> <C>
Number of Shares to be Tendered:*
Account Number:
Dated: , 2000
SIGN HERE
Signatures(s)
Print Name(s) and Address(es)
Area Code and Telephone Number(s)
Taxpayer Identification or Social Security
Number(s)
</TABLE>
- ------------------------------
* Unless otherwise indicated, it will be assumed that all of your Shares held
by us for your account are to be tendered.
Please return this form to the firm maintaining your account.
3
<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., 000-000000. The table below will help determine the number to
give the payer.
<TABLE>
<CAPTION>
- -------------------------------------------------
<C> <S> <C>
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF
<CAPTION>
- ---------------------------------------------------
1. An individual's account The individual
<C> <S> <C>
2. Two or more individuals The actual owner of
(joint account) the account or, if
combined funds, the
first individual on
the account(1)
3. Husband and wife (joint The actual owner of
account) the account or, if
joint funds, either
person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult or, if the
account) minor is the only
contributor, the
minor(1)
6. Account in the name of The ward, minor, or
guardian or committee incompetent person(3)
for a designated ward,
minor, or incompetent
person
7. a. The usual revocable The
savings trust grantor-trustee(1)
account (in which
grantor is also
trustee)
b. So-called "trust" The actual owner(1)
account that is not
a legal or valid
trust under State
law
8. Sole proprietorship The owner(4)
account
<CAPTION>
- -----------------------------------------------------
GIVE THE
EMPLOYER
FOR THIS TYPE OF IDENTIFICATION
ACCOUNT: NUMBER OF
- -----------------------------------------------------
9. A valid trust, estate, or Legal entity (do not
<C> <S> <C>
pension furnish the
identifying number of
the personal
representative or
trustee unless the
legal entity itself
is not designated in
the account title)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization
account
12. Partnership account held The partnership
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 entity
Department of Agriculture
in the name of a public
entity (such as a State
or local government,
school district, or
prison) that receives
agricultural program
payments.
</TABLE>
- --------------------------------------------------
- --------------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner, or the business or "doing business as" name.
Either the social security number or the employer identification number of
the owner may be used.
(5) List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service 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.
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 covenants 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.
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 NOTICES. 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. 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 NUMBERS.--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) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION, CONTACT
YOUR TAX CONSULTANT OR THE INTERNAL
REVENUE SERVICE.
<PAGE>
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER
TO SELL SHARES (AS DEFINED BELOW). THE OFFER (AS DEFINED BELOW) IS MADE SOLELY
BY THE OFFER TO PURCHASE DATED MARCH 24, 2000, AND THE RELATED LETTER OF
TRANSMITTAL AND ANY AMENDMENTS OR SUPPLEMENTS THERETO, AND IS BEING MADE TO ALL
HOLDERS OF SHARES. THE OFFER, HOWEVER, IS NOT BEING MADE TO, NOR WILL TENDERS BE
ACCEPTED FROM OR ON BEHALF OF, HOLDERS OF SHARES IN ANY JURISDICTION IN WHICH
THE MAKING OF THE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE
WITH THE LAWS OF SUCH JURISDICTION. PURCHASER (AS DEFINED BELOW) MAY IN ITS
DISCRETION, HOWEVER, TAKE SUCH ACTION AS IT MAY DEEM NECESSARY TO MAKE THE OFFER
IN ANY JURISDICTION AND EXTEND THE OFFER TO HOLDERS OF SHARES IN SUCH
JURISDICTION. IN JURISDICTIONS WHOSE LAWS REQUIRE THAT THE OFFER BE MADE BY A
LICENSED BROKER OR DEALER, THE OFFER SHALL BE DEEMED TO BE MADE ON PURCHASER'S
BEHALF BY ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED UNDER THE LAWS OF
SUCH JURISDICTION.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
of
OEA, INC.
at
$10.00 NET PER SHARE
by
OEA MERGER CORPORATION
an indirect wholly owned subsidiary of
AUTOLIV, INC.
OEA Merger Corporation, a Delaware corporation ("Purchaser") and an
indirect wholly owned subsidiary of Autoliv, Inc., a Delaware corporation
("Parent"), is offering to purchase all outstanding shares of common stock, par
value $0.10 per share (the "Common Stock") of OEA, Inc. (the "Company"),
together with the associated rights to purchase common stock issued pursuant to
the Rights Agreement, as amended, dated as of March 25, 1998 (the "Rights
Agreement"), between the Company and LaSalle Bank, N.A., as Rights Agent (the
"Rights" and, together with the Common Stock, the "Shares"), at a price of
$10.00 per Share, net to the selling stockholder in cash, without interest
thereon, upon the terms and subject to the conditions set forth in the Offer to
Purchase dated March 24, 2000 (the "Offer to Purchase") and in the related
Letter of Transmittal (which, together with any amendments or supplements
thereto, collectively constitute the "Offer"). Stockholders of record who tender
directly to the Depositary (as defined below) will not be obligated to pay
brokerage fees or commissions or, subject to Instruction 6 of the Letter of
Transmittal, stock transfer taxes, if any, on the purchase of Shares by
Purchaser pursuant to the Offer. Stockholders who hold their Shares through a
broker or bank should consult such institution as to whether it charges any
service fees. Purchaser will pay all charges and expenses of First Chicago Trust
Company of New York, which is acting as depositary (the "Depositary"), and
Georgeson Shareholder Communications Inc., which is acting as the information
agent (the "Information Agent"), incurred in connection with the Offer.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, APRIL 24, 2000, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, (1) there being validly
tendered and not properly withdrawn prior to the Expiration Date of the Offer
that number of Shares which represents more than fifty percent of the total
issued and outstanding Shares on a fully diluted basis (excluding any shares
held by the Company or any of its subsidiaries) (the "Minimum Condition") and
(2) the expiration or termination of any and all waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"). The Offer is also subject to other conditions. See Section 15 of the
Offer to Purchase. The Offer is not conditioned upon Parent or Purchaser
obtaining financing. The Offer is being made pursuant to an Amended and Restated
Agreement and Plan of Merger dated as of March 12, 2000 (the "Merger
Agreement"), among Parent, Purchaser and the Company. The Merger Agreement
provides, among other things, that following the completion of the Offer and the
satisfaction or waiver, if permissible, of all conditions set forth in the
Merger Agreement and in accordance with the General Corporation Law of the State
of Delaware (the "DGCL"), Purchaser will be merged with and into the Company
(the "Merger"), with the Company surviving the Merger as a wholly owned
subsidiary of Parent. At the effective time of the Merger (the "Effective
Time"), each outstanding Share (other than Shares held in the Company's treasury
immediately before the Effective Time, and each Share held by Parent, Purchaser,
any other subsidiary of Parent or any subsidiary of the Company immediately
before the Effective Time, all of which will be cancelled, and other than Shares
with respect to which appraisal rights are properly exercised under the DGCL)
will be converted into the right to receive $10.00 in cash, without interest
thereon. The Merger Agreement is more fully described in Section 11 of the Offer
to Purchase.
THE BOARD OF DIRECTORS OF THE COMPANY UNANIMOUSLY (1) DETERMINED THAT THE
OFFER, THE MERGER AND THE MERGER AGREEMENT ARE ADVISABLE, FAIR TO, AND IN THE
BEST INTERESTS OF, THE COMPANY'S STOCKHOLDERS, (2) APPROVED THE MERGER, THE
OFFER, THE MERGER AGREEMENT AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE
MERGER AGREEMENT AND (3) RECOMMENDS THAT THE COMPANY'S STOCKHOLDERS ACCEPT THE
OFFER AND TENDER THEIR SHARES PURSUANT THERETO AND APPROVE AND ADOPT THE MERGER
AGREEMENT.
For purposes of the Offer, Purchaser shall be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not properly
withdrawn when, as and if Purchaser gives oral or written notice to the
Depositary of its acceptance for payment of such Shares. Payment for Shares so
accepted will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for tendering stockholders for the purpose
of receiving payment from Purchaser and transmitting payment to validly
tendering stockholders. In all cases, payment for Shares accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of (i) certificates representing such Shares (or timely confirmation of a
book-entry transfer of such Shares into the Depositary's account at The
Depository Trust Company ("DTC")), (ii) a properly completed and duly executed
Letter of Transmittal (or facsimile thereof ) with any required signature
guarantees or an Agent's Message (as defined in the Offer to Purchase) in
connection with a book-entry transfer and (iii) any other documents required by
the Letter of Transmittal.
The term "Expiration Date" means 12:00 midnight, New York City time, on
Monday, April 24, 2000, unless and until Purchaser (subject to the terms and
conditions of the Merger Agreement) extends the period of time for which the
Offer is open, in which event the term "Expiration Date" shall mean the latest
time and date at which the Offer, as so extended by Purchaser, shall expire
prior to the purchase of any Shares.
Purchaser may, without the consent of the Company, extend the Offer beyond
the initial Expiration Date in the following events: (i) if necessary to satisfy
any condition of the HSR Act, for a period not to exceed forty (40) business
days, (ii) if any of the conditions to the Offer (other than the Minimum
Condition) shall not have been satisfied or waived, for a period not to exceed
twenty (20) business days, (iii) if all the conditions to the Offer are
satisfied or waived, but the number of Shares validly tendered and not withdrawn
is less than 90% of the number of then-outstanding Shares on a fully diluted
basis (excluding Shares held by the Company or any of its subsidiaries), for
four successive five (5) business day periods for an aggregate period not to
exceed twenty (20) business days, or (iv) if any of the conditions to the Offer
(other than the Minimum Condition) shall not have been satisfied or waived and a
proposal or offer for a merger or certain other extraordinary transactions (a
"Takeover Proposal") has been made or publicly disclosed by a person other than
Parent or Purchaser (including the Company and any of its subsidiaries or
affiliates), or if Parent or Purchaser otherwise learn that a Takeover Proposal
has been made or publicly proposed, for a period of up to ten (10) days after
the withdrawal or termination of such Takeover Proposal, such date in no event
to exceed the earlier of (x) June 30, 2000, and (y) the minimum time necessary
to satisfy all such outstanding conditions to the Offer.
Purchaser shall cause any such extension by giving oral or written notice
of such extension to the Depositary, which will be followed by public
announcement thereof no later than 9:00 a.m., New York City time, on the next
business day after the previously scheduled Expiration Date. During any such
extension, all Shares previously tendered and not properly withdrawn will remain
subject to the Offer, subject to the right, if any, of a tendering stockholder
to withdraw such stockholder's Shares. Under no circumstances will interest be
paid on the purchase price to be paid for the Shares pursuant to the Offer,
regardless of any extension of the Offer or any delay in making such payment.
Tenders of Shares made pursuant to the Offer are irrevocable, except that
Shares tendered pursuant to the Offer may be withdrawn at any time prior to the
Expiration Date and, unless theretofore accepted for payment pursuant to the
Offer, also may be withdrawn at any time after Monday, May 22, 2000. For a
withdrawal of Shares tendered to be effective, a written or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth in the Offer to Purchase. Any notice of
withdrawal must specify the name of the person who tendered the Shares to be
withdrawn, the number of Shares to be withdrawn and the name(s) in which the
certificate(s) representing such Shares are registered, if different from that
of the person who tendered such Shares. If certificates for Shares to be
withdrawn have been delivered or otherwise identified to the Depositary, the
name of the registered holder and the serial numbers shown on the particular
certificate evidencing the Shares to be withdrawn must also be furnished to the
Depositary prior to the physical release of the Shares to be withdrawn. The
signature(s) on the notice of withdrawal must be guaranteed by an Eligible
Institution (as defined in the Offer to Purchase) (except in the case of Shares
tendered by an Eligible Institution). If Shares have been tendered pursuant to
the procedures for book-entry transfer, any notice of withdrawal must specify
the name and number of the account at DTC to be credited with such withdrawn
Shares and must otherwise comply with DTC's procedures. 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, and its determination will be
final and binding on all parties. The receipt of cash in exchange for Shares
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 or foreign tax laws. See Section 5 of the Offer of
Purchase.
The information required to be disclosed by paragraph (d)(1) of Rule 14d-6
of the General Rules and Regulations under the Exchange Act is contained in the
Offer to Purchase and is incorporated herein by reference.
In connection with the Offer, the Company has provided Purchaser with the
names and addresses of all record holders of Shares and security position
listings of Shares held in stock depositories. The Offer to Purchase, the
related Letter of Transmittal and other related materials will be mailed to
registered holders of Shares and will be furnished to brokers, dealers,
commercial banks, trust companies and similar persons whose names, or the names
of whose nominees, appear on the Company's stockholder list or, if applicable,
who are listed as participants in a clearing agency's security position listing
for subsequent transmittal to beneficial owners of Shares.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE
WITH RESPECT TO THE OFFER.
Any questions or requests for assistance or for additional copies of the
Offer to Purchase, the related Letter of Transmittal and other related tender
offer materials may be directed to the Information Agent at the address and
telephone number set forth below, and copies will be furnished promptly at
Purchaser's expense. Purchaser will not pay any fees or commissions to any
broker or dealer or any other person (other than the Depositary and the
Information Agent) in connection with the solicitation of tenders of Shares
pursuant to the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
GEORGESON
SHAREHOLDER
COMMUNICATIONS INC.
17 State Street, 10th Floor
New York, New York 10004
Brokers and Bankers Call Collect (212) 440-9800
Or
All Others Call Toll-Free (800) 223-2064
March 24, 2000
<PAGE>
Exhibit 99(a)(1)(H)
[GRAPHIC]
PRESS RELEASE
AUTOLIV BID TO BECOME GLOBAL LEADER IN AIRBAG INITIATORS
(STOCKHOLM, MARCH 13, 2000) - AUTOLIV INC. (NYSE: ALV AND SSE: ALIV) - THE
WORLDWIDE LEADER IN AUTOMOTIVE SAFETY SYSTEMS - HAS REACHED AN AGREEMENT TO
ACQUIRE OEA, INC. AND WILL COMMENCE A TENDER OFFER FOR ALL SHARES OUTSTANDING
FOR $10.00 PER SHARE OR A TOTAL OF $206 MILLION. OEA IS AUTOLIV'S MAIN EXTERNAL
SUPPLIER OF INITIATORS FOR AIRBAG INFLATORS. LAST YEAR, OEA'S SALES AMOUNTED TO
NEARLY $250 MILLION. THE BOARDS OF AUTOLIV AND OEA HAVE UNANIMOUSLY APPROVED THE
TRANSACTION. THE OFFER IS SUBJECT TO CUSTOMARY REGULATORY APPROVALS AND THE
ACCEPTANCE BY OWNERS REPRESENTING AT LEAST A MAJORITY OF THE SHARES OUTSTANDING
IN OEA.
OEA is the world's second largest manufacturer of airbag initiators with
production last year of 32 million such ignitors. In addition, OEA manufactures
inflators for airbags and aerospace products.
"We expect to be able to create large synergies by integrating OEA with
Autoliv. The acquisition should therefore have a marginally positive effect on
this year's earnings for Autoliv and a more pronounced effect already next
year", explained Autoliv's President and C.E.O. Lars Westerberg.
"At the same time, we will make Autoliv an even better supplier partner for our
North American customers by adding expertise in airbag initiator technology to
our own areas of competence. Although we have one company in Europe for airbag
initiators, we have not had this specialized competence in-house in the U.S.
where we produce most of our airbag inflators, all of which have at least one
initiator. The planned acquisition would therefore be complementary".
"The initiator market is poised for rapid growth due to the introduction of
smart airbags, which has already begun. These airbags will require at least two
initiators each, instead of only one in existing systems. In addition, each seat
belt pretensioner uses one initiator, which means that there will be as many as
15 initiators in a car in the future. Consequently, the initiator market should
grow substantially faster than the airbag market. OEA is also a leader in
Intelligent Firings Squibs (IFS), which is the next generation of initiators. By
programming each initiator to react only to its specific code, all initiators in
a vehicle can use a bus system, i.e. the same harness circuit, which will reduce
installation costs significantly for our customers."
"OEA also produces airbag inflators, a business it began in 1996, which has
caused substantial pressure on profits. Autoliv has a successful inflator
operation in the U.S. which we will utilize to turn OEA's inflator into a
profitable business", said Autoliv's President and CEO Lars Westerberg.
The company also has an aerospace operation which specializes in life-saving,
propellant-actuated devices for aircraft ejection systems. This represents less
than 20% of sales.
OEA, with headquarters in Denver, Colorado, has 1,700 employees with operation
in Colorado, Utah, California and France.
<PAGE>
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER
TO SELL SHARES OF THE COMPANY. AT THE TIME THE OFFER IS COMMENCED, AUTOLIV WILL
FILE A TENDER OFFER STATEMENT WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION
AND OEA WILL FILE A SOLICITATION/RECOMMENDATION STATEMENT WITH RESPECT TO THE
OFFER. THE TENDER OFFER STATEMENT (INCLUDING AN OFFER TO PURCHASE, A RELATED
LETTER OF TRANSMITTAL AND OTHER OFFER DOCUMENTS) AND THE
SOLICITATION/RECOMMENDATION STATEMENT WILL CONTAIN IMPORTANT INFORMATION WHICH
SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER.
THE OFFER TO PURCHASE, THE RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER OFFER
DOCUMENTS, AS WELL AS THE SOLICITATION/RECOMMENDATION STATEMENT, WILL BE MADE
AVAILABLE TO ALL STOCK HOLDERS OF OEA, AT NO EXPENSE TO THEM. THE TENDER OFFER
STATEMENT (INCLUDING THE OFFER TO PURCHASE, THE RELATED LETTER TO TRANSMITTAL
AND THE OTHER OFFER DOCUMENTS FILED WITH THE COMMISSION) AND THE
SOLICITATION/RECOMMENDATION STATEMENT WILL ALSO BE AVAILABLE AT NO CHARGE AT THE
COMMISSION'S WEBSITE AT WWW.SEC.GOV.
INQUIRES:
Lars Westerberg, President & CEO, Autoliv Inc., Tel +46 (8) 58 72 06 20
Tom Hartman, President Autoliv Inflators, Tel. +1 (801) 625-9564
Mats Odman, Dir. Corp. Comm., Tel +46 (8) 587 20 623 or +46 (708) 32 09 33
Barry Murphy, Director Investor Relations, Tel. +1 (248) 475-0409
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<TABLE>
<S> <C>
Autoliv Inc. Autoliv North America, Inc.
Klarabergsviadukten 70, Sec. E 1320 Pacific Drive
P. O. Box 703 81, SE-107 24 Stockholm, Sweden Auburn Hills, MI 48326-1569, USA
Tel +46 (8) 58 72 06 00, Fax +46 (8) 411 70 25 Tel +1 (248) 475-0409,
e-mail: [email protected] Fax +1 (248) 475-9838
e-mail: [email protected]
</TABLE>
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<PAGE>
AGREEMENT
DATED 22 March, 2000
US$300,000,000
BRIDGE FACILITY
FOR
AUTOLIV ASP, INC.
PROVIDED BY
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
ARRANGED BY
SEB DEBT CAPITAL MARKETS
ALLEN & OVERY
London
BK:734366.4
<PAGE>
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<TABLE>
<CAPTION>
INDEX
CLAUSE PAGE
<S> <C> <C>
1. Interpretation.......................................................1
2. The Facility.........................................................9
3. Purpose.............................................................10
4. Conditions Precedent................................................10
5. Drawdown............................................................10
6. Repayment...........................................................11
7. Prepayment and Cancellation.........................................11
8. Interest Periods....................................................13
9. Interest............................................................13
10. Payments............................................................14
11. Taxes...............................................................15
12. Market Disruption...................................................16
13. Increased Costs.....................................................17
14. Illegality..........................................................18
15. Guarantee...........................................................19
16. Representations and Warranties......................................22
17. Undertakings........................................................26
18. Default.............................................................33
19. Fees................................................................36
20. Expenses............................................................36
21. Stamp Duties........................................................37
22. Indemnities.........................................................37
23. Evidence and Calculations...........................................38
24. Waivers and Remedies Cumulative.....................................38
25. Changes to the Parties..............................................39
26. Disclosure of Information...........................................39
27. Set-Off.............................................................40
28. Severability........................................................40
29. Counterparts........................................................40
30. Notices.............................................................41
31. Language............................................................42
32. Jurisdiction........................................................42
33. Governing Law.......................................................43
</TABLE>
<TABLE>
<CAPTION>
SCHEDULES
<S> <C>
1. Conditions Precedent Documents............................................45
2. Calculation of the Mandatory Cost.........................................47
3. Form of Request...........................................................48
Signatories..................................................................49
</TABLE>
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<PAGE>
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THIS AGREEMENT is dated 22 March, 2000 between:
(1) AUTOLIV ASP, INC. (incorporated under the laws of the State of Indiana,
U.S.A.) (the "BORROWER");
(2) AUTOLIV, INC. (incorporated under the laws of the State of Delaware,
U.S.A.) (the "GUARANTOR");
(3) SKANDINAVISKA ENSKILDA BANKEN AB (publ) as lender (the "BANK"); and
(4) SEB DEBT CAPITAL MARKETS as arranger (the "ARRANGER").
IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACQUIROR"
means OEA Merger Corporation Limited, a wholly-owned Subsidiary of the
Borrower.
"ACQUISITION"
means the acquisition by the Acquiror of the Shares pursuant to the
Acquisition Documentation.
"ACQUISITION DOCUMENTATION"
means, in relation to the Acquisition:
(a) an offer to purchase to be dated on or about 24th March, 2000;
(b) a letter of transmittal;
(c) a notice of guaranteed delivery;
(d) a letter from the information agent to brokers, dealers, commercial
banks, trust companies and nominees;
(e) a letter to clients for use by brokers, dealers, commercial banks,
trust companies and nominees; and
(f) an amended and restated agreement and plan of merger, dated as of 12th
March, 2000, by and among the Guarantor, the Acquiror and the Target,
and any other documentation relating to the Acquisition.
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<PAGE>
2
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"AFFILIATE"
means a Subsidiary or a holding company of a person or any other Subsidiary
of that holding company.
"BOARD"
means the Board of Governors of the Federal Reserve System of the United
States of America or any successor thereof.
"BUSINESS DAY"
means a day (other than a Saturday or a Sunday) on which banks are open for
general business in London and New York.
"CODE"
means the United States Internal Revenue Code of 1986 and any rule or
regulation issued thereunder from time to time in effect.
"COMMITMENT"
means US$300,000,000 to the extent not cancelled, transferred or reduced
under this Agreement.
"COMMITMENT PERIOD"
means the period from the later of the date of this Agreement and 25th
April, 2000 up to and including the Term Date.
"DANGEROUS SUBSTANCE"
means any radioactive emissions and any natural or artificial substance
(whether in solid or liquid form or in the form of a gas or vapor and
whether alone or in combination with any other substance) capable of
causing harm to man or any other living organism or damaging the
environment or public health or welfare including but not limited to any
controlled, special, hazardous, toxic, radioactive or dangerous waste.
"DEFAULT"
means an Event of Default or an event which, with the giving of notice,
lapse of time, determination of materiality or fulfilment of any other
applicable condition (or any combination of the foregoing), would
constitute an Event of Default.
"DRAWDOWN DATE"
means the date of the advance of a Loan.
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<PAGE>
3
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"ENVIRONMENTAL CLAIM"
means any claim by any person as a result of or in connection with any
violation of Environmental Law or any Environmental Contamination which
could give rise to any remedy or penalty (whether interim or final) or
liability for any Obligor or the Bank.
"ENVIRONMENTAL CONTAMINATION"
means each of the following and their consequences:
(a) any release, emission, leakage, or spillage of any Dangerous Substance
into any part of the environment; or
(b) any accident, fire, explosion or sudden event which is directly or
indirectly caused by or attributable to any Dangerous Substance; or
(c) any other pollution of the environment.
"ENVIRONMENTAL LAW"
means any national or supranational law, regulation or directive concerning
the protection of human health or the environmental or concerning Dangerous
Substances.
"ENVIRONMENTAL LICENSE"
means any authorization by any Environmental Law.
"ERISA"
means the United States Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE"
means each trade or business, whether or not incorporated, that would be
treated as a single employer with any Obligor under section 414 of the
United States Internal Revenue Code of 1986, as amended. When any provision
of this Agreement relates to a past event, the term "ERISA AFFILIATE"
includes any person that was an ERISA Affiliate of an Obligor at the time
of that past event.
"EVENT OF DEFAULT"
means an event specified as such in Clause 18.1 (Events of Default).
"FINANCE DOCUMENT"
means this Agreement or any other document designated as such by the Bank
and the Borrower.
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<PAGE>
4
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"FINANCIAL INDEBTEDNESS"
means any indebtedness in respect of:
(a) moneys borrowed;
(b) any debenture, bond, note, loan stock or other security;
(c) any acceptance credit;
(d) receivables sold or discounted (otherwise than on a non-recourse
basis);
(e) the acquisition cost of any asset to the extent payable before or
after the time of acquisition or possession by the party liable where
the advance or deferred payment is arranged primarily as a method of
raising finance or financing the acquisition of that asset;
(f) any lease entered into primarily as a method of raising finance or
financing the acquisition of the asset leased;
(g) any currency swap or interest swap, cap or collar arrangement or other
derivative instrument;
(h) any amount raised under any other transaction having the commercial
effect of a borrowing or raising of money; or
(i) any guarantee, indemnity or similar assurance against financial loss
of any person.
"GROUP"
means the Guarantor and its Subsidiaries.
"INFORMATION"
means:
(a) information relating to the business plans, asset valuations and any
envisaged disposals of the Target; and
(b) the Original Group Accounts,
provided to the Bank or the Arranger in connection with the Acquisition.
"INTEREST PERIOD"
means each period determined in accordance with Clause 8 (Interest
Periods).
"LIBOR"
means:-
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<PAGE>
5
- --------------------------------------------------------------------------------
(a) the rate per annum which appears on Page 3750 on the Telerate Screen;
or
(b) if no such rate appears on the Telerate Screen, the rate quoted by the
Bank to leading banks in the London interbank market,
at or about 11.00 a.m. on the applicable Rate Fixing Day for the offering
of US Dollars for a period comparable to the relevant Interest Period.
"LOAN"
means, subject to Clause 8 (Interest Periods), the principal amount of each
borrowing by the Borrower under this Agreement or the principal amount
outstanding of that borrowing.
"MANDATORY COST"
means the cost imputed to the Bank of compliance with:
(a) the cash ratio and special deposit requirements of the Bank of England
and/or the banking supervision or other costs imposed by the Financial
Services Authority as determined in accordance with Schedule 2; and
(b) any other applicable regulatory or central bank requirement relating
to any Loan made through a branch in a jurisdiction of the currency of
the Loan.
"MARGIN"
means 0.5 per cent. per annum.
"MARGIN STOCK"
has the meaning assigned to such term in Regulation U of the Board
(including, without limitation, the Shares, so long as they constitute
Margin Stock under Regulation U).
"MATERIAL SUBSIDIARY"
means any Subsidiary of the Guarantor:
(a) (i) the book value of whose assets (consolidated if it itself has
Subsidiaries) equals or exceeds 10 per cent. of the book value
of the consolidated total assets of the Group; or
(ii) whose revenues (consolidated if it itself has Subsidiaries) equal
or exceed 10 per cent. of the revenues of the Group taken as a
whole; or
(iii) whose trading profits (consolidated if it itself has
Subsidiaries) before interest and tax equal or exceed 10 per
cent. of the trading profits before interest and tax of the Group
as a whole,
as determined by reference to the most recent accounts of the
Subsidiary and the most recent consolidated accounts of the Group; or
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<PAGE>
6
- --------------------------------------------------------------------------------
(b) any Subsidiary of the Guarantor which becomes a member of the Group
after the date of the latest consolidated accounts of the Group at the
time of determination and which would fulfil any of the tests in
(a)(i), (ii) or (iii) above if tested on the basis of its latest
accounts (consolidated if it itself has Subsidiaries) and those latest
accounts of the Group; or
(c) prior to the delivery of each set of accounts pursuant to Clause 17.2
(Financial Information), any Subsidiary of the Guarantor to which has
been transferred (whether by one transaction or a series of
transactions, related or not) the whole or substantially the whole of
the assets of a Subsidiary which immediately prior to such transaction
or any of such transactions was a Material Subsidiary.
"MULTIEMPLOYER PLAN"
means a "multiemployer plan" within the meaning of section 3(37) or
4001(a)(3) of ERISA.
"OBLIGOR"
means the Borrower or the Guarantor.
"ORIGINAL GROUP ACCOUNTS"
means the audited consolidated accounts of the Group for the year ended
31st December, 1999.
"PARTY"
means a party to this Agreement.
"PLAN"
means an "employee benefit plan" within the meaning of section 3(3) of
ERISA maintained by the Borrower or any ERISA Affiliate currently or at any
time within the last five years, or to which the Borrower or any ERISA
Affiliate is required to make payments or contributions or has made
payments or contributions within the past five years.
"RATE FIXING DAY"
means the second Business Day before the first day of an Interest Period
for a Loan (or such other day as is generally treated as the rate fixing
day by market practice in the London interbank market).
"REPAYMENT DATE"
means 25th October, 2000.
"REPORTABLE EVENT"
means any of the events set forth in section 4043 of ERISA or the related
regulations.
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<PAGE>
7
- --------------------------------------------------------------------------------
"REQUEST"
means a request made by the Borrower for a Loan, substantially in the form
of Schedule 3.
"RESTRICTED MARGIN STOCK"
means Margin Stock owned by either Obligor or any member of the Group,
which represents not more than 33 1/3 per cent of the aggregate value
(determined in accordance with Regulation U), on a consolidated basis, of
the assets of both Obligors and all members of the Group (other than Margin
Stock) that are subject to the provisions of Clause 17 (Undertakings)
(including, without limitation, Clauses 17.8 (Negative pledge) and 17.9
(Transactions similar to security)).
"SECURITY INTEREST"
means any mortgage, pledge, lien, charge, assignment, hypothecation or
security interest or any other agreement or arrangement having the effect
of conferring security.
"SHARES"
means the shares of the Target.
"SUBSIDIARY"
means an entity from time to time of which a person has direct or indirect
control or owns directly or indirectly more than fifty per cent. (50%) of
the share capital or similar right of ownership.
"SYNDICATION"
means any syndication and subsequent transfer by the Bank of a portion of
its Commitment under this Facility to other banks in the manner and to the
extent agreed by the Bank and the Borrower.
"TARGET"
means OEA Inc., incorporated under the laws of the State of Delaware,
U.S.A.
"TERM DATE"
means the date falling one month prior to the Repayment Date.
"UNRESTRICTED MARGIN STOCK"
means any Margin Stock owned by either Obligor or any member of the Group
which is not Restricted Margin Stock.
"U.S.A."
means the United States of America.
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<PAGE>
8
- --------------------------------------------------------------------------------
"US DOLLARS" and "US$"
means the currency for the time being of the U.S.A.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary intention appears, a reference
to:
(i) an "AMENDMENT" includes a supplement, novation or re-enactment
and "AMENDED" is to be construed accordingly;
"ASSETS" includes present and future properties, revenues and
rights of every description;
an "AUTHORIZATION" includes an authorization, consent, approval,
resolution, licence, exemption, filing, registration and
notarization;
"CONTROL" means the power to direct the management and policies
of an entity by controlling 50 per cent. or more of voting
capital, whether through the ownership of voting capital, by
contract or otherwise;
a "MATERIAL ADVERSE EFFECT" means:
(1) a material adverse effect on the business or financial
condition of either Obligor or the Group as a whole; or
(2) a material adverse effect on the ability of any Obligor to
perform its obligations under any of the Finance Documents.
a "MONTH" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next calendar month, except that:
(1) if there is no numerically corresponding day in the month in
which that period ends, that period shall end on the last
Business Day in that calendar month; or
(2) if an Interest Period commences on the last Business Day of
a calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which it is to end;
a "PERSON" includes any individual, company, unincorporated
association or body of persons (including a partnership, joint
venture or consortium), government, state, agency, international
organisation or other entity;
a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of
any governmental, inter-governmental or supranational body,
agency, department or regulatory, self-regulatory or other
authority or organisation;
a "SCREEN" or a "PAGE" on a "Screen" in the definition of "LIBOR"
includes any replacement screen or page nominated by the British
Bankers Association as the
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<PAGE>
9
- --------------------------------------------------------------------------------
information vendor for the purpose of displaying British Bankers
Association Interest Settlement Rates for deposits in various
currencies;
"WINDING UP" also includes amalgamation, reconstruction,
reorganisation, administration, dissolution, liquidation, merger
or consolidation and any equivalent or analogous procedure under
the law of any jurisdiction (but, for the avoidance of doubt,
"REORGANISATION" does not include a mere transfer of assets from
one member of the Group to another whether the transferor
continues to exist);
(ii) a provision of law is a reference to that provision as
amended or re-enacted;
(iii) a Clause or a Schedule is a reference to a clause of or a
schedule to this Agreement;
(iv) a person includes its successors, transferees and assigns;
(v) a Finance Document or another document is a reference to
that Finance Document or other document as amended; and
(vi) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a term used in any other
Finance Document or in any notice given under or in connection with
any Finance Document has the same meaning in that Finance Document or
notice as in this Agreement.
(c) The index to and the headings in this Agreement are for convenience
only and are to be ignored in construing this Agreement.
2. THE FACILITY
2.1 FACILITY
(a) Subject to the terms of this Agreement, the Bank agrees to make Loans
during the Commitment Period to the Borrower up to an aggregate
principal amount not exceeding the Commitment.
(b) If the Borrower so requests prior to the Repayment Date, the Bank and
the Arranger will enter into discussions (for a reasonable period of
time) with the Obligors with a view to considering whether it will be
possible to reach agreement on the terms on which the Facility might
be extended for a further six months. Nothing in this paragraph shall
prejudice in any way the rights of the Bank under this Agreement and
it shall not be obliged to agree to any such extension.
2.2 CHANGE OF CURRENCY
(a) If more than one currency or currency unit are at the same time
recognised by the central bank of any country as the lawful currency
of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that
country shall be translated into, or paid in, the currency or
currency unit of that country designated by the Bank; and
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<PAGE>
10
- --------------------------------------------------------------------------------
(ii) any translation from one currency or currency unit to another
shall be at the official conversion rate recognised by the
central bank for the conversion of that currency or currency unit
into the other, rounded up or down by the Bank acting reasonably.
(b) If a change in any currency of a country occurs, this Agreement will
be amended to the extent the Bank specifies to be necessary to reflect
the change in currency and to put the Bank in the same position, so
far as possible, that it would have been in if no change in currency
had occurred.
3. PURPOSE
The Borrower shall apply each Loan towards financing the Acquisition.
Without affecting the obligations of either Obligor in any way, the
Bank is not bound to monitor or verify the application of any Loan.
4. CONDITIONS PRECEDENT
4.1 DOCUMENTARY CONDITIONS PRECEDENT
The Borrower may not deliver the first Request until the Bank has
notified the Borrower that it has received all of the documents set
out in Schedule 1 in form and substance satisfactory to the Bank.
4.2 FURTHER CONDITIONS PRECEDENT
The obligation of the Bank to make any Loan is subject to the further
conditions precedent that on both the date of the Request and the
Drawdown Date:
(a) the representations and warranties in Clause 16 (Representations
and warranties) to be repeated on those dates are correct and
will be correct immediately after the Loan is made; and
(b) no Default is outstanding or might result from the Loan.
5. DRAWDOWN
5.1 COMMITMENT PERIOD
The Borrower may borrow a Loan during the Commitment Period if the
Bank receives, not later than 11.00 a.m. three Business Days before
the proposed Drawdown Date, a duly completed Request. Each Request is
irrevocable.
5.2 COMPLETION OF REQUESTS
A Request will not be regarded as having been duly completed unless:
(a) the Drawdown Date is a Business Day falling on or before the Term
Date;
(b) the amount of the Loan is:
(i) a minimum of US$50,000,000 and an integral multiple of
US$5,000,000; or
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(ii) the balance of the undrawn Commitment; or
(iii) such other amount as the Bank may agree;
(c) the amount selected under paragraph (b) above does not cause Clause
2.1 (Facility) to be contravened;
(d) the first Interest Period selected complies with Clause 8 (Interest
Periods); and
(e) the payment instructions comply with Clause 10 (Payments).
Each Request must specify one Loan only, but the Borrower may, subject
to the other terms of this Agreement, deliver more than one Request on
any one day. Unless otherwise agreed by the Bank, no more than five
Loans may be outstanding at any time.
5.3 ADVANCE OF LOAN
Subject to the terms of this Agreement, the Bank shall make the Loan
available to the Borrower on the relevant Drawdown Date.
6. REPAYMENT
The Borrower shall repay the Loans in full on the Repayment Date.
7. PREPAYMENT AND CANCELLATION
7.1 VOLUNTARY PREPAYMENT
The Borrower may, by giving not less than five days' prior notice to
the Bank, prepay any Loan on the last day of an Interest Period for
that Loan in whole or in part (but, if in part, in a minimum of
US$50,000,000 and an integral multiple of US$5,000,000).
7.2 AUTOMATIC CANCELLATION
The Commitment shall be automatically cancelled at close of business
in London on the Term Date.
7.3 VOLUNTARY CANCELLATION
The Borrower may, by giving not less than five days' prior notice (or
such shorter period as the Bank may agree) to the Bank, cancel the
undrawn amount of the Commitment in whole or in part (but, if in part,
in a minimum of US$50,000,000 and an integral multiple of
US$5,000,000).
7.4 ADDITIONAL RIGHT OF PREPAYMENT AND CANCELLATION
If:
(a) an Obligor is required to pay to the Bank any additional amounts
under Clause 11 (Taxes); or
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(b) an Obligor is required to pay to the Bank any amount under Clause
13 (Increased Costs); or
(c) interest on a Loan is being calculated in accordance with Clause
12.3(c) (Alternative basis),
then, without prejudice to the obligations of either Obligor under
those Clauses, the Borrower may, whilst the circumstances continue,
serve a notice of prepayment and cancellation on the Bank. On the date
falling five Business Days after the date of service of the notice:
(i) the Borrower shall prepay all the Loans; and
(ii) the Commitment shall be cancelled.
7.5 MANDATORY PREPAYMENT
If, at any time after the date of this Agreement:
(a) it is or becomes unlawful for either Obligor to perform any of
its obligations under the Finance Documents; or
(b) the Borrower is not or ceases to be a Subsidiary of the
Guarantor; or
(c) any single person, or group of persons acting in concert,
acquires control of the Guarantor; or
(d) the guarantee of the Guarantor is not effective or is alleged by
either Obligor to be ineffective for any reason; or
(e) the Acquiror is not or ceases to be a Subsidiary of the Borrower,
then the Bank may, by notice to the Borrower:
(i) cancel the Commitment; and/or
(ii) demand that all or part of the Loans, together with accrued
interest and all other amounts accrued under the Finance
Documents, be repaid forthwith, whereupon they shall be repaid
forthwith.
7.6 MISCELLANEOUS PROVISIONS
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable.
(b) All prepayments under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to Clause 22.2
(Other indemnities), without premium or penalty.
(c) No prepayment or cancellation is permitted except in accordance with
the express terms of this Agreement.
(d) No amount of the Commitment cancelled under this Agreement may
subsequently be reinstated.
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8. INTEREST PERIODS
8.1 SELECTION
(a) The Borrower may select an Interest Period for a Loan in either the
relevant Request or, if the Loan has been borrowed, a notice received
by the Bank not later than five Business Days before the commencement
of that Interest Period. Each Interest Period for a Loan will commence
on its Drawdown Date or the expiry of its preceding Interest Period.
(b) Subject to the following provisions of this Clause 8, each Interest
Period will be one, two or three months or any other period agreed by
the Borrower and the Bank.
(c) If the Borrower fails to select an Interest Period for an outstanding
Loan in accordance with paragraph (a) above, that Interest Period
will, subject to the other provisions of this Clause 8, be one month.
8.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
8.3 CONSOLIDATION
Notwithstanding Clause 8.1 (Selection), the first Interest Period for
each Loan shall end on the same day as the current Interest Period for
any other Loan. On the last day of those Interest Periods, those Loans
shall be consolidated and treated as one Loan.
8.4 COINCIDENCE WITH REPAYMENT DATES
If an Interest Period would otherwise overrun the Repayment Date, it
shall be shortened so that it ends on the Repayment Date.
8.5 OTHER ADJUSTMENTS
The Bank and the Borrower may enter into such other arrangements as
they may agree for the adjustment of Interest Periods and the
consolidation and/or splitting of Loans.
8.6 NOTIFICATION
The Bank shall notify the Borrower of the duration of each Interest
Period promptly after ascertaining its duration.
9. INTEREST
9.1 INTEREST RATE
The rate of interest on each Loan for each of its Interest Periods is
the rate per annum determined by the Bank to be the aggregate of the
applicable:
(a) Margin;
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(b) LIBOR; and
(c) Mandatory Cost.
9.2 DUE DATES
Except as otherwise provided in this Agreement, accrued interest on
each Loan is payable by the Borrower on the last day of each Interest
Period for that Loan and also, if the Interest Period is longer than
six months, on the dates falling at six monthly intervals after the
first day of that Interest Period.
9.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under the Finance
Documents, it shall forthwith on demand by the Bank pay interest on
the overdue amount from the due date up to the date of actual payment,
as well after as before judgment, at a rate (the "DEFAULT RATE")
determined by the Bank to be one per cent. per annum above the higher
of:
(i) the rate on the overdue amount under Clause 9.1 (Interest rate)
immediately before the due date (if of principal); and
(ii) the rate which would have been payable if the overdue amount had,
during the period of non-payment, constituted a Loan in the
currency of the overdue amount for such successive Interest
Periods of such duration as the Bank may determine (each a
"DESIGNATED INTEREST PERIOD").
(b) The default rate will be determined by the Bank on each Business Day
or the first day of, or two Business Days before the first day of, the
relevant Designated Interest Period, as appropriate.
(c) If the Bank determines that deposits in the currency of the overdue
amount are not at the relevant time being made available by it to
leading banks in the London interbank market, the default rate will be
determined by reference to the cost of funds to the Bank from whatever
sources it may select.
(d) Default interest will be compounded at the end of each Designated
Interest Period.
9.4 NOTIFICATION OF RATES OF INTEREST
The Bank shall promptly notify the Borrower of the determination of a
rate of interest under this Agreement.
10. PAYMENTS
10.1 PLACE
All payments under the Finance Documents shall be made to the relevant
Party to its account at such office or bank as it may notify to the
other Party for this purpose.
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10.2 FUNDS
Payments under the Finance Documents shall be made for value on the
due date at such times and in such funds as the Bank may specify as
being customary at the time for the settlement of transactions in US
Dollars.
10.3 CURRENCY
(a) Amounts payable in respect of costs, expenses and taxes and the like
are payable in the currency in which they are incurred.
(b) Any other amount payable under the Finance Documents is, except as
otherwise provided in the Finance Documents, payable in US Dollars.
10.4 SET-OFF AND COUNTERCLAIM
All payments made by an Obligor under the Finance Documents shall be
made without set-off or counterclaim.
10.5 NON-BUSINESS DAYS
(a) If a payment under the Finance Documents is due on a day which is not
a Business Day, the due date for that payment shall instead be the
next Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal
under this Agreement interest is payable on that principal at the rate
payable on the original due date.
11. TAXES
11.1 GROSS-UP
All payments by an Obligor under the Finance Documents shall be made
without any deduction and free and clear of and without any deduction
for or on account of any taxes, except to the extent that the Obligor
is required by law to make payment subject to any taxes. If any tax or
amounts in respect of tax must be deducted, or any other deductions
must be made, from any amounts payable or paid by an Obligor, under
the Finance Documents, the Obligor shall pay such additional amounts
as may be necessary to ensure that the Bank receives a net amount
equal to the full amount which it would have received had payment not
been made subject to tax or any other deduction.
11.2 TAX RECEIPTS
All taxes required by law to be deducted or withheld by an Obligor
from any amounts paid or payable under the Finance Documents shall be
paid by the relevant Obligor when due and the Obligor shall, within 15
days of the payment being made, deliver to the Bank evidence
satisfactory to the Bank (including all relevant tax receipts) that
the payment has been duly remitted to the appropriate authority.
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11.3 U.S. TAXATION - DELIVERY OF FORMS AND STATEMENTS
(a) Within 31 days after the date of this Agreement, the Bank shall submit
to the Borrower duly completed and signed copies of either:
(i) Form W-8BEN (entitling the Bank to a complete exemption from
withholding on all amounts to be received by it, including fees,
under the Finance Documents); or
(ii) Form W-8ECI (relating to all amounts to be received by the Bank,
including fees, under the Finance Documents),
of the United States Internal Revenue Service.
(b) Any New Bank (as defined in Clause 25.2 (Transfers by the Bank)) shall
comply with the provisions of paragraph (a) above within 31 days, or
earlier if requested, of it becoming a New Bank under this Agreement.
(c) Other than as set out in paragraphs (a) and (b) above, the Bank (and
any New Bank) shall submit to the Borrower such additional duly
completed and signed copies of the applicable forms (or such successor
forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may be:
(i) reasonably requested by an Obligor from the Bank (or New Bank);
and or
(ii) required under then current United States law or regulations to
determine the United States withholding taxes on payment in
respect of all amounts to be received by the Bank (or New Bank),
including fees, under the Finance Documents.
(d) Upon the request of an Obligor, any New Bank that is a United States
person (as such term is defined in Section 7701(a)(30) of the Code)
shall submit to the Borrower duly completed Internal Revenue Service
Form W-9, establishing that it is such a United States person.
(e) If the Bank (or any New Bank) determines that it is unable to submit
any form or certificate that it is obliged to submit pursuant to this
Clause 11.3, or that any information or declaration contained in any
such form or certificate previously submitted has either ceased or
will cease to be true, accurate and complete in all respects, it shall
promptly notify the Borrower and the Arranger of such fact.
12. MARKET DISRUPTION
12.1 MARKET DISRUPTION
If the Bank determines that adequate and fair means do not exist for
ascertaining LIBOR, it shall promptly notify the Borrower of the fact
and that this Clause 12 is in operation.
12.2 SUSPENSION OF DRAWDOWNS
If a notification under Clause 12.1 (Market disruption) applies to a
Loan which has not been made, that Loan shall not be made. However,
within five Business Days of receipt of the notification, the Borrower
and the Bank shall enter into negotiations for a period of not more
than 30 days with a view to agreeing an alternative basis for
determining the rate of interest
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and/or funding applicable to that and (to the extent required) any
future Loan. Any alternative basis agreed shall be binding on all the
Parties.
12.3 ALTERNATIVE BASIS
If a notification under Clause 12.1 (Market disruption) applies to a
Loan which is outstanding, then, for the purpose of calculating the
rate of interest on that Loan pursuant to Clause 9.1 (Interest rate):
(a) within five Business Days of receipt of the notification, the
Borrower and the Bank shall enter into negotiations for a period
of not more than 30 days with a view to agreeing an alternative
basis for determining the rate of interest and/or funding
applicable to that Loan and/or any other Loans;
(b) any alternative basis agreed under paragraph (a) above, or
certified under paragraph (c) below, shall be binding on all the
Parties;
(c) if no alternative basis is agreed, the Bank shall certify on or
before the last day of the Interest Period to which the
notification relates an alternative basis for maintaining that
Loan; and
(d) any such alternative basis may include an alternative method of
fixing the interest rate, alternative Interest Periods or
alternative currencies but it must reflect the cost to the Bank
of funding the Loan from whatever sources it may select plus the
Margin plus any Mandatory Cost.
13. INCREASED COSTS
13.1 INCREASED COSTS
(a) Subject to Clause 13.2 (Exceptions), the Borrower shall forthwith on
demand by the Bank pay to the Bank the amount of any increased cost
incurred by it or any of its Affiliates as a result of:
(i) the introduction of, or any change in, or any change in the
interpretation of, any law or regulation; or
(ii) compliance with any regulation made after the date of this
Agreement,
(including any law or regulation relating to taxation, change in
currency of a country, or reserve asset, special deposit, cash ratio,
liquidity or capital adequacy requirements or any other form of
banking or monetary control).
(b) In this Agreement "INCREASED COST" means:
(i) an additional cost incurred by the Bank or any of its Affiliates
as a result of it having entered into, or performing, maintaining
or funding its obligations under, this Agreement; or
(ii) that portion of an additional cost incurred by the Bank or any of
its Affiliates in making, funding or maintaining all or any
advances comprised in a class of advances
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formed by or including the Loans made or to be made under this
Agreement as is attributable to the Bank making, funding or
maintaining the Loans; or
(iii) a reduction in any amount payable to the Bank or any of its
Affiliates or the effective return to the Bank or any of its
Affiliates under this Agreement or (to the extent that it is
attributable to this Agreement) on its capital; or
(iv) the amount of any payment made by the Bank or any of its
Affiliates, or the amount of any interest or other return
foregone by the Bank or any of its Affiliates, calculated by
reference to any amount received or receivable by the Bank or any
of its Affiliates from any other Party under this Agreement.
(c) As soon as practicable after becoming aware that the Borrower is
liable, or will become liable, to pay any amount in accordance with
the provisions of paragraph (a) above, the Bank will notify the
Borrower accordingly.
13.2 EXCEPTIONS
Clause 13.1 (Increased costs) does not apply to any increased cost:
(a) compensated for by the payment of the Mandatory Cost;
(b) compensated for by the operation of Clause 11 (Taxes); or
(c) attributed to any change in the rate of, or change in the basis
of calculating, tax on the overall net income of the Bank (or the
overall net income of a division or branch of the Bank) imposed
in the jurisdiction in which its principal office for the time
being is situate.
14. ILLEGALITY
(a) If it is or becomes unlawful in any jurisdiction for the Bank to give
effect to any of its obligations as contemplated by this Agreement or
to fund or maintain any Loan, then:
(i) the Bank may notify the Borrower accordingly; and
(ii) (A) the Borrower shall forthwith prepay all the Loans; and
(B) the Commitment shall forthwith be cancelled.
(b) (i) Other than as set out in sub-paragraph (b)(ii), if, at any time,
the Commitment is cancelled by reason of illegality and the Borrower
is obliged to prepay all the Loans in accordance with the provisions
of paragraph (a) above, the Bank will reimburse to the Borrower an
amount of the Upfront fee equal to:
U minus ( U x d ),
( - )
( D )
less all outstanding costs and expenses.
Where "U" is the amount of the Upfront fee paid to the Bank
in accordance with the provisions of Clause 19.1
(Upfront fee);
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"d" is the number of days which have elapsed between
the commencement of the Commitment Period and the
date upon which paragraph (a) takes effect; and
"D" is the number of days in the Commitment Period.
(ii) The Bank shall not be liable to pay to the Borrower any amount
under sub-paragraph (b)(i) above if:
(A) it is or becomes unlawful for the Bank to give effect to any
of its obligations under this Agreement, or to fund or
maintain any Loan, due to any action of the Borrower; or
(B) whether or not originally due to any action on the part of
the Borrower, the unlawfulness giving rise to the events set
out in paragraph (a) above could (in the reasonable opinion
of the Bank) be remedied by means of action undertaken by
the Borrower, and the Borrower does not use its best
endeavours to take such action.
15. GUARANTEE
15.1 GUARANTEE
The Guarantor irrevocably and unconditionally:
(a) as principal obligor guarantees to the Bank prompt performance by
the Borrower of all its obligations under the Finance Documents;
(b) undertakes with the Bank that whenever the Borrower does not pay
any amount when due under or in connection with any Finance
Document, the Guarantor shall forthwith on demand by the Bank pay
that amount as if the Guarantor instead of the Borrower were
expressed to be the principal obligor; and
(c) indemnifies the Bank on demand against any loss or liability
suffered by it if any obligation guaranteed by the Guarantor is
or becomes unenforceable, invalid or illegal.
15.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the
ultimate balance of all sums payable by the Borrower under the Finance
Documents, regardless of any intermediate payment or discharge in
whole or in part.
15.3 REINSTATEMENT
(a) Where any discharge (whether in respect of the obligations of either
Obligor or any security for those obligations or otherwise) is made in
whole or in part or any arrangement is made on the faith of any
payment, security or other disposition which is avoided or must be
restored on insolvency, liquidation or otherwise without limitation,
the liability of the Guarantor under this Clause 15 shall continue as
if the discharge or arrangement had not occurred.
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(b) The Bank may concede or compromise any claim that any payment,
security or other disposition is liable to avoidance or restoration.
15.4 WAIVER OF DEFENCES
The obligations of the Guarantor under this Clause 15 will not be
affected by an act, omission, matter or thing which, but for this
provision, would reduce, release or prejudice any of its obligations
under this Clause 15 or prejudice or diminish those obligations in
whole or in part, including (whether or not known to it or the Bank):
(a) any time or waiver granted to, or composition with, the Borrower
or other person;
(b) the release of either Obligor or any other person under the terms
of any composition or arrangement with any creditors of any
member of the Group;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, the Borrower or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
(d) any incapacity or lack of powers, authority or legal personality
of or dissolution or change in the members or status of the
Borrower or any other person;
(e) any variation (however fundamental) or replacement of a Finance
Document or any other document or security so that references to
that Finance Document in this Clause 15 shall include each
variation or replacement;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security, to the intent that the Guarantor's obligations under
this Clause 15 shall remain in full force and its guarantee be
construed accordingly, as if there were no unenforceability,
illegality or invalidity; or
(g) any postponement, discharge, reduction, non-provability or other
similar circumstance affecting any obligation of the Borrower
under a Finance Document resulting from any insolvency,
liquidation or dissolution proceedings or from any law,
regulation or order so that each such obligation shall for the
purposes of the Guarantor's obligations under this Clause 15 be
construed as if there were no such circumstance.
15.5 IMMEDIATE RECOURSE
The Guarantor waives any right it may have of first requiring the Bank
(or any trustee or agent on its behalf) to proceed against or enforce
any other rights or security or claim payment from any person before
claiming from that Guarantor under this Clause 15.
15.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, the Bank (or any trustee or agent on its behalf) may:
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(a) refrain from applying or enforcing any other moneys, security or
rights held or received by the Bank (or any trustee or agent on
its behalf) in respect of those amounts, or apply and enforce the
same in such a manner and order as it sees fit (whether against
those amounts or otherwise) and the Guarantor shall not be
entitled to the benefit of the same; and
(b) hold in a suspense account any moneys received from the guarantor
or on account of the guarantor's liability under this clause 15,
without liability to pay interest on those moneys.
15.7 NON-COMPETITION
Until all amounts which may be or become payable by the Borrower under
or in connection with the Finance Documents have been irrevocably paid
in full, the Guarantor shall not, after a claim has been made or by
virtue of any payment or performance by it under this Clause 15:
(a) be subrogated to any rights, security or moneys held, received or
receivable by the Bank (or any trustee or agent on its behalf) or
be entitled to any right of contribution or indemnity in respect
of any payment made or moneys received on account of the
Guarantor's liability under this Clause 15;
(b) claim, rank, prove or vote as a creditor of the Borrower or its
estate in competition with the Bank (or any trustee or agent on
its behalf); or
(c) receive, claim or have the benefit of any payment, distribution
or security from or on account of the Borrower, or exercise any
right of set-off as against the Borrower,
unless the Bank otherwise directs. The Guarantor shall hold in trust
for and forthwith pay or transfer to the Bank any payment or
distribution or benefit of security received by it contrary to this
Clause 15.7 or as directed by the Bank.
15.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by
any other security now or subsequently held by the Bank.
15.9 CONSIDERATION AND ENFORCEABILITY
(a) The Guarantor represents warrants and agrees that:
(i) it will receive valuable direct and indirect benefits as a result
of the transactions financed by the Loans; and
(ii) these benefits will constitute "reasonably equivalent value" and
"fair consideration" as those terms are used in the fraudulent
transfer laws.
(b) The Guarantor acknowledges and agrees that the Bank has acted in good
faith in connection with the guarantee granted under this Clause 15,
and the transactions contemplated by this Agreement.
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(c) This Clause 15 shall be enforceable against the Guarantor to the
maximum extent permitted by the fraudulent transfer laws.
(d) The Guarantor's liability under this Clause 15 shall be limited so
that no obligation of, or transfer by, the Guarantor under this Clause
15 is subject to avoidance and turnover under the fraudulent transfer
laws.
(e) For the purposes of this Clause, "fraudulent transfer laws" means
applicable United States bankruptcy and state fraudulent transfer and
conveyance statutes and the related case law.
16. REPRESENTATIONS AND WARRANTIES
16.1 REPRESENTATIONS AND WARRANTIES
Each Obligor makes the representations and warranties set out in this
Clause 16 to the Bank.
16.2 STATUS
(a) It is a limited liability company, duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation; and
(b) each member of the Group has the power to own its assets and carry on
its business as it is being conducted.
16.3 POWERS AND AUTHORITY
(a) It has the power to enter into and perform, and has taken all
necessary action to authorize the entry into, performance and delivery
of, the Finance Documents to which it is or will be a party and the
transactions contemplated by those Finance Documents.
(b) It has the power to enter into and perform, and has taken all
necessary action to authorise the entry into, performance and delivery
of, the Acquisition Documents to which it is a party and the
transactions contemplated by them.
16.4 LEGAL VALIDITY
Each Finance Document to which it is or will be a party constitutes, or
when executed in accordance with its terms will constitute, its legal,
valid and binding obligation enforceable in accordance with its terms.
16.5 NON-CONFLICT
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents and the Acquisition Documents
to which it is a party do not and will not:
(a) conflict with any law or regulation or judicial or official
order; or
(b) conflict with the constitutional documents of any member of the
group; or
(c) conflict with any document which is binding upon any member of
the Group or any asset of any member of the Group.
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16.6 NO DEFAULT
(a) No Default is outstanding or might result from the making of any Loan;
and
(b) no other event is outstanding which constitutes (or with the giving of
notice, lapse of time, determination of materiality or the fulfilment
of any other applicable condition or any combination of the foregoing,
might constitute) a default under any document which is binding on any
member of the Group or any asset of any member of the Group to an
extent or in a manner which might have a material adverse effect.
16.7 AUTHORIZATIONS
(a) All authorizations which would reasonably be considered to be required
in connection with the entry into, performance, validity and
enforceability of, and the transactions contemplated by, the Finance
Documents and (after the Acquisition) the Acquisition Documents to
which it is a party have been obtained or effected (as appropriate)
and are in full force and effect.
(b) All acts, conditions and things required to be done, fulfilled and
performed under the laws of the United States of America in order to
make the Finance Documents admissible in evidence in the United States
of America have been done, fulfilled and performed.
16.8 ACCOUNTS
(a) In the case of the Guarantor, the audited consolidated accounts of the
Group most recently delivered to the Bank (which, at the date of this
Agreement, are the Original Group Accounts):
(i) have been prepared in accordance with accounting principles and
practices generally accepted in the U.S.A. consistently applied;
and
(ii) fairly represent the consolidated financial condition of the
Group as at the date to which they were drawn up,
and there has been no material adverse change in the consolidated
financial condition of the Group since the date to which those
accounts were drawn up.
(b) In the case of the Borrower, its audited accounts most recently
delivered to the Bank:
(i) have been prepared in accordance with accounting principles and
practices generally accepted in the U.S.A. consistently applied;
and
(ii) fairly represent its financial condition as at the date to which
they were drawn up,
and there has been no material adverse change in the financial
condition of the Borrower since the date to which those accounts were
drawn up.
16.9 LITIGATION
(a) Other than as specifically disclosed to the Bank prior to the date of
this Agreement, no litigation, arbitration or administrative
proceedings are current or, to its knowledge, pending or threatened,
which might, if adversely determined, have a material adverse effect.
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(b) In respect of any litigation, arbitration or administrative
proceedings disclosed to the Bank prior to the date of this Agreement,
there has been no development in the conduct of those proceedings
which might have a material adverse effect.
16.10 INFORMATION
(a) As far as it is aware, after due and careful enquiry, the Information
was true and accurate in all material respects as at the date thereof,
except for the historical financial information set out in the
Information which as far as it is aware, after due and careful
enquiry, was true and accurate in all material respects at the date as
at which it was prepared.
(b) The opinions, projections and forecasts in it and the assumptions on
which they are based were arrived at after due and careful
consideration and enquiry and genuinely represented its views.
(c) There are no material facts or circumstances which have not been
disclosed to the Bank by the Information and which could make any of
such information, projections, forecasts, opinions or assumptions
untrue, incomplete, inaccurate or misleading in any material respect
or which, if disclosed, might reasonably be expected adversely to
affect the decision of a person considering whether to provide finance
to the Obligors or for the purposes of the Acquisition.
16.11 TAXES ON PAYMENTS
Under the laws of the United States of America, or any other relevant
state, in force at the date hereof, it will not be required to make
any deduction or withholding from any payment it may make to the Bank
under the Finance Documents.
16.12 NO IMMUNITY
In any proceedings taken in the United States of America, or any other
relevant state, in relation to the Finance Documents, it will not be
entitled to claim for itself or any of its assets immunity from suit,
execution, attachment or other legal process.
16.13 PARI PASSU RANKING
The obligations of the Borrower to the Bank under the Finance
Documents will rank at least pari passu with the claims of all its
other unsecured creditors save those whose claims are preferred solely
by any bankruptcy, insolvency, liquidation or other similar laws of
general application.
16.14 WINDING UP: RE-ORGANISATION ETC.
It has not taken any corporate action nor have any other steps been
taken or legal proceedings been started or (to the best of its
knowledge and belief) threatened against it for its winding-up,
dissolution, administration or re-organisation or for the appointment
of a receiver, administrator, administrative receiver, trustee or
similar officer of it or of any or all of its assets or revenues.
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16.15 THE ACQUISITION
(a) Neither it, nor the Acquiror, is in breach of any of its obligations
under any Acquisition Documents nor, so far as it is aware, is any
other party to those documents.
(b) The Acquiror is, or will, immediately upon its purchase of shares in
the Target in accordance with the Acquisition Documentation, be and
remain, the beneficial owner of a majority of the shares of the Target
free from any Security Interests.
16.16 ENVIRONMENTAL LAW
Other than as specifically disclosed to the Bank prior to the date of
this Agreement, each Obligor that directly or indirectly owns, leases,
occupies or uses real property in the United States is and has been in
compliance with all applicable Environmental Laws and Environmental
Licences in all material respects and, so far as it is aware, there
are no circumstances that may at any time prevent or interfere with
continued compliance by it with all applicable Environmental Laws and
Environmental Licences in all material respects. Other than as
disclosed to the Bank prior to the date of this Agreement, no
Environmental Claim is pending or, to the best of its knowledge,
threatened against it or any of its properties.
16.17 ERISA
Each Plan of the Obligors and their respective ERISA Affiliates
complies in all material respects with all applicable requirements of
law and regulation. No Reportable Event has occurred with respect to
any Plan which might have a material adverse effect, and no steps have
been taken to terminate any Plan. No Obligor or any Subsidiary or
ERISA Affiliate of an Obligor has had a complete or partial withdrawal
from any Multiemployer Plan or initiated any steps to do so.
16.18 INVESTMENT COMPANY ACT
No Obligor is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the United States
Investment Company Act of 1940, as amended.
16.19 PUBLIC UTILITY HOLDING COMPANY AND FEDERAL POWER ACT
No Obligor is a "holding company", or an "affiliate" of a "holding
company" or a "subsidiary company" of a "holding company", within the
meaning of, or otherwise subject to regulation under, the United
States Public Utility Holding Company Act of 1935, as amended. No
Obligor is a "public utility" within the meaning of, or otherwise
subject to regulation under, the United States Federal Power Act.
16.20 OTHER REGULATION
No Obligor is subject to regulation under any United States Federal or
State statute or regulation that limits its ability to incur or
guarantee indebtedness.
16.21 MARGIN STOCK
(a) The proceeds of the Loans have been and will be used only for the
purposes described in Clause 3 (Purpose).
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(b) No Obligor is engaged in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the
meaning of Regulations U and X of the Board of Governors of
the United States Federal Reserve System).
(c) None of the transactions contemplated in this Agreement
(including, without limitation, the borrowings hereunder and
the use of the proceeds thereof) will violate or result in a
violation of Section 7 of the Securities Exchange Act of 1934
(or any regulations issued pursuant thereto, including,
without limitation, Regulations T, U and X).
16.21 SOLVENCY
(a) The Guarantor has not incurred and does not intend to incur or
believe it will incur debts beyond its ability to pay as they
mature.
(b) The Guarantor has made no transfer or incurred any obligation
under this Agreement with the intent to hinder, delay or defraud
any of its present or future creditors.
(c) For purposes of this Clause:
(i) "DEBT" means any liability on a claim;
(ii) "CLAIM" means (A) any right to payment, whether or not that
right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured, or (B) any right to
an equitable remedy for breach of performance if that breach
gives rise to payment, whether or not the right to an
equitable remedy is reduced to judgment, fixed, contingent,
matured, unmatured, disputed, undisputed, secured or
unsecured; and
(iii) terms used in this Clause shall be construed in accordance
with the applicable United States bankruptcy and New York
fraudulent conveyance statutes and the related case law.
16.22 TIMES FOR MAKING REPRESENTATIONS AND WARRANTIES
The representations and warranties set out in this Clause 16:
(a) are made on the date of this Agreement; and
(b) (with the exception of Clause 16.10 (Information)) are deemed to
be repeated by each Obligor on the date of each Request and the
first day of each Interest Period with reference to the facts and
circumstances then existing.
17. UNDERTAKINGS
17.1 DURATION
The undertakings in this Clause 17 remain in force from the date of
this Agreement for so long as any amount is or may be outstanding
under this Agreement or any Commitment is in force.
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17.2 FINANCIAL INFORMATION
The Guarantor shall supply to the Bank:
(a) as soon as the same are available (and in any event within 180
days of the end of each of its financial years):
(i) its audited consolidated accounts for that financial year;
and
(ii) the audited accounts of the Borrower for that financial
year;
(b) as soon as the same are available (and in any event within 90
days of the end of the first half-year of each of its financial
years):
(i) its unaudited consolidated accounts for that half-year; and
(ii) the unaudited accounts of the Borrower for that half-year.
(c) as soon as the same are available (and in any event within 60
days of the end of each financial quarter):
(i) its unaudited consolidated accounts for that financial
quarter; and
(ii) the unaudited accounts of the Borrower for that financial
quarter.
17.3 INFORMATION - MISCELLANEOUS
Each Obligor shall supply to the Bank:
(a) all documents despatched by it to its shareholders (or any class
of them) or its creditors (or any class of them) at the same time
as they are despatched;
(b) (unless already provided to the Bank) promptly upon becoming
aware of them, details of any litigation, arbitration or
administrative proceedings which are current, threatened or
pending, and which might, if adversely determined, have a
material adverse effect on the financial condition of any member
of the Group or on the ability of either Obligor to perform its
obligations under this Agreement; and
(c) promptly, such further information in the possession or control
of any member of the Group regarding its financial condition and
operations, or in relation to or in connection with the
Acquisition, as the Bank may reasonably request.
17.4 NOTIFICATION OF DEFAULT
Each Obligor shall notify the Bank of any Default (and the steps, if
any, being taken to remedy it) promptly upon its occurrence.
17.5 COMPLIANCE CERTIFICATES
The Guarantor shall supply to the Bank:
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(a) together with the accounts specified in Clause 17.2(a)(i)
(Financial information); and
(b) promptly at any other time, if the Bank so requests,
a certificate signed by two of its senior officers on its behalf
certifying that no Default is outstanding or, if a Default is
outstanding, specifying the Default and the steps, if any, being taken
to remedy it.
17.6 AUTHORIZATIONS
Each Obligor shall promptly:
(a) obtain, maintain and comply with the terms of; and
(b) supply certified copies to the Bank of,
any authorization required under any law or regulation to enable it to
perform its obligations under, or for the validity or enforceability
of, any Finance Document.
17.7 PARI PASSU RANKING
Each Obligor shall procure that its obligations under the Finance
Documents do and will rank at least pari passu with all its other
present and future unsecured obligations, except for obligations
mandatorily preferred by law applying to companies generally.
17.8 NEGATIVE PLEDGE
(a) Neither Obligor shall, and the Guarantor shall procure that no other
member of the Group will, create or permit to subsist any Security
Interest securing borrowed money on any of its assets (other than
Unrestricted Margin Stock).
(b) Paragraph (a) does not apply to:
(i) any lien arising by operation of law in the ordinary course of
business and securing amounts not more than 30 days overdue;
(ii) any Security Interest disclosed in writing to the Bank prior to
the execution of this Agreement which secures Financial
Indebtedness outstanding at the date of this Agreement;
(iii) any Security Interest arising in relation to set-off
arrangements between cash balances and bank borrowings with the
same bank which arise in the ordinary course of business;
(iv) any Security Interest existing at the time of acquisition on or
over any asset acquired by a member of the Group after the date
of this Agreement which was not created in contemplation of or in
connection with that acquisition, provided that the principal
amount secured by such Security Interest and outstanding at the
time of acquisition is not subsequently increased and the
Security Interest is discharged within 3 months;
(v) in the case of any company which becomes a member of the Group
after the date of this Agreement, any Security Interest existing
on or over its assets when it becomes a
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member of the Group which was not created in contemplation of or
in connection with it becoming a member of the Group, provided
that:
(A) the principal amount secured by such Security Interest and
outstanding when the relevant company became a member of the
Group is not increased;
(B) no amount is secured by any such Security Interest which is
not secured by the relevant Security Interest when the
relevant company becomes a member of the Group; and
(C) the Security Interest is discharged within 3 months;
(vi) any Security Interest replacing any of the Security Interests
permitted by paragraphs (iv) and (v), provided that the amount
secured by any replacement Security Interest shall not exceed the
amount outstanding and secured by the original Security Interest
at the time of the creation of the replacement Security Interest,
the value of the replacement asset over which the replacement
Security Interest is created does not exceed the value of the
asset over which the original Security Interest was held, the
replacement Security Interest secures the same obligations as the
original Security Interest and such replacement Security Interest
is discharged within the original three-month period specified in
paragraphs (iv) and (v); and
(vii) any other Security Interest provided that at the time that the
Security Interest is created, the aggregate amount of
indebtedness secured by all Security Interests permitted under
this Clause 17.8(b)(vii) (other than those permitted by
sub-paragraphs 17.8(b)(i) - (vi) above) does not exceed 5 per
cent. of the book value of the consolidated total assets of the
Group, as determined by reference to the most recent consolidated
accounts of the Group delivered pursuant to Clause 17.2
(Financial Information).
17.9 TRANSACTIONS SIMILAR TO SECURITY
(a) Neither Obligor shall, and the Guarantor shall procure that no other
member of the Group will:
(i) sell, transfer or otherwise dispose of a material part of its
assets (either in one transaction or a series of transactions,
whether related or not) on terms whereby it is or may be leased
to or re-acquired or acquired by a member of the Group or any of
its related entities; or
(ii) sell, transfer or otherwise dispose of any of its receivables on
recourse terms, except for the discounting of bills or notes in
the ordinary course of trading,
in circumstances where the transaction is entered into primarily as a
method of raising finance or of financing the acquisition of an asset.
(b) Paragraph (a) above does not apply to Unrestricted Margin Stock.
17.10 DISPOSALS
(a) Neither Obligor shall, and the Guarantor shall procure that no other
Material Subsidiary will, either in a single transaction or in a
series of transactions, whether related or not
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and whether voluntarily or involuntarily, sell, transfer, grant or
lease or otherwise dispose of all or any substantial part of its
assets.
(b) Paragraph (a) does not apply to:
(i) disposals made in the ordinary course of business of the
disposing entity; or
(ii) disposals of assets in exchange for other assets comparable or
superior as to type, value and quality; or
(iii) disposals made on an arms length basis for full market
consideration; or
(iv) disposals made with the prior written consent of the Bank; or
(v) any disposal of assets from:
(A) a Material Subsidiary to an Obligor or another Material
Subsidiary; or
(B) any other Subsidiary of the Borrower to any member of the
Group,
provided that all such disposals in this paragraph (v) are made
for full market consideration,
17.11 CHANGE OF BUSINESS
The Guarantor shall procure that no substantial change is made to the
general nature or scope of the business of the Guarantor or of the
Group from that carried on at the date of this Agreement.
17.12 MERGERS AND ACQUISITIONS
(a) The Guarantor shall not finalise or effectuate any amalgamation,
demerger, merger or reconstruction.
(b) (i) No Obligor shall, and the Guarantor shall procure that no other
member of the Group will, acquire any assets or business or make any
investment
(ii) Sub-paragraph (i) shall not apply to:
(A) the Acquisition; or
(B) any acquisition of assets or business or any investment made
where the value of the assets, business or investment, when
aggregated with the value of all other assets or businesses
acquired or investments made by any member of the Group
after the date of this Agreement (other than the
Acquisition) does not exceed US$350,000,000.
17.13 INSURANCES
Each Obligor shall, and the Guarantor will procure that the Group
taken as a whole will, effect and maintain such insurance over and in
respect of its property, assets and business with reputable
underwriters or insurance companies and in such a manner and to such
extent
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as is reasonable and customary for a business enterprise engaged in
the same or similar businesses and in the same or similar localities.
17.14 THIRD PARTY GUARANTEES
No Obligor shall, and will ensure that no other member of the Group
shall, without the prior consent of the Bank, grant any guarantee,
bond, indemnity, counter-indemnity or similar instrument in respect of
any material obligation of a person other than a member of the Group,
save for:
(a) on the terms of the Finance Documents; or
(b) any guarantee related to the purchase or supply of goods and/or
services by such Obligor or a member of the Group or a consortium
or a group of companies of which such Obligor or a member of the
Group is a party, which guarantee is given in the ordinary course
of business.
17.15 THE ACQUISITION
No Obligor shall, and the Guarantor shall procure that no other member
of the Group will, amend, vary or waive any material term or condition
of the Acquisition without the prior consent of the Bank (such consent
not to be unreasonably withheld or delayed).
17.16 ENVIRONMENTAL MATTERS
Each Obligor that directly or indirectly owns, leases, occupies or
uses real property in the United States shall, in all material
respects, comply with:
(a) all applicable Environmental Law; and
(b) the terms and conditions of all Environmental Licenses applicable
to it,
and for this purpose will implement procedures to monitor compliance
with and to prevent any liability under Environmental Law.
17.17 NOTICE REQUIREMENTS
Each Obligor will give the Bank prompt notice of the occurrence of any
of the following events:
(a) non-compliance with any Environmental Law or Environmental
License of which it is aware in any material respect;
(b) any Environmental Claim or any other claim, notice or other
communication served on it in respect of any alleged breach of
any Environmental Law or Environmental License which might have a
material adverse effect;
(c) any actual or suspected Environmental Contamination which might
have a material adverse effect;
(d) any Reportable Event;
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(e) termination of any Plan maintained or contributed by the Obligor
or any ERISA Affiliate or any action that might result in
termination; or
(f) complete or partial withdrawal from any Multiemployer Plan by the
Obligor or any ERISA Affiliate or any action that might result in
complete or partial withdrawal.
In each notice delivered under this Clause, the Obligor will include
reasonable details concerning the occurrence that is the subject of
the notice as well as the Obligor's proposed course of action, if any.
Delivery of a notice under this Clause will not affect the Obligor's
obligations to comply with any other provision of this Agreement.
17.18 INVESTMENT COMPANY ACT
No Obligor will, either by act or omission, become, or permit any
other Obligor to become, an "investment company" or a company
"controlled" by an "investment company", within the meaning of the
United States Investment Company Act of 1940, as amended.
17.19 PUBLIC UTILITY STATUS
No Obligor will, either by act or omission, become or permit any other
Obligor or, as a result of its obligations under this Agreement, the
Bank to become subject to regulation under the United States Public
Utility Holding Company Act of 1935, as amended, or the United States
Federal Power Act.
17.20 ERISA
No Obligor will take any action or omit to take any action or permit
any Subsidiary or ERISA Affiliate to take any action or omit to take
any action with respect to any Plan that might result in the
imposition of a lien or other Security Interest on any property of the
Obligor or any Subsidiary or otherwise have a material adverse effect.
17.21 MARGIN STOCK
The Obligors will use the proceeds of the Loans only for the purpose
described in Clause 3 (Purpose). No Obligor will engage in the
business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulations U and X issued by the
Board of Governors of the United States Federal Reserve System). The
Obligors shall procure that none of the proceeds of the Loans will be
used for any purpose that will violate or result in the violation of
Section 7 of the Securities Exchange Act of 1934 (or any regulations
issued pursuant thereto, including, without limitation, Regulations T,
U and X). If requested by the Bank, the Borrower will furnish to the
Bank in connection with any Loan hereunder a statement in conformity
with the requirements of Federal Reserve Form U-1 referred to in
Regulation U.
17.22 SOLVENCY
The Guarantor will, at all times, maintain sufficient capital to
conduct its current and proposed business and operations, maintain its
ability to pay its debts as they become due, and continue to own
property having a value - both at fair valuation and at present fair
saleable value - greater than the total amount of the probable
liability of the Guarantor on its debts and obligations (including
this Agreement).
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18. DEFAULT
18.1 EVENTS OF DEFAULT
Each of the events set out in this Clause 18 is an Event of Default
(whether or not caused by any reason whatsoever outside the control of
either Obligor or any other person).
18.2 NON-PAYMENT
An Obligor does not pay on the due date any amount payable by it under
the Finance Documents at the place at and in the currency in which it
is expressed to be payable and, if the non-payment is caused solely by
administrative or technical error, or relates solely to non-payment of
interest or fees, it is not remedied within three Business Days.
18.3 BREACH OF OTHER OBLIGATIONS
An Obligor does not comply with any provision of the Finance Documents
(other than those referred to in Clause 18.2 (Non-payment)), provided
that, if such non-compliance is capable of remedy, such non-compliance
remains unremedied for a period of 14 days.
18.4 MISREPRESENTATION
A representation, warranty or statement made or repeated in or in
connection with any Finance Document or in any document delivered by
or on behalf of either Obligor under or in connection with any Finance
Document is incorrect in any material respect when made or deemed to
be made or repeated.
18.5 CROSS-DEFAULT
(a) Any Financial Indebtedness of a member of the Group is not paid when
due or within any applicable grace period provided for in the relevant
documentation; or
(b) an event of default howsoever described occurs under any document
relating to Financial Indebtedness of a member of the Group; or
(c) any Financial Indebtedness of a member of the Group becomes
prematurely due and payable or is placed on demand as a result of an
event of default (howsoever described) under the document relating to
that Financial Indebtedness; or
(d) any commitment for, or underwriting of, any Financial Indebtedness of
a member of the Group is cancelled or suspended as a result of an
event of default (howsoever described) under the document relating to
that Financial Indebtedness; or
(e) any Security Interest securing Financial Indebtedness over any asset
of a member of the Group becomes enforceable,
Provided that no Event of Default shall occur under this Clause 18.5
unless the aggregate amount of all the Financial Indebtedness with
respect to which an event or events under paragraphs (a) to (e)
(inclusive) above occurs or occur is at least US$20,000,000 (or its
equivalent in other currencies).
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18.6 INSOLVENCY
(a) An Obligor or any Material Subsidiary is, or is deemed for the
purposes of any law to be, unable to pay its debts as they fall due or
to be insolvent, or admits inability to pay its debts as they fall
due; or
(b) an Obligor or any Material Subsidiary suspends making payments on all
or any class of its debts or announces an intention to do so, or a
moratorium is declared in respect of any of its indebtedness; or
(c) an Obligor or any Material Subsidiary, by reason of financial
difficulties, begins negotiations with one or more of its creditors
with a view to the readjustment or rescheduling of any of its
indebtedness.
18.7 INSOLVENCY PROCEEDINGS
(a) Any step (including petition, proposal or convening a meeting) is
taken with a view to a composition, assignment or arrangement with any
creditors of an Obligor or any Material Subsidiary; or
(b) a meeting of an Obligor or any Material Subsidiary is convened for the
purpose of considering any resolution for (or to petition for) its
winding-up or for its administration or any such resolution is passed;
or
(c) any person presents a petition for the winding-up or for the
administration of an Obligor or any Material Subsidiary, other than a
petition which is frivolous or vexatious, or which is dismissed within
30 days; or
(d) an order for the winding-up or administration of an Obligor or any
Material Subsidiary is made; or
(e) any other step (including petition, proposal or convening a meeting)
is taken with a view to the rehabilitation, administration,
custodianship, liquidation, winding-up or dissolution of an Obligor or
any Material Subsidiary or any other insolvency proceedings involving
an Obligor or any Material Subsidiary.
18.8 APPOINTMENT OF RECEIVERS AND MANAGERS
(a) Any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or the like
is appointed in respect of an Obligor or any Material Subsidiary or
any part of its assets; or
(b) the directors of an Obligor or any Material Subsidiary requests the
appointment of a liquidator, trustee in bankruptcy, judicial
custodian, compulsory manager, receiver, administrative receiver,
administrator or the like; or
(c) any other steps are taken to enforce any Security Interest over any
part of the assets of an Obligor or any Material Subsidiary.
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18.9 CREDITORS' PROCESS
Any attachment, sequestration, distress or execution affects any asset
of an Obligor or any Material Subsidiary and is not discharged within
14 days.
18.10 ANALOGOUS PROCEEDINGS
There occurs, in relation to an Obligor or any Material Subsidiary, any
event anywhere which appears to correspond with any of those mentioned
in Clauses 18.6 (Insolvency) to 18.9 (Creditors process) (inclusive).
18.11 CESSATION OF BUSINESS
An Obligor or any Material Subsidiary ceases, or threatens to cease,
to carry on all or a substantial part of its business.
18.12 MATERIAL ADVERSE CHANGE
Any event or series of events occurs which, in the reasonable opinion
of the Bank, could reasonably be expected to have a material adverse
effect.
18.13 U.S. BANKRUPTCY LAWS
(a) Any Obligor makes a general assignment for the benefit of creditors;
or
(b) any Obligor commences a voluntary case or proceeding under the United
States Bankruptcy Code of 1978, as amended, or under any other United
States Federal or State bankruptcy, insolvency or other similar law
(collectively "U.S. BANKRUPTCY LAWS"); or
(c) an involuntary case under any U.S. Bankruptcy Law is commenced against
any Obligor and the petition is not controverted within 30 days and is
not dismissed or stayed within 90 days after commencement of the case;
or
(d) a custodian, conservator, receiver, liquidator, assignee, trustee,
sequestrator or other similar official is appointed under any U.S.
Bankruptcy Law for or takes charge of, all or substantial part of the
property of any Obligor.
18.14 ERISA
(a) Any event or condition occurs that presents a material risk that any
Obligor or any ERISA Affiliate may incur a material liability to a
Plan or to the United States Internal Revenue Service or to the United
States Pension Benefit Guaranty Corporation; or
(b) an "accumulated funding deficiency" occurs (as that term is defined in
section 412 of the United States Internal Revenue Code of 1986, as
amended, or section 302 of ERISA), whether or not waived, by reason of
the failure of any Obligor or any ERISA Affiliate to make a
contribution to a Plan.
18.15 ACCELERATION
(a) Upon the occurrence of an Event of Default described in Clause 18.13
(U.S. Bankruptcy Laws):
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(i) the Commitment will immediately terminate; and
(ii) the Loans, together with accrued interest, and all other amounts
accrued under the Finance Documents, will be immediately due and
payable.
(b) On and at any time after the occurrence of an Event of Default (other
than an Event of Default described in Clause 18.13 (U.S. Bankruptcy
Laws)) the Bank may, by notice to the Borrower:
(a) cancel the Commitment; and/or
(b) demand that all or part of the Loans, together with accrued
interest and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) demand that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand.
19. FEES
19.1 UPFRONT FEE
The Borrower shall on the date of this Agreement pay to the Bank an
Upfront fee computed at the rate of 0.175 per cent. of the Commitment.
19.2 COMMITMENT FEE
(a) The Borrower shall pay to the Bank a commitment fee computed at the
rate of 0.15 per cent. per annum on the undrawn, uncancelled amount of
the Commitment during the period beginning on 25th April, 2000 and
ending on the Term Date.
(b) Accrued commitment fee is payable quarterly in arrears. Accrued
commitment fee shall also be payable to the Bank on the cancelled
amount of the Commitment at the time the cancellation comes into
effect.
19.3 VAT
Any fee referred to in this Clause 19 is exclusive of any value added
tax or any other tax which might be chargeable in connection with that
fee. If any value added tax or other tax is so chargeable, it shall be
paid by the Borrower at the same time as it pays the relevant fee.
20. EXPENSES
20.1 INITIAL AND SPECIAL COSTS
The Borrower shall forthwith on demand pay the Bank and the Arranger
the amount of all costs and expenses (including legal fees) incurred
by it in connection with:
(a) the negotiation, preparation, printing and execution of:
(i) this Agreement and any other documents referred to in this
Agreement; and
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<PAGE>
37
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(ii) any other Finance Document executed after the date of this
Agreement; and
(b) any amendment, waiver, consent or suspension of rights (or any
proposal for any of the foregoing) requested by or on behalf of
an Obligor or, in the case of Clause 2.2 (Change of currency),
the Bank, and relating to a Finance Document or a document
referred to in any Finance Document.
(c) any other matter, not of an ordinary administrative nature,
arising out of or in connection with a Finance Document.
20.2 ENFORCEMENT COSTS
The Borrower shall forthwith on demand pay to the Bank the amount of
all costs and expenses (including legal fees) incurred by it in
connection with the enforcement of, or the preservation of any rights
under, any Finance Document.
21. STAMP DUTIES
The Borrower shall pay and forthwith on demand indemnify the Bank
against any liability it incurs in respect of, any stamp, registration
and similar tax which is or becomes payable in connection with the
entry into, performance or enforcement of any Finance Document.
22. INDEMNITIES
22.1 CURRENCY INDEMNITY
(a) If the Bank receives an amount in respect of an Obligor's liability
under the Finance Documents or if that liability is converted into a
claim, proof, judgment or order in a currency other than the currency
(the "CONTRACTUAL CURRENCY") in which the amount is expressed to be
payable under the relevant Finance Document:
(i) that Obligor shall indemnify the Bank as an independent
obligation against any loss or liability arising out of or as a
result of the conversion;
(ii) if the amount received by the Bank, when converted into the
contractual currency at a market rate in the usual course of its
business is less than the amount owed in the contractual
currency, the Obligor concerned shall forthwith on demand pay to
the Bank an amount in the contractual currency equal to the
deficit; and
(iii) the Obligor shall forthwith on demand pay to the Bank forthwith
on demand any exchange costs and taxes payable in connection with
any such conversion.
(b) Each Obligor waives any right it may have in any jurisdiction to pay
any amount under the Finance Documents in a currency other than that
in which it is expressed to be payable.
22.2 OTHER INDEMNITIES
The Borrower shall forthwith on demand indemnify the Bank against any
loss or liability which the Bank incurs as a consequence of:
(a) the occurrence of any Default;
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<PAGE>
38
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(b) a change in the currency of a country or the operation of Clause
2.2 (Change of currency) or Clause 18.15 (Acceleration);
(c) any payment of principal or an overdue amount being received from
any source otherwise than on the last day of a relevant Interest
Period or Designated Interest Period (as defined in Clause 9.3
(Default interest)) relative to the amount so received; or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment or (other than by reason of negligence or
default by the Bank) a Loan not being made after the Borrower has
delivered a Request.
The Borrower's liability in each case includes any loss of Margin or
other loss or expense on account of funds borrowed, contracted for or
utilised to fund any amount payable under any Finance Document, any
amount repaid or prepaid or any Loan.
23. EVIDENCE AND CALCULATIONS
23.1 ACCOUNTS
Accounts maintained by the Bank in connection with this Agreement are
prima facie evidence of the matters to which they relate.
23.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by the Bank of a rate or amount
under the Finance Documents is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
23.3 CALCULATIONS
Interest (including any applicable Mandatory Cost) and the fee payable
under Clause 19.2 (Commitment fee) accrue from day to day and are
calculated on the basis of the actual number of days elapsed and a
year of 360 days or, where market practice otherwise dictates, 365
days.
24. WAIVERS AND REMEDIES CUMULATIVE
The rights of the Bank under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver
of that right.
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39
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25. CHANGES TO THE PARTIES
25.1 TRANSFERS BY OBLIGORS
Neither Obligor may assign, transfer, novate or dispose of any of, or
any interest in, its rights and/or obligations under the Finance
Documents.
25.2 TRANSFERS BY THE BANK
(a) The Bank may, subject to paragraph (b) below, at any time assign,
transfer or novate any of the Commitment and/or any of its rights
and/or obligations under this Agreement to another bank or financial
institution (the "NEW BANK").
(b) The prior consent of the Borrower is required for any such assignment
or transfer, unless the New Bank is an Affiliate of the Bank. However,
the prior consent of the Borrower must not be unreasonably withheld or
delayed and will be deemed to have been given if, within five days of
receipt by the Borrower of an application for consent, it has not been
expressly refused.
(c) A transfer of obligations will be effective only if the New Bank
confirms to the Borrower that it undertakes to be bound by the terms
of this Agreement as the Bank in form and substance satisfactory to
the Borrower. On the transfer becoming effective in this manner the
Bank shall be relieved of its obligations under this Agreement to the
extent that they are transferred to the New Bank.
(d) Nothing in this Agreement restricts the ability of the Bank to
sub-contract an obligation if it remains liable under this Agreement
for that obligation.
(e) The Borrower shall not be liable for any costs arising in connection
with a transfer which takes place under this Clause 25.2.
25.3 SYNDICATION
(a) The Bank or the Arranger may at any time (after prior consultation
with the Borrower) effect a Syndication.
(b) In the event of any Syndication, the Borrower agrees to provide the
Bank with all assistance and information that it reasonably requests
in relation to such Syndication.
26. DISCLOSURE OF INFORMATION
The Bank shall keep confidential any and all information made
available to it by any Obligor pursuant to or in connection with the
Finance Documents, save for information:
(a) which at the relevant time is in the public domain; or
(b) which, after such information has been made available to the
Bank, becomes generally available to third parties by publication
or otherwise through no breach of this Clause 26 by the Bank; or
(c) which was lawfully in the possession of the Bank or its advisers
prior to such disclosure (as evidenced by the Bank's written
records or the written records of the
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<PAGE>
40
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Bank's advisers) and which was not acquired directly or
indirectly from an Obligor; or
(d) the disclosure of which is required by law or any competent
regulatory body or which is necessitated by any legal proceeding
or audit requirement; or
(e) the disclosure of which is made to an Affiliate of the Bank in
circumstances where it is the Bank's usual practice to make such
disclosure or where such disclosure is required as part of the
Bank's management or reporting policies or where such disclosure
is in the reason opinion of the Bank required to protect its
position, or to assist in the recovery of amounts, hereunder; or
(f) the disclosure of which is made to any person with whom it is
proposing to enter, or has entered, into any kind of transfer,
participation or other agreement in relation to this Agreement;
or
(g) which is disclosed by the Bank to its professional advisers; or
(h) which is disclosed to another party to this Agreement.
27. SET-OFF
The Bank may set off any matured obligation owed by an Obligor under
the Finance Documents (to the extent beneficially owned by the Bank)
against any obligation (whether or not matured) owed by the Bank to
that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Bank may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the
set-off. If either obligation is unliquidated or unascertained, the
Bank may set off in an amount estimated by it in good faith to be the
amount of that obligation.
28. SEVERABILITY
If a provision of any Finance Document is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other
provision of the Finance Documents; or
(b) the validity or enforceability in other jurisdictions of that or
any other provision of the Finance Documents.
29. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
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41
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30. NOTICES
30.1 GIVING OF NOTICES
All notices or other communications under or in connection with this
Agreement shall be given in writing and, unless otherwise stated, may
be made by letter, telex or facsimile. Any such notice will be deemed
to be given as follows:
(a) if by letter, when delivered personally or on actual receipt;
(b) if by telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at
the end of the sender's copy of the notice; and
(c) if by facsimile, when received in legible form.
However, a notice given in accordance with the above but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given on the next working day in that place.
30.2 ADDRESSES FOR NOTICES
(a) The address, telex number and facsimile number of the Borrower are:
Autoliv ASP, Inc.
3350 Airport Road
Ogden
Utah 84405
Fax No: +1 801 625 4853
Attention: Director of Finance
or such other as the Borrower may notify to the Bank by not less than
five Business Days' notice.
(b) The address, telex and facsimile number of the Guarantor are:
Autoliv, Inc,
Box 70381
SE-107 24 Stockholm
Sweden
Fax No: +46 8 24 44 93
Attention: Vice President, Finance
or such other as the Guarantor may notify to the Bank by not less than
five Business Days' notice.
(c) The address, telex number and facsimile number of the Bank are:
Skandinaviska Enskilda Banken AB (publ)
Skandinavia House
2 Cannon Street
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<PAGE>
42
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London
EC4M 6XX,
Telex No: 8950281
Fax No: +44 20 7329 4178
Attention: Banking Administration
Rachel Vanner
or such other as the Bank may notify to the Borrower by not less than
five Business Days' notice.
31. LANGUAGE
(a) Any notice given under or in connection with any Finance Document
shall be in English.
(b) All other documents provided under or in connection with any Finance
Document shall be:
(i) in English; or
(ii) if not in English, accompanied by a certified English translation
and, in this case, the English translation shall prevail unless
the document is a statutory or other official document.
32. JURISDICTION
32.1 SUBMISSION
(a) For the benefit of the Bank, each Obligor agrees that the courts of
England have jurisdiction to settle any disputes in connection with
any Finance Document and accordingly submits to the jurisdiction of
the English courts.
(b) Without prejudice to paragraph (a) above and for the benefit of the
Bank, each Obligor agrees that any New York State court or Federal
court sitting in New York City has jurisdiction to settle any disputes
in connection with any Finance Document and accordingly submits to the
jurisdiction of those courts.
32.2 SERVICE OF PROCESS
Without prejudice to any other mode of service, each Obligor:
(a) irrevocably appoints:
(i) Autoliv Ltd, Penner Road, Havant, Hampshire PO9 1QH, as
agent for service of process in relation to any proceedings
before the English courts in connection with any Finance
Document;
(ii) CT Corporation, 155 Washington Ave. Ste 200, Albany, New
York 12210, as its agent for service of process in relation
to any proceedings before any courts located in the State of
New York in connection with any Finance Document;
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<PAGE>
43
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(b) agrees to maintain an agent for service of process in England and
in the State of New York until all Commitments have terminated
and the Loans and all other amounts payable under the Finance
Documents have been finally, irrevocable and indefeasibly repaid
in full;
(c) agrees that failure by a process agent to notify the Obligor of
the process will not invalidate the proceedings concerned;
(d) consents to the service of process relating to any proceedings by
prepaid posting of a copy of the process to its address for the
time being applying under Clause 30.2 (Addresses for notices);
and
(e) agrees that if the appointment of any person mentioned in
paragraph (a) above ceases to be effective, the Obligor shall
immediately appoint a further person in England or in the State
of New York, as appropriate, to accept service of process on its
behalf in England or in the State of New York, as appropriate,
and, if the Obligor does not appoint a process agent within 15
days, the Bank is entitled and authorized to appoint a process
agent for the Obligor by notice to the Obligor.
32.3 FORUM CONVENIENCE AND ENFORCEMENT ABROAD
Each Obligor:
(a) waives objection to the English and New York State and Federal
courts on grounds of inconvenient forum or otherwise as regards
proceedings in connection with any Finance Document; and
(b) agrees that a judgment or order of an English or New York State
or Federal court in connection with any Finance Document is
conclusive and binding on it and may be enforced against it in
the courts of any other jurisdiction.
32.4 NON-EXCLUSIVITY
Nothing in this Clause 32 limits the right of the Bank to bring
proceedings against the Obligor in connection with any Finance
Document:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
33. GOVERNING LAW
This Agreement is governed by English law.
34. INTEGRATION
The Finance Documents contain the complete agreement between the
parties on the matters to which they relate and supersede all prior
commitments, agreements and understandings, whether written or oral,
on those matters.
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<PAGE>
44
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35. WAIVER OF JURY TRIAL
The Obligors and the Bank waive any rights they may have to a jury
trial of any claim or cause of action based on or arising from any
Finance Document or the transactions contemplated by the Finance
Documents. In the event of litigation, this Agreement may be filed as
a written consent to a trial by the court.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
<PAGE>
45
SCHEDULE 1
CONDITIONS PRECEDENT DOCUMENTS
1. BOTH OBLIGORS
A copy of the memorandum and articles of association and certificate
of incorporation of each Obligor.
2. BORROWER
(a) A copy of a resolution of the board of directors of the Borrower:
(i) approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it execute this Agreement;
(ii) authorizing a specified person or persons to execute this
Agreement on its behalf; and
(iii) authorizing a specified person or persons, on its behalf, to
sign and/or despatch all documents and notices to be signed
and/or despatched by it under or in connection with this
Agreement;
(b) a specimen of the signature of each person authorized by the
resolution referred to in paragraph (a) above;
(c) a certificate of a director of the Borrower confirming that the
borrowing of the Commitment in full would not cause any borrowing
limit binding on either Obligor to be exceeded; and
(d) a certificate of an authorized signatory of the Borrower certifying
that each copy document specified in this Schedule 1 is correct,
complete and in full force and effect as at a date no earlier than the
date of this Agreement.
3. GUARANTOR
(a) A copy of a resolution of the board of directors of the Guarantor:
(i) approving the terms of, and the transactions contemplated by,
this Agreement and resolving that it execute this Agreement;
(ii) authorizing a specified person or persons to execute this
Agreement on its behalf; and
(iii) authorizing a specified person or persons, on its behalf, to
sign and/or despatch all other documents and notices to be signed
and/or despatched by it under or in connection with this
Agreement;
(b) a specimen of the signature of each person authorized by the
resolutions referred to in paragraph (a) above.
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46
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4. OTHER DOCUMENTS
(a) Evidence that the process agents referred to in Clause 32.2 (Service
of process) have accepted their appointments under that Clause.
(b) A copy of each Acquisition Document.
(c) The Information.
(d) Copies of all official consents and approvals (including the relevant
regulatory and competition approvals) which are required in relation
to the terms and conditions of both the Acquisition and this Agreement
and other related documents.
(e) Evidence (satisfactory to the Bank) that more than 50% of the common
stock in the Target has been tendered by the existing shareholders.
(f) Confirmation from the Guarantor that it is not in breach of any other
agreement to which it is a party.
(g) A copy of any other authorization or other document, opinion or
assurance which the Bank considers to be necessary in connection with
the entry into and performance of, and the transactions contemplated
by, any Finance Document or for the validity and enforceability of any
Finance Document.
5. LEGAL OPINIONS
(a) A legal opinion of Allen & Overy, New York, legal advisers in the
State of New York, U.S.A. to the Bank;
(b) A legal opinion of legal advisers in the State of Indiana, U.S.A. to
the Bank.
(c) A legal opinion of Allen & Overy, London, legal advisers in England to
the Bank.
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47
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SCHEDULE 2
CALCULATION OF THE MANDATORY COST
(a) For the purpose of paragraph (a) of the definition of Mandatory Cost,
the Mandatory Cost for a Loan for each of its Interest Periods is
calculated in accordance with the following formula:
F x 0.01
________ % per annum
300
where on the day of application of a formula F is the charge payable
by the Bank to the Financial Services Authority under paragraph 2.02
or 2.03 (as appropriate) of the Fees Regulations (but where for this
purpose, the figure in paragraph 2.02b and 2.03b will be deemed to be
zero) expressed in pounds per (pound)1 million of the fee base of the
Bank.
(b) For the purposes of this Schedule 2:
(i) "FEE BASE" has the meaning given to it in the Fees Regulations;
(ii) "FEES REGULATIONS" means the Banking Supervision (Fees)
Regulations 1998 and/or any other regulations governing the
payment of fees for banking supervision.
(c) (i) The formula is applied on the first day of the relevant Interest
Period.
(ii) Each rate calculated in accordance with the formula is, if
necessary, rounded upward to the nearest 1/16th of one per cent.
(d) If the Bank determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Bank shall notify the
Borrower of the manner in which the Mandatory Cost will subsequently
be calculated. The manner of calculation so notified by the Bank
shall, in the absence of manifest error, be binding on all the
Parties.
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48
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SCHEDULE 3
FORM OF REQUEST
To: Skandinaviska Enskilda Banken AB (publ)
From: Autoliv ASP, Inc. Date: 22 March, 2000
AUTOLIV ASP, INC. US$300,000,000 CREDIT AGREEMENT DATED 22ND MARCH, 2000
1. We wish to borrow a Loan as follows:
(a) Drawdown Date: [ ]
(b) Amount: [ ]
(c) First Interest Period: [ ]
(d) Payment instructions: [ ].
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Request.
By:
AUTOLIV ASP, INC.
Authorized Signatory
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49
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SIGNATORIES
BORROWER
AUTOLIV ASP, INC.
By:
GUARANTOR
AUTOLIV, INC.
By:
BANK
SKANDINAVISKA ENSKILDA BANKEN AB (publ)
By:
ARRANGER
SEB DEBT CAPITAL MARKETS
By:
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<PAGE>
Exhibit 99(d)
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
dated as of March 12, 2000
among
AUTOLIV, INC.,
OEA, INC.
and
OEA MERGER CORPORATION
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C> <C>
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER.......................................................1
ARTICLE 1 THE OFFER............................................................................1
1.1 The Offer..................................................................1
1.2 Company Actions............................................................3
1.3 Composition of the Board of Directors......................................4
ARTICLE 2 THE MERGER...........................................................................5
2.1 The Merger.................................................................5
2.2 Effect of the Merger.......................................................5
2.3 Consummation of the Merger.................................................5
2.4 Certificate of Incorporation; Bylaws; Directors and Officers...............5
2.5 Conversion of Merger Sub Common Stock......................................6
2.6 Conversion of Company Common Stock.........................................6
2.7 Surrender of Shares; Stock Transfer Books..................................6
2.8 Additional Rights..........................................................7
2.9 Taking of Necessary Action; Further Action.................................8
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................8
3.1 Organization...............................................................8
3.2 Capital Stock of the Company...............................................8
3.3 Authority Relative to this Agreement.......................................9
3.4 SEC Reports and Financial Statements......................................10
3.5 Certain Changes...........................................................10
3.6 Litigation................................................................11
3.7 Disclosure in Schedule 14D-9 and Offer Documents; Proxy
Statement.................................................................11
3.8 Broker's or Finder's Fees.................................................11
3.9 Employee Plans............................................................11
3.10 Material Contracts........................................................12
3.11 Board Recommendation; Company Action; Requisite Vote of the
Company's Stockholders....................................................13
3.12 Taxes.....................................................................14
3.13 Recalls...................................................................15
3.14 Product Liability.........................................................15
3.15 Environmental.............................................................15
3.16 Intellectual Property.....................................................16
3.17 Compliance with Laws......................................................16
3.18 Employment Matters........................................................17
3.19 Rights Agreement..........................................................17
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C> <C>
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE PARENT AND MERGER SUB.........................17
4.1 Organization..............................................................17
4.2 Authority Relative to this Agreement......................................18
4.3 Financing.................................................................19
4.4 Offer Documents; Proxy Statement..........................................19
4.5 Broker's or Finder's Fees.................................................19
4.6 Parent Not An Interested Stockholder......................................19
ARTICLE 5 CONDUCT OF BUSINESS PENDING THE MERGER..............................................19
5.1 Conduct of Business by the Company Pending the Merger.....................19
ARTICLE 6 ADDITIONAL AGREEMENTS...............................................................22
6.1 Shareholders'Meeting......................................................22
6.2 Proxy Statement...........................................................22
6.3 Employee Benefit Matters..................................................23
6.4 Fairness Opinions.........................................................24
6.5 Consents and Approvals....................................................24
6.6 Public Statements.........................................................24
6.7 Reasonable Best Efforts...................................................25
6.8 Notification of Certain Matters...........................................25
6.9 Access to Information; Confidentiality....................................25
6.10 No Solicitation...........................................................26
6.11 Indemnification and Insurance.............................................27
6.12 State Takeover Laws.......................................................28
6.13 Actions Regarding the Rights..............................................29
6.14 Options...................................................................29
ARTICLE 7 CONDITIONS..........................................................................29
7.1 Conditions to the Obligation of Each Party to Effect the Merger...........29
ARTICLE 8 TERMINATION, AMENDMENT AND WAIVER...................................................30
8.1 Termination...............................................................30
8.2 Effect of Termination.....................................................31
8.3 Fees and Expenses.........................................................31
8.4 Amendment.................................................................31
8.5 Waiver....................................................................31
ARTICLE 9 GENERAL PROVISIONS..................................................................31
9.1 Notices...................................................................31
9.2 Representations and Warranties............................................32
9.3 Closing...................................................................32
9.4 Governing Law.............................................................32
9.5 Counterparts; Facsimile Transmission of Signatures........................33
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C> <C>
9.6 Assignment................................................................33
9.7 Severability..............................................................33
9.8 Entire Agreement..........................................................33
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
SIGNATURE PAGE.........................................................................................34
</TABLE>
iii
<PAGE>
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement"), dated as of March 12, 2000 is among Autoliv, Inc., a Delaware
corporation ("Parent"), OEA Merger Corporation, a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), and OEA, Inc., a Delaware
corporation (the "Company"). The Company and Merger Sub are hereinafter
collectively referred to as the "Constituent Corporations."
WHEREAS, all of the issued and outstanding shares of common stock, par
value $.01 per share, of Merger Sub ("Merger Sub Common Stock") are held by
Parent;
WHEREAS, the respective boards of directors of Parent, the Company and
Merger Sub, deeming it advisable for the respective benefit of Parent, Merger
Sub, the Company and their respective stockholders, have approved the strategic
alliance of Parent and the Company through the merger of the Company and Merger
Sub (the "Merger"), upon the terms and subject to the conditions set forth in
this Agreement;
WHEREAS, in furtherance of the Merger, Merger Sub will make, subject to
the terms and conditions set forth herein, a tender offer (as amended or
extended from time to time, the "Offer") to purchase all of the issued and
outstanding shares of Common Stock of the Company, par value $.10 per share
("Company Common Stock") and the associated Common Share Purchase Rights (the
"Rights") issued pursuant to the Rights Agreement, dated March 25, 1998 by and
between the Company and LaSalle Bank, N.A. at a price of $10.00 per share (and
associated Rights) net to the seller in cash (such amount, or any greater amount
per share paid pursuant to the Offer, being hereinafter referred to as the
"Offer Price"); and
WHEREAS, subject to its continuing duty to the stockholders of the
Company, the board of directors of the Company has approved the Offer and the
Merger, taken together, and has determined that the Offer and Merger are fair
to, and in the best interests of, the holders of Company Common Stock and
resolved to recommend the acceptance of the Offer and approval of the Merger by
the stockholders of the Company;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants contained in this Agreement and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Parent, Merger Sub and
the Company, intending to be legally bound, hereby agree as follows:
ARTICLE 1
THE OFFER
1.1 THE OFFER.
(a) Provided that this Agreement shall not have been
terminated in accordance with SECTION 8.1 hereof and that none of the events set
forth on ANNEX 1 hereto shall have occurred or be existing, as promptly as
practicable, but in no event later than within ten business days of the date of
this Agreement, Merger Sub shall, and Parent shall cause Merger Sub to,
<PAGE>
commence the Offer. The obligations of Merger Sub to accept for payment and to
pay for any shares of Company Common Stock tendered shall be subject only to the
conditions set forth in ANNEX 1 hereto (the "Tender Offer Conditions"). The
Tender Offer Conditions are for the sole benefit of Parent and Merger Sub and
may be asserted by Parent and Merger Sub regardless of the circumstances giving
rise to any such Tender Offer Conditions or may be waived by Parent and Merger
Sub in whole or in part; provided that the Minimum Condition (as defined in
ANNEX 1) may not be waived without the prior written consent of the Company.
Without the prior written consent of the Company, provided
that this Agreement shall not have been terminated in accordance with SECTION
8.1, Merger Sub shall not decrease the Offer Price, decrease the number of
shares of Company Common Stock being sought in the Offer, change the form of
consideration payable in the Offer (other than by adding consideration), add
additional conditions to the Offer, or make any other change in the terms or
conditions of the Offer which is adverse to the holders of shares of Company
Common Stock, it being agreed that neither a waiver by Merger Sub of any Tender
Offer Condition (other than the Minimum Condition) in whole or in part at any
time and from time to time in its discretion, nor the extension of the Offer as
permitted below, shall be deemed to be adverse to any holder of shares of
Company Common Stock. The Offer shall be made by means of an offer to purchase
and related letter of transmittal (the "Letter of Transmittal") (collectively,
the "Offer to Purchase"). Merger Sub expressly reserves the right to increase
the Offer Price or to extend the Offer as provided below. Upon the terms and
subject to the conditions of the Offer, Merger Sub shall purchase the shares of
Company Common Stock which are validly tendered on or prior to the expiration of
the Offer and not withdrawn. The Offer shall expire at 12:00 midnight eastern
time on the 20th business day following commencement of the Offer (such date and
time, as extended in accordance with the terms hereof, the "Expiration Date");
PROVIDED, HOWEVER, that Merger Sub may, from time to time, extend the Expiration
Date (i) for the minimum period of time necessary to comply with any provision
of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), but in no event later than the 40th business day following the
initial Expiration Date; (ii) if any of the Tender Offer Conditions have not
been satisfied, for the minimum period of time necessary to satisfy such
condition but in no event later than the 20th business day following the initial
Expiration Date (subject, with respect to the Minimum Condition, to the
provisions of clause (iii) hereof); (iii) if all of the Tender Offer Conditions
have been satisfied but fewer than 90% of the issued and outstanding shares of
Company Common Stock have been tendered in the Offer, for the minimum period of
time necessary until 90% of the issued and outstanding shares of Company Common
Stock have been so tendered, but in no event later than the fifth business day
following the initial Expiration Date, which five business day period may be
extended for three additional five business day periods; and (iv) if a Takeover
Proposal (as defined in Section 6.10) shall be publicly disclosed or Parent or
Merger Sub shall have otherwise learned that a Takeover Proposal shall have been
made or publicly proposed to be made by any person (including the Company or any
of its subsidiaries or affiliates) other than Parent, Merger Sub or any
subsidiary or affiliate of either of them, and less than all of the Tender Offer
Conditions have been satisfied, until ten days after the termination or
publicly-announced abandonment of such Takeover Proposal, but in no event later
than the earlier of (A) June 30, 2000 and (B) the minimum time period necessary
to satisfy all such conditions.
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(b) On the date the Offer is commenced, Parent and Merger
Sub shall file with the Securities and Exchange Commission (the "SEC") a tender
offer statement on Schedule TO (together with all amendments and supplements
thereto, the "Schedule TO") with respect to the Offer. The Schedule TO shall
contain (included as an exhibit) or shall incorporate by reference the Offer to
Purchase (or portions thereof) and forms of the related Letter of Transmittal
and summary advertisement, as well as all other information and exhibits
required by law. Each of the parties hereto shall furnish all information
concerning itself which is required or customary for inclusion in the Schedule
TO. The information provided by any party hereto for use in the Schedule TO
shall be true and correct in all material respects without misstatement of any
material fact or omission of any material fact which is necessary or required to
make the statements therein, in light of the circumstances under which they were
made, not false or misleading and, in the event any party becomes aware prior to
the Expiration Date of any information that should be included in the Schedule
TO such that the Schedule TO shall not contain any misstatement of any material
fact or omission of any material fact which is necessary or required to make the
statements therein, in light of the circumstances under which they were made,
not false or misleading, such party shall promptly notify the other parties
thereof and, to the extent required by applicable law, an appropriate amendment
to the Schedule TO shall be promptly prepared, filed with the SEC and
disseminated to stockholders. No representation, covenant or agreement is made
by any party hereto with respect to information supplied by any other party for
inclusion in the Schedule TO. The Company and its counsel shall be given an
opportunity to review the Schedule TO prior to its being filed with the SEC.
Parent and Merger Sub agree to provide the Company and its counsel with any
written comments Parent and Merger Sub or their counsel may receive from the SEC
with respect to the Offer Documents promptly after the receipt of such comments.
1.2 COMPANY ACTIONS. The Company hereby consents to the Offer and
represents that (a) its board of directors (at a meeting duly called and held)
has by the requisite vote of such board of directors, subject to its continuing
duty to the stockholders of the Company, (i) determined that the Offer and the
Merger, taken together, are fair to, and in the best interests of, the holders
of Company Common Stock, (ii) approved the Offer and the Merger subject to the
terms and conditions set forth herein, and (iii) resolved to recommend that the
stockholders of the Company accept the Offer and tender their shares of Company
Common Stock thereunder to Merger Sub and approved and adopted the Merger and
this Agreement; and (b) Deutsche Bank Securities, Inc. ("Deutsche Bank") has
delivered to the Company's board of directors its opinion that the consideration
to be received by the holders of Company Common Stock pursuant to the Offer and
the Merger is fair to the holders of Company Common Stock from a financial point
of view, subject to the assumptions and qualifications contained in such
opinion. The Company shall file with the SEC as soon as practicable on or after
the date of the commencement of the Offer, a Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9") containing the
recommendations referred to in clause (a) of the preceding sentence subject to
the fiduciary duties of the board of directors of the Company as advised by
counsel. Parent, Merger Sub and their counsel shall be given the opportunity to
review and comment on the Schedule 14D-9 and any amendment or supplement thereto
prior to its filing with the SEC. If at any time prior to the expiration or
termination of the Offer any event occurs which is required by applicable law to
be described in an amendment to the Schedule 14D-9 or any supplement thereto,
the Company will file and disseminate, as required, an amendment or supplement
which complies in all material respects with the Securities Exchange Act of
1934, as amended (the "34
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Act"), and the rules and regulations thereunder and any other applicable laws.
In connection with the Offer, the Company will promptly furnish Merger Sub with
mailing labels, security position listings and any available listing or computer
list containing the names and addresses of the record holders of Company Common
Stock as of the most recent practicable date and shall furnish Merger Sub with
such additional information (including, but not limited to, updated lists of
holders of Company Common Stock and their addresses, mailing labels and lists of
security positions) and such other assistance as Merger Sub or its agents may
reasonably request in communicating the Offer to the Company's stockholders.
1.3 COMPOSITION OF THE BOARD OF DIRECTORS.
(a) Promptly upon the acceptance for payment of, and
payment by Merger Sub in accordance with the Offer for, shares of Company Common
Stock pursuant to the Offer, and from time to time thereafter as shares of
Company Common Stock are acquired by Merger Sub, Merger Sub shall be entitled to
designate such number of directors, rounded up to the next whole number, but at
no time prior to the Effective Time (as hereinafter defined) more than three
fewer than the total number of directors on the Board of Directors of the
Company, equal to at least that number of directors which equals the product of
the total number of directors on the Board of Directors (giving effect to the
directors elected pursuant to this sentence) multiplied by the percentage that
such number of shares of Common Stock so accepted for payment and paid for or
otherwise acquired or owned by Merger Sub or Parent bears to the number of
shares of Company Common Stock outstanding. The Company shall, at such time,
cause Merger Sub's designees to be so elected; PROVIDED, HOWEVER, that such
election may be effected by means of increasing the size of the Board of
Directors of the Company or obtaining the resignation of incumbent directors and
causing Merger Sub's designees to be elected; PROVIDED, FURTHER, that (i)
notwithstanding the foregoing, Merger Sub shall not be entitled to elect a
majority of the Company's directors under this SECTION 1.3(a) until such time as
it owns more than fifty percent (50%) of the outstanding shares of Company
Common Stock, (ii) the obligation to increase the size of the Company's board of
directors is subject to restrictions contained in the Company's certificate of
incorporation and bylaws, and (iii) to the extent the Company is so restricted
from increasing the size of its board of directors, the Company will use its
best efforts to obtain resignations from the members of its board of directors
in order to effect the right of Merger Sub to elect designated members of the
Company's board of directors and have such nominees elected to such board of
directors.
(b) The Company's obligations to cause designees of
Merger Sub to be elected or appointed to the board of directors of the Company
shall be subject to Section 14(f) of the `34 Act, and Rule 14f-1 promulgated
thereunder. The Company shall promptly take all actions required pursuant to
Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this
SECTION 1.3, and shall include in the Schedule 14D-9 such information with
respect to the Company and its officers and directors as is required under
Section 14(f) and Rule 14f-1. Parent and Merger Sub will supply to the Company
any information with respect to either of them and their nominees, officers,
directors and affiliates required by Section 14(f) and Rule 14f-1.
(c) After the time that Merger Sub's designees constitute
at least a majority of the board of directors of the Company and until the
Effective Time, any amendment or termination of this Agreement, extension for
the performance or waiver of the obligations or
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other acts of Parent or Merger Sub or waiver of the Company's rights hereunder,
which amendment, termination, extension or waiver would adversely affect the
stockholders or optionholders of the Company, shall also require the approval of
a majority (or such higher percentage as is required under the bylaws of the
Company) of the then serving directors, if any, who are directors as of the date
hereof (the "Continuing Directors"). If the number of Continuing Directors prior
to the Effective Time is reduced below three for any reason, the remaining
Continuing Directors or Director shall be entitled to designate persons to fill
such vacancies who shall be deemed Continuing Directors for all purposes of this
Agreement.
ARTICLE 2
THE MERGER
2.1 THE MERGER. At the Effective Time (as defined in SECTION 2.3
hereof), in accordance with this Agreement and the General Corporation Law of
the State of Delaware (the "Delaware Law"), Merger Sub shall be merged with and
into the Company, the separate existence of Merger Sub shall cease, and the
Company shall continue as the surviving corporation. The entity surviving the
Merger after the Effective Time is sometimes referred to hereinafter as the
"Surviving Corporation."
2.2 EFFECT OF THE MERGER. When the Merger has been effected, the
Surviving Corporation shall thereupon and thereafter possess all the rights,
privileges, powers and franchises as well of a public as of a private nature,
and be subject to all the restrictions, disabilities and duties of each of the
Constituent Corporations; and all and singular, the rights, privileges, powers
and franchises of each of the Constituent Corporations and all property, real,
personal and mixed, and all debts due to either of the Constituent Corporations
on whatever account, as well for stock subscriptions as all other things in
action or belonging to each of such corporations shall be vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter as effectually
the property of the Surviving Corporation as they were of the respective
Constituent Corporations, and the title to any real estate vested by deed or
otherwise, in any of such Constituent Corporations, shall not revert or be in
any way impaired by reason of the Merger; but all rights of creditors and all
liens upon any property of any of said Constituent Corporations shall be
preserved unimpaired, and all debts, liabilities and duties of the respective
Constituent Corporations shall thenceforth attach to the Surviving Corporation,
and may be enforced against it to the same extent as if said debts, liabilities
and duties had been incurred or contracted by it.
2.3 CONSUMMATION OF THE MERGER. As soon as is practicable after
the satisfaction or waiver of the conditions set forth in ARTICLE 7 hereof, the
parties hereto will cause the Merger to be consummated by filing with the
Secretary of State of Delaware a certificate of merger in such form as required
by, and executed in accordance with, the relevant provisions of the Delaware Law
(the time of such filing being referred to herein as the "Effective Time" and
the date of such filing being referred to herein as the "Effective Date").
2.4 CERTIFICATE OF INCORPORATION; BYLAWS; DIRECTORS AND OFFICERS.
The Certificate of Incorporation and bylaws of Merger Sub as in effect
immediately prior to the Effective Time shall become the Certificate of
Incorporation and bylaws of the Surviving Corporation until
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thereafter amended as provided therein and under the Delaware Law. The directors
of Merger Sub immediately prior to the Effective Time will be the initial
directors of the Surviving Corporation and shall serve until their successors
have been duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's
Certificate of Incorporation and bylaws and the Delaware Law. The officers of
Merger Sub immediately prior to the Effective Time will be the initial officers
of the Surviving Corporation and shall serve until their successors have been
duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Surviving Corporation's
certificate of incorporation and bylaws and the Delaware Law.
2.5 CONVERSION OF MERGER SUB COMMON STOCK. At the Effective Time,
by virtue of the Merger and without any action on the part of Parent, Merger
Sub, the Company or any holder of shares of Merger Sub Common Stock, each share
of Merger Sub Common Stock outstanding immediately prior to the Effective Time
shall be deemed to be one share of Common Stock, par value $0.01 per share, of
the Surviving Corporation ("Surviving Corporation Common Stock"). Each
certificate which immediately prior to the Effective Time represents a number of
outstanding shares of Merger Sub Common Stock shall, from and after the
Effective Time, be deemed for all purposes to represent the same number of
shares of Surviving Corporation Common Stock.
2.6 CONVERSION OF COMPANY COMMON STOCK. At the Effective Time, by
virtue of the Merger and without any action on the part of Parent, Merger Sub,
the Company or any holder of shares of Company Common Stock:
(a) Each share of Company Common Stock issued and
outstanding immediately prior to the Effective Time (other than any shares to be
canceled pursuant to Section 2.6(b) shall be canceled and shall be converted
automatically into the right to receive an amount equal to the Offer Price in
cash (the "Merger Consideration") payable to the holder thereof, without
interest, upon surrender of the certificate formerly representing such share in
the manner provided in Section 2.7.
(b) Each share of Company Common Stock held in the
treasury of the Company and each share owned by Merger Sub, Parent or any direct
or indirect wholly-owned subsidiary of Parent or of the Company immediately
prior to the Effective Time shall be canceled without any conversion thereof and
no payment or distribution shall be made with respect thereto.
2.7 SURRENDER OF SHARES; STOCK TRANSFER BOOKS.
(a) Prior to the Effective Time, Merger Sub shall
designate a bank or trust company to act as agent for the holders of shares of
Company Common Stock in connection with the Merger (the "Paying Agent") to
receive the funds to which holders of such shares shall become entitled pursuant
to Section 2.6(a). Such funds shall be invested by the Paying Agent as directed
by the Surviving Corporation, PROVIDED that such investments shall be in
obligations of or guaranteed by the United States of America, in commercial
paper obligations rated A-1 or P-1 or better by Moody's Investors Services, Inc.
or Standard & Poor's Corporation, respectively, or
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in certificates of deposit, bank repurchase agreements or banker's acceptances
of commercial banks with capital exceeding $500 million.
(b) Promptly after the Effective Time, the Surviving
Corporation shall cause to be mailed to each record holder, as of the Effective
Time, an outstanding certificate or certificates which immediately prior to the
Effective Time represented shares of Company Common Stock (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 Merger Consideration for each share
formerly represented by such Certificate and such Certificate shall then be
cancelled. No interest shall be paid or accrued for the benefit of holders of
the Certificates on the Merger Consideration payable upon the surrender of the
Certificates. If payment of the Merger Consideration is to be made to a person
other than the person in whose name the surrendered Certificate is registered,
it shall be a condition of payment that the Certificate so surrendered shall be
properly endorsed or shall be otherwise in proper form for transfer and that the
person requesting such payment shall have paid any transfer and other taxes
required by reason of the payment of the Merger Consideration to a person other
than the registered holder of the Certificate surrendered or shall have
established to the satisfaction of the Surviving Corporation that such tax
either has been paid or is not applicable.
(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 made available to the Paying Agent and which have not been
disbursed to holders of Certificates and, thereafter, such holders shall be
entitled to look to the Surviving Corporation (subject to abandoned property,
escheat or other similar laws) only as general creditors thereof with respect to
the Merger Consideration payable upon due surrender of their Certificates.
Notwithstanding the foregoing, neither the Surviving Corporation nor the Paying
Agent shall be liable to any holder of a Certificate for the Merger
Consideration delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
(d) At the Effective Time, the stock transfer books of
the Company shall be closed and thereafter there shall be no further
registration of transfers of shares of Company Common Stock on the records of
the Company. From and after the Effective Time, the holders of Certificates
evidencing ownership of shares outstanding immediately prior to the Effective
Time shall cease to have any rights with respect to such shares except as
otherwise provided for herein or by applicable law.
2.8 ADDITIONAL RIGHTS. Parent and Merger Sub reserve the right
after the termination or expiration of the Offer and prior to the Effective
Time, and in accordance with applicable law, from time to time, to make, or
cause any of its subsidiaries or affiliates to make, open market or privately
negotiated purchases of shares, at such price or prices as they may determine in
their sole discretion.
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2.9 TAKING OF NECESSARY ACTION; FURTHER ACTION. Each of Parent,
Merger Sub and the Company shall use all reasonable efforts to take all such
actions as may be necessary or appropriate in order to effectuate the Merger
under the Delaware Law as promptly as commercially practicable. If, at any time
after the Effective Time, any further action is necessary or desirable to carry
out the purposes of this Agreement and to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of either of the Constituent Corporations, the officers
and directors of the Surviving Corporation are fully authorized in the name of
their corporation or otherwise to take, and shall take, all such lawful and
necessary action.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Merger Sub,
and covenants with each of them, as follows:
3.1 ORGANIZATION. The Company and each of the Company Subsidiaries
(as defined below) is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has the
corporate power to own its property and to carry on its business as now being
conducted. The Company and each of the Company Subsidiaries is duly qualified
and/or licensed, as may be required, and in good standing in each of the
jurisdictions in which the nature of the business conducted by it or the
character of the property owned, leased or used by it makes such qualification
and/or licensing necessary, except in such jurisdictions where the failure to be
so qualified and/or licensed would not individually or in the aggregate have a
material adverse effect on the financial condition, business, operations, or
assets of the Company and the direct and indirect subsidiaries of the Company
(the "Company Subsidiaries") considered as a single enterprise (a "Company
Material Adverse Effect"). Notwithstanding anything to the contrary herein, any
change, effect, fact, event or condition which adversely affects the automotive
supply industry generally and affects similarly situated companies in the
automotive supply industry shall not be considered in determining whether a
Company Material Adverse Effect has occurred.
3.2 CAPITAL STOCK OF THE COMPANY.
(a) As of the date of this Agreement, the authorized
capital stock of the Company consists of 50,000,000 shares of Company Common
Stock, of which 20,622,625 are issued and outstanding. There are 1,397,075
shares of Company Common Stock held in the treasury of the Company. Such issued
shares of Company Common Stock have been duly authorized, validly issued, are
fully paid and nonassessable and free of preemptive rights. The Company has not,
subsequent to July 31, 1999, declared or paid any dividend, or declared or made
any distribution on, or authorized the creation or issuance of, or issued, or
authorized or effected any split-up or any other recapitalization of, any of its
capital stock, or directly or indirectly redeemed, purchased or otherwise
acquired any of its outstanding capital stock. The Company has not heretofore
agreed to take any such action, will not take any such action during the period
between the date of this Agreement and the Effective Time of the Merger, and
there
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are no outstanding contractual obligations of the Company to repurchase, redeem
or otherwise acquire any outstanding shares of capital stock of the Company.
(b) SECTION 3.2(b) of that certain letter of even date
herewith from the Company to Parent (the "Company Disclosure Letter") lists
all outstanding options, warrants or other rights to subscribe for, purchase
or acquire from the Company or any Company Subsidiary any capital stock of
the Company or securities convertible into or exchangeable for capital stock
of the Company, setting forth, in each case, the name of the holder of such
options, warrants or rights, the number of shares subject to such options,
warrants or rights which are currently exercisable, the number of shares
subject to such options, warrants or rights which will become exercisable in
the future, the date on which such options, warrants or rights become
exercisable and the exercise price. The foregoing does not include the Common
Share Purchase Rights outstanding under the Company's Common Share Rights
Plan. There are no stock appreciation rights ("SARs") attached to the
options, warrants or rights.
3.3 AUTHORITY RELATIVE TO THIS AGREEMENT.
(a) The Company has the requisite corporate power to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement by the Company, the performance by
the Company of its obligations hereunder and the consummation by the Company
of the transactions contemplated herein have been duly authorized by the
board of directors of the Company. The Board of Directors of the Company has
approved the Offer and this Agreement such that Section 203 of the Delaware
Law is inapplicable to the Offer and this Agreement and the transactions
contemplated hereby. No other corporate proceedings on the part of the
Company or any of the Company Subsidiaries are necessary to authorize the
execution and delivery of this Agreement, the performance by the Company of
its obligations hereunder and the consummation by the Company of the
transactions contemplated hereby, except for the approval of the Company's
stockholders as contemplated in SECTION 6.1. This Agreement has been duly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms, except
to the extent that its enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization or other laws
affecting the enforcement of creditors' rights generally or by general
equitable principles.
(b) Except as set forth in SECTION 3.3(b) of the
Company Disclosure Letter, neither the execution and delivery of this
Agreement by the Company nor the consummation by the Company of the
transactions contemplated herein nor compliance by the Company with any of
the provisions hereof will (i) conflict with or result in any breach of the
Certificate or Articles of Incorporation or bylaws of the Company or any of
the Company Subsidiaries, (ii) result in a violation or breach of any
provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination, cancellation of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in the
creation of any lien, security interest, charge or encumbrance upon any of
the properties or assets of the Company or any Company Subsidiaries under,
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, contract, lease, agreement or other
instrument or obligation of any kind to which the Company or any of the
Company Subsidiaries is a party or by which the Company or any of the Company
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Subsidiaries or any of their respective properties or assets, may be bound or
(iii) subject to compliance with the statutes and regulations referred to in
SUBSECTION (c) below, violate any judgment, ruling, order, writ, injunction,
decree, statute, rule or regulation applicable to the Company or any of the
Company Subsidiaries or any of their respective properties or assets, other than
any such event described in items (i), (ii) or (iii) which would not have a
Company Material Adverse Effect.
(c) Except for compliance with the provisions of the
Delaware Law, the HSR Act, the `34 Act, the Securities Act of 1933 (the "`33
Act"), the rules and regulations of the New York Stock Exchange and the "blue
sky" laws of various states and foreign laws, no action by any governmental
authority is necessary for the Company's execution and delivery of this
Agreement or the consummation by the Company of the transactions contemplated
hereby except where the failure to obtain or take such action would not have a
Company Material Adverse Effect.
3.4 SEC REPORTS AND FINANCIAL STATEMENTS.
(a) Since August 1, 1996, the Company has filed with the
SEC all forms, reports, schedules, registration statements and definitive proxy
statements (the "Company SEC Reports") required to be filed by the Company with
the SEC. As of their respective dates, the Company SEC Reports complied in all
material respects with the requirements of the `33 Act, the `34 Act and the
rules and regulations of the SEC promulgated thereunder applicable to such
Company SEC Reports, and none of the Company SEC Reports contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading. None of the Company
Subsidiaries is required to file any forms, reports or other documents with the
SEC pursuant to Section 12 or 15 of the `34 Act.
(b) The Consolidated Balance Sheets and the related
Consolidated Statements of Operations, Consolidated Statements of Stockholders'
Equity and Consolidated Statements of Cash Flow (including, in each case, any
related notes and schedules thereto) (collectively, the "Company Financial
Statements") of the Company contained in the Company SEC Reports have been
prepared from the books and records of the Company and its consolidated
subsidiaries, and the Company Financial Statements present fairly in all
material respects the consolidated financial position and the consolidated
results of operations and cash flows of the Company and its consolidated
subsidiaries as of the dates or for the periods presented therein in conformity
with United States generally accepted accounting principles ("GAAP") applied on
a consistent basis during the periods involved (except as otherwise noted
therein, including the related notes, and subject, in the case of quarterly
financial statements, to year-end adjustments undertaken in the ordinary course
of business).
3.5 CERTAIN CHANGES. Except as disclosed in the Company SEC
Reports and SECTION 3.5 of the Company Disclosure Letter, since October 31,
1999, (i) there has not been any Company Material Adverse Effect, (ii) the
Company has not become a party to any agreement or amendment to an existing
agreement which would be required to be filed by the Company as an exhibit to
its next Form 10-K, (iii) there has not been any change by the Company or the
Company Subsidiaries in accounting principles or methods except insofar as may
be required by
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a change in GAAP; (iv) the Company and the Company Subsidiaries have conducted
their regular business only in the ordinary course consistent with past
practice; and (v) the Company has not taken any action that would have been
prohibited under Section 5.1(b) if such section applied to the period from
October 31, 1999 to the date of execution of this Agreement.
3.6 LITIGATION. Except as disclosed in the Company SEC Reports and
SECTION 3.6 of the Company Disclosure Letter, there is no suit, action or legal,
administrative, arbitration or order proceeding or governmental investigation
pending or, to the knowledge of the Company, threatened (the "Company Cases"),
to which the Company or any of the Company Subsidiaries is a party which,
considered individually or in the aggregate, is reasonably likely to have a
Company Material Adverse Effect.
3.7 DISCLOSURE IN SCHEDULE 14D-9 AND OFFER DOCUMENTS; PROXY
STATEMENT. Neither the Schedule 14D-9 nor any of the information supplied by the
Company for inclusion in the documents pursuant to which the Offer will be made
(the "Offer Documents") shall, at the respective times the Schedule 14D-9, the
Offer Documents or any such amendments or supplements are filed with the SEC or
are first published, sent or given to shareholders, 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 the light of the circumstances under which they were made, not
misleading. Neither the proxy statement to be sent to the shareholders of the
Company in connection with the Shareholders' Meeting (as defined in Section 6.1)
nor the information statement to be sent to such shareholders, as appropriate
(such proxy statement or information statement, as amended or supplemented, is
herein referred to as the "PROXY STATEMENT"), shall, at the date the Proxy
Statement (or any amendment thereof or supplement thereto) is first mailed to
shareholders and at the time of the Shareholders' Meeting and at the Effective
Time, be false or misleading with respect to any material fact, or omit to state
any material fact required to be stated therein or necessary in order to make
the statements made therein, in the light of the circumstances under which they
are made, not misleading or necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the Shareholder's
Meeting which has become false or misleading. The Schedule 14D-9 and the Proxy
Statement shall comply in all material respects as to form and substance with
the requirements of the Exchange Act and the rules and regulations thereunder.
Notwithstanding the foregoing, Seller and the Company make no representation or
warranty with respect to any information supplied by Parent or Merger Sub which
is contained in any of the foregoing documents.
3.8 BROKER'S OR FINDER'S FEES. Except as disclosed in SECTION 3.8
of the Company Disclosure Letter, no agent, broker, person or firm acting on
behalf of the Company or under its authority is or will be entitled to any
advisory, commission or broker's or finder's fee from any of the parties hereto
in connection with any of the transactions contemplated herein.
3.9 EMPLOYEE PLANS. Except as disclosed in SECTION 3.9 of the
Company Disclosure Letter:
(a) There are no Employee Benefit Plans. As used herein,
the term "Employee Benefit Plans" means: (i) all employee benefit plans within
the meaning of Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"),
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whether or not any such Employee Benefit Plans are otherwise exempt from the
provisions of ERISA; (ii) each other material employee benefit plan, fund,
program, arrangement; and (iii) each material employment severance or other
similar agreement in each case, that is sponsored, maintained or contributed to
or required to be contributed to by the Company or by any trade or business,
whether or not incorporated (an "ERISA Affiliate"), that, together with the
Company would be deemed a "single employer" within the meaning of section
4001(b) of ERISA, or to which the Company or an ERISA Affiliate is party.
(b) Each Employee Benefit Plan intended to be "qualified"
(within the meaning of Section 401(a) of the Code) has received a favorable
determination letter from the Internal Revenue Service and, to the knowledge of
the Company no event has occurred and no condition exists that could reasonably
be expected to result in the revocation of any such determination.
(c) All material contributions and other payments
required to be made by the Company to any Employee Benefit Plan (or to any
person pursuant to the terms thereof) have been made or the amount of such
payment or contribution obligation has been reflected in the financial
statements contained in the Company SEC Reports.
(d) Each Employee Benefit Plan is in compliance with all
applicable laws (including ERISA, the Code and COBRA), except where the failure
to comply would not result in a Material Adverse Effect on the Company.
(e) No liability under Title IV or section 302 of ERISA
has been incurred by the Company or any ERISA Affiliate that has not been
satisfied in full, and no condition exists that presents a material risk to the
Company or any ERISA Affiliate of incurring any such liability, other than
liability for premiums due to the Pension Benefit Guaranty Corporation ("PBGC")
(which premiums have been paid when due).
(f) No Employee Benefit Plan provides medical,
surgical, hospitalization, death or similar benefits (whether or not insured)
for employees or former employees of the Company or any Company Subsidiary
for periods extending beyond their retirement or other termination of service.
(g) The consummation of the transactions contemplated by
this Agreement will not, either alone or in combination with another event, (i)
entitle any current or former employee or officer of the Company or any ERISA
Affiliate to severance pay, unemployment compensation or any other payment,
except as expressly provided in this Agreement, or (ii) accelerate the time of
payment or vesting, or increase the amount, of compensation due any such
employee or officer.
(h) There are no pending or, to the knowledge of the
Company, threatened or anticipated, material claims by or on behalf of any
Employee Benefit Plan or by any employee or beneficiary covered under any such
Employee Benefit Plan, involving any such Employee Benefit Plan (other than
claims for benefits in the ordinary course of business).
3.10 MATERIAL CONTRACTS. The Company has filed as an exhibit to a
Company SEC Report, or has delivered or otherwise made available to the Parent
true, correct and complete
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copies of all contracts and agreements to which the Company or any of the
Company Subsidiaries is a party (a) that are required to be filed in an exhibit
to an Annual Report on Form 10-K filed by the Company with the SEC as of the
date of this Agreement, (b) that purport to limit, curtail or restrict the
ability of the Company or any Company Subsidiary to operate or compete in any
geographic area or line of business, or (c) that provide for any severance or
other agreement with any employee or consultant pursuant to which such person
would be entitled to receive any additional compensation or an accelerated
payment of compensation as a result of the consummation of the transactions
contemplated hereby, or that contain any change in control provision
(collectively, the "Company Contracts"). Each of the Company Contracts is valid
and enforceable in accordance with its terms (except to the extent that its
enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, or other laws affecting the enforcement of creditor's
rights generally or by general equitable principles), and there is no default
under any Company Contract so listed either by the Company or any Company
Subsidiary or, to the knowledge of the Company, by any other party thereto, and
no event has occurred that with the lapse of time or giving of notice or both
would constitute a default thereunder by the Company or any Company Subsidiary
or, to the knowledge of the Company, any other party, in any such case in which
such default or event would have a Company Material Adverse Effect. No party to
any Company Contract has given notice to the Company of or made a claim against
the Company with respect to any breach or default thereunder, in any such case
in which such breach or default would have a Company Material Adverse Effect.
3.11 BOARD RECOMMENDATION; COMPANY ACTION; REQUISITE VOTE OF THE
COMPANY'S STOCKHOLDERS.
(a) The board of directors of the Company has, subject to
its continuing duties to the stockholders of the Company and by resolutions duly
adopted by the requisite vote of the directors present at a meeting of such
board duly called and held on March 12, 2000, determined that the Offer and
Merger, taken together, in accordance with the terms of this Agreement are fair
to and in the best interests of the Company and its stockholders, approved and
adopted this Agreement, the Merger, the Offer, and the other transactions
contemplated hereby and recommended that the stockholders of the Company accept
the Offer and approve and adopt this Agreement and the Merger. In connection
with such approval, the Company's board of directors received from Deutsche Bank
Securities, Inc. an opinion to the effect that consummation of the Offer and
Merger on the terms set forth herein is fair to the stockholders of the Company
from a financial point of view. The Company has been authorized by Deutsche Bank
Securities, Inc., to permit the inclusion of such opinion in its entirety in the
Offer Documents and the Schedule 14D-9 and the Proxy Statement, so long as such
inclusion is in form and substance reasonably satisfactory to Deutsche Bank
Securities, Inc. and its counsel.
(b) The affirmative vote of stockholders of the Company
required for approval and adoption of this Agreement and the Merger is and will
be no greater than a majority of the outstanding Company Common Stock. No vote
of any class or series of the Company's capital stock is necessary to approve
any of the transactions contemplated by the Offer or this Agreement other than
the Merger.
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3.12 TAXES.
(a) The Company and the Company Subsidiaries have timely
filed all federal, state, local, and other tax returns required to be filed on
or before the Effective Date by the Company and each Company Subsidiary under
applicable laws and have paid all required taxes (including any additions to
taxes, penalties and interest related thereto) due and payable on or before the
date hereof and all such tax returns were true, complete and correct, except for
such failures to file or failures to be true and correct as would not have a
Company Material Adverse Effect. The Company and the Company Subsidiaries have
withheld and paid over all taxes required to have been withheld and paid over,
and complied with all information reporting and backup withholding requirements,
including the maintenance of required records with respect thereto, in
connection with amounts paid or owing to any employee, creditor, independent
contractor or other third party, except for such failures to withhold or pay
over and such failures to company as would not reasonably be likely to have a
Company Material Adverse Effect. There are no encumbrances on any of the assets,
rights or properties of the Company or any Company Subsidiary with respect to
taxes, other than liens for taxes not yet due and payable or for taxes that the
Company or a Company Subsidiary is contesting in good faith through appropriate
proceedings.
(b) No audit of the tax returns of the Company or any
Company Subsidiary is pending or, to the knowledge of the Company, threatened
other than as disclosed in Section 3.12 of the Company Disclosure Letter or for
years for which the applicable statute of limitations has run. Except as
disclosed in Section 3.12 of the Company Disclosure Letter, no deficiencies have
been asserted against the Company or any Company Subsidiary as a result of
examinations by any state, local, federal or foreign taxing authority and no
issue has been raised by any examination conducted by any state, local, federal
or foreign taxing authority that, by application of the same principles, might
result in a proposed deficiency for any other period not so examined. Neither
the Company nor any Company Subsidiary is subject to any private letter ruling
of the Internal Revenue Service or comparable rulings of other tax authorities
that will be binding on the Company or any Company Subsidiary with respect to
any period following the Closing Date.
(c) Except as disclosed in Section 3.12 of the Company
Disclosure Letter, there are no agreements, waivers of statutes of limitations,
or other arrangements providing for extensions of time in respect of the
assessment or collection of any unpaid taxes against the Company or any Company
Subsidiary. The Company and each Company Subsidiary have disclosed on their
federal income tax returns all positions taken therein that could, if not so
disclosed, give rise to a substantial understatement penalty within the meaning
of Section 6662 of the Code.
(d) Neither the Company nor any Company Subsidiary is a
party to any safe harbor lease within the meaning of Section 168(f)(8) of the
Code, as in effect prior to amendment by The Tax Equity and Fiscal
Responsibility Act of 1982. None of the property owned by the Company or a
Company Subsidiary is "tax-exempt use property" within the meaning of Section
168(h) of the Code. Neither the Company nor any Company Subsidiary has agreed,
nor is it required to make, any adjustment under Code Section 481(a) by reason
of a change in accounting method or otherwise. Neither the Company nor any
Company Subsidiary
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is or has been within the preceding five years a United States real property
holding corporation within the meaning of Section 897(c)(2) of the Code and
Parent is not required to withhold tax on the purchase of the stock of the
Company by reason of Section 1445 of the Code.
3.13 RECALLS. Section 3.13 of the Company Disclosure Letter lists
all Recalls and Service Actions between January 1, 1995 and the date hereof with
respect to the products of the Company and the Company Subsidiaries. As used in
this Agreement, with respect to any product manufactured or sold by the Company
or any Company Subsidiary, (i) a "Recall" means any mandatory recall instituted
by the National Highway Traffic Safety Administration, or any similar
governmental or quasi-governmental entity in any jurisdiction other than the
United States, or a voluntary recall instituted pursuant to the terms of the
National Traffic Motor Vehicle Safety Act, as amended, in each case, or similar
law or regulation in any country other than the United States, and (iii) a
"Service Action" shall mean any voluntary systematic campaign, silent warranty
campaign or dealer network swap-out, instituted to remedy a product defect found
to exist in a particular product application, but expressly excluding (a) a
Recall or (b) warranty work conducted by the dealer network of an OEM in the
ordinary course of business.
3.14 PRODUCT LIABILITY. As of the date of this Agreement there is
no pending or, to the knowledge of the Company, threatened claim, action, suit
or proceeding before any governmental entity in which a product produced by the
Company or any Company Subsidiary is alleged to have a defect.
3.15 ENVIRONMENTAL. To the knowledge of the Company and except as
set forth in Section 3.15 of the Company Disclosure Letter or which otherwise is
not reasonably likely to have a Company Material Adverse Effect:
(a) There are no conditions existing on any real property
of the Company or any Company Subsidiary or resulting from operations conducted
thereon that give rise to any material violation of any Environmental Law.
(b) No real property of the Company or any Company
Subsidiary nor the operations currently conducted thereon or by any prior owner
of the real property, are subject to any pending or, to the knowledge of the
Company, threatened action, suit, investigation, inquiry or proceeding relating
to human health or environmental quality or any Environmental Laws by or before
any court or other governmental authority.
(c) All material permits notices and authorizations, if
any, required to be obtained or filed in connection with the operation or use of
any real property of the Company or any Company Subsidiary, including without
limitation past or present treatment, storage, disposal or release of a
Hazardous Substance or solid waste into the environment, have been duly obtained
or filed, and the Company is in compliance in all material respects with the
terms and conditions of all such permits, notices and authorizations.
(d) "Environmental Laws" means any federal, state and
local energy, public utility, health, safety and environmental laws,
regulations, orders, permits, licenses, approvals, ordinances and directives
including the Clean Air Act, the Clean Water Act, the Resources Conservation and
Recovery Act ("RCRA"), the Comprehensive Environmental Response,
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Compensation, and Liability Act ("CERCLA"), the Occupational Health and Safety
Act, the Toxic Substances Control Act and any similar foreign, state or local
law.
(e) "Hazardous Substance" means (a) any "hazardous
substance," as defined by CERCLA, (b) any "hazardous waste," as defined by RCRA,
or (c) any pollutant or contaminant or hazardous, dangerous or toxic chemical,
material or substance including ,but not limited to asbestos, buried
contaminants, regulated chemicals, flammable explosives, radioactive materials,
polychlorinated biphenyls, petroleum and petroleum products, within the meaning
of any other applicable law of any applicable governmental authority relating to
or imposing liability or standards of conduct concerning any hazardous, toxic,
or dangerous waste, substance or material, all as amended or hereafter amended.
3.16 INTELLECTUAL PROPERTY. Either the Company or a Company
Subsidiary owns, or is licensed or otherwise possesses legally enforceable
rights to use the Intellectual Property (as defined below) employed by it in the
conduct of its business ("Company Intellectual Property"), except to the extent
the failure to have such rights would not be reasonably likely to have a Company
Material Adverse Effect. The consummation of the Merger and the other
transactions contemplated under this Agreement will not alter or impair such
rights in a manner that would be reasonably likely to have a Company Material
Adverse Effect. To the knowledge of the Company, there are no oppositions,
cancellations, invalidity proceedings, interferences or re-examination
proceedings pending at the date hereof with respect to the Company Intellectual
Property. Except as set forth in Section 3.16 of the Company Disclosure Letter,
to the Company's knowledge, the conduct of the business of the Company and the
Company Subsidiaries does not infringe in any material respect on any
Intellectual Property rights of any person, and neither the Company or any
Company Subsidiary has received any written notice from any other person
challenging the right of the Company or any Company Subsidiary to use any of the
Company Intellectual Property material to the business of the Company. Except as
set forth in Section 3.16 of the Company Disclosure Letter, neither the Company
nor any Company Subsidiary has made any claim of a violation or infringement by
others of its rights to or in connection with the Company Intellectual Property
which is still pending. As used in this Section 3.16, Intellectual Property
shall mean the following: (i) all U.S. and foreign registered and unregistered
trademarks, trade dress, service marks, logos, trade names, corporate names and
all registrations and applications to register the same (hereinafter
"Trademarks"); (ii) all U.S. and foreign patents and pending patent
applications, patent disclosures, and any and all divisions, continuations,
continuations-in-part, reissues, reexaminations, and extension thereof, any
counterparts claiming priority therefrom, utility models, patents of
importation/confirmation, certificates of invention and like statutory rights
(hereinafter "Patents"); (iii) all U.S. and foreign registered copyrights
(including, but not limited to, those in computer software and databases)
(hereinafter "Copyrights"); (iv) all categories of trade secrets as defined in
the Uniform Trade Secrets Act including, but not limited to, business
information; and (v) all licenses and agreements pursuant to which the Company
has acquired rights in or to any Trademarks, Patents, or Copyrights, or licenses
and agreements pursuant to which the Company has licensed or transferred the
right to use any of the foregoing.
3.17 COMPLIANCE WITH LAWS. The Company and the Company Subsidiaries
are in compliance in all material respects with any applicable law, rule or
regulation of any Untied States federal, state, local or foreign government or
agency thereof which materially affects the
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business, properties or assets of the Company and the Company Subsidiaries, and
no notice, charge, claim, action or assertion has been received by the Company
or any Company Subsidiary or has been, filed, commenced or, to the Company's
knowledge, threatened against the Company or any Company Subsidiary alleging any
such violation that would be reasonably likely to have a Company Material
Adverse Effect. All licenses, permits and approvals required under such laws,
rules and regulations are in full force and effect, except where the failure to
be in full force and effect would not be reasonably likely to have a Company
Material Effect.
3.18 EMPLOYMENT MATTERS. To the Company's knowledge, no group of
employees acting together has any plans to terminate their employment with the
Company or any Company Subsidiary as a result of the transactions contemplated
by this Agreement or otherwise. Neither the Company nor any Company Subsidiary
has experienced any strikes, collective labor grievances, other collective
bargaining disputes or claims of unfair labor practices in the last five years.
To the Company's knowledge, there is no organizational effort presently being
made or threatened by or on behalf of any labor union with respect to employees
of the Company and the Company Subsidiaries.
3.19 RIGHTS AGREEMENT. The execution of this Agreement and any
amendments thereto by the parties hereto and the consummation of the
transactions contemplated hereunder shall not cause (i) the Parent to become an
Acquiring Person (as defined in the Rights Agreement), or (ii) a Distribution
Date, or a Shares Acquisition Date (as such terms are defined in the Rights
Agreement) to occur, irrespective of the number of shares of Company Common
Stock acquired pursuant to the Offer, and (y) the Rights (as defined in the
Rights Agreement) shall expire or be terminated immediately prior to the
consummation of the Offer.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE PARENT AND MERGER SUB
Parent and Merger Sub jointly and severally represent and warrant to
the Company as follows:
4.1 ORGANIZATION. Each of Parent and Merger Sub is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Each of Parent and Merger Sub has the corporate power to own
its property and to carry on its business as now being conducted. Each of Parent
and Merger Sub is duly qualified and/or licensed, as may be required, and in
good standing in each of the jurisdictions in which the nature of the business
conducted by it or the character of the property owned, leased or used by it
makes such qualification and/or licensing necessary, except in such
jurisdictions where the failure to be so qualified and/or licensed would not
individually or in the aggregate have a material adverse effect on the financial
condition, business, operations, liquidity, or assets of Parent and Merger Sub
and the direct and indirect subsidiaries of Parent (the "Parent Subsidiaries")
considered as a single enterprise (a "Parent Material Adverse Effect").
Notwithstanding anything to the contrary herein, any change, effect, fact, event
or condition which adversely affects the automotive supply industry generally
and affects similarly situated companies in the automotive supply industry,
shall not be considered in determining whether a Parent Material Adverse Effect
has occurred.
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4.2 AUTHORITY RELATIVE TO THIS AGREEMENT.
(a) Each of Parent and Merger Sub has the requisite
corporate power to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement by Parent and Merger
Sub, the performance by Parent and Merger Sub of their respective obligations
hereunder and the consummation by Parent and Merger Sub of the transactions
contemplated herein have been duly authorized by the respective boards of
directors of Parent and Merger Sub, and no other corporate proceedings on the
part of Parent or any of the Parent Subsidiaries are necessary to authorize the
execution and delivery of this Agreement, the performance by Parent and Merger
Sub of their respective obligations hereunder and the consummation by Parent and
Merger Sub of the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Parent and Merger Sub and constitutes a valid and
binding obligation of Parent and Merger Sub, enforceable in accordance with its
terms, except to the extent that its enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent transfer, reorganization or other laws
affecting the enforcement of creditors' rights generally or by general equitable
principles.
(b) Except as set forth in SECTION 4.2(b) of the Parent
Disclosure Letter, neither the execution and delivery of this Agreement by
Parent or Merger Sub, nor the consummation by Parent or Merger Sub of the
transactions contemplated herein nor compliance by Parent or Merger Sub with any
of the provisions hereof will (i) conflict with or result in any breach of the
Certificate or Articles of Incorporation or bylaws of Parent or any of the
Parent Subsidiaries or (ii) result in a violation or breach of any provisions
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of Parent or any of
the Parent Subsidiaries under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, deed of trust, license, contract, lease,
agreement or other instrument or obligation of any kind to which Parent or any
of the Parent Subsidiaries is a party or by which Parent or any of the Parent
Subsidiaries or any of their respective properties or assets may be bound or
(iii) subject to compliance with the statutes and regulations referred to in
SUBSECTION (c) below, violate any judgment, ruling, order, writ, injunction,
decree, statute, rule or regulation applicable to Parent or any of the Parent
Subsidiaries or any of their respective properties or assets other than any such
event described in items (i), (ii) or (iii) which would not (x) prevent the
consummation of the transactions contemplated hereby or (y) have a Parent
Material Adverse Effect.
(c) Except for compliance with the provisions of the
Delaware Law, the HSR Act, the `33 Act, the `34 Act, the rules and regulations
of the New York Stock Exchange and the "blue sky" laws of various states, no
action by any governmental authority is necessary for Parent's or Merger Sub's
execution and delivery of this Agreement or the consummation by Parent or Merger
Sub of the transactions contemplated hereby except where the failure to obtain
or take such action would not (i) prevent the consummation of the transactions
contemplated hereby or (ii) have a Parent Material Adverse Effect.
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4.3 FINANCING. At the Commencement Date, Parent will have
sufficient funds or funding commitments to permit Merger Sub to purchase all of
the shares pursuant to the Offer and the Merger.
4.4 OFFER DOCUMENTS; PROXY STATEMENT. The Offer Documents shall
not, at the time the Offer Documents are filed with the SEC or are first
published, sent or given to shareholders, 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 were made, not misleading. The information
supplied by Parent for inclusion in the Proxy Statement shall not, on the date
the Proxy Statement is first mailed to shareholders, at the time of the
Shareholders' Meeting (as defined in Section 6.1) or at the Effective Time,
contain any statement which, at such time and in light of the circumstances
under which it shall be made, is false or misleading with respect to a material
fact or shall omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not false or misleading or
necessary to correct any statement in any earlier communication with respect to
the solicitation of proxies for the Shareholders' Meeting which has become false
or misleading. Notwithstanding the foregoing, Parent and Merger Sub make no
representation or warranty with respect to any information supplied by the
Company or any of its representatives which is contained in any of the foregoing
documents or the Offer Documents. The Offer Documents shall comply as to form in
all material respects with the requirements of the Exchange Act and the rules
and regulations thereunder.
4.5 BROKER'S OR FINDER'S FEES. Except as disclosed in SECTION 4.5
of the Parent Disclosure Letter, no agent, broker, person or firm acting on
behalf of Parent or under its authority is or will be entitled to any advisory,
commission or broker's or finder's fee from any of the parties hereto in
connection with any of the transactions contemplated herein.
4.6 PARENT NOT AN INTERESTED STOCKHOLDER. As of the date hereof,
neither Parent nor any of its Affiliates is, with respect to the Company, an
"interested stockholder" as such term is defined in Section 203 of the Delaware
Law.
ARTICLE 5
CONDUCT OF BUSINESS PENDING THE MERGER
5.1 CONDUCT OF BUSINESS BY THE COMPANY PENDING THE MERGER. The
Company covenants and agrees that, prior to the Effective Time, unless Parent
shall otherwise agree in writing or except in connection with the transactions
contemplated by this Agreement:
(a) Except as set forth in SECTION 5.1 of the Company
Disclosure Letter, the businesses of the Company and the Company Subsidiaries
shall be conducted only in the ordinary and usual course of business and
consistent with past practices, and the Company and the Company Subsidiaries
shall use all reasonable efforts to maintain and preserve intact their
respective business organizations, to keep available the services of their
respective officers and employees and to maintain significant beneficial
business relationships with suppliers, contractors, distributors, customers,
licensors, licensees and others having business relationships with it; and
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(b) Without limiting the generality of the foregoing
SECTION 5.1(a), except as set forth in SECTION 5.1 of the Company Disclosure
Letter, the Company shall not directly or indirectly, and shall not permit any
of the Company Subsidiaries to, do any of the following:
(i) acquire, sell, lease, transfer or dispose of
any assets or securities or enter into any material commitment or
transaction, in each case out of the ordinary course of business
consistent with past practice;
(ii) amend or propose to amend its certificate of
incorporation or bylaws or, in the case of the Company Subsidiaries,
their respective constituent documents;
(iii) split, combine or reclassify any outstanding
shares of, or interests in, its capital stock;
(iv) declare, set aside or pay any dividend or
distribution, payable in cash, stock, property or otherwise with
respect to any of its capital stock;
(v) redeem, purchase or otherwise acquire or
offer to redeem, purchase or otherwise acquire any shares of its
capital stock or any options, warrants or rights to acquire capital
stock of the Company;
(vi) except for the Company Common Stock issuable
upon exercise of options outstanding on the date hereof and except for
up to 10,000 shares of Company Common Stock issuable under the OEA,
Inc. Directors Compensation Plan and the OEA, Inc. 1997 Employee Stock
Purchase Plan, issue, sell, pledge, dispose of or encumber, or
authorize, propose or agree to the issuance, sale, pledge or
disposition or encumbrance by the Company or any of the Company
Subsidiaries of, any shares of, or any options, warrants or rights of
any kind to acquire any shares of, or any securities convertible into
or exchangeable for any shares of, its capital stock of any class, or
any other securities in respect of, in lieu of, or in substitution for
any class of its capital stock outstanding on the date hereof;
(vii) modify the terms of any existing
indebtedness for borrowed money or incur any indebtedness for borrowed
money or issue any debt securities, except indebtedness incurred in the
ordinary course of business, but only if the amount of such
indebtedness, when added to all other indebtedness of the Company then
outstanding (determined in accordance with GAAP), does not exceed the
sum of (a) the total amount of indebtedness outstanding on January 31,
2000, and (b) $10,000,000;
(viii) assume, guarantee, endorse or otherwise as
an accommodation become responsible for, the obligations of any other
person, or make any loans or advances, except to the Company
Subsidiaries or except for those not in excess of $100,000 in the
aggregate;
(ix) authorize, recommend or propose any material
change in its capitalization, or any release or relinquishment of any
material contract right;
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(x) take any action with respect to the grant of
or increase in any severance or termination pay;
(xi) adopt or establish any new employee benefit
plan or amend in any material respect any employee benefit plan or
increase the compensation or fringe benefits of any employee (other
than non-officers and non-management personnel) or pay any material
benefit not required by any existing employee benefit plan;
(xii) enter into or amend in any material respect
any employment, consulting, severance or indemnification agreement
entered into or made by the Company or any of the Company Subsidiaries
with any of their respective directors, officers, agents, consultants
or employees, or any collective bargaining agreement or other
obligation to any labor organization or employee incurred or entered
into by the Company or any of the Company Subsidiaries, except for such
amendments to consulting agreements entered into in the ordinary
course;
(xiii) make or change any material tax election,
enter into any closing agreement relating to taxes, consent to any
waiver of the statute of limitations for any claim or assessment
relating to taxes, or settle or compromise any liability for taxes or
compromise, settle or otherwise resolve other litigation or legal
proceedings involving a payment of no more than $250,000 in any one
case by or to the Company or any of the Company Subsidiaries;
(xiv) make or commit to make capital expenditures
in excess of 10% (ten percent) over the aggregate budgeted amount set
forth in the Company's fiscal 2000 capital expenditure plan previously
provided to Parent;
(xv) adopt any material accounting method
relating to taxes or make any material changes in its reporting for
taxes or accounting procedures other than as required by GAAP or
applicable law;
(xvi) other than in the ordinary course of
business, pay or discharge any claims, liens or liabilities involving
more than $100,000 individually or $500,000 in the aggregate, which are
not reserved for on the balance sheet included in the Company Financial
Statements;
(xvii) write off any accounts or notes receivable
except in the ordinary course of business;
(xviii) knowingly take, or agree to commit to take,
any action that would or is reasonably likely to result in any of the
conditions to the Offer or any conditions of the Merger not being
satisfied, or would make any representation or warranty of the Company
contained in herein inaccurate in any material respect at, or as of any
time prior to, the Effective Time, or that would materially impair the
ability of the Company, Parent, Merger Sub or the holders of Shares to
consummate the Offer or the Merger in accordance with the terms hereof
or materially delay such consummation; or
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(xix) enter into or modify any contract,
agreement, commitment or arrangement to do any of the foregoing.
ARTICLE 6
ADDITIONAL AGREEMENTS
6.1 SHAREHOLDERS' MEETING.
(a) If required by applicable law in order to consummate
the Merger, the Company, acting through its Board of Directors, shall, in
accordance with applicable law and the Company's Certificate of Incorporation
and Bylaws, (i) duly call, give notice of, convene and hold an annual or special
meeting of its shareholders as soon as practicable following consummation of the
Offer for the purpose of considering and taking action on this Agreement and the
transactions contemplated hereby (the "Shareholders' Meeting") and (ii) subject
to its fiduciary duties under applicable law as advised by counsel, (A) include
in the Proxy Statement (as defined in Section 3.7) the unanimous recommendation
of the Board of Directors that the shareholders of the Company vote in favor of
the approval and adoption of this Agreement and the transactions contemplated
hereby and (B) use its best efforts to obtain the necessary approval and
adoption of this Agreement and the transactions contemplated hereby by its
shareholders. At the Shareholders' Meeting, Parent and Merger Sub shall cause
all Shares then owned by them and their subsidiaries to be voted in favor of
approval and adoption of this Agreement and the transactions contemplated
hereby.
(b) Notwithstanding the foregoing, in the event that
Merger Sub shall acquire at least 90 percent of the outstanding shares, the
parties hereto agree, at the request of Merger Sub, subject to Article 7, to
take all necessary and appropriate action to cause the Merger to become
effective as soon as reasonably practicable after such acquisition, without a
meeting of the Company's shareholders, in accordance with Section 253 of the
Delaware Law.
6.2 PROXY STATEMENT.
(a) If required by applicable law, as soon as practicable
following consummation of the Offer, the Company shall file with the SEC under
the Exchange Act, and shall use its best efforts to have cleared by the SEC, the
Proxy Statement with respect to the Shareholders' Meeting. Parent, Merger Sub
and the Company will cooperate with each other in the preparation of any Proxy
Statement; without limiting the generality of the foregoing, Parent and Merger
Sub, on the one hand, and the Company, on the other hand, will furnish to each
other the information relating to the party furnishing such information required
by the Exchange Act to be set forth in any Proxy Statement to be filed by the
party receiving such information, and Parent and its counsel shall be given the
opportunity to review the Proxy Statement prior to the filing thereof with the
SEC. The Company, Parent and Merger Sub each agree to use its reasonable best
efforts, after consultation with the other parties hereto, to respond promptly
to any comments made by the SEC with respect to any Proxy Statement and any
preliminary version thereof filed by it and cause such Proxy Statement to be
mailed to the Company's shareholders at the earliest practicable time.
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(b) As soon as practicable after the date hereof, the Company
and Parent shall promptly and properly prepare and file any other schedules,
statements, reports, or other documents required under the '34 Act (if any) or
any other federal or state securities laws relating to the Merger and the
transactions contemplated herein (the "Other Filings"). Each party shall notify
the others promptly of the receipt by such party of any comments or requests for
additional information from any governmental official with respect to any Other
Filing made by such party and will supply the others with copies of all
correspondence between such party and its representatives, on the one hand, and
the appropriate government official, on the other hand, with respect to the
Other Filings made by such party. Each of the Company and Parent shall use
reasonable efforts to obtain and furnish the information required to be included
in the Proxy Statement and any Other Filing and, after consultation with the
other, to respond promptly to any comments made by any governmental official
with respect to any Other Filing.
6.3 EMPLOYEE BENEFIT MATTERS.
(a) For one (1) year following the Effective Time, the
Surviving Corporation shall continue to provide to those individuals who are
employed by the Company as of the Effective Time and who remain employed by the
Surviving Corporation or any Subsidiary of the Surviving Corporation ("Affected
Employees"), employee benefits pursuant to such employee benefit plans,
programs, policies or arrangements which are maintained by the Surviving
Corporation or any Subsidiary of the Surviving Corporation and which, in the
aggregate, are not materially less favorable than those provided to employees of
the Surviving Corporation in positions comparable to positions held by Affected
Employees with the Surviving Corporation or its Subsidiaries; provided, however,
that the foregoing shall not require the maintenance or continued maintenance
of, or prevent the amendment or termination of, any particular benefit plan
except as provided in Section 6.3(c)(iii).
(b) The Surviving Corporation shall give Affected
Employees full credit for their service with the Company for purposes of
eligibility, vesting and determination of the level of benefits, under all
employee benefit plans, programs, policies or arrangements which are maintained
by the Surviving Corporation or any Subsidiary of the Surviving Corporation for
such Affected Employees to the same extent recognized by the Company immediately
prior to the Effective Time.
(c) The Surviving Corporation shall (i) waive all
limitations as to preexisting conditions, exclusions and waiting periods with
respect to participation and coverage requirements applicable to the Affected
Employees under any welfare benefit plans that such employees may be eligible to
participate in after the Effective Time, other than limitations or waiting
periods that are already in effect with respect to such employees and that have
not been satisfied as of the Effective Time, (ii) provide each Affected Employee
with credit for any co-payments and deductibles paid prior to the Effective Time
in satisfying any applicable deductible or out-of-pocket requirements for the
year in which the Effective Time occurs under any welfare plans that such
employees are eligible to participate in after the Effective Time and (iii)
continue group health insurance coverage pursuant to COBRA for individuals
covered under health insurance plans of the Company immediately prior to the
Effective Time.
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6.4 FAIRNESS OPINIONS. The Company shall receive a letter from
Deutsche Bank Securities, Inc., financial advisor to the Company and the Company
Subsidiaries, in form satisfactory to the Company to the effect that the Offer
Price and the terms upon which Company Common Stock is to be converted into the
right to receive the Merger Consideration are fair from a financial point of
view to the stockholders of the Company.
6.5 CONSENTS AND APPROVALS.
(a) The Company, Parent and Merger Sub shall each file or
cause to be filed with the Federal Trade Commission and the United States
Department of Justice any notifications required to be filed under the HSR Act
and the rules and regulations promulgated thereunder with respect to the
transactions contemplated hereby. The parties shall consult with each other as
to the appropriate time of filing such notifications and shall use their best
efforts to make such filings at the agreed upon time, to respond promptly to any
requests for additional information made by either of such agencies, and to
cause the waiting periods under the HSR Act to terminate or expire at the
earliest possible date after the date of filing.
(b) The Company, Parent and Merger Sub shall cooperate
with each other and (i) promptly prepare and file all necessary documentation,
(ii) effect all necessary applications, notices, petitions and filings and
execute all agreements and documents, (iii) use all reasonable efforts to obtain
all necessary permits, consents, approvals and authorizations of all
governmental bodies and (iv) use all reasonable efforts to obtain all necessary
Permits, consents, approvals and authorizations of all other parties, in the
case of each of the foregoing clauses (i), (ii), (iii) and (iv), necessary or
advisable to consummate the transactions contemplated by this Agreement or
required by the terms of any note, bond, mortgage, indenture, deed of trust,
license, franchise, permit, concession, contract, lease or other instrument to
which the Company, Merger Sub, Parent or any of their respective subsidiaries is
a party or by which any of them is bound; PROVIDED, HOWEVER, that no note, bond,
mortgage, indenture, deed of trust, license, franchise, permit, concession,
contract, lease or other instrument shall be amended or modified to increase
materially the amount payable thereunder or to be otherwise materially more
burdensome to the Company and the Company Subsidiaries considered as one
enterprise in order to obtain any permit, consent, approval or authorization
without first obtaining the written approval of Parent. The Company shall have
the right to review and approve in advance all characterizations of the
information relating to the Company; Parent shall have the right to review and
approve in advance all characterizations of the information relating to Parent
or Merger Sub; and each of the Company and Parent shall have the right to review
and approve in advance all characterizations of the information relating to the
transactions contemplated by this Agreement, in each case which appear in any
filing (including, without limitation, the Proxy Statement) made in connection
with the transactions contemplated hereby. The Company, Parent and Merger Sub
agree that they will consult with each other with respect to the obtaining of
all such necessary Permits, consents, approvals and authorizations of all third
parties and governmental bodies.
6.6 PUBLIC STATEMENTS. The Company, Parent and Merger Sub shall
consult with each other prior to issuing any public announcement, statement or
other disclosure with respect to this Agreement or the transactions contemplated
herein and shall not issue any such public
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announcement or statement prior to such consultation, except as may be required
by law or any listing agreement with a national securities exchange or trading
market.
6.7 REASONABLE BEST EFFORTS. Subject to the terms and conditions
herein provided, each of the Company, Parent and Merger Sub agrees to use
reasonable best efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things reasonably necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the Merger and
the other transactions contemplated by this Agreement, including but not limited
to obtaining all consents, approvals and authorizations required for or in
connection with the consummation by the parties hereto of the transactions
contemplated by this Agreement and the preparation of any disclosure
documentation requested by Parent in order to facilitate the financing of any of
the Transactions contemplated by this document. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement, Parent and/or the Surviving Corporation shall cause
the proper officers and directors of the Company, Parent and Merger Sub hereto
to take all such action. In the event any litigation is commenced by any person
involving the Company, Parent or Merger Sub and relating to the transactions
contemplated by this Agreement, including any other proposal for a Takeover
Proposal (as defined in SECTION 6.10), the Company, Parent or Merger Sub shall
have the right, at its own expense, to participate therein.
6.8 NOTIFICATION OF CERTAIN MATTERS. Each of the Company, Parent
and Merger Sub agrees to give prompt notice to each other of, and to use their
respective reasonable best efforts to prevent or promptly remedy, (i) the
occurrence or failure to occur, or the impending or threatened occurrence or
failure to occur, of any event which occurrence or failure to occur would be
likely to cause any of its representations or warranties in this Agreement to be
untrue or inaccurate in any material respect at any time from the date hereof
through the Effective Time and (ii) any material failure on its part to comply
with or satisfy any covenant, condition or agreement to be complied with or
satisfied by it hereunder; provided, however, that the delivery of any notice
pursuant to this SECTION 6.8 shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
6.9 ACCESS TO INFORMATION; CONFIDENTIALITY.
(a) The Company shall, and shall cause the Company
Subsidiaries and the officers, directors, employees and agents of the Company
and the Company Subsidiaries, to, afford the officers, employees and agents of
Parent and Merger Sub complete access at all reasonable times from the date
hereof through the Effective Date to its officers, employees, agents,
properties, facilities, books, records, contracts and other assets and shall
furnish Parent and Merger Sub all financial, operating and other data and
information as Parent and Merger Sub through their officers, employees or
agents, may reasonably request. Parent and Merger Sub shall have the right to
make such due diligence investigations as Parent and Merger Sub shall deem
necessary or reasonable.
(b) The provisions of the Confidentiality Agreement dated
January 5, 2000 between Parent and the Company (the "Confidentiality Agreement")
shall remain in full force and effect in accordance with its terms.
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(c) No investigation by any party hereto shall affect any
representations or warranties of the parties herein or the conditions to the
obligations of the parties hereto.
6.10 NO SOLICITATION.
(a) In light of the consideration given by the board of
directors of the Company prior to the execution of this Agreement, the Company
agrees that it shall not, nor shall it permit any of the Company Subsidiaries
to, nor shall it authorize or permit any officer, director or employee of, or
any investment banker, attorney or other advisor or representative of, the
Company or any of the Company Subsidiaries to, directly or indirectly (i)
solicit, initiate, or encourage the submission of, any Takeover Proposal (as
hereinafter defined), (ii) enter into any agreement with respect to any Takeover
Proposal or (iii) participate in any discussions or negotiations regarding, or
furnish to any person any information with respect to, or take any other action
to facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Takeover Proposal; PROVIDED, HOWEVER,
that prior to the acceptance for payment of shares of Company Common Stock
pursuant to the Offer, to the extent required to comport with the exercise of
its fiduciary obligations, as determined in good faith by the board of directors
of the Company under applicable law (after duly considering the advice of
outside counsel and financial advisors to the Company), the Company may, in
response to any unsolicited bona fide written proposal to the Company relating
to any actual or proposed Takeover Proposal that the board of directors
reasonably determines is likely to lead to a Superior Proposal, furnish
information with respect to the Company to any person pursuant to a customary
confidentiality agreement (as determined by the Company's outside counsel) and
participate in discussions and negotiations with such person; and PROVIDED
FURTHER that nothing contained in this SECTION 6.10(a) shall prohibit the
Company or its board of directors from disclosing to the Company's stockholders
a position with respect to a tender offer by a third party pursuant to Rules
14d-9 and 14e-2 promulgated under the `34 Act or from making such disclosure to
the Company's stockholders which, in the good faith judgment of the board of
directors (after duly considering the advice of outside counsel and financial
advisors to the Company) may be required under applicable law. Upon execution of
this Agreement, the Company will immediately cease any existing activities,
discussions or negotiations with any parties conducted prior to such execution
with respect to any of the foregoing. For purposes of this Agreement, "Takeover
Proposal" means any proposal or offer (whether or not in writing and whether or
not delivered to the stockholders of the Company generally) for a merger or
other business combination involving the Company or to acquire in any manner,
directly or indirectly, a material equity interest in, any voting securities of,
or a substantial portion of the assets of the Company, other than the
transactions contemplated by this Agreement.
(b) Neither the board of directors of the Company nor any
committee thereof shall (i) withdraw or modify, or propose to withdraw or
modify, in a manner adverse to Parent or Merger Sub, the approval or
recommendation by such board of directors or any such committee of the Offer,
this Agreement or the Merger or (ii) approve or recommend, or propose to approve
or recommend, any Takeover Proposal; PROVIDED, HOWEVER, that the board of
directors of the Company, to the extent required to comport with the exercise of
its fiduciary obligations, as determined in good faith by the board of directors
of the Company (after duly considering the advice of outside counsel and
financial advisors to the Company) may approve or recommend (and, in connection
therewith withdraw or modify its approval or recommendation of the Offer,
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this Agreement and the Merger) a Superior Proposal (as hereinafter defined);
PROVIDED, FURTHER, that any such approval or recommendation shall not (x) permit
the Company to enter into any agreement with respect to such Superior Proposal
or (y) affect any other obligation of the Company under this Agreement, unless
this Agreement is terminated pursuant to SECTIONS 8.1(e) OR (f) simultaneously
with the grant of such approval or recommendation and the Company simultaneously
pays Parent the Termination Fee under SECTION 8.3(a). For purposes of this
Agreement, "Superior Proposal" means a bona fide written proposal made by a
third party to acquire the Company pursuant to a tender or exchange offer, a
merger, a sale of all or substantially all its assets or otherwise on terms
which the board of directors of the Company determines in its good faith
judgment to be more favorable to the Company's stockholders than the Offer and
the Merger (based on the written opinion of the Company's independent financial
advisor) and believes in good faith (after consultation with its financial
advisor) that the person making such Superior Proposal has, or is reasonably
likely to have or obtain, any necessary funds or customary commitments to
provide any funds necessary to consummate such Superior Proposal that the value
of the consideration provided for in such proposal exceeds the value of the
consideration provided for in the Offer and the Merger). No provision contained
in this SECTION 6.10 shall affect any party's rights under SECTION 8.1 hereof.
Nothing in this Agreement is intended to be, or shall be construed as, an
impermissible delegation of the duties of the Company's board of directors under
Delaware law.
(c) The Company promptly shall advise Parent orally and
in writing of any Takeover Proposal or any inquiry with respect to or which
could lead to any Takeover Proposal and the identity of the person making any
such Takeover Proposal or inquiry. The Company will keep Parent fully informed
of the status and details of any such Takeover Proposal or inquiry (and will
immediately provide to Parent copies of any written materials received by the
Company in connection with any such Takeover Proposal or inquiry unless the
receipt by the Company of such written materials is expressly conditioned on the
nondisclosure thereof to Parent, in which case the Company will provide to
Parent a summary of only the price and terms of any such Takeover Proposal).
6.11 INDEMNIFICATION AND INSURANCE.
(a) The Bylaws of the Surviving Corporation shall contain
the provisions with respect to indemnification set forth in Article IX of the
Bylaws of the Company, which provisions shall not be amended, repealed or
otherwise modified for a period of six years from the Effective Time in any
manner that would adversely affect the rights thereunder of individuals who at
the date of this Agreement were directors, officers, employees or agents of the
Company, unless such modification is required by law.
(b) The Company shall, to the fullest extent permitted
under applicable law or under the Company's Certificate of Incorporation or
Bylaws and regardless of whether the Merger becomes effective, indemnify and
hold harmless, and after the Effective Time, the Surviving Corporation shall, to
the fullest extent permitted under applicable law, indemnify and hold harmless,
each present and former director, officer, employee, fiduciary and agent of the
Company or any of its Subsidiaries (collectively, the "Indemnified Parties")
against any costs or expenses (including attorneys' fees), judgments, fines,
losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or
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investigation, whether civil, criminal, administrative or investigative, arising
out of or pertaining to any action or omission occurring prior to the Effective
Time arising out of or pertaining to the transactions contemplated by this
Agreement for a period of four years after the date hereof. In the event of any
such claim, action, suit, proceeding or investigation (whether arising before or
after the Effective Time), (i) the Company or the Surviving Corporation, as the
case by be, shall pay the reasonable fees and expenses of counsel selected by
the Indemnified Parties, which counsel shall be reasonably satisfactory to the
Company or the Surviving Corporation, promptly after statements therefor are
received, (ii) the Company and the Surviving Corporation will cooperate in the
defense of any such matter, and (iii) any determination required to be made in
connection with a claim for indemnification, with respect to whether an
Indemnified party's conduct complies with the standards set forth under Delaware
Law and the Company's or the Surviving Corporation's Certificate of
Incorporation or Bylaws, shall be made by independent counsel mutually
acceptable to the Surviving Corporation and the Indemnified Party; PROVIDED,
HOWEVER, that neither the Company nor the Surviving Corporation shall be liable
for any settlement effected without its written consent (which consent shall not
be unreasonably withheld); and PROVIDED FURTHER, that neither the Company nor
the Surviving Corporation shall be obligated pursuant to this Section 6.11 to
pay the fees and disbursements of more than one counsel for all Indemnified
Parties in any single action except to the extent that, in the opinion of
counsel for the Indemnified Parties, two or more of such Indemnified Parties
have conflicting interests in the outcome of such action; and PROVIDED FURTHER
that, in the event that any claim or claims for indemnification are asserted or
made within such four-year period, all rights to indemnification in respect of
any such claim or claims shall continue until the disposition of any and all
such claims.
(c) In the event the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger of (ii) transfers all or substantially all of its
properties and assets to any person, then and in each such case, proper
provisions shall be made so that the successors and assigns of the Surviving
Corporation, or at Parent's option, Parent, shall assume the obligations set
forth in this Section 6.11.
(d) This Section 6.11 shall survive any termination of
this Agreement and the consummation of the Merger at the Effective Time, is
intended to benefit the Company, the Surviving Corporation and the Indemnified
Parties, and shall be binding on all successors and assigns of the Surviving
Corporation. Parent shall cause the Company to honor its obligations pursuant to
this Section 6.11.
6.12 STATE TAKEOVER LAWS. Notwithstanding any other provision in
this Agreement, in no event shall any action taken by the board of directors of
the Company referred to in Section 3.3 causing Section 203 of the Delaware Law
not to apply to this Agreement or the other transactions contemplated herein be
withdrawn, revoked or modified by the board of directors of the Company. If any
state takeover statute other than Section 203 of the Delaware law becomes or is
deemed to become applicable to the Agreement, the Offer, the acquisition of
Shares pursuant to the Offer or the Merger or any of the other transactions
contemplated herein, the Company shall take all action necessary to render such
statute inapplicable to all of the foregoing.
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6.13 ACTIONS REGARDING THE RIGHTS. The Company shall not modify or
waive, except as specifically provided herein, the terms of its Rights
Agreement, or take any action to redeem the Rights, except in connection with
its accepting a Superior Proposal pursuant to and in accordance with Section
6.10(b) and except that the Company shall amend the Rights Agreement to provide
for its termination immediately prior to the consummation of the Offer.
6.14 OPTIONS. The Company shall use its reasonable best efforts to
cause all persons who hold options to acquire Company Common Stock either to
exercise, terminate and/or consent to cancellation of such options prior to the
Expiration Date; provided, that the Company may in certain circumstances take
all actions necessary and appropriate to provide that, upon the Effective Time,
each outstanding option to purchase shares (collectively, the "Options") granted
under any Company stock option plan, whether or not then exercisable or vested,
shall be cancelled and, in exchange therefor, each holder of such Option shall
receive an amount in cash in respect thereof, if any, equal to the product of
(i) the excess, if any, of the Merger Consideration over the per share exercise
price thereof, and (ii) the number of shares subject thereto.
ARTICLE 7
CONDITIONS
7.1 CONDITIONS TO THE OBLIGATION OF EACH PARTY TO EFFECT THE
MERGER. The obligations of each of the Company, Parent and Merger Sub to effect
the Merger shall be subject to the fulfillment at or prior to the Effective Time
of the following conditions:
(a) The Merger and the consummation of the transactions
contemplated in this Agreement shall have been approved and adopted by the
requisite vote of the stockholders of the Company, Parent and Merger Sub, as the
case may be, required by the Delaware Law and their respective Certificates of
Incorporation and bylaws.
(b) Any waiting period (and any extension thereof)
applicable to the consummation of the Merger under the HSR Act shall have
expired or been terminated.
(c) No preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, nor any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority, shall be in effect that would make the acquisition of
Company Common Stock pursuant to the Offer or Merger or the holding directly or
indirectly by Parent of the shares of Common Stock of the Surviving Corporation
illegal or otherwise prevent the consummation of the Offer or the Merger.
(d) Except for the filing of the Certificate of Merger
with the Secretary of State of the State of Delaware, all waivers, consents,
approvals and actions or non-actions of any governmental authority, commission,
board or other regulatory body required to consummate the transactions
contemplated by this Agreement shall have been obtained and shall not have been
reversed, stayed, enjoined, set aside, annulled or suspended, except for such
failures to obtain such waiver, consent, approval or action which would not be
reasonably likely to have a Company Material Adverse Effect or a Parent Material
Adverse Effect.
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(e) Merger Sub shall have purchased all shares validly
tendered and not withdrawn pursuant to the Offer; PROVIDED, HOWEVER, that this
condition shall not be applicable to the obligations of Parent or Merger Sub if
Merger Sub fails to purchase shares tendered pursuant to the Offer in violation
of the terms of this Agreement or the Offer.
ARTICLE 8
TERMINATION, AMENDMENT AND WAIVER
8.1 TERMINATION. This Agreement may be terminated at any
time prior to the Effective Time, whether before or after approval of this
Agreement and the transactions contemplated herein by the respective boards of
directors or stockholders of the parties hereto:
(a) by mutual written consent of Parent, Merger Sub and
the Company;
(b) by either of Parent, Merger Sub or the Company if the
Effective Time shall not have occurred on or before June 30, 2000; PROVIDED,
HOWEVER, that the right to terminate this Agreement under this SECTION 8.1(b)
shall not be available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of, or resulted in, the failure of the
Effective Time to occur on or before such date; PROVIDED FURTHER that such time
periods shall be tolled for any part thereof during which any party shall be
subject to a nonfinal order, decree, ruling or action restraining, enjoining or
otherwise prohibiting the consummation of the Merger;
(c) by either of Parent, Merger Sub or the Company if a
court of competent jurisdiction or governmental, regulatory or administrative
agency or commission shall have issued an order, decree or ruling or taken any
other action (which order, decree or ruling each of the parties hereto shall use
all reasonable efforts to lift), in each case permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this Agreement, and
such order, decree, ruling or other action shall have become final and
nonappealable, or if any action seeking to restrain, prohibit, or challenge the
legality of the consummation of the transactions contemplated by this Agreement
is threatened by any government agency (which action the terminating party used
reasonable efforts to cure, address, resolve or avoid such action);
(d) by Parent if, due to any event, occurrence or
non-occurrence, as the case may be, which results in or constitutes a failure to
satisfy a Tender Offer Condition, the Offer is terminated or expires in
accordance with its terms without Merger Sub having purchased any Company Common
Stock thereunder;
(e) by Parent if (i) the Company shall have entered into
an agreement with a third party with respect to any acquisition or purchase of
all or a substantial portion of the assets of, or any substantial equity
interest in, the Company or any Company Subsidiary in accordance with the terms
of this Agreement or any business combination with the Company or any Company
Subsidiary by such third party or (ii) the board of directors of the Company
shall have withdrawn, modified or amended in any manner adverse to Parent its
approval of or recommendation in favor of the Offer, this Agreement or the
Merger; or
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(f) by the Company if the Company accepts a Superior
Proposal as described in SECTION 6.10 and simultaneously therewith pays Parent
the Termination Fee under SECTION 8.3(a).
8.2 EFFECT OF TERMINATION. Upon the termination of this Agreement
pursuant to SECTION 8.1, this Agreement shall forthwith become null and void
except as set forth in SECTIONS 6.9(b) AND 8.3, which shall survive such
termination; PROVIDED THAT, nothing herein shall relieve any party from
liability for any breach of this Agreement prior to such termination.
8.3 FEES AND EXPENSES.
(a) If this Agreement is terminated pursuant to SECTION
8.1(e) OR (f), the Company shall promptly pay Parent a fee of $6,000,000, plus
interest on such amount from the date payable until paid at a rate of 8%
calculated on a per annum basis (collectively, the "Termination Fee").
(b) Except as set forth in this SECTION 8.3, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, whether
or not the Merger is consummated.
8.4 AMENDMENT. This Agreement may be amended by the parties
hereto, at any time before or after approval of this Agreement and the
transactions contemplated herein by the respective boards of directors or
stockholders of the parties hereto; PROVIDED, HOWEVER, that after any such
approval by the stockholders, no amendment shall be made that changes the form
or reduces the amount of consideration to be paid to the stockholders or that in
any other way materially adversely affects the rights of such stockholders
(other than a termination of this Agreement in accordance with the provisions
hereof) without the further approval of such stockholders. This Agreement may
not be amended except by an instrument in writing signed on behalf of each of
the parties hereto.
8.5 WAIVER. Any failure of any of the parties to comply with any
obligation, covenant, agreement or condition herein may be waived at any time
prior to the Effective Time by any of the parties entitled to the benefit
thereof only by a written instrument signed by each such party granting such
waiver, but such waiver or failure to insist upon strict compliance with such
obligation, representation, warranty, covenant, agreement or condition shall not
operate as a waiver of or estoppel with respect to, any subsequent or other
failure.
ARTICLE 9
GENERAL PROVISIONS
9.1 NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if delivered
personally, mailed by certified mail (return receipt requested) or sent by
cable, telegram or telecopier to the parties at the following addresses or at
such other addresses as shall be specified by the parties by like notice:
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(a) if to Parent or Merger Sub:
Autoliv, Inc.
World Trade Center
Klarabergsviadukten 70
SE-107 24 Stockholm, Sweden
Attn: Vice President, Legal Affairs
telecopy: 46(8) 24 44 93
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036-6522
Attn: Scott V. Simpson
telecopy: (212) 735-2000
(b) if to the Company:
OEA, Inc.
P.O. Box 100488
Denver, Colorado 80250
Attn: Dr. Charles B. Kafadar
telecopy: (303) 693-0385
with a copy to:
Davis, Graham & Stubbs LLP
370 17th Street, Suite 4700
Denver, CO 80202
Attn: Ronald R. Levine, II
telecopy: 303-892-7400
Notice so given shall (in the case of notice so given by mail) be deemed to be
given when received and (in the case of notice so given by cable, telegram,
telecopier, telex or personal delivery) on the date of actual transmission or
(as the case may be) personal delivery.
9.2 REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained in this Agreement shall not survive the Merger.
9.3 CLOSING. The closing of the transactions contemplated by this
Agreement shall take place at the offices of Skadden, Arps, Slate, Meagher &
Flom LLP, or such other place as the parties may agree, as soon as practicable
after the satisfaction or waiver of the conditions set forth in SECTION 7.
9.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUCTED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
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REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES
OF CONFLICTS OF LAWS THEREOF.
9.5 COUNTERPARTS; FACSIMILE TRANSMISSION OF SIGNATURES. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, and delivered by means of facsimile
transmission or otherwise, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same agreement. If any party hereto elects to execute and
deliver a counterpart signature page by means of facsimile transmission, it
shall deliver an original of such counterpart to each of the other parties
hereto within ten days of the date hereof, but in no event will the failure to
do so affect in any way the validity of the facsimile signature or its delivery.
9.6 ASSIGNMENT. This Agreement and all of the provisions hereto
shall be binding upon and inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and permitted assigns, but
neither this Agreement nor any of the rights, interests or obligations set forth
herein shall be assigned by any part hereto without the prior written consent of
the other parties hereto and any purported assignment without such consent shall
be void; PROVIDED, HOWEVER, that Merger Sub may, without such consent and at any
time prior to the Effective Time, transfer all of Merger Sub's rights, interests
or obligations herein to any affiliate of Parent; PROVIDED, further, that no
assignment of any rights, interests or obligations set forth herein shall
release the assigning party from its obligations hereunder.
9.7 SEVERABILITY. If any provision of this Agreement shall be held
to be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable, then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
9.8 ENTIRE AGREEMENT. This Agreement and the Confidentiality
Agreement contain all of the terms of the understandings of the parties hereto
with respect to the subject matter hereof and are not intended to confer upon
any person other than the parties hereto any rights and remedies hereunder.
[The remainder of this page is intentionally blank]
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AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER SIGNATURE PAGE
IN WITNESS WHEREOF, Parent, Merger Sub, and the Company have caused
this Agreement to be executed as of the date first written above.
AUTOLIV, INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
OEA, INC.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
OEA, MERGER CORPORATION
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
S-1
<PAGE>
ANNEX I
The capitalized terms used herein have the meanings set forth in the
Amended and Restated Agreement and Plan of Merger dated as of March 12, 2000
(the "Merger Agreement") to which this Annex 1 is attached.
CONDITION OF THE OFFER
Notwithstanding any other provision of the Offer, Merger Sub shall not
be required to accept for payment, purchase or pay for any shares of Company
Common Stock tendered and may terminate or (subject to the terms of the Merger
Agreement) amend the Offer or may postpone the acceptance for payment, purchase
of or payment for shares of Company Common Stock tendered, if before acceptance
for payment for any such shares (whether or not any shares of Company Common
Stock have theretofore been accepted for payment or paid for pursuant to the
Offer) (i) there shall not have been validly tendered and not properly withdrawn
pursuant to the Offer at least a majority of the issued and outstanding shares
of Company Common Stock (the "Minimum Condition"), (ii) any waiting period under
the HSR Act applicable to the purchase of shares of Company Common Stock
pursuant to the Offer shall not have expired or been terminated, or (iii) any of
the following shall occur:
(a) Any representation or warranty of the Company in the
Merger Agreement shall have been untrue or incorrect in any respect as
of the date of the Merger Agreement or there has been a breach by the
Company of any covenant or agreement set forth in the Merger Agreement
which breach shall not be remedied within 5 days (or by the Expiration
Date if sooner) of written notice specifying such breach in reasonable
detail and demanding that same be remedied (except where such failure
to be true and correct or such breach, taken together with all other
such failures and breaches, would not have a Company Material Adverse
Effect).
(b) (i) There shall be any action taken, or any statute, rule,
regulation, decree, order or injunction promulgated, enacted, entered
into or enforced by any state, federal or foreign government or
governmental agency or authority or by any court (domestic or foreign)
that would (a) make the acceptance for payment of, the payment for, or
the purchase of, some or all of the Company Common Stock by Merger Sub
illegal or otherwise materially restrict or prohibit consummation of
the Offer or the Merger, (b) restrict or prohibit the ability of Merger
Sub, or render Merger Sub unable, to accept for payment, pay for or
purchase some or all of Company Common Stock in a manner that is
adverse in any material respect to the transactions contemplated by the
Offer or the Merger, (c) require the divestiture by Parent, Merger Sub
or the Company or any of their respective subsidiaries of material
portions of the business, assets or property of any of them or any
Company Common Stock, or impose any material limitation on the ability
of any of them to conduct their business and own such assets,
properties and Company Common Stock, (d) impose material limitations on
the ability of Merger Sub or Parent to acquire or hold or to exercise
effectively all rights of ownership of Company Common Stock, including,
without limitation, the right to vote any shares of Company Common
ANNEX 1 - Page 1
<PAGE>
Stock purchased by Merger Sub on all matters properly presented to the
stockholders of the Company or (e) impose any limitations on the
ability of Parent or Merger Sub or any of their respective subsidiaries
effectively to control in any material respect the business or
operations of the Company or the Company Subsidiaries; (ii) there shall
have been instituted, pending or threatened (in writing or by public
announcement) an action by a governmental entity seeking (A) to
restrain or prohibit the making or consummation of the Offer or the
consummation of the Merger or (B) to impose any other restriction,
prohibition or limitation referred to in the foregoing sub-paragraph
(i).
(c) Since the date of the Merger Agreement there shall have
occurred any material adverse change in the financial condition,
business, operations, liquidity, property or assets of the Company and
the Company Subsidiaries considered as one enterprise; PROVIDED,
HOWEVER, that events or conditions that affect the automotive supply
industry generally and affect all other similarly situated companies in
the automotive supply industry shall not be deemed a material adverse
change for purposes of this PARAGRAPH (c).
(d) There shall have occurred: (i) any general suspension of
trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market, (ii) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States, (iii) any material limitation
(whether or not mandatory) by any governmental authority on the
extension of credit by commercial banks or other commercial lending
institutions, (iv) a commencement of a war or armed hostilities or
other national or international calamity directly or indirectly
involving the United States or (v) in the case of any of the foregoing
existing at the time of the commencement of the Offer a material
acceleration or worsening thereof.
(e) The Merger Agreement shall have been terminated in
accordance with its terms.
(f) The Company's board of directors shall have withdrawn,
modified or amended in any respect adverse to Parent or Merger Sub its
recommendation of the Offer and the Merger or resolved to do so.
(g) Any corporation, entity or "group" (as defined in Section
13(d)(3) of the Securities Exchange Act of 1934), other than Parent and
Merger Sub shall have acquired beneficial ownership of more than 20% of
the outstanding shares of Company Common Stock, or shall have been
granted any options or rights, conditional or otherwise, to acquire a
total of more than 20% of the outstanding shares of Company Common
Stock and which, in each case, does not tender the shares of Company
Common Stock beneficially owned by it in the Offer.
(h) The Rights have not been exercised.
ANNEX I - Page 2
