- --------------------------------------------------------------------------------
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
-------------------
HELENE CURTIS INDUSTRIES, INC.
(Name of Subject Company)
CONOPCO ACQUISITION COMPANY, INC.
CONOPCO, INC.
UNILEVER N.V.
(Bidders)
-------------------
COMMON STOCK, PAR VALUE $.50 PER SHARE
(Title of Class of Securities)
-------------------
423236108
(CUSIP Number of Class of Securities)
-------------------
RONALD M. SOIEFER, ESQ.
VICE PRESIDENT
CONOPCO, INC.
390 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 888-1260
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
-------------------
COPY TO:
ALLEN FINKELSON, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
-------------------
FEBRUARY 13, 1996
(Date of Event Which Requires Filing Statement on Schedule 13D)
-------------------
CALCULATION OF FILING FEE
TRANSACTION VALUATION* AMOUNT OF FILING FEE
$582,314,740 $116,463
* For purposes of calculating amount of filing fee only. The amount assumes
the purchase of 8,318,782 shares of Common Stock, par value $.50 per share,
of the Company (the "Shares"). Such number of Shares represents all the
Shares outstanding as of February 5, 1996, plus the number of Shares
issuable upon the exercise of all options, plus the number of Shares
issuable upon conversion of shares of Class B Common Stock, par value $.50
per share, of the Company (the "Class B Shares") that are not subject to the
Stockholder Agreement.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid: N/A Filing Party: N/A
Form or Registration No.: N/A Date Filed: N/A
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Page 1 of 9 pages
Exhibit Index on page 9
<PAGE>
14D-1 AND 13D
CUSIP
NO. 423236108 PAGE 2 OF 9 PAGES
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CONOPCO ACQUISITION COMPANY, INC.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,774,106 CLASS B SHARES
8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
APPROXIMATELY 91.1% OF THE CLASS B SHARES OUTSTANDING AS OF
FEBRUARY 5, 1996*
10 TYPE OF REPORTING PERSON
CO
* See footnote on page 4.
Page 2 of 9 Pages
Exhibit Index on Page 9
<PAGE>
14D-1 AND 13D
CUSIP
NO. 423236108 PAGE 3 OF 9 PAGES
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
CONOPCO, INC. (13-1840427)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,774,106 CLASS B SHARES
8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
APPROXIMATELY 91.1% OF THE CLASS B SHARES OUTSTANDING AS OF
FEBRUARY 5, 1996*
10 TYPE OF REPORTING PERSON
CO
* See footnote on following page.
Page 3 of 9 Pages
Exhibit Index on Page 9
<PAGE>
14D-1 AND 13D
CUSIP
NO. 423236108 PAGE 4 OF 9 PAGES
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UNILEVER N.V.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC,OO
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(e) or 2(f)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
THE NETHERLANDS
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,774,106 CLASS B SHARES
8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
APPROXIMATELY 91.1% OF THE CLASS B SHARES OUTSTANDING AS OF
FEBRUARY 5, 1996*
10 TYPE OF REPORTING PERSON
CO
* The Purchaser and Parent (each as defined herein) have entered into a
Stockholder Agreement dated as of February 13, 1996 (the "Stockholder
Agreement"), with each of Ronald J. Gidwitz, HCI Partnership, an Illinois
general partnership, and Gidwitz Family Partnership, an Illinois general
partnership (collectively, the "Selling Stockholders"), pursuant to which such
Selling Stockholders have granted to the Purchaser an irrevocable option to
purchase, and upon the purchase of any Shares pursuant to the Offer (as
defined herein) the Purchaser has agreed to purchase, the Class B Shares owned
of record by the Selling Stockholders at a price per Class B Share of $70.00
in cash. Pursuant to the Stockholder Agreement, the Selling Stockholders have
also agreed that, among other things, until February 13, 1997, such Selling
Stockholders will not transfer the Class B Shares subject to the Stockholder
Agreement and will vote such Class B Shares in favor of the Merger (as defined
herein) and against certain competing transactions.
Page 4 of 9 Pages
Exhibit Index on Page 9
<PAGE>
This Tender Offer Statement on Schedule 14D-1 also constitutes a Statement
on Schedule 13D with respect to the acquisition by the Purchaser, Parent and
Unilever of beneficial ownership of the Class B Shares subject to the
Stockholder Agreement. The cover page above and item numbers and responses
thereto below are in accordance with the requirements of Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Helene Curtis Industries, Inc., a
Delaware corporation (the "Company"), which has its principal executive offices
at 325 North Wells Street, Chicago, Illinois 60610.
(b) This Schedule 14D-1 relates to the offer by the Purchaser to purchase
all outstanding Shares at a price of $70.00 per Share, net to the seller in cash
(the "Offer Price"), upon the terms and subject to the conditions set forth in
the Offer to Purchase and in the related Letter of Transmittal (which, together
with any amendments and supplements thereto, collectively constitute the
"Offer"), copies of which are attached hereto as Exhibits (a)(1) and (a)(2),
respectively. Information concerning the number of outstanding Shares is set
forth in "Introduction" of the Offer to Purchase and is incorporated herein by
reference.
(c) Information concerning the principal market in which the Shares are
traded and the high and low sales prices of the Shares for each quarterly period
since January 1994 is set forth in Section 6 ("Price Range of the Shares;
Dividends on the Shares") of the Offer to Purchase and is incorporated herein by
reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)--(d), (g) This Schedule 14D-1 is being filed by Conopco Acquisition
Company, Inc., a Delaware corporation (the "Purchaser"), Conopco, Inc., a New
York corporation ("Parent"), and Unilever N.V., a Dutch company ("Unilever").
The Purchaser is a wholly owned subsidiary of Parent, which is a direct
subsidiary of Unilever United States, Inc., a Delaware Corporation ("UNUS").
UNUS is directly owned 75% by Unilever and 25% by Unilever PLC, a company
organized under the laws of England and Wales. Information concerning the
principal business and the address of the principal offices of the Purchaser,
Parent, UNUS and Unilever is set forth in Section 9 ("Certain Information
Concerning the Purchaser, Parent and Unilever") of the Offer to Purchase and is
incorporated herein by reference.
(e) and (f) During the last five years, none of the Purchaser, Parent or
Unilever, or any of their respective executive officers or directors, or UNUS
has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors), nor has any of them been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting activities subject to, Federal or state
securities laws or finding any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a) The information set forth in Section 11 ("Contacts and Transactions with
the Company; Background of the Offer") and Section 12 ("Purpose of the Offer;
The Merger Agreement; The Stockholder Agreement; Plans for the Company") of the
Offer to Purchase is incorporated herein by reference.
(b) The information set forth in Section 11 ("Contacts and Transactions with
the Company; Background of the Offer") and Section 12 ("Purpose of the Offer;
The Merger Agreement; The
Page 5 of 9 Pages
Exhibit Index on Page 9
<PAGE>
Stockholder Agreement; Plans for the Company") of the Offer to Purchase is
incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) and (b) The information set forth in Section 10 ("Source and Amount of
Funds") of the Offer to Purchase is incorporated herein by reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)--(e) The information set forth in Section 12 ("Purpose of the Offer; The
Merger Agreement; The Stockholder Agreement; Plans for the Company") of the
Offer to Purchase is incorporated herein by reference.
(f) and (g) The information set forth in Section 7 ("Effect of the Offer on
the Market for the Shares; Stock Quotation; Exchange Act Registration; Margin
Regulations") of the Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) and (b) The information set forth in "Introduction", Section 9 ("Certain
Information Concerning the Purchaser, Parent and Unilever") and Section 12
("Purpose of the Offer; The Merger Agreement; The Stockholder Agreement; Plans
for the Company") of the Offer to Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
The information set forth in "Introduction", Section 9 ("Certain Information
Concerning the Purchaser, Parent and Unilever"), Section 11 ("Contacts and
Transactions with the Company; Background of the Offer") and Section 12
("Purpose of the Offer; The Merger Agreement; The Stockholder Agreement; Plans
for the Company") of the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in "Introduction" and in Section 16 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Not applicable.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in Section 12 ("Purpose of the Offer; The
Merger Agreement; The Stockholder Agreement; Plans for the Company") of the
Offer to Purchase is incorporated herein by reference.
(b) and (c) The information set forth in Section 15 ("Certain Legal
Matters") of the Offer to Purchase is incorporated herein by reference.
Page 6 of 9 Pages
Exhibit Index on Page 9
<PAGE>
(d) The information set forth in Section 7 ("Effect of the Offer on the
Market for the Shares; Stock Quotation; Exchange Act Registration; Margin
Regulations") of the Offer to Purchase is incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase, the Letter of
Transmittal, the Agreement and Plan of Merger dated as of February 13, 1996,
among the Purchaser, Parent and the Company, the Stockholder Agreement dated as
of February 13, 1996, among the Purchaser, Parent, Ronald J. Gidwitz, HCI
Partnership and Gidwitz Family Partnership, and the Confidentiality Agreement
dated November 30, 1995, between the Company and Unilever PLC, copies of which
are attached hereto as Exhibits (a)(1), (a)(2), (c)(1), (c)(2) and (c)(3),
respectively, is incorporated herein by reference.
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and
Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9.
(a)(7) Form of Summary Advertisement dated February 20, 1996.
(a)(8) Text of Press Release dated February 13, 1996, issued by UNUS.
(b) None.
(c)(1) Agreement and Plan of Merger dated as of February 13, 1996, among the
Purchaser, Parent and the Company.
(c)(2) Stockholder Agreement dated as of February 13, 1996, among the Purchaser,
Parent, Ronald J. Gidwitz, HCI Partnership and Gidwitz Family Partnership.
(c)(3) Confidentiality Agreement dated November 30, 1995, between the Company and
Unilever PLC.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
Page 7 of 9 Pages
Exhibit Index on Page 9
<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.
Dated: February 20, 1996
CONOPCO ACQUISITION COMPANY, INC.,
By /s/ THOMAS J. HOOLIHAN
...................................
Name: Thomas J. Hoolihan
Title: Secretary
CONOPCO, INC.,
By /s/ THOMAS J. HOOLIHAN
...................................
Name: Thomas J. Hoolihan
Title: Secretary
UNILEVER N.V.,
By /s/ STEPHEN G. WILLIAMS
...................................
Name: Stephen G. Williams
Title: Secretary
Page 8 of 9 Pages
Exhibit Index on Page 9
<PAGE>
EXHIBIT INDEX
<TABLE><CAPTION>
EXHIBIT PAGE
NUMBER EXHIBIT NAME NUMBER
- ------- -------------------------------------------------------------------------- ------
<S> <C> <C>
(a)(1) Offer to Purchase.........................................................
(a)(2) Letter of Transmittal.....................................................
(a)(3) Notice of Guaranteed Delivery.............................................
(a)(4) Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.....
(a)(5) Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and
Other Nominees............................................................
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.......................................................
(a)(7) Form of Summary Advertisement dated February 20, 1996.....................
(a)(8) Text of Press Release dated February 13, 1996, issued by UNUS.............
(b) None
(c)(1) Agreement and Plan of Merger dated as of February 13, 1996, among the
Purchaser, Parent and the Company.........................................
(c)(2) Stockholder Agreement dated as of February 13, 1996, among the Purchaser,
Parent, Ronald J. Gidwitz, HCI Partnership and Gidwitz Family
Partnership...............................................................
(c)(3) Confidentiality Agreement dated November 30, 1995, between the Company and
Unilever PLC..............................................................
(d) None......................................................................
(e) Not applicable............................................................
(f) None......................................................................
</TABLE>
Page 9 of 9 Pages
Exhibit Index on Page 9
Exhibit (a)(1)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Helene Curtis Industries, Inc.
at
$70.00 Net Per Share
by
Conopco Acquisition Company, Inc.
a wholly owned subsidiary of
Conopco, Inc.
a subsidiary of
Unilever N.V.
-------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, MARCH 18, 1996, UNLESS THE OFFER IS EXTENDED.
-------------------
THE BOARD OF DIRECTORS OF HELENE CURTIS INDUSTRIES, INC. (THE "COMPANY") HAS
UNANIMOUSLY APPROVED THE OFFER AND THE MERGER (AS DEFINED HEREIN) AND
DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO,
AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE
COMPANY AND UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS
OF THE COMPANY ACCEPT THE OFFER AND TENDER
THEIR SHARES (AS DEFINED HEREIN).
-------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES THAT, TOGETHER WITH THE CLASS B SHARES (AS DEFINED HEREIN) SUBJECT TO THE
STOCKHOLDER AGREEMENT (AS DEFINED HEREIN), WOULD CONSTITUTE A MAJORITY OF THE
COMBINED VOTING POWER OF ALL OUTSTANDING SHARES AND CLASS B SHARES ON A FULLY
DILUTED BASIS ON THE DATE OF PURCHASE (ASSUMING FOR SUCH DETERMINATION THAT EACH
CLASS B SHARE SUBJECT TO THE STOCKHOLDER AGREEMENT IS ONLY ENTITLED TO ONE VOTE
PER CLASS B SHARE) AND (2) ANY WAITING PERIOD UNDER THE HART-SCOTT-RODINO
ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE REGULATIONS THEREUNDER
APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR
BEEN TERMINATED.
-------------------
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
facsimile copy thereof in accordance with the instructions in the Letter of
Transmittal, have such stockholder's signature thereon guaranteed if required by
Instruction 1 to the Letter of Transmittal, mail or deliver the Letter of
Transmittal (or such facsimile), or, in the case of a book-entry transfer
effected pursuant to the procedure set forth in Section 2, an Agent's Message
(as defined herein), and any other required documents to the Depositary and
either deliver the certificates for such Shares to the Depositary along with the
Letter of Transmittal (or facsimile) or deliver such Shares pursuant to the
procedure for book-entry transfer set forth in Section 2 prior to the expiration
of the Offer or (2) request such stockholder's broker, dealer, bank, trust
company or other nominee to effect the transaction for such stockholder. A
stockholder having Shares registered in the name of a broker, dealer, bank,
trust company or other nominee must contact such broker, dealer, bank, trust
company or other nominee if such stockholder desires to tender such Shares.
A stockholder who desires to tender Shares and whose certificates for such
Shares are not immediately available or who cannot comply in a timely manner
with the procedure for book-entry transfer, or who cannot deliver all required
documents to the Depositary prior to the expiration of the Offer, may tender
such Shares by following the procedure for guaranteed delivery set forth in
Section 2.
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent or to the Dealer Manager at their
respective addresses and telephone numbers set forth on the back cover of this
Offer to Purchase.
-------------------
The Dealer Manager for the Offer is:
MORGAN STANLEY & CO.
Incorporated
February 20, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE><CAPTION>
PAGE
----
<S> <C>
Introduction.......................................................................... 1
The Tender Offer...................................................................... 3
1. Terms of the Offer................................................................. 3
2. Procedure for Tendering Shares..................................................... 5
3. Withdrawal Rights.................................................................. 8
4. Acceptance for Payment and Payment................................................. 8
5. Certain Federal Income Tax Consequences............................................ 9
6. Price Range of the Shares; Dividends on the Shares................................. 11
7. Effect of the Offer on the Market for the Shares; Stock Quotation; Exchange Act
Registration; Margin Regulations................................................... 11
8. Certain Information Concerning the Company......................................... 12
9. Certain Information Concerning the Purchaser, Parent and Unilever.................. 14
10. Source and Amount of Funds........................................................ 15
11. Contacts and Transactions with the Company; Background of the Offer............... 15
12. Purpose of the Offer; The Merger Agreement; The Stockholder Agreement; Plans for
the Company....................................................................... 17
13. Dividends and Distributions....................................................... 26
14. Certain Conditions of the Offer................................................... 27
15. Certain Legal Matters............................................................. 29
16. Fees and Expenses................................................................. 33
17. Miscellaneous..................................................................... 34
Schedule I--Directors and Executive Officers of Unilever, Parent and the Purchaser.... S-1
</TABLE>
<PAGE>
To the Holders of Common Stock
of Helene Curtis Industries, Inc.:
INTRODUCTION
Conopco Acquisition Company, Inc., a Delaware corporation (the "Purchaser"),
which is a wholly owned subsidiary of Conopco, Inc., a New York corporation
("Parent"), which is indirectly owned 75% by Unilever N.V., a Dutch corporation
("Unilever"), and 25% by Unilever PLC, a company organized under the laws of
England and Wales, hereby offers to purchase all outstanding shares of Common
Stock, par value $.50 per share (the "Shares"), of Helene Curtis Industries,
Inc., a Delaware corporation (the "Company"), at a price of $70.00 per Share,
net to the seller in cash, without interest thereon (the "Offer Price"), 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"). The Offer
is not being made for shares of Class B Common Stock, par value $0.50 per share
(the "Class B Shares"), of the Company. Holders of Class B Shares who wish to
tender their Class B Shares in the Offer must convert their Class B Shares into
Shares pursuant to the terms of the Company's certificate of incorporation prior
to tendering such shares. See Section 15.
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer. The
Purchaser will pay all fees and expenses of Morgan Stanley & Co. Incorporated
("Morgan Stanley"), which is acting as Dealer Manager (the "Dealer Manager"),
Morgan Guaranty Trust Company of New York, which is acting as the Depositary
(the "Depositary"), and Morrow & Co., Inc., which is acting as Information Agent
(the "Information Agent"), incurred in connection with the Offer. See Section
16.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER AND
THE MERGER (AS DEFINED BELOW) AND DETERMINED THAT THE TERMS OF THE OFFER AND THE
MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE
COMPANY AND UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER THEIR SHARES.
LAZARD FRERES & CO. LLC ("LAZARD"), THE COMPANY'S FINANCIAL ADVISOR, HAS
DELIVERED TO THE BOARD OF DIRECTORS OF THE COMPANY ITS WRITTEN OPINION TO THE
EFFECT THAT, AS OF THE DATE OF SUCH OPINION, THE CONSIDERATION TO BE RECEIVED BY
THE STOCKHOLDERS OF THE COMPANY IN CONNECTION WITH THE OFFER AND THE MERGER IS
FAIR TO THE STOCKHOLDERS OF THE COMPANY (OTHER THAN PARENT AND ITS AFFILIATES)
FROM A FINANCIAL POINT OF VIEW. SUCH OPINION IS SET FORTH IN FULL AS AN EXHIBIT
TO THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 (THE
"SCHEDULE 14D-9"), WHICH IS BEING MAILED TO STOCKHOLDERS OF THE COMPANY
HEREWITH. THE FACTORS CONSIDERED BY THE BOARD OF DIRECTORS OF THE COMPANY IN
ARRIVING AT ITS DECISION TO APPROVE THE OFFER AND THE MERGER AND TO RECOMMEND
THAT STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES ARE
DESCRIBED IN THE SCHEDULE 14D-9.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN SECTION
1) THAT NUMBER OF SHARES THAT, TOGETHER WITH THE CLASS B SHARES SUBJECT TO THE
STOCKHOLDER AGREEMENT, WOULD CONSTITUTE A MAJORITY OF THE COMBINED VOTING POWER
OF ALL OUTSTANDING SHARES AND CLASS B SHARES DETERMINED ON A FULLY DILUTED BASIS
ON THE DATE OF PURCHASE (ASSUMING FOR SUCH DETERMINATION THAT EACH CLASS B SHARE
SUBJECT TO THE STOCKHOLDER AGREEMENT IS ONLY ENTITLED TO ONE VOTE PER CLASS B
SHARE) (THE "MINIMUM CONDITION") AND (II) ANY WAITING PERIOD UNDER THE
HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE
REGULATIONS THEREUNDER (THE "HSR ACT") APPLICABLE TO THE PURCHASE OF SHARES
PURSUANT TO THE OFFER HAVING EXPIRED OR BEEN TERMINATED (THE "HSR CONDITION").
THE PURCHASER RESERVES THE RIGHT (SUBJECT TO THE APPLICABLE RULES AND
REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION")), WHICH
IT PRESENTLY HAS NO INTENTION OF EXERCISING (AND WHICH IT MAY NOT EXERCISE
WITHOUT THE COMPANY'S CONSENT UNLESS A TAKEOVER PROPOSAL (AS DEFINED HEREIN)
SHALL HAVE BEEN MADE), TO WAIVE OR REDUCE THE MINIMUM CONDITION
1
<PAGE>
AND TO ELECT TO PURCHASE, PURSUANT TO THE OFFER, LESS THAN THE MINIMUM NUMBER OF
SHARES. SEE SECTIONS 1 AND 14.
The Company has informed the Purchaser that, as of February 5, 1996, there
were 6,857,801 Shares issued and outstanding, 1,190,258 Shares reserved for
issuance upon the exercise of outstanding options to purchase Shares ("Stock
Options") and 3,044,829 Class B Shares issued and outstanding. Each Class B
Share presently has 10 votes per share (while each Share has one vote per share)
and, subject to certain specified conditions, must be converted into Shares in
order to be transferred. Based upon the foregoing, the Purchaser believes that,
assuming for purposes of this determination that each Class B Share subject to
the Stockholder Agreement is only entitled to one vote per share (which would be
the case if the Purchaser exercises its option under the Stockholder Agreement)
and that no other Class B Shares are converted into Shares, approximately
6,764,698 votes will constitute a majority of the combined voting power of all
outstanding Shares and Class B Shares on a fully diluted basis. Accordingly,
based on the foregoing assumptions, the Minimum Condition will be satisfied if
at least 3,990,592 Shares, or approximately 58.2% of the outstanding Shares as
of February 5, 1996 (approximately 49.6% of the Shares on a fully diluted
basis), are validly tendered and not withdrawn prior to the Expiration Date. If
the Minimum Condition is satisfied and the Purchaser accepts for payment Shares
tendered pursuant to the Offer, the Purchaser will be able to elect a majority
of the members of the Company's Board of Directors and to effect the Merger
without the affirmative vote of any other stockholder of the Company. See
Section 15 for a description of certain provisions relating to the Class B
Shares.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of February 13, 1996 (the "Merger Agreement"), among Parent, the Purchaser
and the Company pursuant to which, following the consummation of the Offer and
the satisfaction or waiver of certain conditions, the Purchaser will be merged
with and into the Company (the "Merger"), with the Company surviving the Merger
(as such, the "Surviving Corporation") as a wholly owned subsidiary of Parent.
In the Merger, each outstanding Share and Class B Share (other than Shares and
Class B Shares owned by the Company, any subsidiary of the Company, Parent, the
Purchaser or any other subsidiary of Parent or by stockholders, if any, who are
entitled to and who properly exercise appraisal rights under Delaware law) will
be converted into the right to receive from the Surviving Corporation the Offer
Price in cash, without interest (the "Merger Consideration"). The Merger is
subject to a number of conditions, including approval by stockholders of the
Company, if such approval is required by applicable law. See Section 12.
In connection with the execution of the Merger Agreement, the Purchaser and
Parent entered into a Stockholder Agreement dated as of February 13, 1996 (the
"Stockholder Agreement"), with each of Ronald J. Gidwitz, HCI Partnership, an
Illinois general partnership, and Gidwitz Family Partnership, an Illinois
general partnership (collectively, the "Selling Stockholders"), pursuant to
which such Selling Stockholders have granted to the Purchaser an irrevocable
option to purchase, and upon the purchase of any Shares in the Offer the
Purchaser has agreed to purchase, the Class B Shares owned of record by the
Selling Stockholders at a price per Class B Share of $70.00 in cash. Pursuant to
the Stockholder Agreement, the Selling Stockholders have also agreed that, among
other things, until February 13, 1997, such Selling Stockholders will not
transfer the Class B Shares subject to the Stockholder Agreement and will vote
such Class B Shares in favor of the Merger and against certain competing
transactions. An aggregate of 2,774,106 Class B Shares are subject to the
Stockholder Agreement, representing 91.1% of the Class B Shares that, as of
February 5, 1996, were issued and outstanding, and 72.0% of the combined voting
power of, and 25.0% of the total number of, Shares and Class B Shares that, as
of February 5, 1996, were issued and outstanding on a fully diluted basis.
The Merger Agreement and the Stockholder Agreement are more fully described
in Section 12.
Certain Federal income tax consequences of the sale of Shares pursuant to
the Offer and the conversion of Shares pursuant to the Merger are described in
Section 5.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ BEFORE ANY DECISION IS MADE 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, the Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with Section 3. The
term "Expiration Date" means 12:00 midnight, New York City time, on Monday,
March 18, 1996, unless and until the Purchaser shall have extended the period of
time during which the Offer is open, in which event the term "Expiration Date"
shall mean the latest time and date at which the Offer, as so extended by the
Purchaser, will expire.
In the Merger Agreement, the Purchaser has agreed that it will not, without
the consent of the Company, extend the Offer, except that, without the consent
of the Company, the Purchaser may extend the Offer (a) if at any scheduled
Expiration Date any of the conditions to the Purchaser's obligation to accept
Shares for payment are not satisfied or waived, until such time as such
conditions are satisfied or waived, (b) for any period required by any rule,
regulation, interpretation or position of the Commission or the staff thereof
applicable to the Offer and (c) for any reason on one or more occasions for an
aggregate period of not more than 15 business days beyond the latest expiration
date that would otherwise be permitted under the terms of the Merger Agreement
as described in this sentence. As used in this Offer to Purchase, "business day"
has the meaning set forth in Rule 14d-1 under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
Parent and the Purchaser have agreed in the Merger Agreement that if at any
scheduled Expiration Date the Minimum Condition, the HSR Condition or either of
the conditions to the Offer set forth in paragraphs (e) or (f) in Section 14 has
not been satisfied, but at such scheduled Expiration Date all the conditions to
the Offer set forth in paragraphs (a), (b), (c), (d) and (g) in Section 14 have
been satisfied, at the request of the Company, the Purchaser will extend the
Offer from time to time, subject to the right of Parent, the Purchaser or the
Company to terminate the Merger Agreement pursuant to the terms thereof. See
Section 12.
In addition, the Purchaser has agreed in the Merger Agreement that it will
not, without the consent of the Company, (a) reduce the number of Shares subject
to the Offer, (b) reduce the Offer Price, (c) add to the conditions set forth in
Section 14 (the "Offer Conditions"), (d) change the form of consideration
payable in the Offer or (e) amend the Offer Conditions or any other term of the
Offer in any manner adverse to the holders of Shares.
Subject to the terms of the Merger Agreement and the applicable rules and
regulations of the Commission, the Purchaser reserves the right (but shall not
be obligated), at any time and from time to time, and regardless of whether or
not any of the events or facts set forth in Section 14 hereof shall have
occurred, (a) to extend the period of time during which the Offer is open, and
thereby delay acceptance for payment of and the payment for any Shares, by
giving oral or written notice of such extension to the Depositary and (b) to
amend the Offer in any other respect by giving oral or written notice of such
amendment to the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT THE PURCHASER EXERCISES ITS
RIGHT TO EXTEND THE OFFER.
If by 12:00 midnight, New York City time, on Monday, March 18, 1996 (or any
date or time then set as the Expiration Date), any or all of the Offer
Conditions have not been satisfied or waived, the Purchaser reserves the right
(but shall not be obligated), subject to the terms and conditions contained in
the Merger Agreement and to the applicable rules and regulations of the
Commission, (a) to terminate the Offer and not accept for payment or pay for any
Shares and return all tendered Shares to tendering stockholders, (b) to waive
all the unsatisfied conditions and accept for payment and pay for all Shares
validly tendered prior to the Expiration Date and not theretofore withdrawn, (c)
to extend the Offer and, subject to the right of stockholders to withdraw Shares
until the Expiration Date, retain the
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Shares that have been tendered during the period or periods for which the Offer
is extended or (d) to amend the Offer.
There can be no assurance that the Purchaser will exercise its right to
extend the Offer. Any extension, waiver, amendment or termination will be
followed as promptly as practicable by public announcement. In the case of an
extension, Rule 14e-l(d) under the Exchange Act, requires that the announcement
be issued no later than 9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Date in accordance with the public
announcement requirements of Rule 14d-4(c) under the Exchange Act. Subject to
applicable law (including Rules 14d-4(c) and 14d-6(d) 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 the Purchaser may choose to
make any public announcement, the Purchaser will not have any obligation to
publish, advertise or otherwise communicate any such public announcement other
than by making a release to the Dow Jones News Service.
If the Purchaser extends the Offer or if the Purchaser is delayed in its
acceptance for payment of or payment (whether before or after its acceptance for
payment of Shares) for Shares or it is unable to pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer, the Depositary may retain tendered Shares on behalf of the Purchaser,
and such Shares may not be withdrawn except to the extent tendering stockholders
are entitled to withdrawal rights as described in Section 3. However, the
ability of the Purchaser to delay the payment for Shares that the Purchaser has
accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which
requires that a bidder pay the consideration offered or return the securities
deposited by or on behalf of holders of securities promptly after the
termination or withdrawal of such bidder's offer, and by the terms of the Merger
Agreement, which require that the Purchaser pay for Shares accepted for payment
as soon as practicable after the Expiration Date.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer
(including a waiver of the Minimum Condition), the Purchaser will disseminate
additional tender offer materials and extend the Offer to the extent required by
Rules 14d-4(c), 14d-6(d) and 14e-1 under the Exchange Act. The minimum period
during which an offer must remain open following material changes in the terms
of the offer or information concerning the offer, other than a change in price
or a change in the percentage of securities sought, will depend upon the facts
and circumstances then existing, including the relative materiality of the
changed terms or information. With respect to a change in price or a change in
the percentage of securities sought, a minimum period of 10 business days is
generally required to allow for adequate dissemination to stockholders.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition, the HSR Condition and the other Offer Conditions. Subject to the
terms and conditions contained in the Merger Agreement, the Purchaser reserves
the right (but shall not be obligated) to waive any or all such conditions.
However, if the Purchaser waives or amends the Minimum Condition (which action
may not be taken without the Company's consent unless a Takeover Proposal shall
have been made) during the last five business days during which the Offer is
open, the Purchaser will be required to extend the Expiration Date so that the
Offer will remain open for at least five business days after the announcement of
such waiver or amendment is first published, sent or given to holders of Shares
and may also be required to extend the Offer if other conditions are waived,
depending upon the materiality of the waiver.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed by the Purchaser to record
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holders of Shares, and will be furnished to brokers, dealers, banks, trust
companies and similar persons whose names, or the names of whose nominees,
appear on the stockholder lists, or, if applicable, who are listed as
participants in a clearing agency's security position listing, for subsequent
transmittal to beneficial owners of Shares.
2. PROCEDURE FOR TENDERING SHARES
Valid Tender. For a stockholder validly to tender Shares pursuant to the
Offer, either (a) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, together with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message (as defined below),
and any other required documents, must be received by the Depositary at one of
its addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date and either certificates for tendered Shares must be received by
the Depositary at one of such addresses or such Shares must be delivered
pursuant to the procedures for book-entry transfer set forth below (and a
Book-Entry Confirmation (as defined below) received by the Depositary), in each
case prior to the Expiration Date, or (b) the tendering stockholder must comply
with the guaranteed delivery procedures set forth below.
The Depositary will establish accounts with respect to the Shares at The
Depository Trust Company, the Midwest Securities Trust Company and the
Philadelphia Depository Trust Company (the "Book-Entry Transfer Facilities") for
purposes of the Offer within two business days after the date of this Offer to
Purchase. Any financial institution that is a participant in any of the
Book-Entry Transfer Facilities' systems may make book-entry delivery of Shares
by causing a Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with such Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through book-entry transfer into the Depositary's account at a
Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees, or
an Agent's Message, and any other required documents, must, in any case, be
transmitted to, and received by, the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase prior to the Expiration Date,
or the tendering stockholder must comply with the guaranteed delivery procedures
described below. The confirmation of a book-entry transfer of Shares into the
Depositary's account at a Book-Entry Transfer Facility as described above is
referred to herein as a "Book-Entry Confirmation". DELIVERY OF DOCUMENTS TO A
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgement from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Signature Guarantees. No signature guarantee is required on the Letter of
Transmittal (a) if the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facilities' systems whose name appears on a
security position listing as the owner of the Shares) of Shares tendered
therewith and such registered
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holder has not completed either the box entitled "Special Delivery Instructions"
or the box entitled "Special Payment Instructions" on the Letter of Transmittal
or (b) if such Shares are tendered for the account of a financial institution
(including most commercial banks, savings and loan associations and brokerage
houses) that is a participant in the Security Transfer Agents Medallion Program,
the New York Stock Exchange Medallion Signature Guarantee Program or the Stock
Exchange Medallion Program (such participant, an "Eligible Institution"). In all
other cases, all signatures on the Letter of Transmittal must be guaranteed by
an Eligible Institution. See Instructions 1 and 5 to the Letter of Transmittal.
If the certificates for Shares are registered in the name of a person other than
the signer of the Letter of Transmittal, or if payment is to be made or
certificates for Shares not tendered or not accepted for payment are to be
returned to a person other than the registered holder of the certificates
surrendered, the tendered certificates must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name or names of
the registered holders or owners appear on the certificates, with the signatures
on the certificates or stock powers guaranteed as aforesaid. See Instructions 1
and 5 to the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's certificates for Shares are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such stockholder's tender may be
effected if all the following conditions are met:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary, as provided below, prior to the Expiration Date; and
(iii) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to all such Shares),
together with a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or, in
the case of a book-entry transfer, an Agent's Message, and any other
required documents are received by the Depositary within three trading days
after the date of execution of such Notice of Guaranteed Delivery. A
"trading day" is any day on which the New York Stock Exchange, Inc. (the
"NYSE") is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the Depositary
or transmitted by telegram, 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.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (a) certificates for (or a timely Book-Entry
Confirmation with respect to) such Shares, (b) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message, and (c) any other documents required by the Letter of Transmittal.
Accordingly, tendering stockholders may be paid at different times depending
upon when certificates for Shares or Book-Entry Confirmations with respect to
Shares are actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
The valid tender of Shares pursuant to one of the procedures described above
will constitute a binding agreement between the tendering stockholder and the
Purchaser upon the terms and subject to the conditions of the Offer.
Appointment. By executing a Letter of Transmittal as set forth above, the
tendering stockholder will irrevocably appoint designees of the Purchaser as
such stockholder's attorneys-in-fact and proxies
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in the manner set forth in the Letter of Transmittal, each 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 the
Purchaser and with respect to any and all other Shares or other securities or
rights issued or issuable in respect of such Shares on or after February 13,
1996. All such proxies will be considered coupled with an interest in the
tendered Shares. Such appointment will be effective when, and only to the extent
that, the Purchaser accepts for payment Shares tendered by such stockholder as
provided herein. Upon such appointment, all prior powers of attorney, proxies
and consents given by such stockholder with respect to such Shares or other
securities or rights will, without further action, be revoked and no subsequent
powers of attorney, proxies, consents or revocations may be given (and, if
given, will not be deemed effective). The designees of the Purchaser will
thereby be empowered to exercise all voting and other rights with respect to
such Shares and other securities or rights in respect of any annual, special or
adjourned meeting of the Company's stockholders, actions by written consent in
lieu of any such meeting or otherwise, as they in their sole discretion deem
proper. The Purchaser reserves the right to require that, in order for Shares to
be deemed validly tendered, immediately upon the Purchaser's acceptance for
payment of such Shares, the Purchaser must be able to exercise full voting,
consent and other rights with respect to such Shares and other securities or
rights, including voting at any meeting of stockholders.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser in its sole discretion, which determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders determined by it not to be in proper form or the acceptance
for payment of or payment for which may, in the opinion of the Purchaser's
counsel, be unlawful. The Purchaser also reserves the absolute right to waive
any defect or irregularity in the tender of any Shares of any particular
stockholder whether or not similar defects or irregularities are waived in the
case of other stockholders. No tender of Shares will be deemed to have been
validly made until all defects or irregularities relating thereto have been
cured or waived. None of the Purchaser, Parent, the Depositary, the Information
Agent, the Dealer Manager or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any liability
for failure to give any such notification. The Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding.
Backup Withholding. In order to avoid "backup withholding" of Federal income
tax on payments of cash pursuant to the Offer, a stockholder surrendering Shares
in the Offer must, unless an exemption applies, provide the Depositary with such
stockholder's correct taxpayer identification number ("TIN") on a Substitute
Form W-9 and certify under penalties of perjury that such TIN is correct and
that such stockholder is not subject to backup withholding. If a stockholder
does not provide such stockholder's correct TIN or fails to provide the
certifications described above, the Internal Revenue Service (the "IRS") may
impose a penalty on such stockholder and payment of cash to such stockholder
pursuant to the Offer may be subject to backup withholding of 31%. All
stockholders surrendering Shares pursuant to the Offer should complete and sign
the main signature form and the Substitute Form W-9 included as part of the
Letter of Transmittal to provide the information and certification necessary to
avoid backup withholding (unless an applicable exemption exists and is proved in
a manner satisfactory to the Purchaser and the Depositary). Certain stockholders
(including, among others, all corporations and certain foreign individuals and
entities) are not subject to backup withholding. Noncorporate foreign
stockholders should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal.
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3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by the Purchaser pursuant
to the Offer, may also be withdrawn at any time after Friday, April 19, 1996.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If certificates for Shares have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and, unless such Shares have been tendered by an Eligible
Institution, the signatures on the notice of withdrawal must be guaranteed by an
Eligible Institution. If Shares have been delivered pursuant to the procedure
for book-entry transfer as set forth in Section 2, any notice of withdrawal must
also specify the name and number of the account at the appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares and otherwise comply
with such Book-Entry Transfer Facility's procedures. Withdrawals of tenders of
Shares may not be rescinded, and any Shares properly withdrawn will thereafter
be deemed not validly tendered for purposes of the Offer. However, withdrawn
Shares may be retendered by again following one of the procedures described in
Section 2 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser in its sole
discretion, which determination will be final and binding. None of the
Purchaser, Parent, the Depositary, the Information Agent, the Dealer Manager or
any other person will be under any duty to give notification of any defects or
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn in
accordance with Section 3 promptly after the Expiration Date. All determinations
concerning the satisfaction of such terms and conditions will be within the
Purchaser's discretion, which determinations will be final and binding. See
Sections 1 and 14. The 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, including, without limitation, the HSR Act. Any
such delays will be effected in compliance with Rule 14e-l(c) under the Exchange
Act (relating to a bidder's obligation to pay for or return tendered securities
promptly after the termination or withdrawal of such bidder's offer).
Unilever and the Company expect to file soon their Notification and Report
Forms with respect to the Offer under the HSR Act. The waiting period under the
HSR Act with respect to the Offer will expire at 11:59 p.m., New York City time,
on the 15th day after the date Unilever's form is filed unless early termination
of the waiting period is granted. However, the Antitrust Division of the
Department of Justice (the "Antitrust Division") or the Federal Trade Commission
(the "FTC") may extend the waiting period by requesting additional information
or documentary material from Unilever or the Company. If such a request is made,
such waiting period will expire at 11:59 p.m., New York City time, on the 10th
day after substantial compliance by Unilever or the Company with such request.
See
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Section 15 hereof for additional information concerning the HSR Act and the
applicability of the antitrust laws 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 (a) certificates for
(or a timely Book-Entry Confirmation with respect to) such Shares, (b) a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees, or, in the case of a book-entry
transfer, an Agent's Message, and (c) any other documents required by the Letter
of Transmittal. The per Share consideration paid to any stockholder pursuant to
the Offer will be the highest per Share consideration paid to any other
stockholder pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to the Purchaser and
not withdrawn as, if and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance for payment of such Shares. Payment for
Shares accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering stockholders. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
If the Purchaser is delayed in its acceptance for payment of or payment for
Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer (but subject to compliance with Rule 14e-1(c) under the Exchange Act,
which requires that a tender offeror pay the consideration offered or return the
tendered securities promptly after termination or withdrawal of a tender offer,
and the terms of the Merger Agreement), the Depositary may, nevertheless, on
behalf of the Purchaser, retain tendered Shares, and such Shares may not be
withdrawn except to the extent tendering stockholders are entitled to exercise,
and duly exercise, withdrawal rights as described in Section 3.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, certificates for any such Shares will be returned, without expense to
the tendering stockholder (or, in the case of Shares delivered by book-entry
transfer of such Shares into the Depositary's account at a Book-Entry Transfer
Facility pursuant to the procedure set forth in Section 2, such Shares will be
credited to an account maintained at the appropriate Book-Entry Transfer
Facility), as promptly as practicable after the expiration or termination of the
Offer.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to Parent, or to one or more direct or indirect wholly
owned subsidiaries of Parent, the right to purchase Shares tendered pursuant to
the Offer, but any such transfer or assignment will not relieve the Purchaser of
its obligations under the Offer and will in no way prejudice the rights of
tendering stockholders to receive payment for Shares validly tendered and
accepted for payment pursuant to the Offer.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash pursuant to the Offer or the Merger will be a taxable
transaction for Federal income tax purposes under the Internal Revenue Code of
1986, as amended (the "Code"), and may also be a taxable transaction under
applicable state, local or foreign income or other tax laws. Generally, for
Federal income tax purposes, a tendering stockholder will recognize gain or loss
equal to the difference between the amount of cash received by the stockholder
pursuant to the Offer or the Merger and the aggregate tax basis in the Shares
tendered by the stockholder and purchased pursuant to the Offer or
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converted in the Merger, as the case may be. Gain or loss will be calculated
separately for each block of Shares tendered and purchased pursuant to the Offer
or converted in the Merger, as the case may be.
If Shares are held by a stockholder as capital assets, gain or loss
recognized by the stockholder will be capital gain or loss, which will be
long-term capital gain or loss if the stockholder's holding period for the
Shares exceeds one year. Under present law, long-term capital gains recognized
by an individual stockholder will generally be taxed at a maximum Federal
marginal tax rate of 28%, and long-term capital gains recognized by a corporate
stockholder will be taxed at a maximum Federal marginal tax rate of 35%. In
addition, under present law the ability to use capital losses to offset ordinary
income is limited.
The Revenue Reconciliation Bill of 1995 (the "Bill"), which was vetoed by
President Clinton, would have generally reduced the maximum Federal marginal
income tax rate on long-term capital gains (for sales after December 31, 1994)
to 19.8% for individual stockholders and to 28% for corporate stockholders. In
addition, the Bill would have further restricted the ability to use capital
losses to offset ordinary income. As budget negotiations between Congress and
the President are ongoing, it cannot be predicted whether any reduction in the
tax rate for capital gains (or any additional restrictions on the ability to use
capital losses against ordinary income) will be enacted or, if enacted, when any
such reduction (or restrictions) will be effective. Stockholders are urged to
consult with their tax advisors regarding the applicable rate of taxation and
their ability to use capital losses against ordinary income.
A stockholder that tenders Shares may be subject to 31% backup withholding
unless the stockholder provides its TIN and certifies that such number is
correct or properly certifies that it is awaiting a TIN, or unless an exemption
applies. Exemptions are available for stockholders that are corporations and for
certain foreign individuals and entities. A stockholder that does not furnish a
required TIN may be subject to a penalty imposed by the IRS. See "Backup
Withholding" under Section 2.
If backup withholding applies to a stockholder, the Depositary is required
to withhold 31% from payments to such stockholder. Backup withholding is not an
additional tax. Rather, the amount of the backup withholding can be credited
against the Federal income tax liability of the person subject to the backup
withholding, provided that the required information is given to the IRS. If
backup withholding results in an overpayment of tax, a refund can be obtained by
the stockholder upon filing an income tax return.
THE FOREGOING DISCUSSION MAY NOT BE APPLICABLE WITH RESPECT TO SHARES
RECEIVED PURSUANT TO THE EXERCISE OF EMPLOYEE STOCK OPTIONS OR OTHERWISE AS
COMPENSATION OR WITH RESPECT TO HOLDERS OF SHARES WHO ARE SUBJECT TO SPECIAL TAX
TREATMENT UNDER THE CODE, SUCH AS NON-U.S. PERSONS, LIFE INSURANCE COMPANIES,
TAX-EXEMPT ORGANIZATIONS AND FINANCIAL INSTITUTIONS, AND MAY NOT APPLY TO A
HOLDER OF SHARES IN LIGHT OF INDIVIDUAL CIRCUMSTANCES. STOCKHOLDERS ARE URGED TO
CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO
THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL OR FOREIGN INCOME
AND OTHER TAX LAWS) OF THE OFFER AND THE MERGER.
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6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES
The Shares are traded on the NYSE under the symbol HC. The following table
sets forth, for each of the periods indicated, the high and low sales prices per
Share as reported by the NYSE and the Dow Jones News Retrieval Service.
HELENE CURTIS INDUSTRIES, INC.
SALES PRICES
-----------------
HIGH LOW
------ ------
FISCAL YEAR ENDING IN FEBRUARY
- ---------------------------------------------------
1994
First Quarter.................................... $43 3/4 $32 1/4
Second Quarter................................... 34 1/8 25 3/4
Third Quarter.................................... 27 3/4 25
Fourth Quarter................................... 29 1/8 24 7/8
1995
First Quarter.................................... 28 5/8 22 3/4
Second Quarter................................... 34 3/8 27 3/8
Third Quarter.................................... 36 3/8 31
Fourth Quarter................................... 34 28 3/4
1996
First Quarter.................................... 34 1/2 28 1/2
Second Quarter................................... 33 1/8 27 3/4
Third Quarter.................................... 32 3/8 27 1/2
Fourth Quarter (through February 16, 1996)....... 69 1/2 27 3/4
On February 13, 1996, the last full trading day before the public
announcement of the execution of the Merger Agreement, the last reported sales
price of the Shares on the NYSE was $59.00 per Share. On February 16, 1996, the
last full trading day before commencement of the Offer, the last reported sales
price of the Shares on the NYSE was $69.50 per Share. STOCKHOLDERS ARE URGED TO
OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
On January 9, 1996, the Company's Board of Directors declared a regular
quarterly cash dividend of $.08 per Share and $.08 per Class B Share payable on
February 20, 1996, to holders of record of Shares and Class B Shares, as
applicable, as of February 5, 1996. Tendering stockholders who were stockholders
of record on February 5, 1996, will be able to receive and retain such regular
quarterly dividend regardless of when Shares are tendered or accepted for
payment pursuant to the Offer.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; STOCK QUOTATION; EXCHANGE
ACT REGISTRATION; MARGIN REGULATIONS
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 and could adversely affect the liquidity and market
value of the remaining Shares held by the public.
Stock Quotation. Depending upon the number of Shares purchased pursuant to
the Offer, the Shares may no longer meet the requirements of the NYSE for
continued listing. According to the NYSE's published guidelines, the NYSE would
consider delisting the Shares if, among other things, the number of record
holders of at least 100 Shares were to fall below 1,200, the number of publicly
held Shares (exclusive of management or other concentrated holdings) were to
fall below 600,000 or the aggregate market value of publicly held Shares were to
not exceed $5 million. According to the
11
<PAGE>
Company, as of February 5, 1996, there were 6,857,801 Shares outstanding. If, as
a result of the purchase of Shares pursuant to the Offer or otherwise, the
Shares no longer meet the requirements of the NYSE for continued listing and the
Shares are no longer listed, the market for Shares could be adversely affected.
If the NYSE was to delist the Shares, it is possible that the Shares would
continue to trade on other securities exchanges or in the over-the-counter
market and that price quotations would be reported by such exchanges or through
the Nasdaq Stock Market or 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 Shares remaining at such time, the interests in
maintaining a market in Shares on the part of securities firms, the possible
termination of registration of the Shares under the Exchange Act, as described
below, and other factors.
Exchange Act Registration. The Shares are currently registered under the
Exchange Act. Registration of the Shares under the Exchange Act may be
terminated upon application of the Company to the Commission if the Shares are
neither listed on a national securities exchange nor held by 300 or more holders
of record. Termination of 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
provisions of the Exchange Act no longer applicable to the Company, such as the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act, the
requirement of furnishing a proxy statement pursuant to Section 14(a) of the
Exchange Act in connection with stockholders' meetings and the related
requirement of furnishing an annual report to stockholders and the requirements
of Rule 13e-3 under the Exchange Act with respect to "going private"
transactions. Furthermore, the ability of "affiliates" of the Company and
persons holding "restricted securities" of the Company to dispose of such
securities pursuant to Rule 144 or 144A promulgated under the Securities Act of
1933 may be impaired or eliminated. The Purchaser intends to seek to cause the
Company to apply for termination of registration of the Shares under the
Exchange Act as soon after the completion of the Offer as the requirements for
such termination are met.
If registration of the Shares is not terminated prior to the Merger, then
the Shares will be delisted from all stock exchanges and the registration of the
Shares under the Exchange Act will be terminated following the consummation of
the Merger.
Margin Regulations. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on the collateral of the Shares. Depending upon factors
similar to those described above regarding listing and market quotations, it is
possible that, following the Offer, the Shares would no longer constitute
"margin securities" for the purposes of the margin regulations of the Federal
Reserve Board and therefore could no longer be used as collateral for loans made
by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Delaware corporation with its principal offices at 325
North Wells Street, Chicago, Illinois 60610. The Company develops, manufactures
and markets personal care products consisting primarily of consumer brand name
hair and skin care products and antiperspirants and deodorants.
Set forth below is certain selected consolidated financial information with
respect to the Company and its subsidiaries excerpted from the information
contained in the Company's Annual Report on Form 10-K for the fiscal year ended
February 28, 1995 (the "Company 1995 10-K"), and the Company's Quarterly Report
on Form 10-Q for the nine-month period ended November 30, 1995 (the "Company
1995 10-Q"). More comprehensive financial information is included in the Company
1995 10-K, the Company 1995 10-Q and other documents filed by the Company with
the Commission, and
12
<PAGE>
the following summary is qualified in its entirety by reference to the Company
1995 10-K, the Company 1995 10-Q and such other documents and all the financial
information (including any related notes) contained therein. The Company 1995
10-K, the Company 1995 10-Q and such other documents should be available for
inspection and copies thereof should be obtainable in the manner set forth below
under "Available Information".
HELENE CURTIS INDUSTRIES, INC.
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(In millions, except per share data)
<TABLE><CAPTION>
NINE MONTHS
ENDED
YEAR ENDED FEBRUARY 28, NOVEMBER 30,
-------------------------- ------------
1995 1994 1993 1995 1994
------ ------ ------ ---- ----
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Consolidated Statements of Earnings:
Net sales.......................................... $1,266 $1,187 $1,168 $890 $901
Cost and expenses.................................. 1,229 1,160 1,127 890 879
Net earnings....................................... 19 14(2) 22 0 11
Net earnings per share............................. 2.02 1.51(2) 2.33 0.02 1.20
Consolidated Balance Sheets:(1)
Total current assets............................... $ 406 $ 368 $ 378 $372
Total assets....................................... 647 612 600 612
Total current liabilities.......................... 254 217 226 215
Total liabilities.................................. 426 413 414 392
Total stockholders' equity......................... 220 199 186 220
</TABLE>
- ------------
(1) At period end.
(2) Before cumulative effect of accounting change.
Certain Company Projections. During the course of discussions between
Unilever and the Company, the Company provided Unilever and Parent with certain
non-public business and financial information about the Company. This
information included forecasts (prepared in January 1996) for the fiscal years
ending February 1996, 1997, 1998 and 1999 of (i) net sales of $1.260 billion,
$1.309 billion, $1.458 billion and $1.590 billion, respectively, (ii) net
earnings of $11 million, $22 million, $28 million and $41 million, respectively,
and (iii) net earnings per share of $1.11, $2.31, $2.98 and $4.28, respectively.
These forecasts have not been updated since January 1996. The Company does not
as a matter of course make public any projections as to future performance or
earnings, and the projections set forth above are included in this Offer to
Purchase only because the information was provided to Unilever and Parent. The
projections were not prepared with a view to public disclosure or compliance
with the published guidelines of the Commission or the guidelines established by
the American Institute of Certified Public Accountants regarding projections or
forecasts. The Company's internal operating projections are, in general,
prepared solely for internal use and capital budgeting and other management
decisions and are subjective in many respects and thus susceptible to various
interpretations and periodic revision based on actual experience and business
developments. The projections were based on a number of assumptions that are
beyond the control of the Company, the Purchaser, Parent or Unilever or their
respective financial advisors, including economic forecasting (both general and
specific to the Company's business), which is inherently uncertain and
subjective. None of the Company, the Purchaser, Parent or Unilever or their
respective financial advisors assumes any responsibility for the accuracy of any
of the projections. The inclusion of the foregoing projections should not be
regarded as an indication that the Company, the Purchaser, Parent, Unilever or
any other person who received such information considers it an accurate
prediction of future events. Neither the Company nor Parent intends to update,
revise or correct such projections if they become inaccurate (even in the short
term).
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<PAGE>
Available Information. The Company is subject to the informational
requirements of the Exchange Act and, in accordance therewith, is required to
file reports relating to its business, financial condition and other matters.
Information as of particular dates concerning the Company's directors and
officers, their remuneration, stock options and other matters, the principal
holders of the Company's securities and any material interest of such persons in
transactions with the Company is disclosed in the Company's proxy statement
dated May 25, 1995, and filed with the Commission. Such information should be
available for inspection at the public reference facilities of the Commission at
450 Fifth Street, N.W., Washington, DC 20549, and at the regional offices of the
Commission located at Seven World Trade Center, 13th Floor, New York, NY 10048
and Citicorp Center, 500 West Madison Street (Suite 1400), Chicago, IL 60661.
Copies of such information should be obtainable, by mail, upon payment of the
Commission's customary charges, by writing to the Commission's principal office
at 450 Fifth Street, N.W., Washington, DC 20549. Such material should also be
available for inspection at the library of the NYSE, 20 Broad Street, New York,
NY 10005.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or based upon
publicly available documents on file with the Commission and other publicly
available information. Although the Purchaser, Parent and Unilever do not have
any knowledge that any such information is untrue, none of the Purchaser, Parent
or Unilever takes any responsibility for the accuracy or completeness of such
information 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.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER, PARENT AND UNILEVER
The Purchaser, a Delaware corporation, which is a wholly owned subsidiary of
Parent, was organized to acquire the Company and has not conducted any unrelated
activities since its organization. The principal office of the Purchaser is
located at the principal office of Parent. All outstanding shares of capital
stock of the Purchaser are owned by Parent.
Parent, a New York corporation, is an indirect subsidiary of Unilever with
its principal office located at 390 Park Avenue, New York, NY 10022. Parent is a
direct subsidiary of Unilever United States, Inc., a Delaware corporation
("UNUS"). Parent's operating divisions consist of most of Unilever's United
States consumer products operations. UNUS is directly owned 75% by Unilever and
25% by Unilever PLC, with its principal office located at 390 Park Avenue, New
York, NY 10022. UNUS is a holding company for all of Unilever's principal
operations in the United States.
The Unilever group, consisting of Unilever, Unilever PLC and their
subsidiaries, is one of the world's largest manufacturers of branded and
packaged consumer goods. Based on its 1994 turnover of approximately $45.4
billion, the Unilever group is one of the largest non-petroleum industrial
enterprises in the world. At present, the greater part of Unilever's business is
in branded consumer goods, primarily foods, detergents and personal products.
Unilever companies employ about 300,000 people worldwide. Unilever's principal
office is located at Weena 455, 3013 AL, Rotterdam, The Netherlands.
Available Information. Unilever files Forms 20-F, Forms 6-K and other
documents with the Commission. Such Forms and other information may be inspected
at the public reference facilities of the Commission at 450 Fifth Street, N.W.,
Washington, DC 20549, and at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, NY 10048 and Citicorp Center,
500 West Madison Street (Suite 1400), Chicago, IL 60661. Copies of such
information should be obtainable, by mail, upon payment of the Commission's
customary charges, by writing to the Commission's principal office at 450 Fifth
Street, N.W., Washington, DC 20549. Such material should also be available for
inspection at the library of the NYSE, 20 Broad Street, New York, NY 10005.
14
<PAGE>
10. SOURCE AND AMOUNT OF FUNDS
The Purchaser estimates that the total amount of funds required to purchase
pursuant to the Offer the Shares that are outstanding on a fully diluted basis
and to exercise its option under the Stockholder Agreement (assuming that all
Class B Shares not subject to the Stockholder Agreement are converted into
Shares) and to pay fees and expenses related to the Offer and the Merger will be
approximately $765 million. The Purchaser plans to obtain all funds needed for
the Offer and the Merger through intercompany loans of available cash from,
and/or the proceeds of the sale of commercial paper by, Unilever, Unilever PLC
and their subsidiaries.
11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER
From time to time since 1988, representatives of Unilever expressed to
representatives of the Company Unilever's interest in pursuing a variety of
transactions with the Company. No negotiations resulted from these
conversations.
On September 27, 1995, Charles G. Cooper, Senior Vice President of the
Company, wrote to Robert M. Phillips, Personal Products Coordinator of Unilever,
suggesting that their respective companies meet to discuss possible cooperative
arrangements between the companies. This contact led to a meeting on November
10, 1995, among John Rothenberg and Paul Dolan, Senior Commercial Member and
Senior Sourcing and Supply Member, respectively, of Unilever's Personal Products
Coordination, and Mr. Cooper, at which meeting the parties discussed possible
cooperative arrangements, including an equity investment by Unilever in the
Company, joint venture arrangements and marketing and development alliances. On
November 21, 1995, Mr. Phillips and Ronald J. Gidwitz, the President and Chief
Executive Officer of the Company, met to continue the earlier discussions and
agreed that Unilever and the Company should exchange certain confidential
information. On November 30, 1995, a confidentiality agreement was executed, and
Unilever and the Company began to exchange information.
On December 4, 1995, representatives of Unilever met with representatives of
the Company to discuss possible transaction structures in more detail and
certain financial and other operating information, including the possible
synergies that might result from a joint venture or strategic alliance between
the parties. This meeting was followed by a telephone call from Mr. Phillips to
Mr. Gidwitz during which Mr. Phillips indicated that Unilever was interested in
pursuing a transaction with the Company, including a possible acquisition of the
Company.
In light of the favorable reactions of both managements to the discussions
at the previous meetings, a meeting was scheduled in Chicago on January 5, 1996.
In the interim, Messrs. Phillips and Cooper had various conversations while both
were vacationing in Colorado.
At the January 5, 1996 meeting, representatives of Unilever, the Company and
certain of their respective advisors discussed the terms of an acquisition of
the Company by Unilever, including price and other principal terms and
post-acquisition organizational philosophy and structure. The possible terms of
an agreement with certain holders of Class B Shares, including Mr. Gidwitz, were
also discussed.
The discussion between Unilever and the Company centered on an acquisition
of the Company for $78.00 per share. The price discussed was subject to
Unilever's due diligence investigation of the Company (including a review of
certain additional requested financial and operating information), the
negotiation of definitive documentation, including an agreement with certain
holders of Class B Shares along the lines discussed, and board approval. On the
morning of January 6, Unilever advised the Company that Unilever needed both
additional time and additional information before finalizing the financial terms
of any transaction. Accordingly, arrangements were made to provide additional
financial and operating information to Unilever's senior management beginning
the week of January 8, 1996.
15
<PAGE>
During the period from January 7 to February 8, 1996, the Company furnished
certain requested financial and operating information to Unilever and various
conversations between Unilever's and the Company's advisors occurred. Unilever
also furnished the Company with draft documentation for a proposed transaction.
On February 1, 1996, Unilever advised the Company that it would be prepared
to meet in London on February 8, 1996 or in New York on February 13, 1996, to
continue discussion of a possible transaction between Unilever and the Company.
Unilever also advised the Company that the $78.00 per Share price previously
discussed would not be within its indicated range, after having obtained a
fuller understanding of the Company's business. On February 2, 1996, Unilever
and the Company confirmed a meeting date of February 9, 1996, in London.
At the February 9, 1996 meeting, representatives of Unilever, the Company
and their respective legal and financial advisors discussed a range of prices,
centering on a price of $70.00 per share, employee benefit matters and certain
issues raised by the draft documentation. The terms of an agreement with certain
holders of the Class B Shares were again discussed. Unilever requested that the
Company negotiate with Unilever on an exclusive basis, a request that was
declined. Due diligence by Unilever and contract negotiations were scheduled
for, and were conducted over, the following weekend.
Due diligence by Unilever and negotiations among legal advisors to Unilever,
the Company and certain holders of Class B Shares continued throughout the
evening of February 12, 1996, and most of the morning and afternoon of February
13, 1996. During the afternoon of February 12, 1996, the Board of Directors of
Parent approved the transactions, subject to completion of due diligence and
definitive documentation. In the late afternoon of February 13, 1996, Messrs.
Phillips and Rothenberg met with Mr. Gidwitz, with representatives of Unilever's
and the Company's legal and financial advisors in attendance, to finalize price
and contract terms. During this meeting, Mr. Phillips confirmed Unilever's offer
of $70.00 per Share and Mr. Gidwitz agreed to recommend such offer to the
Company's Board of Directors.
On the evening of February 13, 1996, the Boards of Directors of the
Purchaser and the Company approved the transactions, and the Stockholder
Agreement and Merger Agreement were executed and delivered. The transaction was
publicly announced before financial markets in Europe opened on February 14,
1996.
Except as described in this Offer to Purchase (including Schedule I hereto),
none of the Purchaser, Parent, UNUS or Unilever or, to the best knowledge of the
Purchaser, Parent or Unilever, any of the persons listed in Schedule I hereto,
or any associate or majority-owned subsidiary of the Purchaser, Parent, UNUS or
Unilever or any of the persons so listed, beneficially owns any equity security
of the Company, and none of the Purchaser, Parent, UNUS or Unilever or, to the
best knowledge of the Purchaser, Parent or Unilever, any of the other persons
referred to above, or any of the respective directors, executive officers or
subsidiaries of any of the foregoing, has effected any transaction in any equity
security of the Company during the past 60 days. The Purchaser, Parent, UNUS and
Unilever disclaim beneficial ownership of any Shares owned by any pension plan
of Unilever or any affiliate of Unilever.
Except as described in this Offer to Purchase, as of the date hereof (a)
there have not been any contacts, transactions or negotiations between the
Purchaser, Parent, UNUS or Unilever, any of their respective subsidiaries or, to
the best knowledge of the Purchaser, Parent or Unilever, any of the persons
listed in Schedule I hereto, on the one hand, and the Company or any of its
directors, officers or affiliates, on the other hand, that are required to be
disclosed pursuant to the rules and regulations of the Commission and (b) none
of the Purchaser, Parent, UNUS or Unilever or, to the best knowledge of the
Purchaser, Parent or Unilever, any of the persons listed in Schedule I hereto
has any contract, arrangement, understanding or relationship with any person
with respect to any securities of the Company.
16
<PAGE>
12. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; THE STOCKHOLDER AGREEMENT;
PLANS FOR THE COMPANY
Purpose. The purpose of the Offer is to enable Parent to acquire control of,
and the entire equity interest in, the Company. The Offer, as the first step in
the acquisition of the Company, is intended to facilitate the acquisition of all
the Shares and Class B Shares. The purpose of the Merger is to acquire all
Shares not tendered and purchased pursuant to the Offer and all Class B Shares
not purchased pursuant to the Stockholder Agreement.
The Merger Agreement. The Merger Agreement provides that following the
satisfaction or waiver of the conditions described below under "Conditions to
the Merger", the Purchaser will be merged with and into the Company, and each
then outstanding Share and Class B Share (other than Shares and Class B Shares
owned by the Company, any subsidiary of the Company, Parent, the Purchaser, any
other subsidiary of Parent or by stockholders, if any, who are entitled to and
who properly exercise appraisal rights under Delaware law) will be converted
into the right to receive an amount in cash equal to the price per Share paid
pursuant to the Offer.
Vote Required To Approve Merger. The Delaware General Corporation Law
(the "DGCL") requires, among other things, that the adoption of any plan of
merger or consolidation of the Company must be approved by the Board of
Directors and generally by the holders of the Company's outstanding voting
securities. The Board of Directors of the Company has approved the Offer and the
Merger; consequently, the only additional action of the Company that may be
necessary to effect the Merger is approval by the Company's stockholders if the
"short-form" merger procedure described below is not available. Under the DGCL,
the affirmative vote of holders of a majority of the combined voting power of
the then outstanding Shares and Class B Shares (including any Shares and Class B
Shares owned by the Purchaser) is generally required to approve the Merger. If
the Purchaser acquires, through the Offer, the Stockholder Agreement or
otherwise, a majority of the combined voting power of the outstanding Shares and
Class B Shares (which would be the case if the Minimum Condition were satisfied,
the Purchaser were to accept for payment Shares tendered pursuant to the Offer
and the Purchaser were to purchase the Class B Shares subject to the Stockholder
Agreement), it would have sufficient voting power to effect the Merger without
the vote of any other stockholder of the Company.
Under the DGCL, if a corporation owns 90% or more of each outstanding
class of capital stock of another corporation, it can effect a "short-form"
merger with such corporation without prior notice to, or any other action by,
any other stockholder of such corporation. Pursuant to the Company's certificate
of incorporation, at any time when the number of issued and outstanding Class B
Shares falls below 10% of the aggregate number of issued and outstanding Shares,
Class B Shares and shares of preferred stock of the Company, then, the
outstanding Class B Shares shall immediately and automatically be converted into
Shares. As a result, assuming no Stock Options are exercised following February
5, 1996, if the Purchaser were to acquire ownership of 6,138,261 Shares pursuant
to the Offer, and the Purchaser were to exercise its option to purchase the
2,774,106 Class B Shares subject to the Stockholder Agreement, then, the
automatic conversion provision described above would cause the conversion of all
then outstanding Class B Shares into Shares. In such event, the Purchaser would
own more than 90% of the only class of capital stock of the Company then
outstanding and would be able to effect the Merger pursuant to the "short-form"
merger provisions of the DGCL. See Section 15.
Conditions to the Merger. The Merger Agreement provides that the Merger
is subject to the satisfaction of certain conditions, including the following:
(a) if required by applicable law, the Merger Agreement and the transactions
contemplated thereby shall have been approved by the affirmative vote of the
holders of a majority of the combined voting power of the then outstanding
Shares and Class B Shares; (b) no statute, rule, regulation, executive order,
decree, temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other Federal,
state or local government or any court, tribunal, administrative agency or
commission or other
17
<PAGE>
governmental or other regulatory authority or agency, domestic, foreign or
supranational (a "Governmental Entity") preventing the consummation of the
Merger shall be in effect; provided, however, that each of the Company, the
Purchaser and Parent shall have used reasonable efforts to prevent the entry of
any such injunction or other order and to appeal as promptly as possible any
injunction or other order that may be entered; and (c) the Purchaser shall have
previously accepted for payment and paid for Shares pursuant to the Offer.
Termination of the Merger Agreement. The Merger Agreement may be
terminated at any time prior to the effective time of the Merger, whether before
or after approval of the terms of the Merger Agreement by the stockholders of
the Company:
(1) by mutual written consent of Parent and the Company;
(2) by either Parent or the Company if (a)(i) as a result of the failure
of any of the Offer Conditions, the Offer shall have terminated or expired
in accordance with its terms without the Purchaser having accepted for
payment any Shares pursuant to the Offer or (ii) the Purchaser shall not
have accepted for payment any Shares pursuant to the Offer prior to
September 30, 1996, provided, however, that the right to terminate the
Merger Agreement pursuant to either clause (2)(a)(i) or (2)(a)(ii) shall not
be available to any party whose failure to perform any of its obligations
under the Merger Agreement results in the failure of any such condition or
if the failure of such condition results from facts or circumstances that
constitute a breach of representation or warranty under the Merger Agreement
by such party; or (b) any Governmental Entity shall have issued an order,
decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the acceptance for payment of, or
payment for, Shares pursuant to the Offer or Shares or Class B Shares
pursuant to the Merger and such order, decree or ruling or other action
shall have become final and nonappealable;
(3) by Parent or the Purchaser (a) prior to the purchase of Shares
pursuant to the Offer in the event of a breach by the Company of any
representation, warranty, covenant or other agreement contained in the
Merger Agreement that (i) would give rise to the failure of a condition set
forth in paragraph (e) or (f) of Section 14 and (ii) cannot be or has not
been cured within 20 days after the giving of written notice to the Company;
or (b)(i) if either Parent or the Purchaser is entitled to terminate the
Offer as a result of (A) the Board of Directors of the Company or any
committee thereof having withdrawn or modified in a manner adverse to Parent
or the Purchaser its approval or recommendation of the Offer, the Merger or
the Merger Agreement, or approved or recommended any Takeover Proposal (as
defined below) or (B) the Board of Directors of the Company or any committee
thereof having resolved to take any of the actions described in clause
(3)(b)(i)(A) or (ii) if the Board of Directors of the Company or any
committee thereof takes action pursuant to the Company's certificate of
incorporation to terminate the supervoting rights of the Class B Shares (as
described in Section 15); or
(4) by the Company (a) in the exercise of its fiduciary duties as
described below under "Takeover Proposal", provided it has complied with all
provisions thereof, including the notice provisions therein, and that it
complies with applicable requirements relating to the payment (including the
timing of any payment) of Expenses and the Termination Fee (each as defined
below under "Fees and Expenses") or (b) if Parent or the Purchaser shall
have breached in any material respect any of their respective
representations, warranties, covenants or other agreements contained in the
Merger Agreement, which breach or failure to perform is incapable of being
cured or has not been cured within 20 days after the giving of written
notice to Parent or the Purchaser.
Takeover Proposals. The Merger Agreement provides that the Company will
not, nor will it permit any of its subsidiaries to, nor shall it authorize or
permit any of its officers, directors or employees or any investment banker,
financial advisor, attorney, accountant or other representative retained by it
or any of its subsidiaries to, directly or indirectly, (1) solicit, initiate or
knowingly encourage (including
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by way of furnishing information), or take any other action designed or
reasonably likely to facilitate, any inquiries or the making of any proposal
which constitutes, or may reasonably be expected to lead to, any Takeover
Proposal or (2) participate in any discussions or negotiations regarding any
Takeover Proposal; provided, however, that if, at any time prior to the
acceptance for payment of Shares pursuant to the Offer, the Board of Directors
of the Company determines in good faith, after consultation with outside
counsel, that it is necessary to do so in order to comply with its fiduciary
duties to the Company's stockholders under applicable law, the Company may, in
response to a Takeover Proposal which was not solicited subsequent to the date
hereof, and subject to compliance with the notification provisions discussed
below, (i) furnish information with respect to the Company to any person
pursuant to a customary confidentiality agreement (as determined by the Company
after consultation with its outside counsel) and (ii) participate in
negotiations regarding such Takeover Proposal. The Merger Agreement defines
"Takeover Proposal" as any inquiry, proposal or offer from any person relating
to any direct or indirect acquisition or purchase of 20% or more of the assets
of the Company and its subsidiaries or 20% or more of any class of equity
securities of the Company or any of its subsidiaries, any tender offer or
exchange offer that if consummated would result in any person beneficially
owning 20% or more of any class of equity securities of the Company or any of
its subsidiaries, any merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving the
Company or any of its subsidiaries, other than the transactions contemplated by
the Merger Agreement, or any other transaction the consummation of which could
reasonably be expected to impede, interfere with, prevent or materially delay
the Offer and/or the Merger or which would reasonably be expected to dilute
materially the benefits to Parent of the transactions contemplated by the Merger
Agreement and the Stockholder Agreement.
The Merger Agreement provides further that, except as described below,
neither the Board of Directors of the Company nor any committee thereof shall
(i) withdraw or modify, or propose publicly to withdraw or modify, in a manner
adverse to Parent, the approval or recommendation by such Board of Directors or
such committee of the Offer, the Merger Agreement or the Merger, (ii) approve or
recommend, or propose publicly to approve or recommend, any Takeover Proposal or
(iii) cause the Company to enter into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement (each, an
"Acquisition Agreement") related to any Takeover Proposal. Notwithstanding the
foregoing, in the event that prior to the acceptance for payment of Shares
pursuant to the Offer the Board of Directors of the Company determines in good
faith, after consultation with outside counsel, that it is necessary to do so in
order to comply with its fiduciary duties to the Company's stockholders under
applicable law, such Board of Directors may (subject to the other provisions
regarding Takeover Proposals described herein) (A) withdraw or modify its
approval or recommendation of the Offer, the Merger Agreement or the Merger or
(B) approve or recommend a Superior Proposal (as defined below) or terminate the
Merger Agreement (and concurrently with or after such termination, if it so
chooses, cause the Company to enter into an Acquisition Agreement with respect
to any Superior Proposal), but in each of the cases described in this clause
(B), only at a time after the second business day following Parent's receipt of
written notice (a "Notice of Superior Proposal") advising Parent that the Board
of Directors of the Company has received a Superior Proposal, specifying the
material terms and conditions of such Superior Proposal and identifying the
person making such Superior Proposal. For purposes of the Merger Agreement, a
"Superior Proposal" means any bona fide proposal made by a third party to
acquire, directly or indirectly, for consideration consisting of cash and/or
securities, more than 50% of the combined voting power of the Shares and Class B
Shares then outstanding or all or substantially all the assets of the Company
and otherwise on terms which the Board of Directors of the Company determines in
its good faith judgment (based on the advice of a financial advisor of
nationally recognized reputation) to be more favorable to the Company's
stockholders than the Offer and the Merger and for which financing, to the
extent required, is then committed or which, in the good faith judgment of the
Board of Directors of the Company, is reasonably capable of being financed by
such third party.
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In addition to the obligations of the Company described in the preceding
two paragraphs, the Merger Agreement provides that the Company shall immediately
advise Parent orally and in writing of any request for information or of any
Takeover Proposal, the material terms and conditions of such request or Takeover
Proposal and the identity of the person making any such request or Takeover
Proposal. The Company is further required under the terms of the Merger
Agreement to keep Parent fully informed of the status and details (including
amendments or proposed amendments) of any such request or Takeover Proposal.
The Merger Agreement provides that nothing contained therein shall
prohibit the Company from taking and disclosing to its stockholders a position
contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making
any disclosure to the Company's stockholders if, in the good faith judgment of
the Board of Directors of the Company, after consultation with outside counsel,
failure so to disclose would be inconsistent with its fiduciary duties to the
Company's stockholders under applicable law; provided, however, that neither the
Company nor its Board of Directors nor any committee thereof shall, except as
permitted by the provisions described in the second preceding paragraph,
withdraw or modify, or propose publicly to withdraw or modify, its position with
respect to the Offer, the Merger Agreement or the Merger or approve or
recommend, or propose publicly to approve or recommend, a Takeover Proposal.
Fees and Expenses. The Merger Agreement provides that the Company will
pay, or cause to be paid, in same day funds to Parent (a) the Expenses in an
amount up to but not to exceed $5,000,000 and (b) $15,000,000 (the "Termination
Fee") under the circumstances and at the times set forth as follows: (i) if
Parent or the Purchaser terminates the Merger Agreement in accordance with the
provision described in clause (b) of paragraph (3) under "Termination of the
Merger Agreement" above and at the time of such termination there is no pending
Takeover Proposal, the Company shall pay the Expenses and the Termination Fee
upon demand; (ii) if Parent or the Purchaser terminates the Merger Agreement in
accordance with the provision described in clause (b) of paragraph (3) under
"Termination of the Merger Agreement" above and at the time of such termination
a Takeover Proposal shall then be pending, the Company shall pay the Expenses
upon demand; in addition, if within 18 months after such termination, the
Company shall enter into an Acquisition Agreement providing for a Takeover
Proposal or a Takeover Proposal shall be consummated, the Company shall pay the
Termination Fee concurrently with the earlier of the entering into of such
Acquisition Agreement or the consummation of such Takeover Proposal; (iii) if
the Company terminates the Merger Agreement in accordance with the provision
described in clause (a) of paragraph (4) under "Termination of the Merger
Agreement" above, the Company shall pay the Expenses concurrently therewith; in
addition, if within 18 months after such termination, the Company shall enter
into an Acquisition Agreement providing for a Takeover Proposal or a Takeover
Proposal shall be consummated, the Company shall pay the Termination Fee
concurrently with the earlier of the entering into of such Acquisition Agreement
or the consummation of such Takeover Proposal; and (iv) if, at the time of any
other termination of the Merger Agreement (other than by the Company in
accordance with the provision described in clause (b) of paragraph (4) under
"Termination of the Merger Agreement" above), a Takeover Proposal shall have
been made (other than a Takeover Proposal made prior to February 13, 1996), the
Company shall pay the Expenses, if terminated by the Company, concurrently
therewith or, if terminated by Parent, upon demand; in addition, if within 18
months of such termination, the Company shall enter into an Acquisition
Agreement providing for a Takeover Proposal or a Takeover Proposal shall be
consummated, the Company shall pay the Termination Fee concurrently with the
earlier of the entering into of such Acquisition Agreement or the consummation
of such Takeover Proposal. For purposes of the Merger Agreement, "Expenses"
means documented out-of-pocket fees and expenses incurred or paid by or on
behalf of Parent in connection with the Offer, the Merger or the consummation of
any of the transactions contemplated by the Merger Agreement, including all fees
and expenses of law firms, commercial banks, investment banking firms,
accountants, experts and consultants to Parent.
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Conduct of Business by the Company. The Merger Agreement provides that,
except as otherwise expressly contemplated by the Merger Agreement or to the
extent that Parent shall otherwise consent in writing, until such time as
Parent's designees constitute a majority of the Board of Directors of the
Company, (a) the Company and its subsidiaries will carry on their respective
businesses in the usual, regular and ordinary course in substantially the same
manner as theretofore conducted and use all reasonable efforts to preserve
intact their current business organizations, keep available the services of
their current officers and employees and preserve their relationships with
customers, suppliers and others having business dealings with them; (b) the
Company will not, and will not permit any of its subsidiaries to, (i) declare or
pay any dividends on, or make other distributions in respect of, any of its
capital stock (other than regular quarterly cash dividends not in excess of $.08
per Share or $.08 per Class B Share with usual record and payment dates and in
accordance with the Company's current dividend policy), (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 capital stock of the Company or (iii) repurchase, redeem or
otherwise acquire any shares of capital stock of the Company or its subsidiaries
or any other securities thereof or any rights, warrants or options to acquire
any such shares or other securities; (c) the Company will not, and will not
permit any of it subsidiaries to, issue, deliver, sell, pledge or encumber, or
authorize or propose the issuance, delivery, sale, pledge or encumbrance of, any
shares of its capital stock of any class or any securities convertible into, or
rights, warrants, calls, subscriptions or options to acquire, any such shares or
convertible securities, or any other ownership interest in the Company, other
than (i) the issuance of Shares upon the exercise of Stock Options outstanding
on the date of the Merger Agreement in accordance with their terms and (ii) the
issuance of Shares upon the conversion of Class B Shares; (d) the Company will
not, and will not permit any of its subsidiaries to, amend or propose to amend
its certificate of incorporation or its by-laws (or similar organizational
documents); (e) the Company will not, and will not permit any of its
subsidiaries to, acquire or agree to acquire (i) (by merger, consolidation,
acquisition of stock or assets or by any other manner) any business,
corporation, partnership, joint venture, association or other business
organization or division thereof or (ii) any assets that are material,
individually or in the aggregate, to the Company and its subsidiaries taken as a
whole, except purchases of inventory in the ordinary course of business
consistent with past practice and expenditures consistent with the Company's
current capital budget; (f) the Company will not, and will not permit any of its
subsidiaries to, sell, lease, license, encumber or otherwise dispose of, or
agree to sell, lease, license, encumber or otherwise dispose of, any of its
assets, other than sales of its products to customers and immaterial
dispositions of personal property, in each case in the ordinary course of
business consistent with past practice; (g) the Company will not, and will not
permit any of its subsidiaries to, (i) incur or guarantee indebtedness for
borrowed money or issue or sell any debt securities or warrants or rights to
acquire any debt securities of the Company (or any of its subsidiaries),
guarantee any debt securities of others, enter into any "keep-well" or other
agreement to maintain any financial statement condition of another person or
enter into any arrangement having the economic effect of any of the foregoing,
except for working capital borrowings incurred in the ordinary course of
business consistent with past practice or (ii) make any loans, advances or
capital contributions to, or investments in, any other person, other than (A)
with respect to both of the foregoing clauses (i) and (ii), to the Company or
any direct or indirect wholly owned subsidiary of the Company or (B) any
advances to employees (1) in accordance with the terms of the Company's Stock
Option Plans (as defined below) at a rate not less than the Company's cost of
funds for short-term borrowings and payable within 12 business days following
the borrowing or (2) in accordance with past practice; (h) the Company will
confer with Parent on a regular basis with respect to operational matters and
promptly advise Parent orally and in writing of any material adverse change with
respect to the Company and will promptly provide to Parent (or its counsel)
copies of all filings made by the Company with any Governmental Entity in
connection with the Merger Agreement and the transactions contemplated thereby;
(i) the Company will not make any tax election that would have a material
adverse effect on the tax liability of the Company or any of its subsidiaries or
settle or compromise any tax liability of the Company or any of its subsidiaries
that would materially affect the aggregate tax liability of the Company or any
of its subsidiaries; (j) neither the Company nor any of its subsidiaries will
make
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or agree to make any new capital expenditure or expenditures other than
expenditures consistent with the Company's current capital budget; (k) the
Company will not, and will not permit any of its subsidiaries to (i) discharge
any claims, liabilities or obligations, other than the discharge (A) in the
ordinary course of business consistent with past practice or in accordance with
their terms, of claims, liabilities or obligations recognized or disclosed in
the most recent consolidated financial statements (or the notes thereto) of the
Company included in the Company's documents filed with the Commission or
incurred since the date of such financial statements in the ordinary course of
business consistent with past practice or (B) of claims, liabilities or
obligations to the extent they are less than $10,000 and unrelated to the
Company's stockholders or the transactions contemplated by the Merger Agreement
and the Stockholder Agreement, or (ii) waive the benefits of, or agree to modify
in any manner, any confidentiality, standstill or similar agreement to which the
Company or any of its subsidiaries is a party; (l) the Company will not, and
will not permit any of its subsidiaries to, modify, amend or terminate any
material contract or agreement to which the Company or such subsidiary is a
party, or waive, release or assign any material rights or claims; and (m)
neither the Company nor any of its subsidiaries will authorize any of, or commit
or agree to take any of, the foregoing actions.
In addition to the foregoing, the Company has agreed that, except as
expressly contemplated or permitted by the Merger Agreement, it will not take
any action, or permit any of its subsidiaries to take any action, that would, or
could reasonably be expected to, result in (a) any of the representations and
warranties of the Company set forth in the Merger Agreement that are qualified
as to materiality becoming untrue, (b) any of such representations and
warranties that are not so qualified becoming untrue in any material respect or
(c) any of the Offer Conditions not being satisfied.
Board of Directors. The Merger Agreement provides that promptly upon the
Purchaser having acquired a majority of the combined voting power of the Shares
and Class B Shares, the Purchaser shall be entitled to designate, subject to
compliance with Section 14(f) of the Exchange Act, a majority of the directors
on the Company's Board of Directors, and the Company and its Board of Directors
shall, at such time, cause the Purchaser's designees to be appointed to, and to
constitute a majority of, the Company's Board of Directors. Subject to
applicable law, the Company has agreed to take all action requested by Parent
necessary to effect any such election, including mailing to its stockholders the
Information Statement containing the information required by Section 14(f) of
the Exchange Act and Rule 14f-1 promulgated thereunder, which Information
Statement is attached as Schedule I to the Schedule 14D-9.
Stock Options. Pursuant to the Merger Agreement, the Board of Directors
of the Company may adopt such resolutions or take such other actions as are
required to provide that (a) each stock option to purchase Shares heretofore
granted under any stock option plan, stock appreciation right plan or stock
purchase plan of the Company (collectively, the "Stock Option Plans")
outstanding immediately prior to the consummation of the Offer, whether or not
then exercisable, shall become fully exercisable immediately following the
acceptance for payment of Shares pursuant to the Offer (the "Acceleration
Time"); (b) each stock appreciation right heretofore granted under any Stock
Option Plan outstanding immediately prior to the Offer, whether or not then
exercisable, shall become fully exercisable at the Acceleration Time; and (c)
all restrictions applicable to any restricted stock award granted prior to
February 13, 1996, under any Stock Option Plan outstanding immediately prior to
the Offer shall lapse at the Acceleration Time.
The Merger Agreement also provides that, at the effective time of the
Merger, each award then outstanding under any Stock Option Plan, other than an
award held by an officer (as such term is defined in Rule 16a-1(f) under the
Exchange Act) or director of the Company, shall be canceled and the holder
thereof shall have no further rights in respect thereof other than the right to
receive in consideration for the cancelation thereof an amount of cash equal to
the product of (a) the number of Shares subject to such stock option or stock
appreciation right and (b) the excess of the price paid in the Offer over the
per share exercise price, in the case of any such stock option, or the excess of
the price
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paid in the Offer over the per share base price, in the case of any such stock
appreciation right, in each such case minus all applicable taxes required to be
withheld by the Company; provided, however, that no such cash payment shall be
made with respect to any stock appreciation right that is related to a stock
option in respect of which such a cash payment shall be made. Pursuant to the
Merger Agreement, such payment to each such holder shall be made as soon as
practicable following the effective time of the Merger upon the delivery by such
holder of a signed statement in a form satisfactory to Parent acknowledging that
such holder waives any claims against Parent, the Purchaser or the Company for
any other consideration in respect of such stock option or stock appreciation
right.
Benefits. The Merger Agreement provides that, during the period from the
effective time of the Merger until the first anniversary thereof, Parent will
(a) maintain or cause to be maintained the Company's employee benefit plans that
are in effect as of the effective time of the Merger, other than any benefit
plan providing benefits based on equity securities or any equivalent thereof or
any incentive-based compensation, bonus or other similar arrangement, and (b)
provide each person employed by the Surviving Corporation and its subsidiaries
compensation (including salary, bonus and incentive compensation) that is in the
aggregate substantially comparable to that enjoyed by such employee at the
effective time of the Merger, other than as referred to in clause (a) above
(taking into account salary, bonus and equity-based and incentive-based
benefits). The Merger Agreement further provides that from and after the first
anniversary of the effective time of the Merger, Parent will continue the
employment arrangements described in the preceding sentence or will offer to
each person then employed by the Surviving Corporation and its subsidiaries,
compensation and benefits substantially comparable to those then enjoyed by
other similarly situated employees of Parent and its affiliates. For purposes of
eligibility to participate in and vesting in benefits provided under employee
benefit plans maintained by Parent and its affiliates (but not for purposes of
determining benefits (or accruals thereof) under such plans), the Merger
Agreement provides that all persons previously employed by the Company and then
employed by Parent or its affiliates shall be credited with their years of
service with the Company and its subsidiaries and years of service with prior
employers to the extent service with prior employers is taken into account under
the Company's benefit plans.
Pursuant to the Merger Agreement, the Company has agreed that it will take
any action necessary to terminate the Helene Curtis Industries, Inc. Employee
Stock Ownership Plan and Trust (the "ESOP") as of the effective time of the
Merger and will cause the ESOP to make lump sum distributions to ESOP
participants within a reasonable period of time following the effective time of
the Merger pursuant to the terms of the ESOP and applicable law.
Indemnification and Insurance. In the Merger Agreement, Parent and the
Purchaser have agreed that all rights to indemnification for acts or omissions
occurring prior to the effective time of the Merger that are in existence as of
the date of the Merger Agreement in favor of the current or former directors,
officers, employees and agents (the "Indemnified Parties") of the Company and
its subsidiaries as provided in their respective certificates of incorporation
or by-laws shall survive the Merger and shall continue in full force and effect
in accordance with their terms. The Merger Agreement provides that, from and
after the effective time of the Merger, Parent will, and will cause the
Surviving Corporation to, indemnify and hold harmless any and all Indemnified
Parties to the full extent such persons may be indemnified by the Company or
such subsidiaries, as the case may be, pursuant to their respective certificates
of incorporation or by-laws or pursuant to indemnification agreements as in
effect on the date of the Merger Agreement for acts or omissions occurring at or
prior to the effective time of the Merger, and Parent will, or will cause the
Surviving Corporation to, advance litigation expenses incurred by such persons
in connection with defending any action arising out of such acts or omissions to
the extent provided by and pursuant to the respective terms and provisions of
such certificates of incorporation, by-laws, similar documents or
indemnification agreements. In addition, pursuant to the Merger Agreement,
Parent will, for a period of six years from the effective time of the Merger,
maintain in effect the Company's current directors' and officers' liability
insurance covering those persons who are currently covered by the Company's
directors' and officers' liability insurance policy except that, to
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the extent that such coverage is not obtainable at a premium not in excess of
$360,000, Parent will be obligated to purchase only so much coverage as may then
be obtained for such amount.
Reasonable Efforts. The Merger Agreement provides that, except as
otherwise contemplated therein, each of the parties will use its reasonable
efforts to take, or cause to be taken, all actions necessary to comply promptly
with all legal requirements that may be imposed on itself with respect to the
Offer and the Merger and will promptly cooperate with and furnish information to
each other in connection with any such requirements imposed upon any of them or
any of their subsidiaries in connection with the Offer and the Merger and will,
and will cause its subsidiaries to, use its reasonable efforts to take all
reasonable actions necessary to obtain (and will cooperate with each other in
obtaining) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party required to
be obtained or made by any of them or any of their subsidiaries in connection
with the Offer and the Merger or the taking of any action contemplated thereby
or by the Merger Agreement, except that no party need waive any substantial
rights or agree to any substantial limitation on its operations or to dispose of
any assets.
Representations and Warranties. The Merger Agreement contains various
customary representations and warranties.
Procedure for Termination, Amendment, Extension or Waiver. The Merger
Agreement provides that in the event the Purchaser's designees are appointed or
elected to the Board of Directors of the Company as described above under "Board
of Directors", after the acceptance for payment of Shares pursuant to the Offer
and prior to the effective time of the Merger, the affirmative vote of a
majority of the directors of the Company not designated by Parent or the
Purchaser is required for the Company to amend or terminate the Merger
Agreement, exercise or waive any of its rights or remedies under the Merger
Agreement, extend the time for performance of the Purchaser's and Parent's
respective obligations under the Merger Agreement or take any action to amend or
otherwise modify the Company's certificate of incorporation or by-laws.
The Stockholder Agreement. Pursuant to the terms and conditions of the
Stockholder Agreement, each Selling Stockholder has granted to the Purchaser an
irrevocable option (collectively, the "Option") to purchase, in whole but not in
part, all the Class B Shares owned of record by such Selling Stockholder at a
price per Class B Share of $70.00 in cash (the "Option Purchase Price"). The
Selling Stockholders collectively own of record 2,774,106 Class B Shares (the
"Option Shares").
The Option may be exercised at any time on or prior to February 13, 1997
(the "Option Expiration Date"), in the event that (i) a Specified Event (as
defined below) shall have occurred on or prior to the Option Expiration Date and
(ii) the waiting period under the HSR Act with respect to the exercise of the
Option shall have expired or been terminated. For purposes of the Stockholder
Agreement, the term "Specified Event" means any of the following events: (i)
Parent and the Purchaser shall have terminated the Merger Agreement in
accordance with the provisions described in clause (b) of paragraph (3) under
"Termination of the Merger Agreement" above, (ii) the Company shall have
terminated the Merger Agreement in accordance with the provisions described in
clause (a) of paragraph (4) under "Termination of the Merger Agreement" above,
(iii) prior to termination of the Merger Agreement (other than by the Company in
accordance with the provisions described in clause (b) of paragraph (4) under
"Termination of the Merger Agreement" above) a Takeover Proposal shall have been
commenced or the Company shall have entered into an agreement with respect to,
approved or recommended or taken any action to facilitate, a Takeover Proposal
or (iv) the Purchaser shall have accepted for payment, and paid for, Shares in
the Offer. Under the Stockholder Agreement, the Purchaser has agreed to exercise
the Option in the event that the Purchaser accepts for payment, and pays for,
any Shares pursuant to the Offer.
Pursuant to the Stockholder Agreement, each Selling Stockholder has also
agreed that, subject to certain limitations, in the event that a Specified Event
shall have occurred and during the period from February 13, 1997 to and
including February 13, 1998, such Selling Stockholder sells, transfers, assigns
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or otherwise disposes of any of the Option Shares for value in a bona fide arm's
length transaction, such Selling Stockholder shall pay to Parent an amount in
cash equal to one-half of the excess, if any, of (a) the per share cash
consideration or the per share fair market value of any non-cash consideration,
as the case may be, received by such Selling Stockholder as a result of such
disposition less (b) the Option Price, multiplied by the number of such Option
Shares disposed.
In addition, Parent and the Purchaser have agreed that, subject to certain
limitations, in the event that the Purchaser shall have exercised the Option
and, on or prior to February 13, 1998, the Purchaser sells, transfers, assigns
or otherwise disposes of any Option Shares for value in a bona fide arm's length
transaction, the Purchaser shall pay to the applicable Selling Stockholder an
amount in cash equal to one-half of the excess, if any, of (a) the per share
cash consideration or the per share fair market value of any non-cash
consideration, as the case may be, received by the Purchaser as a result of such
disposition less (b) the Option Price, multiplied by the number of such Option
Shares disposed.
In the Stockholder Agreement, each Selling Stockholder has further agreed
that, until the Option Expiration Date, (a) such Selling Stockholder shall vote
its Class B Shares in favor of the Merger and the Merger Agreement; provided
that the terms of the Merger Agreement shall not have been amended to adversely
affect such Selling Stockholder; (b) such Selling Stockholder shall vote its
Class B Shares against (i) any other merger agreement or merger, consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company or any other
Takeover Proposal or (ii) any amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving the Company
or any of its subsidiaries, which amendment or other proposal or transaction
would in any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement;
and (c) such Selling Stockholder shall not (i) other than by operation of law,
sell, transfer, pledge, assign or otherwise dispose of, or enter into any
contract, option or other arrangement with respect to the sale, transfer,
pledge, assignment or other disposition of, its Class B Shares to any person
other than to the Purchaser or the Purchaser's designee, (ii) enter into any
voting arrangement, whether by proxy, voting agreement or otherwise, in
connection, directly or indirectly, with any Takeover Proposal or (iii) convert
such Class B Shares into Shares except as required to effect the exercise of the
Option.
In addition, each Selling Stockholder has agreed that, until the Merger is
consummated or the Merger Agreement is terminated, such Selling Stockholder
shall not, and shall not permit any investment banker, attorney or other adviser
or representative of such Selling Stockholder to, (i) directly or indirectly
solicit, initiate or encourage the submission of, any Takeover Proposal or (ii)
directly or indirectly 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.
Plans for the Company. Parent and its affiliates presently intend that the
Company will be headquartered in Chicago, will maintain manufacturing and
product development facilities in the United States and will continue to operate
under its present corporate name. In addition, Parent and its affiliates
presently intend that the Company will have primary responsibility for the
haircare operations of Parent and its affiliates in the United States, will have
global responsibilities as an innovation center for haircare and will operate in
other personal care categories.
Except as otherwise described in this Offer to Purchase, the Purchaser and
Parent have no current plans or proposals that would relate to, or result in,
any extraordinary corporate transaction involving the Company, such as a merger,
reorganization or liquidation involving the Company or any of its subsidiaries,
a sale or transfer of a material amount of assets of the Company or any of its
subsidiaries to any unaffiliated third party, any change in the Company's
capitalization or dividend policy or any other material change in the Company's
business or corporate structure.
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Appraisal Rights. Holders of Shares and Class B Shares do not have appraisal
rights as a result of the Offer. However, if the Merger is consummated, holders
of Shares and Class B Shares at the effective time of the Merger will have
certain rights pursuant to the provisions of Section 262 of the DGCL ("Section
262") to dissent and demand appraisal of their Shares and Class B Shares. Under
Section 262, dissenting stockholders who comply with the applicable statutory
procedures will be entitled to receive a judicial determination of the fair
value of their Shares and/or Class B Shares (exclusive of any element of value
arising from the accomplishment or expectation of the Merger) and to receive
payment of such fair value in cash, together with a fair rate of interest, if
any. Any such judicial determination of the fair value of Shares and/or Class B
Shares could be based upon factors other than, or in addition to, the price per
Share and Class B Share to be paid in the Merger or the market value of the
Shares and/or Class B Shares. The value so determined could be more or less than
the price per Share and Class B Share to be paid in the Merger.
The foregoing summary of Section 262 does not purport to be complete and is
qualified in its entirety by reference to Section 262. FAILURE TO FOLLOW THE
STEPS REQUIRED BY SECTION 262 FOR PERFECTING APPRAISAL RIGHTS MAY RESULT IN THE
LOSS OF SUCH RIGHTS.
Going Private Transactions. The Commission has adopted Rule 13e-3 under the
Exchange Act, which is applicable to certain "going private" transactions. The
Purchaser does not believe that Rule 13e-3 will be applicable to the Merger
unless the Merger is consummated more than one year after the termination of the
Offer. If applicable, Rule 13e-3 requires, among other things, that certain
financial information concerning the fairness of the Merger and the
consideration offered to minority stockholders in such transaction be filed with
the Commission and disclosed to stockholders prior to the consummation of the
Merger.
13. DIVIDENDS AND DISTRIBUTIONS
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the two succeeding paragraphs, and
nothing herein shall constitute a waiver by the Purchaser or Parent of any of
its rights under the Merger Agreement or a limitation of remedies available to
the Purchaser or Parent for any breach of the Merger Agreement, including
termination thereof.
If, on or after February 13, 1996, the Company should (a) split, combine or
otherwise change the Shares, Class B Shares or its capitalization, (b) acquire
or otherwise cause a reduction in the number of outstanding Shares, Class B
Shares or other securities or (c) issue or sell additional Shares or Class B
Shares, shares of any other class of capital stock, other voting securities or
any securities convertible into, or rights, warrants or options, conditional or
otherwise, to acquire any of the foregoing, other than Shares issued pursuant to
the exercise of outstanding stock options, then, subject to the provisions of
Section 14, the Purchaser, in its sole discretion, may make such adjustments as
it deems appropriate in the Offer Price and other terms of the Offer, including,
without limitation, the number or type of securities offered to be purchased.
If, on or after February 13, 1996, the Company should declare or pay any
cash dividend on the Shares and/or Class B Shares (other than regular quarterly
cash dividends not in excess of $.08 per Share or $.08 per Class B Share with
usual record and payment dates and in accordance with the Company's current
dividend policy) or other distribution on the Shares and/or Class B Shares, or
issue with respect to the Shares or Class B Shares any additional Shares or
Class B Shares, shares of any other class of capital stock, other voting
securities or any securities convertible into, or rights, warrants or options,
conditional or otherwise, to acquire, any of the foregoing, payable or
distributable to stockholders of record on a date prior to the transfer of the
Shares purchased pursuant to the Offer to the Purchaser or its nominee or
transferee on the Company's stock transfer records, then, subject to the
provisions of Section 14, (a) the Offer Price may, in the sole discretion of the
Purchaser, be reduced by
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the amount of any such cash dividend or cash distribution and (b) the whole of
any such noncash dividend, distribution or issuance to be received by the
tendering stockholders will (i) be received and held by the tendering
stockholders for the account of the Purchaser and will be required to be
promptly remitted and transferred by each tendering stockholder to the
Depositary for the account of the Purchaser, accompanied by appropriate
documentation of transfer, or (ii) at the direction of the Purchaser, be
exercised for the benefit of the Purchaser, in which case the proceeds of such
exercise will promptly be remitted to the Purchaser. Pending such remittance and
subject to applicable law, the Purchaser will be entitled to all rights and
privileges as owner of any such noncash dividend, distribution, issuance or
proceeds and may withhold the entire Offer Price or deduct from the Offer Price
the amount or value thereof, as determined by the Purchaser in its sole
discretion.
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or the Merger Agreement, the
Purchaser shall not be required to accept for payment or, subject to any
applicable rules and regulations of the Commission, including Rule 14e-1(c)
under the Exchange Act (relating to the Purchaser's obligation to pay for or
return tendered Shares after the termination or withdrawal of the Offer), to pay
for any Shares tendered pursuant to the Offer unless (i) the Minimum Condition
shall have been satisfied and (ii) the HSR Condition shall have been satisfied.
Furthermore, notwithstanding any other term of the Offer or the Merger
Agreement, the Purchaser shall not be required to accept for payment or, subject
as aforesaid, to pay for any Shares not theretofore accepted for payment or paid
for, and may terminate the Offer if, at any time on or after the date of the
Merger Agreement and before the acceptance of such Shares for payment or the
payment therefor, any of the following conditions exists (other than as a result
of any action or inaction of Parent or any of its subsidiaries that constitutes
a breach of the Merger Agreement):
(a) there shall be threatened or pending by any Governmental Entity any
suit, action or proceeding (i) challenging the acquisition by Parent or the
Purchaser of any Shares under the Offer or pursuant to the Stockholder
Agreement, seeking to restrain or prohibit the making or consummation of the
Offer or the Merger or the performance of any of the other transactions
contemplated by the Merger Agreement or the Stockholder Agreement (including
the voting provision thereunder), or seeking to obtain from the Company,
Parent or the Purchaser any damages that are material in relation to the
Company and its subsidiaries taken as a whole, (ii) seeking to prohibit or
materially limit the ownership or operation by the Company, Parent or any of
their respective subsidiaries of a material portion of the business or
assets of the Company and its subsidiaries, taken as a whole, or Parent and
its subsidiaries, taken as a whole, or to compel the Company or Parent to
dispose of or hold separate any material portion of the business or assets
of the Company and its subsidiaries, taken as a whole, or Parent and its
subsidiaries, taken as a whole, as a result of the Offer or any of the other
transactions contemplated by the Merger Agreement or the Stockholder
Agreement, (iii) seeking to impose material limitations on the ability of
Parent or the Purchaser to acquire or hold, or exercise full rights of
ownership of, any Shares to be accepted for payment pursuant to the Offer or
purchased under the Stockholder Agreement including, without limitation, the
right to vote such Shares on all matters properly presented to the
stockholders of the Company, (iv) seeking to prohibit Parent or any of its
subsidiaries from effectively controlling in any material respect any
material portion of the business or operations of the Company or its
subsidiaries or (v) which otherwise is reasonably likely to have a material
adverse effect on the business, properties, assets, financial condition,
results of operations or prospects of the Company and its subsidiaries taken
as a whole; or there shall be pending by any other person any suit, action
or proceeding which is reasonably likely to have a material adverse effect
on the business, properties, assets, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole;
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(b) there shall be enacted, entered, enforced, promulgated or deemed
applicable to the Offer or the Merger by any Governmental Entity any
statute, rule, regulation, judgment, order or injunction, other than the
application to the Offer or the Merger of applicable waiting periods under
the HSR Act, that is reasonably likely to result, directly or indirectly, in
any of the consequences referred to in clauses (i) through (iv) of paragraph
(a) above;
(c) there shall have occurred any material adverse change with respect
to the Company;
(d) (i) the Board of Directors of the Company or any committee thereof
shall have withdrawn or modified in a manner adverse to Parent or the
Purchaser its approval or recommendation of the Offer, the Merger or the
Merger Agreement, or approved or recommended any Takeover Proposal or (ii)
the Board of Directors of the Company or any committee thereof shall have
resolved to take any of the foregoing actions (see "The Merger
Agreement--Takeover Proposals" in Section 12);
(e) any of the representations and warranties of the Company set forth
in the Merger Agreement that are qualified as to materiality shall not be
true and correct or any such representations and warranties that are not so
qualified shall not be true and correct in any material respect, in each
case at the date of the Merger Agreement and at the scheduled or extended
expiration of the Offer;
(f) the Company shall have failed to perform in any material respect any
material obligation or to comply in any material respect with any material
agreement or covenant of the Company to be performed or complied with by it
under the Merger Agreement;
(g) there shall have occurred and continued to exist for not less than
three business days (i) any general suspension of trading in, or limitation
on prices for, securities on a national securities exchange in the United
States (excluding any coordinated trading halt triggered solely as a result
of a specified decrease in a market index), (ii) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States, (iii) any limitation (whether or not mandatory) by any Governmental
Entity on, or other event that materially adversely affects, the extension
of credit by banks or other lending institutions, (iv) a commencement of a
war or armed hostilities or other national or international calamity
directly or indirectly involving the United States which in any case is
reasonably expected to have a material adverse effect on the Company or to
materially adversely affect Parent's or the Purchaser's ability to complete
the Offer and/or the Merger or materially delay the consummation of the
Offer and/or the Merger; or
(h) the Merger Agreement shall have been terminated in accordance with
its terms.
The foregoing conditions are for the sole benefit of the Purchaser and
Parent and may, subject to the terms of the Merger Agreement, be waived by the
Purchaser and Parent in whole or in part at any time and from time to time in
their sole discretion. The failure by Parent or the Purchaser at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time. As used in paragraphs (c) and (g) of
this Section 14, the phrase "material adverse change with respect to the
Company" or "material adverse effect on the Company" means any change or effect
(or development that, in so far as can reasonably be foreseen, is likely to
result in any change or effect) or fact or condition that, individually or in
the aggregate with any such other changes or effects, is materially adverse to
the business, properties, assets, financial condition or results of operations
of the Company and its subsidiaries taken as a whole (other than certain
specified changes, effects, facts and conditions previously disclosed to
Parent).
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15. CERTAIN LEGAL MATTERS
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company and discussions of representatives
of Unilever with representatives of the Company, none of the Purchaser, Parent
or Unilever is aware of any license or regulatory permit that appears to be
material to the business of the Company and its subsidiaries, taken as a whole,
that might be adversely affected by the Purchaser's acquisition of Shares and/or
Class B Shares (and the indirect acquisition of the stock of the Company's
subsidiaries) as contemplated herein or of any approval or other action by any
Governmental Entity that would be required or desirable for the acquisition or
ownership of Shares and/or Class B Shares by the Purchaser as contemplated
herein. Should any such approval or other action be required or desirable, the
Purchaser and Parent currently contemplate that such approval or other action
will be sought, except as described below under "State Takeover Laws". While,
except as otherwise expressly described in this Section 15, the Purchaser does
not presently intend to delay the acceptance for payment of or payment for
Shares tendered pursuant to the Offer pending the outcome of any such matter,
there can be no assurance that any such approval or other action, if needed,
would be obtained or would be obtained without substantial conditions or that
failure to obtain any such approval or other action might not result in
consequences adverse to the Company's business or that certain parts of the
Company's business might not have to be disposed of if 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, the Purchaser could decline to accept
for payment or pay for any Shares tendered. See Section 14.
State Takeover Laws. A number of states throughout the United States have
enacted takeover statutes that purport, in varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
assets, stockholders, executive offices or places of business in such states. In
Edgar v. MITE Corp., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS Corp.
v. Dynamics Corp. of America, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining stockholders, provided that such laws were applicable
only under certain conditions. Subsequently, a number of Federal courts ruled
that various state takeover statutes were unconstitutional insofar as they apply
to corporations incorporated outside the state of enactment.
Section 203 of the DGCL. Section 203 of the DGCL, in general, prohibits a
Delaware corporation such as the Company from engaging in a "Business
Combination" (defined as a variety of transactions, including mergers, as set
forth below) with an "Interested Stockholder" (defined generally as a person
that is the beneficial owner of 15% or more of a corporation's outstanding
voting stock) for a period of three years following the date that such person
became an Interested Stockholder unless, among other things, prior to the date
such person became an Interested Stockholder, the board of directors of the
corporation approved either the Business Combination or the transaction that
resulted in the stockholder becoming an Interested Stockholder. The Company's
Board of Directors has approved the Merger Agreement, the Stockholder Agreement
and the Purchaser's acquisition of Shares pursuant to the Offer and the
Stockholder Agreement. Therefore, Section 203 of the DGCL is inapplicable to the
Merger.
Based on information supplied by the Company, the Purchaser does not believe
that any other state takeover statutes purport to apply to the Offer or the
Merger. Neither the Purchaser nor Parent has currently complied with any state
takeover statute or regulation. The Purchaser reserves the right to challenge
the applicability or validity of any state law purportedly applicable to the
Offer or the Merger and nothing in this Offer to Purchase or any action taken in
connection with the Offer or the Merger is
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intended as a waiver of such right. If it is asserted that any state takeover
statute is applicable to the Offer or the Merger and an appropriate court does
not determine that it is inapplicable or invalid as applied to the Offer or the
Merger, the Purchaser might be required to file certain information with, or to
receive approvals from, the relevant state authorities, and the Purchaser might
be unable to accept for payment or pay for Shares tendered pursuant to the
Offer, or be delayed in consummating the Offer or the Merger. In such case, the
Purchaser may not be obligated to accept payment or pay for any Shares tendered
pursuant to the Offer. See Section 14.
Certain Provisions of the Company's Certificate of Incorporation. Article
Tenth of the Company's certificate of incorporation provides that the
affirmative vote of the holders of at least 80% of the outstanding voting shares
of the Company (and 80% of each class of voting shares of the Company if class
voting rights are in effect) shall be required for the approval or authorization
of any "Business Combination" (as defined in the Company's certificate of
incorporation) with any "Related Person" (generally defined as the beneficial
owner of 10% or more of the Company's outstanding voting shares). This provision
shall not be applicable (i) if such "Business Combination" shall have been
approved by a majority of the continuing directors of the Company or (ii) such
"Business Combination" shall involve solely the Company and a 50% or greater
owned subsidiary of the Company in which the Related Person has no direct or
indirect interest (other than an interest arising solely due to control of the
Company). The transactions contemplated by the Merger Agreement and the
Stockholder Agreement would result in a "Business Combination" for purposes of
the Company's certificate of incorporation. In accordance with the Company's
certificate of incorporation, the Board of Directors of the Company has approved
the Merger Agreement and the Stockholder Agreement, and the transactions
contemplated thereby, and therefore the restrictions of Article Tenth of the
Company's certificate of incorporation are inapplicable to the Offer, the
Merger, the purchase of Class B Shares pursuant to the Stockholder Agreement and
the related transactions.
Article Fourth of the Company's certificate of incorporation provides that,
among other things, a transfer of Class B Shares to any person (other than
certain "Permitted Transferees" (as defined therein)) would result in the
automatic conversion of such Class B Shares into Shares. The Purchaser is not a
"Permitted Transferee" and, therefore, the purchase by the Purchaser of the
Class B Shares subject to the Stockholder Agreement would result in the
conversion of such Class B Shares into Shares.
Article Fourth of the Company's certificate of incorporation also provides
that, if at any time when the number of issued and outstanding Class B Shares as
reflected on the stock transfer books of the Company falls below 10% of the
aggregate number of issued and outstanding Shares, Class B Shares and shares of
preferred stock of the Company, then, the outstanding Class B Shares shall
immediately and automatically be converted into Shares. Based upon the number of
Shares and Class B Shares issued and outstanding as of February 5, 1996, in the
event that the Purchaser purchases the Class B Shares subject to the Stockholder
Agreement (thereby converting such Class B Shares into Shares), the remaining
Class B Shares would represent less than 10% of the aggregate number of issued
and outstanding Shares, Class B Shares and shares of preferred stock of the
Company, and such Class B Shares would automatically convert into Shares.
In addition, Article Fourth of the Company's certificate of incorporation
provides that if, during the period beginning January 1, 1996 and ending June
30, 1996, a committee of the Board of Directors of the Company consisting only
of outside directors then in office should adopt a resolution, and such
resolution is thereafter approved by a majority of the directors then in office
not owning Class B Shares, directing that the Class B Shares be converted into
Shares at the end of such period, then, the Class B Shares shall automatically
convert into Shares at the end of such period. If the Board of Directors does
not take such action during such period, Article Fourth provides that the term
of the Class B Shares shall be renewed for an additional five-year period.
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Antitrust. Under the provisions of the HSR Act applicable to the Offer, the
acquisition of Shares under the Offer may be consummated following the
expiration of a 15-calendar day waiting period following the filing by Unilever
of a Notification and Report Form with respect to the Offer, unless Unilever or
the Company receives a request for additional information or documentary
material from the Antitrust Division or the FTC or unless early termination of
the waiting period is granted. Unilever and the Company expect to file
Notification and Report Forms with respect to the Offer soon. If, within the
initial 15-day waiting period, either the Antitrust Division or the FTC requests
additional information or material from Parent or the Company concerning the
Offer, the waiting period will be extended and would expire at 11:59 p.m., New
York City time, on the tenth calendar day after the date of substantial
compliance by Unilever or the Company with such request. Only one extension of
the waiting period pursuant to a request for additional information is
authorized by the HSR Act. Thereafter, such waiting period may be extended only
by court order or with the consent of Unilever and the Company. In practice,
complying with a request for additional information or material can take a
significant amount of time. In addition, if the Antitrust Division or the FTC
raises substantive issues in connection with a proposed transaction, the parties
frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while such negotiations continue. Expiration or
termination of the applicable waiting period under the HSR Act is a condition to
the Purchaser's obligation to accept for payment and pay for Shares tendered
pursuant to the Offer.
The provisions of the HSR Act would similarly apply to any purchase of the
Class B Shares subject to the Stockholder Agreement, except that the initial
waiting period for any purchase of such Shares would expire 30 calendar days
following the filing of HSR Act Notification and Report Forms with respect to
such purchase by Unilever and the Company (unless earlier termination is
granted). Unilever and the Company intend to make such filings in connection
with the filings described in the preceding paragraph. A request for additional
information or material from Unilever or the Company during the initial 30-day
waiting period would extend the waiting period until 11:59 p.m., New York City
time, on the 20th calendar day after the date of substantial compliance by
Unilever and the Company with such request.
The Merger would not require an additional filing under the HSR Act if the
Purchaser owns 50% or more of the outstanding Shares at the time of the Merger
or if the Merger occurs within one year after the HSR Act waiting period
applicable to the Offer expires or is terminated.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's proposed acquisition
of the Company. At any time before or after the Purchaser's acquisition of
Shares pursuant to the Offer, the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the purchase of Shares pursuant to the
Offer or the consummation of the Merger or seeking the divestiture of Shares
acquired by the Purchaser or the divestiture of substantial assets of the
Company or its subsidiaries or Unilever or its subsidiaries. Private parties may
also bring legal action under the antitrust laws under certain circumstances.
There can be no assurance that a challenge to the Offer on antitrust grounds
will not be made or, if such a challenge is made, of the result thereof.
Investment Canada Act. According to the Company 1995 10-K, the Company
conducts certain operations in Canada. The Investment Canada Act (the "ICA")
requires that notice of the acquisition of "control" (as defined in the ICA) by
"non-Canadians" (as defined in the ICA) of any "Canadian business" (as defined
in the ICA) be furnished to Investment Canada, a Canadian Governmental Entity.
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The acquisition of Shares by the Purchaser pursuant to the Offer may
constitute an indirect acquisition of a "Canadian business" within the meaning
of the ICA. The Purchaser intends to file any notice required under the ICA.
Canadian Pre-Merger Notification Requirements. Certain provisions of
Canada's Competition Act require pre-notification to the Director of
Investigation and Research appointed under the Competition Act (the "Canadian
Director") of significant corporate transactions, such as the acquisition of a
large percentage of the stock of a public company that has Canadian operations,
or a merger or consolidation involving such an entity. Pre-notification is
generally required with respect to transactions in which the parties to the
transactions and their affiliates have assets in Canada, or annual gross
revenues from sales in, from or into Canada, in excess of Cdn. $400 million and
which involve the direct or indirect acquisition of an operating business, the
value of the assets of which, or the gross revenues from sales in or from Canada
generated from the assets of which, exceed Cdn. $35 million per year. For
transactions subject to the notification requirements, notice must be given
seven or 21 days prior to the completion of the transaction depending on the
information provided to the Canadian Director. The Canadian Director may waive
the waiting period. After the applicable waiting period expires or is waived,
the transaction may be completed. If the Canadian Director determines that the
proposed transaction prevents or lessens, or is reasonably likely to prevent or
lessen, competition substantially in a definable market, the Canadian Director
may apply to the Competition Tribunal, a special purpose Canadian tribunal, to,
among other things, require the disposition of the Canadian assets acquired in
such transaction. The Purchaser intends to file any required notice and
information with respect to its proposed acquisition with the Canadian Director
and, to the extent necessary, observe the applicable waiting period and/or apply
to the Canadian Director for an advance ruling certificate to the effect that
the Offer or the Merger would not prevent or lessen, or be likely to prevent or
lessen, competition substantially.
EEA and National Merger Regulation. According to the Company 1995 10-K, the
Company conducts substantial operations in the European Economic Area (the
"EEA"). EEC Regulation 4064/89 (the "Merger Regulation") and Article 57 of the
European Economic Area Agreement require that concentrations with a "Community
dimension" be notified in prescribed form to the Commission of the European
Communities (the "European Commission") for review and approval prior to being
put into effect. In such cases, the European Commission will, with certain
exceptions, have exclusive jurisdiction to review the concentration as opposed
to the individual countries within the EEA.
The Offer will be deemed to have a "Community dimension" if the combined
aggregate worldwide annual revenues of both Unilever and the Company exceed ECU
5 billion, if the Community-wide annual revenues of each of Unilever and the
Company exceed ECU 250 million and if both Unilever and the Company do not
receive more than two-thirds of their respective Community-wide revenues from
one and the same country. Concentrations that are found not to be subject to the
Merger Regulation may be subject to the various national merger control regimes
of the countries of the EEA, resulting in the possibility that it may be
necessary or desirable to obtain approvals from the various national
authorities.
Based upon information contained in the Company 1995 10-K, the Purchaser
currently believes that the Offer should not be considered to have a "Community
dimension," as the Community-wide revenues of the Company for 1995 appear not to
exceed ECU 250 million. Therefore, the Purchaser does not currently intend to
file a notification with the European Commission, but does expect to obtain
approvals from various national authorities.
In EEA countries where it may be necessary to obtain approvals, mandatory
notification obligations may also apply to the Offer and the Merger. In certain
other jurisdictions, although filing may not be mandatory, the Purchaser may
consider it to be desirable to obtain clearance from the relevant
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national authority. The period within which the relevant national authority must
or may reach a preliminary decision on the Offer and the Merger, and the length
of time available to such national authority if it decides to commence a full
investigation of the transaction, varies from jurisdiction to jurisdiction. In
most cases a decision at the preliminary inquiry phase can be expected within
one to two months of notification; where a full inquiry into a transaction is
undertaken, the detailed investigations may take several months. The Purchaser
intends to make all such notifications or filings as soon as possible. The
relevant national authorities are in many cases empowered to take a range of
actions designed to modify or prevent the implementation of transactions that do
not fulfill the criteria for approval under the relevant national laws.
There can be no assurance that a challenge to the Offer will not be made
pursuant to the merger control regimes of one or more of various countries (or
alternatively, if applicable, pursuant to the Merger Regulation) or by legal
action brought by private parties or, if such a challenge is made, what the
outcome would be. See Section 14.
Other Foreign Laws. The Company and certain of its subsidiaries conduct
business in several foreign countries where regulatory filings or approvals may
be required or desirable in connection with the consummation of the Offer,
including Australia, Japan, New Zealand and Sweden. Certain of such filings or
approvals, if required or desirable, may not be made or obtained prior to the
expiration of the Offer. The Purchaser is seeking further information regarding
the applicability of any such laws and currently intends to take such action as
may be required or desirable. If any foreign Governmental Entity takes any
action prior to the completion of the Offer that might have certain adverse
effects, the Purchaser will not be obligated to accept for payment or pay for
any Shares tendered. See Section 14.
16. FEES AND EXPENSES
Morgan Stanley is acting as Dealer Manager in connection with the Offer and
is providing certain financial advisory services to the Purchaser, Parent and
Unilever in connection with the Offer. Parent has agreed to pay Morgan Stanley
reasonable and customary compensation for such services. Parent has also agreed
to reimburse Morgan Stanley for its out-of-pocket expenses, including the
reasonable fees and expenses of its counsel and any other advisor retained by
Morgan Stanley, in connection with its engagement and to indemnify Morgan
Stanley and certain related persons against certain liabilities and expenses,
including certain liabilities and expenses under the Federal securities laws.
In the ordinary course of its business, Morgan Stanley engages in securities
trading, market-making and brokerage activities and may, at any time, hold long
or short positions and may trade or otherwise effect transactions in securities
of the Company. As of February 16, 1996, Morgan Stanley had a long position of
2,200 Shares and a short position of 7,700 Shares held for its own accounts.
The Purchaser and Parent have retained Morrow & Co., Inc. to act as the
Information Agent and Morgan Guaranty Trust Company of New York, to serve as the
Depositary in connection with the Offer. The Information Agent and the
Depositary each will receive reasonable and customary compensation for their
services, be reimbursed for certain reasonable out-of-pocket expenses and be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities and expenses under the Federal securities laws.
None of the Purchaser, Parent or Unilever will pay any fees or commissions
to any broker or dealer or other person (other than the Dealer Manager and the
Information Agent) in connection with the solicitation of tenders of Shares
pursuant to the Offer. Brokers, dealers, banks and trust companies will be
reimbursed by the Purchaser upon request for customary mailing and handling
expenses incurred by them in forwarding material to their customers.
33
<PAGE>
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Neither the Purchaser nor Parent is aware of any jurisdiction in
which the making of the Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. To the extent the Purchaser or
Parent becomes aware of any state law that would limit the class of offerees in
the Offer, the Purchaser will amend the Offer and, depending on the timing of
such amendment, if any, will extend the Offer to provide adequate dissemination
of such information to holders of Shares prior to the expiration of the Offer.
In any jurisdiction the securities, blue sky or other laws of which require the
Offer to be made by a licensed broker or dealer, the Offer is being made on
behalf of the Purchaser by the Dealer Manager or one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER, PARENT OR UNILEVER NOT CONTAINED
HEREIN OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
The Purchaser and Parent have filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits,
furnishing certain additional information with respect to the Offer, and may
file amendments thereto. In addition, the Company has filed the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, together with exhibits, setting
forth its recommendation with respect to the Offer and the reasons for such
recommendation and furnishing certain additional related information. Such
Schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the manner set forth in
Sections 8 and 9 (except that such material will not be available at the
regional offices of the Commission).
CONOPCO ACQUISITION COMPANY, INC.
February 20, 1996
34
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
UNILEVER, PARENT AND THE PURCHASER
1. DIRECTORS AND EXECUTIVE OFFICERS OF UNILEVER. The following table sets
forth the name, citizenship and current principal occupation or employment of
the directors and executive officers of Unilever. Unless otherwise indicated,
all occupations, offices or positions of employment listed opposite an
individual's name were held by such individual during the last five years. All
such occupations, offices or positions of employment were with the Purchaser or
a subsidiary thereof. The business address of Messrs. Anderson, Burgmans,
Kemner, Muller, Peelen, Tabaksblat, Atsma and Westerburgen is Unilever N.V.,
Weena 455, 3013 AL, Rotterdam, The Netherlands, and the business address of the
other directors and executive officers is Unilever House, Blackfriars, London,
England EC4P 4BQ. All of the persons listed below are directors unless indicated
by an asterisk.
<TABLE><CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- ------------------------------------ -----------------------------------------------------
<S> <C>
Morris Tabaksblat................... Chairman of Unilever N.V. and Vice-Chairman of
The Netherlands Unilever PLC since May 1994; Member, Special
Committee since May 1992; responsible for Central and
Eastern Europe from January 1993 until May 1994;
prior thereto, Chairman, Foods Executive.
Sir Michael Perry................... Chairman of Unilever PLC and Vice-Chairman of
United Kingdom Unilever N.V. since May 1992; Member, Special
Committee since May 1991; prior thereto, Personal
Products Coordinator.
Niall FitzGerald.................... Vice Chairman of Unilever PLC since May 1994; Member,
Ireland Special Committee since January 1996; Detergents
Coordinator from May 1991 until December 1995; prior
thereto, Member, Foods Executive.
Iain Anderson....................... Chemicals Coordinator since January 1992 and
United Kingdom Detergents Coordinator since January 1996; also
responsible for North America Regional Management
since May 1994; prior thereto, Corporate Development
Director.
Roy Brown........................... Regional Director, Africa and Middle East since May
United Kingdom 1992 and Central and Eastern Europe since May 1994;
prior thereto Chairman, Lever Brothers UK.
Antony Burgmans..................... Member, Foods Executive since August 1994; also
The Netherlands responsible for Marketing Projects Group; Responsible
for Ice Creams and Frozen Foods since January 1995;
Personal Products Coordinator from May 1991 until
August 1994; prior thereto, Chairman PT Unilever
Indonesia.
Clive Butler........................ Personnel Director since January 1993; also Regional
United Kingdom Director for Europe; Corporate Development Director
from May 1992 to December 1992; prior thereto, Foods
Executive.
</TABLE>
S-1
<PAGE>
<TABLE><CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- ------------------------------------ -----------------------------------------------------
<S> <C>
Hans Eggerstedt..................... Financial Director since January 1993 and responsible
Germany for Information Technology Group; prior thereto,
Commercial Director and Regional Director for
Continental Europe.
Ashok Ganguly....................... Research and Engineering Director since May 1990;
India also responsible for Patent Division.
Christopher Jemmett................. Regional Director, Latin America and Central Asia
United Kingdom since May 1992; prior thereto, Agribusiness
Coordinator and Regional Director, Africa and Middle
East.
Alexander Kemner.................... Regional Director, East Asia and Pacific since
The Netherlands January 1993; prior thereto, Member, Foods Executive.
Okko Muller......................... Member of Foods Executive since May 1991; responsible
Germany for Oil and Dairy based Products, Bakery Products and
European Foods business (except Ice Cream and Frozen
Foods) since January 1995; prior to May 1991,
Agribusiness Coordinator.
Jan Peelen.......................... Chairman, Foods Executive and responsible for U.S.
The Netherlands Foods business since January 1993; also responsible
for Tea and Tea based Beverages and Culinary Products
since January 1995; prior to January 1993, Regional
Director, East Asia and Pacific.
Robert Phillips..................... Personal Products Coordinator since August 1994;
United States Chairman and CEO, Unilever Prestige Personal Products
from July 1992 until August 1994; prior thereto,
President and CEO, Chesebrough-Pond's.
*Bertus Atsma....................... Treasurer and Head of Treasury Department since June
The Netherlands 1993; prior thereto, Controller.
*Michael Fox........................ Controller and Deputy Head of Financial Group since
United Kingdom June 1993; responsible for Head Office Review from
June 1992 until June 1993; prior thereto,
Vice-President, Finance of Unilever United States,
Inc.
*Josephus Westerburgen.............. Joint Secretary since May 1988; also Head of
The Netherlands Corporate Taxation Department.
*Stephen Williams................... Joint Secretary since December 1986; also General
United Kingdom Counsel and Head of Legal Group.
</TABLE>
S-2
<PAGE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The following table sets
forth the name and current principal occupation or employment of the directors
and executive officers of Parent. Unless otherwise indicated, all occupations,
offices or positions of employment listed opposite an individual's name were
held by such individual during the last five years. The business address of each
such director and executive officer is Conopco, Inc., 390 Park Avenue, New York,
NY 10022. Unless otherwise indicated, all such directors and executive officers
listed below are citizens of the United States. None of the persons listed below
are directors unless indicated by an asterisk.
<TABLE><CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- ------------------------------------ -----------------------------------------------------
<S> <C>
Blaine R. Hess...................... President, Conopco, Inc.; President and CEO, Thomas
800 Sylvan Avenue J. Lipton Co., since before February 1991.
Englewood Cliffs, NJ 07632
Charles B. Strauss.................. Executive Vice President, Conopco, Inc.; President
and CEO, Lever Brothers Company, since November 1992;
Chairman, Langnese-Iglo GmbH, from June 1989 to
November 1992.
Jeffrey Allgrove* (United Vice President, Conopco, Inc.; Vice President,
Kingdom)............................ Finance of Unilever United States, Inc. since June
1992; prior thereto, Vice President, Finance of
Unichema International.
Patrick J. Choel (France)........... Vice President, Conopco, Inc.; President and CEO,
33 Benedict Place Chesebrough-Pond's USA Co., since February 1994;
Greenwich, CT 06830 Chairman, Elida Faberge, from January 1990 to January
1994.
Mart Laius.......................... Vice President, Conopco, Inc.; Vice President,
Corporate Development and Administrative Services,
Unilever United States, Inc., since 1995; prior
thereto, Director, Corporate Development, Unilever
United States, Inc.
Paulanne Mancuso Bordonaro.......... Vice President, Conopco, Inc.; President and CEO,
725 Fifth Avenue Calvin Klein Cosmetics Company, since August 1994;
New York, NY 10022 Executive Vice President, Calvin Klein Cosmetics
Company, from April 1991 to July 1994; prior thereto
Senior Vice President, Calvin Klein Cosmetics
Company.
Ronald M. Soiefer*.................. Vice President, Conopco, Inc.; Vice President,
General Counsel and Secretary of Unilever United
States, Inc. since January 1996; Deputy General
Counsel of Unilever United States, Inc. from April
1995 to December 1995; Associate General Counsel of
Unilever United States, Inc. from June 1994 to March
1995; Vice President--Law of GAF Corporation
(International Specialty Products) from March 1992 to
May 1994; prior thereto, Senior Vice President,
General Counsel and Secretary of The Oxford Energy
Company.
Eric Walsh (United Kingdom)......... Vice President, Conopco, Inc.; President, Good Humor-
909 Packerland Drive Breyers Ice Cream, since 1994; President, Gold
P.O. Box 19007 Bond-Good Humor Ice Cream, from 1992 to 1993;
Green Bay, WI 54307 President, Gold Bond Ice Cream, since 1991.
Arnold I. Friede.................... Vice President and Assistant Secretary, Conopco,
2200 Cabot Drive Inc.; Vice President and General Counsel, Van den
Lisle, IL 60532 Bergh Foods Company, since 1993; prior thereto,
General Counsel, Ragu Foods Company.
</TABLE>
S-3
<PAGE>
<TABLE><CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- ------------------------------------ -----------------------------------------------------
<S> <C>
Lawrence E. Hicks................... Vice President and Assistant Secretary, Conopco,
800 Sylvan Avenue Inc.; Vice President and General Counsel, Thomas J.
Englewood Cliffs, NJ 07632 Lipton Co., since before February 1991.
Melvin H. Kurtz..................... Vice President and Assistant Secretary, Conopco,
33 Benedict Place Inc.; Vice President, Secretary and General Counsel,
Greenwich, CT 06830 Chesebrough- Pond's USA Co., since before February
1991.
Melinda M. Sweet.................... Vice President and Assistant Secretary, Conopco,
Inc.; General Counsel, Senior Vice President, Lever
Brothers Company, since December 1994; prior thereto,
Associate General Counsel and Director Environmental
Affairs, Lever Brothers Company.
Thomas J. Hoolihan*................. Secretary, Conopco, Inc.; Assistant General Counsel
of Unilever United States, Inc. since March 1995;
Corporate Counsel of Unilever United States, Inc. and
Senior Attorney of Lever Brothers Company from April
1991 to February 1995; prior thereto, Senior Attorney
of Lever Brothers Company.
Sunil Mehta (Canada)................ Treasurer, Conopco, Inc.; Treasurer, Unilever United
800 Sylvan Avenue States, Inc., since March 1992; prior thereto, Senior
Englewood Cliffs, NJ 07632 Vice President, Unox Meats Canada, Division of
Unilever Canada Limited.
</TABLE>
3. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The following table
sets forth the name and current principal occupation or employment of the
directors and executive officers of the Purchaser. The business address of each
such director and executive officer is Conopco Acquisition Company, Inc. in care
of Conopco, Inc., 390 Park Avenue, New York, NY 10022. Unless otherwise
indicated, all such directors and executive officers listed below are citizens
of the United States. Directors are indicated by an asterisk.
<TABLE><CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- ------------------------------------ -----------------------------------------------------
<S> <C>
Mart Laius*......................... President, Conopco Acquisition Company, Inc.; Vice
President, Corporate Development and Administrative
Services, Unilever United States, Inc., since 1995;
prior thereto, Director, Corporate Development,
Unilever United States, Inc.
Ronald M. Soiefer*.................. Vice President, Conopco Acquisition Company, Inc.;
Vice President, General Counsel and Secretary of
Unilever United States, Inc. since January 1996;
Deputy General Counsel of Unilever United States,
Inc. from April 1995 to December 1995; Associate
General Counsel of Unilever United States, Inc.
from June 1994 to March 1995; Vice President--Law
of GAF Corporation (International Specialty
Products) from March 1992 to May 1994; prior
thereto, Senior Vice President, General Counsel and
Secretary of The Oxford Energy Company.
</TABLE>
S-4
<PAGE>
<TABLE><CAPTION>
PRESENT PRINCIPAL OCCUPATION
OR EMPLOYMENT AND FIVE-YEAR
NAME AND CITIZENSHIP EMPLOYMENT HISTORY
- ------------------------------------ -----------------------------------------------------
<S> <C>
Thomas J. Hoolihan*................. Secretary, Conopco Acquisition Company, Inc.;
Assistant General Counsel of Unilever United States,
Inc. since March 1995; Corporate Counsel of
Unilever United States, Inc. and Senior Attorney of
Lever Brothers Company from April 1991 to February
1995; prior thereto, Senior Attorney of Lever
Brothers Company.
Jeffrey W. Allgrove................. Treasurer, Conopco Acquisition Company, Inc.; Vice
United Kingdom President, Finance of Unilever United States, Inc.
since June 1992; prior thereto, Vice President,
Finance of Unichema International.
David Strickland, Jr. .............. Assistant Secretary, Conopco Acquisition Company,
Inc.; Assistant General Counsel of Unilever United
States, Inc. since November 1995; prior thereto,
Assistant General Counsel, Thomas J. Lipton
Company.
</TABLE>
S-5
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each stockholder of the
Company or such stockholder's broker, dealer, bank, trust company or other
nominee to the Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By Mail: By Hand:
Morgan Guaranty Trust Company Morgan Guaranty Trust Company
Corporate Reorganization of New York
PO Box 8216 c/o BancBoston Trust Company
Boston, MA 02266-8216 55 Broadway, 3rd Floor
New York, NY 10006
Attn: Stock Transfer Window
By Overnight Courier: By Facsimile Transmission:
Morgan Guaranty Trust Company (617) 774-4519
c/o State Street Corporate
Reorganization Confirm by Telephone:
2 Heritage Drive (617) 774-4501
N. Quincy, MA 02171
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent or the Dealer Manager at their respective
telephone numbers and locations listed below. You may also contact your broker,
dealer, bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
Morrow & Co., Inc.
909 Third Avenue
20th Floor
New York, NY 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage Firms
please call:
(800) 662-5200
The Dealer Manager for the Offer is:
MORGAN STANLEY & CO.
Incorporated
1585 Broadway
New York, NY 10036
(212) 761-7622
Exhibit (a)(2)
LETTER OF TRANSMITTAL
To Tender Shares of Common Stock
of
Helene Curtis Industries, Inc.
Pursuant to the Offer to Purchase Dated February 20, 1996
by
Conopco Acquisition Company, Inc.
a wholly owned subsidiary of
Conopco, Inc.
a subsidiary of
Unilever N.V.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON MONDAY, MARCH 18, 1996, UNLESS THE OFFER IS EXTENDED.
TO: MORGAN GUARANTY TRUST COMPANY OF NEW YORK, DEPOSITARY
By Mail: By Hand:
Morgan Guaranty Trust Company Morgan Guaranty Trust Company
Corporate Reorganization of New York
PO Box 8216 c/o BancBoston Trust Company
Boston, MA 02266-8216 55 Broadway, 3rd Floor
New York, NY 10006
Attn: Stock Transfer Window
By Overnight Courier: By Facsimile Transmission:
Morgan Guaranty Trust Company (617) 774-4519
c/o State Street Corporate Confirm by Telephone:
Reorganization (617) 774-4501
2 Heritage Drive
N. Quincy, MA 02171
------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE DOES NOT
CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be used either if certificates for Shares
(as defined below) are to be forwarded herewith or, unless an Agent's Message
(as defined in Section 2 of the Offer to Purchase (as defined below)) is
utilized, if delivery of Shares is to be made by book-entry transfer to an
account maintained by the Depositary at a Book-Entry Transfer Facility as
defined in and pursuant to the procedures set forth in Section 2 of the Offer to
Purchase. Stockholders who deliver Shares by book-entry transfer are referred to
herein as "Book-Entry Stockholders" and other stockholders are referred to
herein as "Certificate Stockholders". Stockholders whose certificates for Shares
are not immediately available or who cannot deliver either the certificates for,
or a Book-Entry Confirmation (as defined in Section 2 of the Offer to Purchase)
with respect to, their Shares and all other documents required hereby to the
Depositary prior to the Expiration Date (as defined in Section 1 of the Offer to
Purchase) must tender their Shares in accordance with the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase. See Instruction 2.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
<PAGE>
DESCRIPTION OF SHARES TENDERED
<TABLE><CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S)
APPEAR(S) SHARES TENDERED
ON CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
TOTAL NUMBER
OF SHARES NUMBER
CERTIFICATE REPRESENTED BY OF SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2)
<S> <C> <C> <C>
TOTAL SHARES
</TABLE>
(1) Need not be completed by Book-Entry Stockholders.
(2) Unless otherwise indicated, it will be assumed that all Shares described
above are being tendered. See Instruction 4.
<PAGE>
<TABLE>
<S> <C>
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN
ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND
COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY TRANSFER FACILITY MAY
DELIVER SHARES BY BOOK-ENTRY TRANSFER):
Name of Tendering Institution
Check box of Book-Entry Transfer Facility:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
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 Owner(s)
Date of Execution of Notice of Guaranteed Delivery
Name of Institution that Guaranteed Delivery
If delivered by book-entry transfer check box:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number
-------------------------------------------------------------------
Transaction Code Number
---------------------------------------------------------
</TABLE>
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Conopco Acquisition Company, Inc., a
Delaware corporation (the "Purchaser"), which is a wholly owned subsidiary of
Conopco, Inc., a New York corporation, which is indirectly owned 75% by Unilever
N.V., a Dutch corporation, and 25% by Unilever PLC, a company organized under
the laws of England and Wales, the above-described shares of Common Stock, par
value $.50 per share (the "Shares"), of Helene Curtis Industries, Inc., a
Delaware corporation (the "Company"), upon the terms and subject to the
conditions set forth in the Purchaser's Offer to Purchase dated February 20,
1996 (the "Offer to Purchase"), and this Letter of Transmittal (which, together
with any amendments or supplements thereto or hereto, collectively constitute
the "Offer"), receipt of which is hereby acknowledged.
Upon the terms of the Offer, subject to, and effective upon, acceptance for
payment of, and payment for, the Shares tendered herewith in accordance with the
terms of the Offer, the undersigned hereby sells, assigns and transfers to, or
upon the order of, the Purchaser all right, title and interest in and to all the
Shares that are being tendered hereby (and any and all other Shares or other
securities or rights issued or issuable in respect thereof on or after February
13, 1996), and irrevocably constitutes and appoints Morgan Guaranty Trust
Company of New York (the "Depositary"), the true and lawful agent and
attorney-in-fact of the undersigned, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with an interest),
to the full extent of the undersigned's rights with respect to such Shares (and
any such other Shares or securities or rights), (a) to deliver certificates for
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 a Book-Entry Transfer Facility together, in any
such case, with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Purchaser, (b) to present such Shares (and any such other
Shares or securities or rights) for transfer on the Company's books and (c) to
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 represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the tendered Shares
(and any and all other Shares or other securities or rights issued or issuable
in respect of such Shares on or after February 13, 1996) and, when the same are
accepted for payment by the Purchaser, the Purchaser will acquire good title
thereto, free and clear of all liens, restrictions, claims and encumbrances, and
the same will not be subject to any adverse claim. The undersigned will, upon
request, execute any additional documents deemed by the Depositary or the
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the tendered Shares (and any and all such other Shares or securities
or rights).
All authority conferred or agreed to be conferred pursuant to this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
<PAGE>
The undersigned hereby irrevocably appoints Ronald M. Soiefer, Mart Laius
and Thomas J. Hoolihan, and each of them, and any other designees of the
Purchaser, the attorneys-in-fact and proxies of the undersigned, each with full
power of substitution, to vote at any annual, special or adjourned meeting of
the Company's stockholders or otherwise in such manner as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, to execute any written consent concerning any matter as
each such attorney-in-fact and proxy or his substitute shall in his sole
discretion deem proper with respect to, and to otherwise act as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, the Shares tendered hereby that have been accepted for
payment by the Purchaser prior to the time any such action is taken and with
respect to which the undersigned is entitled to vote (and any and all other
Shares or other securities or rights issued or issuable in respect of such
Shares on or after February 13, 1996). This appointment is effective when, and
only to the extent that, the Purchaser accepts for payment such Shares as
provided in the Offer to Purchase. This power of attorney and proxy are
irrevocable and are granted in consideration of the acceptance for payment of
such Shares in accordance with the terms of the Offer. Upon such acceptance for
payment, all prior powers of attorney, proxies and consents given by the
undersigned with respect to such Shares (and any such other Shares or securities
or rights) will, without further action, be revoked and no subsequent powers of
attorney, proxies, consents or revocations may be given (and, if given, will not
be deemed effective) by the undersigned.
The undersigned understands that the valid tender of Shares pursuant to any
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 the Purchaser upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated herein under "Special Payment Instructions",
please issue the check for the purchase price and/or return any certificates for
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 for Shares not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under "Description of Shares
Tendered". In the event that both "Special Delivery Instructions" and "Special
Payment Instructions" are completed, please issue the check for the purchase
price and/or return any certificates for Shares not tendered or accepted for
payment (and any accompanying documents, as appropriate) in the name of, and
deliver such check and/or return such certificates (and any accompanying
documents, as appropriate) to, the person or persons so indicated. Please credit
any Shares tendered herewith by book-entry transfer that are not accepted for
payment by crediting the account at the Book-Entry Transfer Facility designated
above. The undersigned recognizes that the Purchaser has no obligation pursuant
to "Special Payment Instructions" to transfer any Shares from the name of the
registered holder thereof if the Purchaser does not accept for payment any of
the Shares so tendered.
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
Number of Shares represented by the lost or destroyed certificates:
___________
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7) (SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if certificates for To be completed ONLY if certificates
Shares not tendered or not accepted for for Shares not tendered or not
payment and/or the check for the accepted for payment and/or the check
purchase price of Shares accepted for for the purchase price of Shares
payment are to be issued in the name of accepted for payment are to be sent
someone other than the undersigned. to someone other than the
undersigned, or to the undersigned at
an address other than that above.
Issue: / / Check Mail: / / Check
/ / Certificate(s) to: / / Certificate(s) to:
Name ___________________________________ Name _________________________________
(PLEASE PRINT) (PLEASE PRINT)
Address ________________________________ Address ______________________________
________________________________________ ______________________________________
(INCLUDE ZIP CODE) (INCLUDE ZIP CODE)
________________________________________ ______________________________________
(EMPLOYER IDENTIFICATION OR SOCIAL (EMPLOYER IDENTIFICATION OR SOCIAL
SECURITY NUMBER) SECURITY NUMBER)
<PAGE>
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
______________________________________________________________
______________________________________________________________
(Signature(s) of Stockholder(s))
Dated: ________________, 1996
(Must be signed by registered holder(s) as name(s)
appear(s) on the certificate(s) for the Shares 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 trustees,
executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary
or representative capacity, please provide the following
information and see Instruction 5.)
Name(s) _____________________________________________________
______________________________________________________________
(Please Print)
Capacity (Full Title) ________________________________________
Address ______________________________________________________
______________________________________________________________
(Include Zip Code)
Daytime Area Code and Telephone No. __________________________
Employer Identification or
Social Security Number
______________________________________
(See Substitute Form W-9)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
______________________________________________________________
Authorized Signature
______________________________________________________________
Name (Please Print)
______________________________________________________________
Name of Firm
______________________________________________________________
Address
______________________________________________________________
(Include Zip Code)
______________________________________________________________
Daytime Area Code and Telephone No.
Dated: _____________________, 1996
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Section, includes any
participant in any of the Book-Entry Transfer Facilities' systems whose name
appears on a security position listing as the owner of the Shares) of Shares
tendered herewith, unless such registered holder(s) has completed either the box
entitled "Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (b) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(such participant, 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. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
stockholders either if certificates are to be forwarded herewith or, unless an
Agent's Message (as defined below) is utilized, if delivery of Shares is to be
made pursuant to the procedures for book-entry transfer set forth in Section 2
of the Offer to Purchase. For a stockholder validly to tender Shares pursuant to
the Offer, either (a) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, together with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message, and any other
required documents, must be received by the Depositary at one of its addresses
set forth herein prior to the Expiration Date and either certificates for
tendered Shares must be received by the Depositary at one of such addresses or
Shares must be delivered pursuant to the procedures for book-entry transfer set
forth herein (and a Book-Entry Confirmation received by the Depositary), in each
case prior to the Expiration Date, or (b) the tendering stockholder must comply
with the guaranteed delivery procedures set forth below and in Section 2 of the
Offer to Purchase.
Stockholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary or complete the procedures for book-entry transfer prior to the
Expiration Date may tender their Shares by properly completing and duly
executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase. Pursuant to such
procedures, (a) such tender must be made by or through an Eligible Institution,
(b) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Purchaser, must be received by the
Depositary prior to the Expiration Date and (c) the certificates for all
tendered Shares in proper form for transfer (or a Book-Entry Confirmation with
respect to all such Shares), together with a Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message, and
any other required documents, must be received by the Depositary within three
trading days after the date of execution of such Notice of Guaranteed Delivery
as provided in Section 2 of the Offer to Purchase. A "trading day" is any day on
which the New York Stock Exchange, Inc. is open for business.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation that states that such Book-Entry Transfer Facility has
received an express acknowledgement from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
<PAGE>
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
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 facsimile hereof), 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
schedule attached hereto.
4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATE STOCKHOLDERS ONLY). If fewer
than all the Shares evidenced 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 any such case, new certificate(s) for the remainder of
the Shares that were evidenced by the old certificate(s) will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the acceptance for payment
of, and payment for, the Shares tendered herewith. All Shares represented by
certificates delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder of the Shares
tendered hereby, the signature must correspond with the name as written on the
face of the certificate(s) without 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 or any certificates or stock powers are signed
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 proper evidence satisfactory to the
Purchaser of their authority so to act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or
certificates for Shares not tendered or accepted for payment are to be issued
to, a person other than the registered owner(s). Signatures on such certificates
or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the certificates listed, the certificates must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name or names of the registered owner or owners appear on the
certificates. Signatures on such certificates or stock powers must be guaranteed
by an Eligible Institution.
<PAGE>
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or if
certificates for Shares not tendered or accepted for payment are to be
registered in the name of, any person(s) other than the registered owner(s), or
if tendered certificates are registered in the name(s) of any person(s) other
than the person(s) signing this Letter of Transmittal, the amount of any stock
transfer taxes (whether imposed on the registered owner(s) or such person(s))
payable on account of the transfer to such person(s) will be deducted from the
purchase price unless satisfactory evidence of the payment of such taxes or
exemption therefrom is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares not accepted for payment are to be
returned to, 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 a person
other than the signer of this Letter of Transmittal or to an address other than
that shown above, the appropriate boxes on this Letter of Transmittal should be
completed.
8. WAIVER OF CONDITIONS. Subject to the terms of the Merger Agreement (as
defined in the Offer to Purchase), the Purchaser reserves the absolute right in
its sole discretion to waive any of the specified conditions of the Offer, in
whole or in part, in the case of any Shares tendered.
9. 31% BACKUP WITHHOLDING. In order to avoid backup withholding of Federal
income tax on payments of cash pursuant to the Offer, a stockholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such stockholder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 below in this Letter of Transmittal and certify under
penalties of perjury that such TIN is correct and that such stockholder is not
subject to backup withholding. If a stockholder does not provide such
stockholder's correct TIN or fails to provide the certifications described
above, the Internal Revenue Service (the "IRS") may impose a $50 penalty on such
stockholder and payment of cash to such stockholder pursuant to the Offer may be
subject to backup withholding of 31%.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the Federal income tax liability
of the person subject to the backup withholding, provided that the required
information is given to the IRS. If backup withholding results in an overpayment
of tax, a refund can be obtained by the stockholder upon filing an income tax
return.
The stockholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
stockholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
stockholder if a TIN is provided to the Depositary within 60 days.
Certain stockholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
<PAGE>
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for
assistance or additional copies of the Offer to Purchase, this Letter of
Transmittal, the Notice of Guaranteed Delivery and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
directed to the Information Agent or the Dealer Manager at their respective
addresses set forth below.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing
Shares has been lost, destroyed or stolen, the stockholder should promptly
notify the Depositary by checking the box immediately preceding the special
payment/special delivery instructions and indicating the number of Shares lost.
The stockholder will then be instructed as to the steps that must be taken in
order to replace the certificate. This Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost or
destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), TOGETHER WITH
ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE
DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED
SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT
TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION
DATE, OR THE TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES FOR
GUARANTEED DELIVERY.
<PAGE>
<TABLE>
<S> <C> <C>
PAYER'S NAME: MORGAN GUARANTY TRUST COMPANY OF NEW YORK
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE BOX AT
FORM W-9 RIGHT AND CERTIFY BY SIGNING AND DATING BELOW Social Security Number(s)
OR
Employer Identification
Number(s)
Part 2--Certification--Under penalties of Part 3--
perjury, I certify that: Awaiting TIN
(1) the number shown on this form is my / /
correct Taxpayer Identification Number (or
I am waiting for a number to be issued to
me) and
(2) I am not subject to backup withholding
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 Part 4--
failure to report all interest or Exempt TIN
dividends or (c) the IRS has notified me / /
that I am no longer subject to backup
withholding.
Certification instructions--You must cross out item (2) in Part 2 above if
you have been notified by the IRS that you are subject to backup
withholding because of under reporting interest or dividends on your tax
returns. However, if after being notified by the IRS that you were subject
to backup withholding you received another notification from the IRS
stating that you are no longer subject to backup withholding, do not cross
out such item (2). If you are exempt from backup withholding, check the box
Department of the in Part 4 above.
Treasury Internal
Revenue Service
Payer's Request for
Taxpayer Identification
Number (TIN)
SIGNATURE DATE ,1996
-------------------------------------------- ----------------
</TABLE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand
that, if I do not provide a taxpayer identification number to the Depositary,
31% of all reportable payments made to me will be withheld, but will be refunded
if I provide a certified taxpayer identification number within 60 days.
<TABLE>
<S> <C>
, 1996
- ------------------------------------------- ----------------------------
Signature Date
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL INFORMATION.
<PAGE>
The Information Agent for the Offer is:
Morrow & Co., Inc.
909 Third Avenue
20th Floor
New York, NY 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage Firms
please call:
(800) 662-5200
The Dealer Manager for the Offer is:
MORGAN STANLEY & CO.
Incorporated
1585 Broadway
New York, NY 10036
(212) 761-7622
Exhibit (a)(3)
NOTICE OF GUARANTEED DELIVERY
for
Tender of Shares of Common Stock
of
Helene Curtis Industries, Inc.
As set forth in Section 2 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to accept the Offer (as
defined below) if certificates for shares of Common Stock, par value $.50 per
share (the "Shares"), of Helene Curtis Industries, 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 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). This form may be
delivered by hand to the Depositary or transmitted by telegram, facsimile
transmission or mail to the Depositary and must include a guarantee by an
Eligible Institution (as defined in Section 2 of the Offer to Purchase). See
Section 2 of the Offer to Purchase.
The Depositary:
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By Mail: By Hand:
Morgan Guaranty Trust Company Morgan Guaranty Trust Company
Corporate Reorganization of New York
PO Box 8216 c/o BancBoston Trust Company
Boston, MA 02266-8216 55 Broadway, 3rd Floor
New York, NY 10006
Attn: Stock Transfer Window
By Overnight Courier: By Facsimile Transmission:
Morgan Guaranty Trust Company (617) 774-4519
c/o State Street Corporate Confirm by Telephone:
Reorganization (617) 774-4501
2 Heritage Drive
N. Quincy, MA 02171
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE 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.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Conopco Acquisition Company, Inc., a
Delaware corporation (the "Purchaser"), which is a wholly owned subsidiary of
Conopco, Inc., a New York corporation, upon the terms and subject to the
conditions set forth in the Purchaser's Offer to Purchase dated February 20,
1996 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer"), receipt of which is hereby acknowledged, the number of Shares set
forth below, all pursuant to the guaranteed delivery procedures set forth in
Section 2 of the Offer to Purchase.
Number of Shares _____________________ Name(s) of Record Holder(s): ________
Certificate Nos.
(if available): ______________________ _____________________________________
______________________________________ _____________________________________
Please Print
______________________________________ Address(es): ________________________
_____________________________________
(CHECK ONE BOX IF SHARES
_____________________________________
Zip Code
WILL BE TENDERED BY BOOK-ENTRY TRANSFER)
/ / The Depository Trust Company
/ / Midwest Securities Trust Company Daytime Area Code
/ / Philadelphia Depository Trust Company and Tel. No.: _______________________
Account Number _______________________ Signature(s): _______________________
Dated: ___________________________, 1996 _____________________________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program, hereby guarantees to deliver to the
Depositary either the certificates representing the Shares tendered hereby, in
proper form for transfer, or a Book-Entry Confirmation (as defined in the Offer
to Purchase) with respect to such Shares, in any such case together with 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), and any other required documents, within
three trading days after the date hereof.
The Eligible Institution that completes this form must communicate this
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible Institution.
Name of Firm: _______________________ ________________________________________
Authorized Signature
Address: ____________________________ Name: __________________________________
Please Print
_____________________________________ Title: _________________________________
Zip Code
Area Code and Tel No.: ______________ Dated: ____________________________,1996
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES FOR
SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
Exhibit (a)(4)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Helene Curtis Industries, Inc.
at
$70.00 Net Per Share
by
Conopco Acquisition Company, Inc.
a wholly owned subsidiary of
Conopco, Inc.
a subsidiary of
Unilever N.V.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON MONDAY, MARCH 18, 1996, UNLESS THE OFFER IS EXTENDED.
February 20, 1996
To Brokers, Dealers, Banks,
Trust Companies and Other Nominees:
We have been engaged by Conopco Acquisition Company, Inc., a Delaware
corporation (the "Purchaser"), which is a wholly owned subsidiary of Conopco,
Inc., a New York corporation ("Parent"), which is indirectly owned 75% by
Unilever N.V., a Dutch corporation, and 25% by Unilever PLC, a company organized
under the laws of England and Wales, to act as Dealer Manager in connection with
the Purchaser's offer to purchase all outstanding shares of Common Stock, par
value $.50 per share (the "Shares"), of Helene Curtis Industries, Inc., a
Delaware corporation (the "Company"), at $70.00 per Share, net to the seller in
cash, without interest thereon, upon the terms and subject to the conditions set
forth in the Purchaser's Offer to Purchase dated February 20, 1996 (the "Offer
to Purchase"), and in the related Letter of Transmittal (which, together with
any amendments or supplements thereto, collectively constitute the "Offer").
Please furnish copies of the enclosed materials to those of your clients for
whom you hold Shares registered in your name or in the name of your nominee.
Enclosed herewith are copies of the following documents:
1. Offer to Purchase dated February 20, 1996;
2. Letter of Transmittal to be used by stockholders of the Company in
accepting the Offer;
3. The Letter to Stockholders of the Company from the President and
Chief Executive Officer of the Company accompanied by the Company's
Solicitation/Recommendation Statement on Schedule 14D-9;
4. A printed form of letter that may be sent to your clients for whose
account you hold Shares in your name or in the name of a nominee, with space
provided for obtaining such clients' instructions with regard to the Offer;
5. Notice of Guaranteed Delivery;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. Return envelope addressed to Morgan Guaranty Trust Company of New
York, the Depositary.
<PAGE>
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES THAT, TOGETHER WITH THE CLASS B SHARES (AS DEFINED IN THE OFFER TO
PURCHASE) SUBJECT TO THE STOCKHOLDER AGREEMENT (AS DEFINED IN THE OFFER TO
PURCHASE), WOULD CONSTITUTE A MAJORITY OF THE COMBINED VOTING POWER OF ALL
OUTSTANDING SHARES AND CLASS B SHARES ON A FULLY DILUTED BASIS ON THE DATE OF
PURCHASE (ASSUMING FOR SUCH DETERMINATION THAT EACH CLASS B SHARE SUBJECT TO THE
STOCKHOLDER AGREEMENT IS ONLY ENTITLED TO ONE VOTE PER CLASS B SHARE) AND (2)
ANY WAITING PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF
1976, AS AMENDED, AND THE REGULATIONS THEREUNDER APPLICABLE TO THE PURCHASE OF
SHARES PURSUANT TO THE OFFER HAVING EXPIRED OR BEEN TERMINATED.
WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY,
MARCH 18, 1996, UNLESS THE OFFER IS EXTENDED BY THE PURCHASER.
The Board of Directors of the Company has unanimously approved the Offer and
the Merger (as defined below) and determined that the terms of the Offer and the
Merger are fair to, and in the best interests of, the stockholders of the
Company and unanimously recommends that stockholders of the Company accept the
Offer and tender their Shares.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of February 13, 1996 (the "Merger Agreement"), among Parent, the Purchaser
and the Company pursuant to which, following the consummation of the Offer and
the satisfaction or waiver of certain conditions, the Purchaser will be merged
with and into the Company, with the Company surviving the merger as a wholly
owned subsidiary of Parent (the "Merger"). In the Merger, each outstanding Share
and Class B Share (other than Shares and Class B Shares owned by the Company as
treasury stock or by any subsidiary of the Company, Parent, the Purchaser or any
other subsidiary of Parent or by stockholders, if any, who are entitled to and
who properly exercise appraisal rights under Delaware law) will be converted
into the right to receive $70.00 per Share or Class B Share, without interest,
as set forth in the Merger Agreement and described in the Offer to Purchase.
Payment for Shares accepted for payment pursuant to the Offer will in all
cases be made only after timely receipt by the Depositary of (a) certificates
for (or a timely Book-Entry Confirmation (as defined in the Offer to Purchase)
with respect to) such Shares, (b) a Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer effected pursuant to the
procedure set forth in Section 2 of the Offer to Purchase, an Agent's Message
(as defined in the Offer to Purchase), and (c) any other documents required by
the Letter of Transmittal. Accordingly, tendering stockholders may be paid at
different times depending upon when certificates for Shares or Book-Entry
Confirmations with respect to Shares are actually received by the Depositary.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES
TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY
DELAY IN MAKING SUCH PAYMENT.
Neither the Purchaser nor Parent will pay any fees or commissions to any
broker or dealer or other person (other than the Dealer Manager and the
Information Agent as described in the Offer to Purchase) in connection with the
solicitation of tenders of Shares pursuant to the Offer. You will be reimbursed
upon request for customary mailing and handling expenses incurred by you in
forwarding the enclosed offering materials to your customers.
Questions and requests for additional copies of the enclosed material may be
directed to the Information Agent or to the Dealer Manager at their respective
addresses and telephone numbers set forth on the back cover of the enclosed
Offer to Purchase.
Very truly yours,
MORGAN STANLEY & CO.
Incorporated
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, PARENT, THE DEPOSITARY, THE
INFORMATION AGENT OR THE DEALER MANAGER OR AUTHORIZE YOU OR ANY OTHER PERSON TO
GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH
RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE OR THE LETTER OF
TRANSMITTAL.
Exhibit (a)(5)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Helene Curtis Industries, Inc.
at
$70.00 Net Per Share
by
Conopco Acquisition Company, Inc.
a wholly owned subsidiary of
Conopco, Inc.
a subsidiary of
Unilever N.V.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW
YORK CITY TIME, ON MONDAY, MARCH 18, 1996, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated February 20,
1996 (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 Conopco Acquisition Company, Inc., a Delaware
corporation (the "Purchaser"), which is a wholly owned subsidiary of Conopco,
Inc., a New York corporation ("Parent"), which is indirectly owned 75% by
Unilever N.V., a Dutch corporation, and 25% by Unilever PLC, a company organized
under the laws of England and Wales, to purchase for cash all outstanding shares
of Common Stock, par value $.50 per share (the "Shares"), of Helene Curtis
Industries, Inc., a Delaware corporation (the "Company"), upon the terms and
subject to the conditions set forth in the Offer. Also enclosed is the Letter to
Stockholders of the Company from the President and Chief Executive Officer of
the Company accompanied by the Company's Solicitation/Recommendation Statement
on Schedule 14D-9.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED TO TENDER SHARES HELD BY US FOR YOUR
ACCOUNT.
We request instructions as to whether you wish to tender any of or all the
Shares held by us for your account, pursuant to the terms and conditions set
forth in the Offer.
Your attention is directed to the following:
1. The offer price is $70.00 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions of the
Offer.
2. The Offer is being made for all outstanding Shares.
3. The Board of Directors of the Company has unanimously approved the Offer
and the Merger (as defined below) and determined that the terms of the
Offer and the Merger are fair to, and in
<PAGE>
the best interests of, the stockholders of the Company and unanimously
recommends that the stockholders of the Company accept the Offer and
tender their Shares.
4. The Offer is being made pursuant to the Agreement and Plan of Merger
dated as of February 13, 1996 (the "Merger Agreement"), among Parent, the
Purchaser and the Company pursuant to which, following the consummation
of the Offer and the satisfaction or waiver of certain conditions, the
Purchaser will be merged with and into the Company, with the Company
surviving the merger as a wholly owned subsidiary of Parent (the
"Merger"). In the Merger, each outstanding Share and Class B Share (as
defined in the Offer to Purchase) (other than Shares and Class B Shares
owned by the Company as treasury stock or by any subsidiary of the
Company, Parent, the Purchaser or any other subsidiary of Parent or by
stockholders, if any, who are entitled to and who properly exercise
appraisal rights under Delaware law) will be converted into the right to
receive $70.00 per Share or Class B Share, without interest, as set forth
in the Merger Agreement and described in the Offer to Purchase.
5. THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, MARCH 18, 1996, UNLESS THE OFFER IS EXTENDED BY THE
PURCHASER (THE "EXPIRATION DATE").
6. The Offer is conditioned upon, among other things, (1) there being
validly tendered and not withdrawn prior to the expiration of the Offer
that number of Shares that, together with the Class B Shares subject to
the Stockholder Agreement (as defined in the Offer to Purchase), would
constitute a majority of the combined voting power of all outstanding
Shares and Class B Shares on a fully diluted basis on the date of
purchase (assuming for such determination that each Class B Share subject
to the Stockholder Agreement is only entitled to one vote per Class B
Share), and (2) any waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the regulations thereunder
applicable to the purchase of Shares pursuant to the Offer having expired
or been terminated.
7. Any stock transfer taxes applicable to a sale of Shares to the Purchaser
will be borne by the Purchaser, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
Your instructions to us should be forwarded promptly to permit us to submit
a tender on your behalf prior to the Expiration Date.
If you wish to have us tender any of or all the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form on the detachable part hereof. 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 detachable
part hereof. Your instructions should be forwarded to us in ample time to permit
us to submit a tender on your behalf prior to the Expiration Date.
Payment for Shares accepted for payment pursuant to the Offer will in all
cases be made only after timely receipt by Morgan Guaranty Trust Company of New
York (the "Depositary") of (a) certificates for (or a timely Book-Entry
Confirmation (as defined in the Offer to Purchase) with respect to) such Shares,
(b) a Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, or, in the case of a
book-entry transfer effected pursuant to the procedure set forth in Section 2 of
the Offer to Purchase, an Agent's Message, and (c) any other documents required
by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at
different times depending upon when certificates for Shares or Book-Entry
Confirmations with respect to Shares are actually received by the Depositary.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES
TO BE PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY
DELAY IN MAKING SUCH PAYMENT.
The Offer is not being made to, nor will tenders be accepted from, or on
behalf of, holders of Shares in any jurisdiction in which the making or
acceptance of the Offer would not be in compliance with the laws of such
jurisdiction. In any jurisdiction where the securities, blue sky or other laws
require the Offer to be made by a licensed broker or dealer, the Offer is being
made on behalf of the Purchaser by Morgan Stanley & Co. Incorporated, the Dealer
Manager for the Offer, or one or more registered brokers or dealers that are
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
of
Helene Curtis Industries, Inc.
The undersigned acknowledge(s) receipt of your letter, the Offer to Purchase
of Conopco Acquisition Company, Inc. dated February 20, 1996 (the "Offer to
Purchase"), and the related Letter of Transmittal relating to shares of Common
Stock, par value $.50 per share (the "Shares"), of Helene Curtis Industries,
Inc., a Delaware corporation.
This will instruct you to tender the number of Shares indicated below held
by you for the account of the undersigned, on the terms and subject to the
conditions set forth in the Offer to Purchase and related Letter of Transmittal.
SIGN HERE
NUMBER OF SHARES TO BE TENDERED:*
__________________ SHARES ________________________________________
DAYTIME AREA CODE
AND TEL. NO. _______________________ ________________________________________
SIGNATURE(S)
TAXPAYER IDENTIFICATION
NO. OR SOCIAL
SECURITY NO. _______________________ ________________________________________
DATED: _______________________, 1996 ________________________________________
(PLEASE PRINT NAME(S) AND ADDRESS(ES))
- ------------
* Unless otherwise indicated, it will be assumed that all your Shares are to be
tendered.
Exhibit (a)(6)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE><CAPTION>
- ------------------------------------------------------ ------------------------------------------------------
GIVE THE EMPLOYER GIVE THE EMPLOYER
IDENTIFICATION IDENTIFICATION
NUMBER OF-- NUMBER OF--
FOR THIS TYPE OF ACCOUNT: FOR THIS TYPE OF ACCOUNT:
- ------------------------------------------------------ ------------------------------------------------------
<S> <C> <S> <C>
1. An individual's The individual 8. Sole proprietorship The owner(4)
account account
9. A valid trust, estate The legal entity (Do not
2. Two or more The actual owner of the or pension trust furnish the identifying
individuals (joint account or, if combined number of the personal
account) funds, any one of the representative or
individuals(1) trustee unless the legal
entity itself is not
3. Husband and wife The actual owner of the designated in the
(joint account) account or, if joint account title.)(5)
funds, either person(1) 10. Corporate account The corporation
11. Religious, The organization
4. Custodian account of The minor(2) charitable, or
a minor (Uniform Gift educational
to Minors Act) organization account
12. Partnership account The partnership
5. Adult and minor The adult, or if the held in the name of
(joint account) minor is the only the business
contributor, the 13. Association, club, or The organization
minor(1) other tax-exempt
organization
6. Account in the name The ward, minor, or 14. A broker or The broker or
of guardian or incompetent person(3) registered nominee nominee
committee for a 15. Account with the The public entity
designated ward, Department of
minor, or incompetent Agriculture in the
person name of a public
entity (such as a
7. A. The usual The grantor-trustee(1) state or local
revocable savings government, school
trust account district, or prison)
(grantor is also that receives
trustee) agricultural program
payments
B. So-called trust The actual owner(4)
account that is not
a legal or valid
trust under State
law
- ------------------------------------------------------ ------------------------------------------------------
</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.
(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 instru mentality thereof.
. A registered dealer in securities or commodities regis tered 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 nonresi dent partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
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 nonresi dent aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
EXEMPT PAYEES DESCRIBED ABOVE MUST STILL COMPLETE THE SUBSTITUTE FORM W-9 TO
AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE SUBSTITUTE FORM W-9 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 NOTICE. Section 6109 requires most recipients of dividends,
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, dividends, and certain other payments to a payee who does not furnish
a taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) 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.
(4) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. If you fail to
include any portion of an includible payment for interest, dividends or
patronage dividends in gross income and such failure is due to negligence, a
penalty of 20% is imposed on any portion of an underpayment attributable to that
failure.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
Exhibit (a)(7)
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated February
20, 1996, and the related Letter of Transmittal and is not being made to (nor
will tenders be accepted from or on behalf of) holders of Shares in any
jurisdiction in which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction. In any jurisdiction the
securities laws of which require the Offer to be made by a licensed broker or
dealer, the Offer shall be deemed made on behalf of the Purchaser by the Dealer
Manager or one or more registered brokers or dealers licensed under the laws of
such jurisdiction.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
Helene Curtis Industries, Inc.
at
$70.00 Net Per Share
by
Conopco Acquisition Company, Inc.
a wholly owned subsidiary of
Conopco, Inc.
a subsidiary of
Unilever N.V.
Conopco Acquisition Company, Inc., a Delaware corporation (the
"Purchaser"), which is a wholly owned subsidiary of Conopco, Inc., a New York
corporation ("Parent"), which is a subsidiary of Unilever N.V., is offering to
purchase all outstanding shares of Common Stock, par value $.50 per share (the
"Shares"), of Helene Curtis Industries, Inc., a Delaware corporation (the
"Company"), at $70.00 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated February 20,
1996, and in the related Letter of Transmittal (which, together with any
amendments or supplements thereto, collectively constitute the "Offer").
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, MARCH 18, 1996, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES THAT, TOGETHER WITH THE CLASS B SHARES (AS DEFINED IN THE OFFER TO
PURCHASE) SUBJECT TO THE STOCKHOLDER AGREEMENT (AS DEFINED BELOW), WOULD
CONSTITUTE A MAJORITY OF THE COMBINED VOTING POWER OF ALL OUTSTANDING SHARES AND
CLASS B SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE (ASSUMING FOR
SUCH DETERMINATION THAT EACH CLASS B SHARE SUBJECT TO THE STOCKHOLDER AGREEMENT
IS ONLY ENTITLED TO ONE VOTE PER CLASS B SHARE) AND (2) ANY WAITING PERIOD UNDER
THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE
REGULATIONS THEREUNDER APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE
OFFER HAVING EXPIRED OR BEEN TERMINATED.
The Offer is being made pursuant to an Agreement and Plan of Merger dated
as of February 13, 1996 (the "Merger Agreement"), among Parent, the Purchaser
and the Company pursuant to which, following the consummation of the Offer and
the satisfaction or waiver of certain conditions, the Purchaser will be merged
with and into the Company (the "Merger"). On the effective date of the Merger,
each outstanding Share and Class B Share (other than Shares and Class B Shares
owned by the Company as treasury stock or by any subsidiary of the Company,
Parent, the Purchaser or any other subsidiary of Parent or by stockholders, if
any, who are entitled to and who properly exercise appraisal rights under
Delaware law) will be converted into the right to receive $70.00 in cash,
without interest.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER
AND THE MERGER AND DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE
FAIR TO, AND IN THE BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY AND
UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS OF THE COMPANY ACCEPT THE OFFER AND
TENDER THEIR SHARES.
The Purchaser and Parent have also entered into a Stockholder Agreement
dated as of February 13, 1996 (the "Stockholder Agreement"), with certain
holders of Class B Shares. Under the Stockholder Agreement, such holders have
granted the Purchaser an irrevocable option to purchase, upon the occurrence of
certain specified events, all of such holders' Class B Shares at a price of
$70.00 per Class B Share. In addition, such holders have agreed to vote such
Class B Shares in favor of the Merger.
For purposes of the Offer, the Purchaser shall be deemed to have accepted
for payment, and thereby purchased, Shares properly tendered to the Purchaser
and not withdrawn as, if and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Shares. Upon
the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to 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 (a) certificates for such Shares or timely
confirmation of book-entry transfer of such Shares into the Depositary's account
at a Book-Entry Transfer Facility (as defined in the Offer to Purchase) pursuant
to the procedures set forth in Section 2 of the Offer to Purchase, (b) a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees, or, in the case of a book-entry
transfer, an Agent's Message (as defined in the Offer to Purchase) and (c) any
other documents required by the Letter of Transmittal. Under no circumstances
will interest be paid by the Purchaser on the purchase price of the Shares,
regardless of any delay in making such payment.
The term "Expiration Date" means 12:00 midnight, New York City time, on
Monday, March 18, 1996, unless and until the Purchaser, in its sole discretion
(but subject to the terms of the Merger Agreement), shall have extended the
period of time during which the Offer is open, in which event the term
"Expiration Date" shall mean the latest time and date on which the Offer, as so
extended by the Purchaser, shall expire. Subject to the terms of the Merger
Agreement, the Purchaser expressly reserves the right (but shall not be
obligated), at any time or from time to time, and regardless of whether or not
any of the events set forth in Section 14 of the Offer to Purchase shall have
occurred, to extend the period of time during which the Offer is open and
thereby delay acceptance for payment of, and the payment for, any Shares, by
giving oral or written notice of such extension to the Depositary. The Purchaser
shall not have any obligation to pay interest on the purchase price for tendered
Shares in the event the Purchaser exercises its right to extend the period of
time during which the Offer is open. There can be no assurance that the
Purchaser will exercise its right to extend the Offer (other than as required by
the Merger Agreement). Any such extension will be followed by a 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 withdrawn will remain subject
to the Offer, subject to the right of a tendering stockholder to withdraw such
stockholder's Shares.
Except as otherwise provided below, tenders of Shares are irrevocable.
Shares tendered prior to the Expiration Date, unless theretofore accepted for
payment and paid for by the Purchaser pursuant to the Offer, may also be
withdrawn at any time after April 19, 1996. For a withdrawal to be effective, a
written, telegraphic or facsimile transmission notice of withdrawal must be
timely received by the Depositary at one of its addresses set forth on the back
cover of the Offer to Purchase and must specify the name of the person having
tendered the Shares to be withdrawn, the number of Shares to be withdrawn and
the name of the registered holder of the Shares to be withdrawn, if different
from the name of the person who tendered the Shares. If certificates for Shares
have been delivered or otherwise identified to the Depositary, then, prior to
the physical release of such certificates, the serial numbers shown on such
certificates must be submitted to the Depositary and, unless such Shares have
been tendered by an Eligible Institution (as defined in Section 2 of the Offer
to Purchase), the signatures on the notice of withdrawal must be guaranteed by
an Eligible Institution. If Shares have been delivered pursuant to the
procedures for book-entry transfer as set forth in Section 2 of the Offer to
Purchase, any notice of withdrawal must also specify the name and number of the
account at the appropriate Book-Entry Transfer Facility to be credited with the
withdrawn Shares and otherwise comply with such Book-Entry Transfer Facility's
procedures. Withdrawals of tenders of Shares may not be rescinded, and any
Shares properly withdrawn will thereafter be deemed not validly tendered for
purposes of the Offer. However, withdrawn Shares may be retendered by again
following one of the procedures described in Section 2 of the Offer to Purchase
at any time prior to the Expiration Date. All questions as to the form and
validity (including time of receipt) of notices of withdrawal will be determined
by the Purchaser in its sole discretion, which determination will be final and
binding.
The Offer to Purchase and the related Letter of Transmittal and other
relevant materials will be mailed to record holders of Shares and furnished to
brokers, dealers, banks, trust companies and similar persons whose names, or the
names of whose nominees, appear on the stockholder lists or, if applicable, who
are listed as participants in a clearing agency's security position listing for
subsequent transmittal to beneficial owners of Shares.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) under the
Securities Exchange Act of 1934, as amended, is contained in the Offer to
Purchase and is incorporated herein by reference.
THE OFFER TO PURCHASE AND LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH RESPECT TO THE
OFFER.
Requests for copies of the Offer to Purchase, the Letter of Transmittal and
all other tender offer materials may be directed to the Information Agent or the
Dealer Manager as set forth below, and copies will be furnished promptly at the
Purchaser's expense. No fees or commissions will be payable to brokers, dealers
or other persons other than the Dealer Manager and the Information Agent for
soliciting tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
Morrow & Co., Inc.
909 Third Avenue
20th Floor
New York, New York 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage Firms please call:
(800) 662-5200
The Dealer Manager for the Offer is:
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036
(212) 761-7622
February 20, 1996
Exhibit (a)(8)
[LOGO]
Unilever
NEWS RELEASE
Released on behalf of Unilever
by John T. Gould, Jr.
390 Park Avenue
New York, NY 10022 FOR IMMEDIATE RELEASE
(212) 906-4694
TUESDAY, FEBRUARY 13, 1996
Contact at Helene Curtis:
Kristina Tober
(312) 661-2056
UNILEVER TO ACQUIRE HELENE CURTIS
Unilever and Helene Curtis jointly announced today that a subsidiary of Unilever
United States, Inc. has signed a definitive merger agreement to acquire all the
outstanding shares of Helene Curtis Industries, Inc. for a cash price of $70 per
share. Approximately 11 million shares are outstanding on a fully diluted
basis, resulting in a total equity value for the transaction of $770 million.
A tender offer to acquire all of the outstanding common stock of Helene Curtis
is expected to commence by February 20, 1996, and it is anticipated that the
transaction will close by the end of March. The merger agreement has been
approved by the Helene Curtis Board of Directors which has recommended that
Helene Curtis shareholders accept the offer.
In connection with the merger agreement, the Unilever United States subsidiary
has entered into an agreement with Ronald J. Gidwitz, president and CEO of
Helene Curtis, and certain partnerships owning Class B shares of Helene Curtis
representing approximately 29 percent of the outstanding shares and
approximately 75 percent of the voting power of Helene Curtis. This agreement
provides, among other things, for the grant to the Unilever United States
subsidiary of an option to purchase the shares subject to the agreement for $70
per share. The Unilever United States subsidiary has agreed to exercise the
option following the closing of the tender offer.
The closing of the tender offer is subject to the tender of a sufficient number
of shares of Helene Curtis, such that, when taken together with the shares
subject to the above agreement, the Unilever United States subsidiary will have
acquired a majority of the outstanding shares on a fully diluted basis. The
transaction is subject to normal regulatory approvals. The merger agreement
provides that Helene Curtis is obligated to pay a termination fee and expenses
to the Unilever United States subsidiary in the event of termination of the
merger agreement in certain circumstances.
Helene Curtis is a leading manufacturer and marketer of haircare products, such
as shampoos, conditioners and styling aids, as well as deodorant and other
skincare products. Its sales are primarily in the U.S., which represents two-
thirds of total sales. In the U.S., Helene Curtis sells retail and professional
haircare products under such brands as Suave, Salon Selectives, Finesse and
Quantum. Its deodorant brand names are Degree and Suave. Outside the U.S.,
Helene Curtis' major affiliates are in Japan, Canada, the U.K. and Australia.
The business will continue to use its current company name.
-more-
<PAGE>
-2-
Helene Curtis had sales of $1.27 billion, a pre-tax profit of $36.2 million, and
net income of $19.2 million in the fiscal year ending February 28, 1995. The
company employs approximately 3,300 people worldwide with approximately 2,200 of
these in the U.S. Its products are distributed through grocery, mass
merchandise and drug stores, and through professional channels to salons. Its
tangible net asset value at February 28, 1995 was $220.4 million.
Unilever operates a mass market personal care business which has leading
positions in hair, skin and oral care and deodorants on a global basis and
represents 15 percent of Unilever's annual sales. Personal care is one of its
core consumer categories with such brand names as Pond's, Organics, Sunsilk and
Rexona. In the U.S., its mass market products are sold through Chesebrough-
Pond's USA and include such brands as Pond's, Vaseline and Mentadent.
Robert M. Phillips, a Unilever director and spokesman, said: "The acquisition
of Helene Curtis is a further expansion of our presence in the important mass
market personal care category. Helene Curtis has strong brands in the North
American haircare and deodorant markets and this acquisition will improve our
position which has been underrepresented in comparison with our international
presence."
"After having built this company over the last 65 years, this has not been an
easy decision for my family," said Ronald J. Gidwitz, Helene Curtis' president
and CEO, whose family is the controlling shareholder of Helene Curtis. "We are
confident, however, that it is the right one as it provides significant value to
our shareholders and enhances the future prospects of the company. In the last
few years, it has become clear that if we are to remain successful, we must seek
partnerships that offer us the additional resources necessary to stay
competitive in an industry that is consolidating rapidly to a few, very powerful
players. We believe our union with Unilever will provide such resources, and
will prove beneficial to the future growth and success of Helene Curtis and its
people."
# # #
Background: With sales reaching $45 billion in 1994, Unilever is one of the
world's largest consumer products companies. It produces and markets a wide
range of foods and beverages, soaps and detergents, personal care products and
specialty chemicals. Unilever operates through some 500 companies in 80
countries around the globe, and employs more than 300,000 people.
In the United States, Unilever's sales exceeded $9 billion in 1994. It employs
24,000 people and has 108 offices and manufacturing sites in 26 states.
Unilever's major U.S. operating companies include Thomas J. Lipton, Good Humor-
Breyers Ice Cream, Van den Bergh Foods, Gorton's, Lever Brothers, Chesebrough-
Pond's, Elizabeth Arden, Calvin Klein Cosmetics and National Starch and
Chemical.
Exhibit (c)(1)
CONFORMED COPY
=================================================================
AGREEMENT AND PLAN OF MERGER
Among
CONOPCO, INC.,
CONOPCO ACQUISITION COMPANY, INC.,
and
HELENE CURTIS INDUSTRIES, INC.
Dated as of February 13, 1996
=================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
The Offer
---------
SECTION 1.01. The Offer . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.02. Company Actions . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
The Merger
----------
SECTION 2.01. The Merger . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.02. Closing . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.03. Effective Time . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.04. Effects of the Merger . . . . . . . . . . . . . . . . . . 6
SECTION 2.05. Certificate of Incorporation and
By-laws . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.06. Directors . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.07. Officers . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
Effect of the Merger on the Capital Stock of the
------------------------------------------------
Constituent Corporations; Exchange of Certificates
--------------------------------------------------
SECTION 3.01. Effect on Capital Stock . . . . . . . . . . . . . . . . . 7
(a) Capital Stock of Sub . . . . . . . . . . . . . . . . 7
(b) Cancelation of Treasury Stock and
Parent Owned Stock . . . . . . . . . . . . . . . 7
(c) Conversion of Shares and Class B
Shares . . . . . . . . . . . . . . . . . . . . . 7
(d) Shares of Dissenting Stockholders . . . . . . . . . 7
SECTION 3.02 Exchange of Certificates . . . . . . . . . . . . . . . . 8
(a) Paying Agent . . . . . . . . . . . . . . . . . . . . 8
(b) Exchange Procedure . . . . . . . . . . . . . . . . . 8
(c) No Further Ownership Rights in
Shares or Class B Shares . . . . . . . . . . . . 9
(d) No Liability . . . . . . . . . . . . . . . . . . . . 9
-i-
<PAGE>
Page
----
ARTICLE IV
Representations and Warranties of the Company
---------------------------------------------
SECTION 4.01. Organization . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.02. Subsidiaries . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.03. Capitalization . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.04. Authority . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.05. Consents and Approvals; No Violations . . . . . . . . . 12
SECTION 4.06. SEC Reports and Financial Statements . . . . . . . . . 13
SECTION 4.07. Absence of Certain Changes or Events . . . . . . . . . 13
SECTION 4.08. No Undisclosed Liabilities . . . . . . . . . . . . . . 14
SECTION 4.09. Information Supplied . . . . . . . . . . . . . . . . . 15
SECTION 4.10. Benefit Plans; Employees and
Employment Practices . . . . . . . . . . . . . . . . 15
SECTION 4.11. Contracts; Indebtedness . . . . . . . . . . . . . . . . 19
SECTION 4.12. Litigation . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 4.13. Compliance with Applicable Law . . . . . . . . . . . . 19
SECTION 4.14. Tax Matters . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 4.15. State Takeover Statutes; Charter
Provisions . . . . . . . . . . . . . . . . . . . . . 22
SECTION 4.16. Environmental Matters . . . . . . . . . . . . . . . . . 23
SECTION 4.17. Intellectual Property . . . . . . . . . . . . . . . . . 24
SECTION 4.18. Brokers; Schedule of Fees and Expenses . . . . . . . . 24
SECTION 4.19. Opinion of financial Advisor . . . . . . . . . . . . . 25
ARTICLE V
Representations and Warranties
------------------------------
of Parent and Sub
-----------------
SECTION 5.01. Organization . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.02. Authority . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.03. Consents and Approvals; No Violations . . . . . . . . . 26
SECTION 5.04. Information Supplied . . . . . . . . . . . . . . . . . 26
SECTION 5.05. Interim Operations of Sub . . . . . . . . . . . . . . . 27
SECTION 5.06. Brokers . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.07 Financing . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.08. Ownership of Shares . . . . . . . . . . . . . . . . . . 27
-ii-
<PAGE>
Page
----
ARTICLE VI
Covenants
---------
SECTION 6.01. Covenants of the Company . . . . . . . . . . . . . . . 27
(a) Ordinary Course . . . . . . . . . . . . . . . . . 27
(b) Dividends; Changes in Stock . . . . . . . . . . . 28
(c) Issuance of Securities . . . . . . . . . . . . . . 28
(d) Governing Documents . . . . . . . . . . . . . . . 28
(e) No Acquisitions . . . . . . . . . . . . . . . . . 28
(f) No Dispositions . . . . . . . . . . . . . . . . . 29
(g) Indebtedness . . . . . . . . . . . . . . . . . . . 29
(h) Advice of Changes; Filings . . . . . . . . . . . . 29
(i) Tax Matters . . . . . . . . . . . . . . . . . . . 29
(j) Capital Expenditures . . . . . . . . . . . . . . . 30
(k) Discharge of Liabilities . . . . . . . . . . . . . 30
(l) Material Contracts . . . . . . . . . . . . . . . . 30
(m) General . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.02. No Solicitation . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.03. Other Actions . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE VII
Additional Agreements
---------------------
SECTION 7.01. Stockholder Approval; Preparation of
Proxy Statement . . . . . . . . . . . . . . . . . . 33
SECTION 7.02. Access to Information . . . . . . . . . . . . . . . . . 35
SECTION 7.03. Reasonable Efforts . . . . . . . . . . . . . . . . . . 35
SECTION 7.04. Directors . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.05. Fees and Expenses . . . . . . . . . . . . . . . . . . . 37
SECTION 7.06. Indemnification; Insurance . . . . . . . . . . . . . . 38
SECTION 7.07. Employee Benefits . . . . . . . . . . . . . . . . . . . 39
SECTION 7.08. Severance Policy and Other Agreements . . . . . . . . . 40
SECTION 7.09. Stock Options, SARs and Retricted Stock . . . . . . . . 40
SECTION 7.10. Certain Litigation . . . . . . . . . . . . . . . . . . 41
SECTION 7.11. Plans for the Company . . . . . . . . . . . . . . . . . 41
-iii-
<PAGE>
Page
----
ARTICLE VIII
Conditions
----------
SECTION 8.01. Conditions to Each Party's Obligation To
Effect the Merger . . . . . . . . . . . . . . . . . 42
(a) Company Stockholder approval . . . . . . . . . . . 42
(b) No Injunctions or Restraints . . . . . . . . . . . 42
(c) Purchase of Shares . . . . . . . . . . . . . . . . 42
ARTICLE IX
Termination and Amendment
-------------------------
SECTION 9.01. Termination . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 9.02. Effect of Termination . . . . . . . . . . . . . . . . . 44
SECTION 9.03. Amendment . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.04. Extension; Waiver . . . . . . . . . . . . . . . . . . . 44
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Nonsurvival of Representations,
Warranties and Agreements . . . . . . . . . . . . . . 45
SECTION 10.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 10.03. Interpretation . . . . . . . . . . . . . . . . . . . . 46
SECTION 10.04. Counterparts . . . . . . . . . . . . . . . . . . . . . 46
SECTION 10.05. Entire Agreement; No Third Party
Beneficiaries . . . . . . . . . . . . . . . . . . . . 46
SECTION 10.06. Governing Law . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10.07. Publicity . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10.08. Assignment . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 10.09. Enforcement . . . . . . . . . . . . . . . . . . . . . . 47
-iv-
<PAGE>
AGREEMENT AND PLAN OF MERGER dated as of February 13,
1996, among CONOPCO, INC., a New York corporation
("Parent"), CONOPCO ACQUISITION COMPANY, INC., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"),
and HELENE CURTIS INDUSTRIES, INC., a Delaware corporation
(the "Company").
WHEREAS, the respective Boards of Directors of Parent, Sub and
the Company have approved the acquisition of the Company by Parent on the
terms and subject to the conditions set forth in this Agreement;
WHEREAS, in furtherance of such acquisition, Parent proposes to
cause Sub to make a tender offer (as it may be amended from time to time as
permitted under this Agreement, the "Offer") to purchase the shares of
Common Stock, par value $.50 per share, of the Company (the "Company Common
Stock"; the shares of Company Common Stock being hereinafter referred to as
the "Shares") at a purchase price of $70.00 per share (the "Offer Price"),
net to the seller in cash, without interest thereon, upon the terms and
subject to the conditions set forth in this Agreement; and the Board of
Directors of the Company has adopted resolutions approving the Offer and
the Merger (as defined below) and recommending that holders of Shares
accept the Offer and that the Company's stockholders approve and adopt this
Agreement;
WHEREAS, the respective Boards of Directors of Parent, Sub and
the Company have each approved the merger of Sub into the Company (the
"Merger"), upon the terms and subject to the conditions set forth in this
Agreement, whereby each Share and each share of Class B Common Stock, par
value $.50 per share, of the Company (the "Class B Common Stock"; the
shares of Class B Common Stock being hereinafter referred to as the
"Class B Shares"), other than the Shares and Class B Shares owned directly
or indirectly by Parent or the Company and Dissenting Shares (as defined in
Section 3.01(d)), will be converted into the right to receive the price per
share paid in the Offer;
<PAGE>
2
WHEREAS, the Board of Directors of the Company has approved the
terms of the Stockholder Agreement (the "Stockholder Agreement") to be
entered into by Parent, Sub and certain stockholders of the Company
concurrently with the execution of this Agreement as an inducement to
Parent to enter into this Agreement, pursuant to which such stockholders
have, among other things, granted to Sub the right to purchase, and in
certain circumstances Sub has agreed to purchase, such stockholders'
Class B Shares; and
WHEREAS, Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with
the Offer and the Merger and also to prescribe various conditions to the
Offer and the Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally
bound hereby, Parent, Sub and the Company hereby agree as follows:
ARTICLE I
The Offer
---------
SECTION 1.01. The Offer. (a) Subject to the provisions of this
----------
Agreement, as promptly as practicable but in no event later than five
business days after the date of the public announcement by Parent and the
Company of this Agreement, Sub shall, and Parent shall cause Sub to,
commence the Offer. The obligation of Sub to, and of Parent to cause Sub
to, commence the Offer and accept for payment, and pay for, any Shares
tendered pursuant to the Offer shall be subject only to the conditions set
forth in Exhibit A (the "Offer Conditions") (any of which may be waived in
whole or in part by Sub in its sole discretion, except that, unless a
Takeover Proposal (as defined in Section 6.02(a)) shall have been made
after the date hereof, Sub shall not waive the Minimum Condition (as
defined in Exhibit A) without the consent of the Company). Sub expressly
reserves the right to modify the terms of the Offer, except that, without
the consent of the Company, Sub shall not (i) reduce
<PAGE>
3
the number of Shares subject to the Offer, (ii) reduce the Offer Price,
(iii) add to the Offer Conditions, (iv) except as provided in the next
sentence, extend the Offer, (v) change the form of consideration payable in
the Offer or (vi) amend the Offer Conditions or any other term of the Offer
in any manner adverse to the holders of Shares. Notwithstanding the
foregoing, Sub may, without the consent of the Company, (i) extend the
Offer, if at the scheduled or extended expiration date of the Offer any of
the Offer Conditions shall not be satisfied or waived, until such time as
such conditions are satisfied or waived, (ii) extend the Offer for any
period required by any rule, regulation, interpretation or position of the
Securities and Exchange Commission (the "SEC") or the staff thereof
applicable to the Offer and (iii) extend the Offer for any reason on one or
more occasions for an aggregate period of not more than 15 business days
beyond the latest expiration date that would otherwise be permitted under
clause (i) or (ii) of this sentence, in each case subject to the right of
Parent, Sub or the Company to terminate this Agreement pursuant to the
terms hereof. Parent and Sub agree that if at any scheduled expiration
date of the Offer, the Minimum Condition, the HSR Condition (as defined in
Exhibit A) or either of the conditions set forth in paragraphs (e) or (f)
of Exhibit A shall not have been satisfied, but at such scheduled
expiration date all the conditions set forth in paragraphs (a), (b), (c),
(d) and (g) shall then be satisfied, at the request of the Company
(confirmed in writing), Sub shall extend the Offer from time to time,
subject to the right of Parent, Sub or the Company to terminate this
Agreement pursuant to the terms hereof. Subject to the terms and
conditions of the Offer and this Agreement, Sub shall, and Parent shall
cause Sub to, accept for payment, and pay for, all Shares validly tendered
and not withdrawn pursuant to the Offer that Sub becomes obligated to
accept for payment, and pay for, pursuant to the Offer as soon as
practicable after the expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub
shall file with the SEC a Tender Offer Statement on Schedule 14D-1 (the
"Schedule 14D-1") with respect to the Offer, which shall contain an offer
to purchase and a related letter of transmittal and summary
<PAGE>
4
advertisement (such Schedule 14D-1 and the documents included therein
pursuant to which the Offer will be made, together with any supplements or
amendments thereto, the "Offer Documents"), and Parent and Sub shall cause
to be disseminated the Offer Documents to holders of Shares as and to the
extent required by applicable Federal securities laws. Parent, Sub and the
Company each agrees promptly to correct any information provided by it for
use in the Offer Documents if and to the extent that such information shall
have become false or misleading in any material respect, and Parent and Sub
further agree to take all steps necessary to cause the Schedule 14D-1 as so
corrected to be filed with the SEC and the other Offer Documents as so
corrected to be disseminated to holders of Shares, in each case as and to
the extent required by applicable Federal securities laws. The Company and
its counsel shall be given reasonable opportunity to review and comment
upon the Offer Documents prior to their filing with the SEC or
dissemination to the stockholders of the Company. Parent and Sub agree to
provide the Company and its counsel any comments Parent, Sub or their
counsel may receive from the SEC or its staff with respect to the Offer
Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a
timely basis the funds necessary to accept for payment, and pay for, any
Shares that Sub becomes obligated to accept for payment, and pay for,
pursuant to the Offer.
SECTION 1.02. Company Actions. (a) The Company hereby approves
----------------
of and consents to the Offer and represents that the Board of Directors of
the Company, at a meeting duly called and held, at which all directors were
present and all of whom were Continuing Directors (as defined in
Article TENTH of the Certificate of Incorporation of the Company), duly and
unanimously adopted resolutions approving this Agreement, the Offer, the
Merger and the Stockholder Agreement, determining that the terms of the
Offer and the Merger are fair to, and in the best interests of, the
Company's stockholders and recommending that holders of Shares accept the
Offer and that the Company's stockholders approve and adopt this Agreement.
The Company represents that its Board of Directors has received the opinion
of Lazard Freres & Co. LLC that the proposed consideration to
<PAGE>
5
be received by holders of Shares pursuant to the Offer, and by holders of
Shares and Class B Shares pursuant to the Merger, is fair to such holders
from a financial point of view, and a complete and correct signed copy of
such opinion has been delivered by the Company to Parent. The Company has
been advised by each of its directors and executive officers that each such
person intends to tender all Shares (other than Shares issued under the
1979 Stock Option Plan (as defined in Section 4.10(i)) owned by such person
pursuant to the Offer.
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended
from time to time, the "Schedule 14D-9") containing the recommendation
described in paragraph (a) (subject to the right of the Board of Directors
of the Company to withdraw or modify its approval or recommendation of the
Offer, the Merger and this Agreement as set forth in Section 6.02(b)), and
the Company shall cause to be disseminated the Schedule 14D-9 to holders of
Shares as and to the extent required by applicable Federal securities laws.
Each of the Company, Parent and Sub agrees promptly to correct any
information provided by it for use in the Schedule 14D-9 if and to the
extent that such information shall have become false or misleading in any
material respect, and the Company further agrees to take all steps
necessary to amend or supplement the Schedule 14D-9 and to cause the
Schedule 14D-9 as so amended or supplemented to be filed with the SEC and
disseminated to holders of Shares, in each case as and to the extent
required by applicable Federal securities laws. Parent and its counsel
shall be given reasonable opportunity to review and comment upon the
Schedule 14D-9 prior to its filing with the SEC or dissemination to
stockholders of the Company. The Company agrees to provide Parent and its
counsel any comments the Company or its counsel may receive from the SEC or
its staff with respect to the Schedule 14D-9 promptly after the receipt of
such comments.
(c) In connection with the Offer and the Merger, the Company
shall cause its transfer agent to furnish Sub promptly with mailing labels
containing the names and addresses of the record holders of Shares and
Class B Shares
<PAGE>
6
as of a recent date and of those persons becoming record holders subsequent
to such date, together with copies of all lists of stockholders, security
position listings and computer files and all other information in the
Company's possession or control regarding the beneficial owners of Shares
and Class B Shares, and shall furnish to Sub such information and
assistance (including updated lists of stockholders, security position
listings and computer files) as Parent may reasonably request in
communicating the Offer to the Company's stockholders. Subject to the
requirements of applicable law, and except for such steps as are necessary
to disseminate the Offer Documents and any other documents necessary to
consummate the Merger, Parent and Sub and their agents shall hold in
confidence the information contained in any such labels, listings and
files, will use such information only in connection with the Offer and the
Merger and, if this Agreement shall be terminated, will, upon request,
deliver, and will use their best efforts to cause their agents to deliver,
to the Company all copies of such information then in their possession or
control.
ARTICLE II
The Merger
----------
SECTION 2.01. The Merger. Upon the terms and subject to the
-----------
conditions set forth in this Agreement, and in accordance with the Delaware
General Corporation Law (the "DGCL"), Sub shall be merged with and into the
Company at the Effective Time (as defined in Section 2.03). Following the
Effective Time, the separate corporate existence of Sub shall cease and the
Company shall continue as the surviving corporation (the "Surviving
Corporation") and shall succeed to and assume all the rights and
obligations of Sub in accordance with the DGCL. At the election of Parent,
any direct or indirect wholly owned subsidiary (as defined in
Section 10.03) of Parent may be substituted for Sub as a constituent
corporation in the Merger. In such event, the parties agree to execute an
appropriate amendment to this Agreement in order to reflect the foregoing.
SECTION 2.02. Closing. The closing of the Merger will take
--------
place at 10:00 a.m. on a date to be specified by
<PAGE>
7
Parent or Sub, which shall be no later than the second business day after
satisfaction or waiver of the conditions set forth in Article VIII (the
"Closing Date"), at the offices of Cravath, Swaine & Moore, Worldwide
Plaza, 825 Eighth Avenue, New York, New York 10019, unless another date,
time or place is agreed to in writing by the parties hereto.
SECTION 2.03. Effective Time. Subject to the provisions of this
---------------
Agreement, as soon as practicable on or after the Closing Date, the parties
shall file a certificate of merger or other appropriate documents (in any
such case, the "Certificate of Merger") executed in accordance with the
relevant provisions of the DGCL and shall make all other filings or
recordings required under the DGCL. The Merger shall become effective at
such time as the Certificate of Merger is duly filed with the Delaware
Secretary of State, or at such other time as Sub and the Company shall
agree should be specified in the Certificate of Merger (the time the Merger
becomes effective being hereinafter referred to as the "Effective Time").
SECTION 2.04. Effects of the Merger. The Merger shall have the
----------------------
effects set forth in Section 259 of the DGCL.
SECTION 2.05. Certificate of Incorporation and By-laws.
-----------------------------------------
(a) The Certificate of Incorporation of the Company, as in effect
immediately prior to the Effective Time, shall be amended as of the
Effective Time so that Article FOURTH of such certificate of incorporation
reads in its entirety as follows: "The total number of shares of all
classes of stock that the corporation shall have authority to issue is
1,000 shares of Common Stock, par value $.01 per share." and, as so
amended, such certificate of incorporation shall be the certificate of
incorporation of the Surviving Corporation until thereafter changed or
amended as provided therein or by applicable law.
(b) The By-laws of Sub as in effect immediately prior to the
Effective Time shall be the By-laws of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable law.
<PAGE>
8
SECTION 2.06. Directors. The directors of Sub immediately prior
----------
to the Effective Time shall be the directors of the Surviving Corporation,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
SECTION 2.07. Officers. The officers of the Company immediately
---------
prior to the Effective Time shall be the officers of the Surviving
Corporation, until the earlier of their resignation or removal or until
their respective successors are duly elected and qualified, as the case may
be.
ARTICLE III
Effect of the Merger on the Capital Stock of the
-------------------------------------------------
Constituent Corporations; Exchange of Certificates
--------------------------------------------------
SECTION 3.01. Effect on Capital Stock. As of the Effective
------------------------
Time, by virtue of the Merger and without any action on the part of the
holder of any Shares or Class B Shares or any shares of capital stock of
Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of
---------------------
capital stock of Sub shall be converted into and become one fully paid
and nonassessable shares of Common Stock, par value $.01 per share, of
the Surviving Corporation.
(b) Cancelation of Treasury Stock and Parent Owned Stock. Each
-----------------------------------------------------
Share and Class B Share that is owned by the Company or by any
subsidiary of the Company and each Share and Class B Share that is
owned by Parent, Sub or any other subsidiary of Parent shall
automatically be canceled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor.
(c) Conversion of Shares and Class B Shares. Subject to
----------------------------------------
Section 3.01(d), each Share and Class B Share issued and outstanding
(other than Shares and Class B Shares to be canceled in accordance
with
<PAGE>
9
Section 3.01(b)) shall be converted into the right to receive from the
Surviving Corporation in cash, without interest, the price paid in the
Offer (the "Merger Consideration"). As of the Effective Time, all
such Shares and Class B Shares shall no longer be outstanding and
shall automatically be canceled and retired and shall cease to exist,
and each holder of a certificate representing any such Shares or
Class B Shares shall cease to have any rights with respect thereto,
except the right to receive the Merger Consideration, without
interest.
(d) Shares of Dissenting Stockholders. Notwithstanding anything
----------------------------------
in this Agreement to the contrary, any issued and outstanding Shares
or Class B Shares held by a person (a "Dissenting Stockholder") who
objects to the Merger and complies with all the provisions of Delaware
law concerning the right of holders of Shares and/or Class B Shares to
dissent from the Merger and require appraisal of their Shares and/or
Class B Shares ("Dissenting Shares") shall not be converted as
described in Section 3.01(c), but shall be converted into the right to
receive such consideration as may be determined to be due to such
Dissenting Stockholder pursuant to the laws of the State of Delaware.
If, after the Effective Time, such Dissenting Stockholder withdraws
his demand for appraisal or fails to perfect or otherwise loses his
right of appraisal, in any case pursuant to the DGCL, his Shares
and/or Class B Shares shall be deemed to be converted as of the
Effective Time into the right to receive the Merger Consideration.
The Company shall give Parent (i) prompt notice of any demands for
appraisal of Shares or Class B Shares received by the Company and
(ii) the opportunity to participate in and direct all negotiations and
proceedings with respect to any such demands. The Company shall not,
without the prior written consent of Parent, make any payment with
respect to, or settle, offer to settle or otherwise negotiate, any
such demands.
SECTION 3.02. Exchange of Certificates. (a) Paying Agent.
------------------------- -------------
Prior to the Effective Time, Parent shall designate a bank or trust company
to act as paying agent in
<PAGE>
10
the Merger (the "Paying Agent"), and, from time to time on, prior to or
after the Effective Time, Parent shall make available, or cause the
Surviving Corporation to make available, to the Paying Agent cash in
amounts and at the times necessary for the payment of the Merger
Consideration upon surrender of certificates representing Shares or Class B
Shares as part of the Merger pursuant to Section 3.01 (it being understood
that any and all interest earned on funds made available to the Paying
Agent pursuant to this Agreement shall be turned over to Parent).
(b) Exchange Procedure. As soon as reasonably practicable after
-------------------
the Effective Time, the Paying Agent shall mail to each holder of record of
a certificate or certificates that immediately prior to the Effective Time
represented Shares or Class B Shares (the "Certificates"), (i) a letter of
transmittal (which shall specify that delivery shall be effected, and risk
of loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Paying Agent and shall be in a form and have such other
provisions as Parent may reasonably specify) and (ii) instructions for use
in effecting the surrender of the Certificates in exchange for the Merger
Consideration. Upon surrender of a Certificate for cancelation to the
Paying Agent or to such other agent or agents as may be appointed by
Parent, together with such letter of transmittal, duly executed, and such
other documents as may reasonably be required by the Paying Agent, the
holder of such Certificate shall be entitled to receive in exchange
therefor the amount of cash into which the Shares or Class B Shares
theretofore represented by such Certificate shall have been converted
pursuant to Section 3.01, and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of Shares
or Class B Shares that is not registered in the transfer records of the
Company, payment may be made to a person other than the person in whose
name the Certificate so surrendered is registered, if such Certificate
shall be properly endorsed or otherwise be in proper form for transfer and
the person requesting such payment shall pay any transfer or other taxes
required by reason of the payment to a person other than the registered
holder of such Certificate or establish to the satisfaction of the
Surviving Corporation that such tax has been paid or is not applicable.
Until surrendered
<PAGE>
11
as contemplated by this Section 3.02, each Certificate shall be deemed at
any time after the Effective Time to represent only the right to receive
upon such surrender the amount of cash, without interest, into which the
Shares or Class B Shares theretofore represented by such Certificate shall
have been converted pursuant to Section 3.01. No interest will be paid or
will accrue on the cash payable upon the surrender of any Certificate.
(c) No Further Ownership Rights in Shares or Class B Shares.
--------------------------------------------------------
All cash paid upon the surrender of Certificates in accordance with the
terms of this Article III shall be deemed to have been paid in full
satisfaction of all rights pertaining to the Shares and Class B Shares
theretofore represented by such Certificates. At the Effective Time, the
stock transfer books of the Company shall be closed, and there shall be no
further registration of transfers on the stock transfer books of the
Surviving Corporation of the Shares and the Class B Shares that were
outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to the Surviving Corporation or
the Paying Agent for any reason, they shall be canceled and exchanged as
provided in this Article III.
(d) No Liability. None of Parent, Sub, the Company or the
-------------
Paying Agent shall be liable to any person in respect of any cash delivered
to a public official pursuant to any applicable abandoned property, escheat
or similar law. If any Certificates shall not have been surrendered prior
to seven years after the Effective Time (or immediately prior to such
earlier date on which any payment pursuant to this Article III would
otherwise escheat to or become the property of any Governmental Entity (as
defined in Section 4.05)), the cash payment in respect of such Certificate
shall, to the extent permitted by applicable law, become the property of
the Surviving Corporation, free and clear of all claims or interests of any
person previously entitled thereto.
<PAGE>
12
ARTICLE IV
Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to Parent and Sub as follows:
SECTION 4.01. Organization. The Company and each of its
-------------
Significant Subsidiaries (as defined in Section 10.03) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to carry on its business as now being conducted. The Company and
each of its Significant Subsidiaries is duly qualified or licensed to do
business and in good standing in each jurisdiction in which the property
owned, leased or operated by it or the nature of the business conducted by
it makes such qualification or licensing necessary, except in such
jurisdictions where the failure to be so duly qualified or licensed and in
good standing would not have a material adverse effect (as defined in
Section 10.03) on the Company or prevent or materially delay the
consummation of the Offer and/or the Merger. The Company has delivered to
Parent complete and correct copies of its Certificate of Incorporation and
By-laws and the certificates of incorporation and by-laws (or similar
organizational documents) of its U.S. Significant Subsidiaries.
SECTION 4.02. Subsidiaries. Item 4.02 of the letter from the
-------------
Company to Parent dated the date hereof, which letter relates to this
Agreement and is designated therein as the Company Disclosure Letter (the
"Company Letter") lists each subsidiary of the Company. All the
outstanding shares of capital stock of each such subsidiary are owned by
the Company, by another wholly owned subsidiary of the Company or by the
Company and another wholly owned subsidiary of the Company, free and clear
of all pledges, claims, liens, charges, encumbrances and security interests
of any kind or nature whatsoever (collectively, "Liens"), and are duly
authorized, validly issued, fully paid and nonassessable. Except as set
forth in Item 4.02 of the Company Letter and except for the capital stock
of its subsidiaries, the Company does not own, directly or
<PAGE>
13
indirectly, any capital stock or other ownership interest in any
corporation, partnership, joint venture or other entity.
SECTION 4.03. Capitalization. The authorized capital stock of
---------------
the Company consists of 30,000,000 Shares, 15,000,000 Class B Shares and
5,000,000 shares of Preferred Stock, par value $.50 per share. At the
close of business on February 5, 1996, (i) 6,857,801 Shares were issued and
outstanding, (ii) 1,091,510 Shares were held by the Company in its
treasury, (iii) 1,190,258 Shares were reserved for issuance upon exercise
of options to purchase Shares ("Company Stock Options") issued pursuant to
the Company's stock option plans, (iv) 3,044,829 Class B Shares were issued
and outstanding and (v) no Class B Shares were held by the Company in its
treasury. Except as set forth above, as of the date of this Agreement, no
shares of capital stock or other voting securities of the Company were
issued, reserved for issuance or outstanding. All outstanding shares of
capital stock of the Company are, and all shares which may be issued will
be, when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights. There are no bonds,
debentures, notes or other indebtedness of the Company having the right to
vote (or convertible into, or exchangeable for, securities having the right
to vote) on any matters on which stockholders of the Company may vote.
Except as set forth above, as of the date of this Agreement, there are not
any securities, options, warrants, calls, rights, commitments, agreements,
arrangements or undertakings of any kind to which the Company or any of its
subsidiaries is a party or by which any of them is bound obligating the
Company or any of its subsidiaries to issue, deliver or sell, or cause to
be issued, delivered or sold, additional shares of capital stock or other
voting securities of the Company or of any of its subsidiaries or
obligating the Company or any of its subsidiaries to issue, grant, extend
or enter into any such security, option, warrant, call, right, commitment,
agreement, arrangement or undertaking. Except as set forth in Item 4.03 of
the Company Letter, as of the date of this Agreement, there are not any
outstanding contractual obligations of the Company or any of its
subsidiaries (i) to repurchase, redeem or otherwise acquire any shares of
capital stock of the Company or (ii) to vote or to dispose
<PAGE>
14
of any shares of the capital stock of any of the Company's subsidiaries.
SECTION 4.04. Authority. The Company has the requisite
----------
corporate power and authority to execute and deliver this Agreement and,
subject to the approval and adoption of this Agreement by the holders of a
majority of the combined voting power of the Shares and the Class B Shares
(the "Company Stockholder Approval"), to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement and the consummation by the Company of the Merger and of the
other transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company and no other
corporate proceedings on the part of the Company are necessary to authorize
this Agreement or to consummate the transactions so contemplated (in each
case, other than, with respect to the Merger, the Company Stockholder
Approval). This Agreement has been duly executed and delivered by the
Company and, assuming this Agreement constitutes a valid and binding
obligation of Parent and Sub, constitutes a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms.
SECTION 4.05. Consents and Approvals; No Violations. Except as
--------------------------------------
set forth in Item 4.05 of the Company Letter, and except for filings,
permits, authorizations, consents and approvals as may be required under,
and other applicable requirements of, the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (including the filing with the SEC of the
Schedule 14D-9 and a proxy statement relating to any required Company
Stockholder Approval (the "Proxy Statement")), the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), the DGCL,
the laws of other states in which the Company is qualified to do or is
doing business, state takeover laws and foreign and supranational laws
relating to antitrust and anticompetition clearances, neither the
execution, delivery or performance of this Agreement by the Company nor the
consummation by the Company of the transactions contemplated hereby will
(i) conflict with or result in any breach of any provision of the
Certificate of Incorporation or By-laws of the Company or of the similar
organizational documents of
<PAGE>
15
any of its Significant Subsidiaries, (ii) require any filing with, or
permit, authorization, consent or approval of, any Federal, state or local
government or any court, tribunal, administrative agency or commission or
other governmental or other regulatory authority or agency, domestic,
foreign or supranational (a "Governmental Entity") (except where the
failure to obtain such permits, authorizations, consents or approvals or to
make such filings would not have a material adverse effect on the Company
or prevent or materially delay the consummation of the Offer and/or the
Merger), (iii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancelation or acceleration) under, any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
lease, license, contract, agreement or other instrument or obligation to
which the Company or any of its subsidiaries is a party or by which any of
them or any of their properties or assets may be bound or (iv) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
the Company, any of its subsidiaries or any of their properties or assets,
except in the case of clauses (iii) or (iv) for violations, breaches or
defaults that would not have a material adverse effect on the Company or
prevent or materially delay the consummation of the Offer and/or the
Merger.
SECTION 4.06. SEC Reports and Financial Statements. The Company
-------------------------------------
and each of its subsidiaries has filed with the SEC, and has heretofore
made available to Parent true and complete copies of, all forms, reports,
schedules, statements and other documents required to be filed by it since
March 1, 1994, under the Exchange Act or the Securities Act of 1933 (the
"Securities Act") (such forms, reports, schedules, statements and other
documents, including any financial statements or schedules included
therein, are referred to as the "Company SEC Documents"). The Company SEC
Documents, at the time filed, (a) did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading and
(b) complied in all material respects with the applicable requirements of
the Exchange Act and the
<PAGE>
16
Securities Act, as the case may be, and the applicable rules and
regulations of the SEC thereunder. Except to the extent that information
contained in any Company SEC Document has been revised or superseded by a
subsequently filed Company Filed SEC Document (as defined in Section 4.07)
(a copy of which has been made available to Parent prior to the date
hereof), none of the Company SEC Documents contains an untrue statement of
a material fact or omits to state a material fact required to be stated or
incorporated by reference therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The financial statements of the Company included in
the Company SEC Documents comply as to form in all material respects with
applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may be indicated in
the notes thereto or, in the case of the unaudited statements, as permitted
by Form 10-Q of the SEC) and fairly present (subject, in the case of the
unaudited statements, to normal, recurring audit adjustments) the
consolidated financial position of the Company and its consolidated
subsidiaries as at the dates thereof and the consolidated results of their
operations and cash flows for the periods then ended.
SECTION 4.07. Absence of Certain Changes or Events. Except as
-------------------------------------
disclosed in Item 4.07 of the Company Letter or in the Company SEC
Documents filed and publicly available prior to the date of this Agreement
(the "Company Filed SEC Documents"), since February 28, 1995, the Company
and its subsidiaries have conducted their respective businesses only in the
ordinary course, and there has not been (i) any material adverse change (as
defined in Section 10.03) with respect to the Company, (ii) any
declaration, setting aside or payment of any dividend or other distribution
with respect to its capital stock (other than regular quarterly cash
dividends not in excess of $.08 per Share and $.08 per Class B Share with
usual record and payment dates and in accordance with the Company's present
dividend policy) or any redemption, purchase or other acquisition of any of
its capital stock, (iii) any split,
<PAGE>
17
combination or reclassification of any of its capital stock or any issuance
or the authorization of any issuance of any other securities in respect of,
in lieu of or in substitution for shares of its capital stock, (iv) (x) any
granting by the Company or any of its subsidiaries to any officer of the
Company or any of its subsidiaries of any increase in compensation, except
in the ordinary course of business (including in connection with
promotions) consistent with past practice or as was required under
employment agreements in effect as of February 28, 1995, (y) any granting
by the Company or any of its subsidiaries to any such officer of any
increase in severance or termination pay, except as part of a standard
employment package to any person promoted or hired (but not including the
five most senior officers), or as was required under employment, severance
or termination agreements in effect as of February 28, 1995, or (z) except
employment agreements in the ordinary course of business consistent with
past practice with employees other than any executive officer of the
Company, any entry by the Company or any of its subsidiaries into any
employment, consulting, severance, termination or indemnification agreement
with any such employee or executive officer, (v) any damage, destruction or
loss, whether or not covered by insurance, that has or reasonably could be
expected to have a material adverse effect on the Company, (vi) any
revaluation by the Company of any of its material assets or (vii) any
material change in accounting methods, principles or practices by the
Company, except as described in Item 4.07 of the Company Letter.
SECTION 4.08. No Undisclosed Liabilities. Except as and to the
---------------------------
extent set forth in Item 4.08 of the Company Letter or in the Company's
Annual Report to Stockholders for the fiscal year ended February 28, 1995,
as of February 28, 1995, neither the Company nor any of its subsidiaries
had any liabilities or obligations of any nature, whether or not accrued,
contingent or otherwise, that would be required by generally accepted
accounting principles to be reflected on a consolidated balance sheet of
the Company and its subsidiaries (including the notes thereto). Since
February 28, 1995, except as and to the extent set forth in Item 4.08 of
the Company Letter or in the Company Filed SEC Documents, neither the
Company nor any of its subsidiaries
<PAGE>
18
has incurred any liabilities of any nature, whether or not accrued,
contingent or otherwise, that would be reasonably expected to have a
material adverse effect on the Company.
SECTION 4.09. Information Supplied. None of the information
---------------------
supplied or to be supplied by the Company specifically for inclusion or
incorporation by reference in (i) the Offer Documents, (ii) the
Schedule 14D-9, (iii) the information to be filed by the Company in
connection with the Offer pursuant to Rule 14f-1 promulgated under the
Exchange Act (the "Information Statement") or (iv) the Proxy Statement,
will, in the case of the Offer Documents, the Schedule 14D-9 and the
Information Statement, at the respective times the Offer Documents, the
Schedule 14D-9 and the Information Statement are filed with the SEC or
first published, sent or given to the Company's stockholders, or, in the
case of the Proxy Statement, at the time the Proxy Statement is first
mailed to the Company's stockholders or at the time of the Stockholders
Meeting (as defined in Section 7.01), contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading. The
Schedule 14D-9, the Information Statement and the Proxy Statement will
comply as to form in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, except that no
representation or warranty is made by the Company with respect to
statements made or incorporated by reference therein based on information
supplied by Parent or Sub specifically for inclusion or incorporation by
reference therein.
SECTION 4.10. Benefit Plans; Employees and Employment Practices.
--------------------------------------------------
(a) Except as disclosed in the Company Filed SEC Documents, since the date
of the most recent audited financial statements included in the Company
Filed SEC Documents, there has not been any adoption or amendment in any
material respect (including any increase or improvements in benefits or
coverage) by the Company or any of its subsidiaries of any collective
bargaining agreement or any bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase,
stock option, phantom stock, retirement, vacation,
<PAGE>
19
severance, disability, death benefit, hospitalization, medical, fringe
benefit, excess, supplemental executive compensation, employee stock
purchase, stock appreciation, restricted stock or other material employee
benefit plan, policy, arrangement or understanding (whether or not in
writing) providing benefits to any current or former employee, officer or
director of the Company or any of its subsidiaries (collectively, "Benefit
Plans"). Except as disclosed in Item 4.10(a) of the Company Letter, there
exist no employment, consulting, severance, termination or indemnification
agreements, or any other similar arrangements or understandings (whether or
not in writing) between the Company or any of its subsidiaries and any
current or former employee, officer or director of the Company or any of
its subsidiaries.
(b) Item 4.10(b) of the Company Letter contains a list of all
"employee pension benefit plans" (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
(sometimes referred to herein as "Pension Plans"), "employee welfare
benefit plans" (as defined in Section 3(1) of ERISA) and all other Benefit
Plans maintained, sponsored or contributed to, by the Company or any of its
U.S., Canadian or Japanese subsidiaries for the benefit of any current or
former employees, officers or directors of the Company or any of such
subsidiaries (the "Subject Benefit Plans"). The Company has delivered to
Parent true, complete and correct copies of (i) each Subject Benefit Plan
(or, in the case of any unwritten Subject Benefit Plans, descriptions
thereof), (ii) the most recent annual report on Form 5500 (and related
schedules and financial statements or opinions required in connection
therewith) filed with the Internal Revenue Service with respect to each
Subject Benefit Plan (if any such report was required), (iii) the most
recent actuarial report with respect to each Subject Benefit Plan, as
applicable, (iv) the most recent summary plan description (and a summary of
material modifications, if applicable) for each Subject Benefit Plan and
(v) each trust agreement and group annuity contract relating to any Subject
Benefit Plan. Any Benefit Plan that is not a Subject Benefit Plan is
either required by and maintained in accordance with applicable local law
or is immaterial to the applicable subsidiary.
<PAGE>
20
(c) Except as disclosed in Item 4.10(c) of the Company Letter,
all Pension Plans which are intended to be tax-qualified have been timely
amended to comply with ERISA and the Internal Revenue Code of 1986, as
amended (the "Code") and determination letters in respect of such Pension
Plans have been received from the Internal Revenue Service to the effect
that such Pension Plans are qualified and exempt from Federal income taxes
under Section 401(a) and 501(a), respectively, of the Code, and no such
determination letter has been revoked nor, to the best knowledge of the
Company, has revocation been threatened, nor has any such Pension Plan been
amended since the date of its most recent determination letter or
application therefor in any respect that would adversely affect its
qualification or materially increase its costs.
(d) Except as disclosed in Item 4.10(d) of the Company Letter,
each Benefit Plan has been administered in all material respects in
conformity with its terms and the applicable requirements of ERISA and the
Code and other applicable laws; and all contributions required to be made
have been made in accordance with the provisions of each such Benefit Plan
and with ERISA and the Code and other applicable laws.
(e) None of the Company or any of its subsidiaries, or any other
person or entity that, together with the Company, is treated as a single
employer under Section 414 of the Code, currently maintains or has
maintained during the five-year period preceding the date hereof any
"defined benefit plan" (within the meaning of Section 3(35) of ERISA) or
any "multiemployer plan" (within the meaning of Section 3(37) of ERISA), or
has incurred any liability under Title IV of ERISA or to the Pension
Benefit Guaranty Corporation that has not been fully paid as of the date
hereof. None of the Company, any of its subsidiaries, any officer of the
Company or any of its subsidiaries or any of the Benefit Plans which are
subject to ERISA, including the Pension Plans, any trusts created
thereunder or, to the knowledge of the Company, any trustee or
administrator thereof, has engaged in a "prohibited transaction" (as such
term is defined in Section 406 of ERISA or Section 4975 of the Code) or any
other breach of fiduciary responsibility that could reasonably be expected
to subject the Company,
<PAGE>
21
any of its subsidiaries or any officer of the Company or any of its
subsidiaries to any material tax or penalty on prohibited transactions
imposed by such Section 4975 or to any material liability under
Section 502(i) or (1) of ERISA.
(f) With respect to any Benefit Plan that is an employee welfare
benefit plan, except as disclosed in Item 4.10(f) of the Company Letter,
(i) no such Benefit Plan is funded through a "welfare benefits fund", as
such term is defined in Section 419(e) of the Code, (ii) each such Benefit
Plan that is a "group health plan", as such term is defined in
Section 5000(b)(1) of the Code, complies with the applicable requirements
of Section 4980B(f) of the Code and (iii) each such Benefit Plan (including
any such Plan covering retirees or other former employees) may be amended
or terminated without material liability to the Company or any of its
subsidiaries on or at any time after the consummation of the Offer.
(g) With respect to each Benefit Plan, all material reports and
information required to be filed with the U.S. Department of Labor, the
Internal Revenue Service or each Benefit Plan participant have been timely
filed.
(h) There is no dispute, arbitration, claim, suit or grievance,
pending or threatened, involving a Benefit Plan (other than routine claims
for benefits payable under any such plan), and, to the knowledge of the
Company, there is no basis for such a claim.
(i) Except as disclosed in Item 4.10(i) of the Company Letter,
there are no current or former employees holding Shares issued pursuant to
the Company's 1979 Non-Qualified Stock Option Plan (the "1979 Stock Option
Plan"). Each current or former employee holding any Shares issued pursuant
to the 1979 Stock Option Plan has executed on or prior to the date of this
Agreement a letter in the form set forth in Item 4.10(i) of the Company
Letter (the "Item 4.10(i) Letter").
(j) Item 4.10(j) of the Company Letter sets forth the names of
all current officers, directors and employees of the Company and its U.S.
subsidiaries, together with each
<PAGE>
22
employee's current salary, most recent bonus (excluding sales bonuses),
date of birth and date of employment. All salary and wages, vacation pay,
bonuses, commissions, sick pay and other benefits earned or due (including
contributions due to Benefit Plans) through the date hereof have been paid
to employees or former employees or to the Benefit Plans or have been
properly accrued in the financial statements of the Company included in the
most recent Company Filed SEC Documents.
(k) Except as disclosed in Item 4.10(k) of the Company Letter,
there are no material controversies, strikes, work stoppages or disputes
pending or threatened between the Company and any of its subsidiaries and
any current or former employees, no labor union or other collective
bargaining unit represents or has ever represented any employee of the
Company or any of its subsidiaries and no organizational effort by any
labor union or other collective bargaining unit currently is under way or
threatened with respect to any employee. A true, complete and correct copy
of any applicable collective bargaining agreement has been provided to
Parent, and the Company and its subsidiaries are in compliance in all
material respects with the terms thereof.
(l) The Board of Directors of the Company (or, if appropriate,
any committee of the Board of Directors administering the Stock Option
Plans (as defined in Section 7.09(a))) has taken such action as is
necessary so that, as of the Effective Time, no holder of any award under
any Stock Option Plan shall have the right upon exercise of any such award
to receive securities of the Company, Sub or Parent or any of its
affiliates.
SECTION 4.11. Contracts; Indebtedness. (a) Except as disclosed
------------------------
in Item 4.11 of the Company Letter or in the Company Filed SEC Documents,
there are no contracts or agreements that are material to the business,
properties, assets, financial condition or results of operations of the
Company and its subsidiaries taken as a whole. Neither the Company nor any
of its subsidiaries is in violation of or in default under (nor does there
exist any condition which upon the passage of time or the giving of notice
would cause such a violation of or default under)
<PAGE>
23
any loan or credit agreement, note, bond, mortgage, indenture, lease,
permit, concession, franchise, license or any other contract, agreement,
arrangement or understanding, to which it is a party or by which it or any
of its properties or assets is bound, except for violations or defaults
that could not reasonably be expected to result in a material adverse
effect on the Company.
(b) Item 4.11 of the Company Letter sets forth (i) a list of all
agreements, instruments and other obligations pursuant to which any
indebtedness of the Company or any of its subsidiaries in an aggregate
principal amount in excess of 150,000 is outstanding or may be incurred and
(ii) the respective principal amounts outstanding thereunder as of January
31, 1996, in the case of the Company and its U.S. and Canadian
subsidiaries, and November 30, 1995 with respect to all other subsidiaries.
SECTION 4.12. Litigation. Except as disclosed in Item 4.12 of
-----------
the Company Letter or in the Company Filed SEC Documents, as of the date of
this Agreement, there is no suit, claim, action, proceeding or
investigation pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries that could reasonably be
expected to have a material adverse effect on the Company or prevent or
materially delay the consummation of the Offer and/or the Merger. Except
as disclosed in Item 4.12 of the Company Letter or in the Company Filed SEC
Documents, as of the date of this Agreement, neither the Company nor any of
its subsidiaries is subject to any outstanding judgment, order, writ,
injunction or decree that could reasonably be expected to have a material
adverse effect on the Company or prevent or materially delay the
consummation of the Offer and/or the Merger.
SECTION 4.13. Compliance with Applicable Law. The Company and
-------------------------------
its subsidiaries hold all permits, licenses, variances, exemptions, orders
and approvals of all Governmental Entities necessary for the lawful conduct
of their respective businesses (the "Company Permits"), except for failures
to hold such permits, licenses, variances, exemptions, orders and approvals
that would not have a material adverse effect on the Company or prevent or
materially delay the consummation of the Offer and/or the
<PAGE>
24
Merger. The Company and its subsidiaries are in compliance with the terms
of the Company Permits, except where the failure so to comply would not
have a material adverse effect on the Company or prevent or materially
delay the consummation of the Offer and/or the Merger. Except as disclosed
in the Company Letter or in the Company Filed SEC Documents, to the
knowledge of the Company, the businesses of the Company and its
subsidiaries are not being conducted in violation of any law, ordinance or
regulation of any Governmental Entity, except for possible violations that
would not have a material adverse effect on the Company or prevent or
materially delay the consummation of the Offer and/or the Merger. To the
knowledge of the Company, except as set forth in the Company Filed SEC
Documents, as of the date of this Agreement, no investigation or review by
any Governmental Entity with respect to the Company or any of its
subsidiaries is pending or threatened, other than, in each case, those the
outcome of which would not be reasonably expected to have a material
adverse effect on the Company or prevent or materially delay the
consummation of the Offer and/or the Merger.
SECTION 4.14. Tax Matters. Except as set forth in Item 4.14 of
------------
the Company Letter:
(a) The Company and each of its subsidiaries has filed all
Federal income tax returns and all other material tax returns and reports
required to be filed by it. All such returns are complete and correct in
all material respects. The Company and each of its subsidiaries has paid
(or the Company has paid on its subsidiaries' behalf) all taxes shown as
due on such returns and all material taxes (as defined below) for which no
return was required to be filed, and the most recent financial statements
contained in the Company Filed SEC Documents reflect an adequate reserve
for all taxes payable by the Company and its subsidiaries for all taxable
periods and portions thereof through the date of such financial statements.
(b) Except as set forth below, no material tax return of the
Company or any of its subsidiaries is under audit or, to the knowledge of
the Company, examination by any taxing authority. Each material deficiency
resulting from any audit or examination relating to taxes by any
<PAGE>
25
taxing authority has been paid, except for deficiencies being contested in
good faith. No material issues relating to taxes were raised in writing by
the relevant taxing authority during any presently pending audit or examination,
and no material issues relating to taxes were raised in writing by the relevant
taxing authority in any completed audit or examination that can reasonably be
expected to recur in a later taxable period. The Federal income tax returns
of the Company and each of its subsidiaries consolidated in such returns have
been examined by and settled with the Internal Revenue Service for all years
through the taxable year ended February 28, 1989. The Federal income tax
return of the Company and its subsidiaries for the taxable year ended
February 29, 1990 has not been examined by the Internal Revenue Service,
but the statute of limitations under Section 6501(a) of the Code has
expired with respect to such return and the Internal Revenue Service has
neither proposed nor made any adjustments thereto. Field work has been
completed for the Federal income tax audit of the Company and its
subsidiaries for the taxable years ended February 28, 1991 through February
28, 1993, and the Company and the Internal Revenue Service have reached
oral agreement on all issues. The results of such oral agreement are
reflected in Item 4.14 of the Company Letter. An Internal Revenue Service
Form 870 reflecting such oral agreement is expected to be received within
two weeks after the date hereof.
(c) There is no agreement or other document extending, or having
the effect of extending, the period of assessment or collection of any
taxes and no power of attorney with respect to any taxes has been executed
or filed with any taxing authority.
(d) No material liens for taxes exist with respect to any assets
or properties of the Company or any of its subsidiaries, except for
statutory liens for taxes not yet due.
(e) Except as provided in Section 4.14(b) with respect to the
Federal income tax audit for the taxable years ended February 28, 1991
through February 28, 1993, none of the Company or any of its subsidiaries
is a party to or is bound by any tax sharing agreement, tax indemnity
<PAGE>
26
obligation or similar agreement, arrangement or practice with respect to
taxes (including any advance pricing agreement, closing agreement or other
agreement relating to taxes with any taxing authority).
(f) None of the Company or any of its subsidiaries shall be
required to include in a taxable period ending after the Effective Time
taxable income attributable to income that accrued in a prior taxable
period but was not recognized in any prior taxable period as a result of
the installment method of accounting, the completed contract method of
accounting, the long-term contract method of accounting, the cash method of
accounting or Section 481 of the Code or comparable provisions of state,
local or foreign tax law.
(g) The disallowance of a deduction under Section 162(m) of the
Code for employee remuneration will not apply to any amount paid or payable
by the Company or any of its subsidiaries under any contract, plan,
program, arrangement or understanding currently in effect.
(h) Any amount or other entitlement that could be received
(whether in cash or property or the vesting of property) as a result of any
of the transactions contemplated by this Agreement by any employee, officer
or director of the Company or any of its affiliates who is a "disqualified
individual" (as such term is defined in proposed Treasury Regulation
Section 1.280G-1) under any employment, severance or termination agreement,
other compensation arrangement or Company Benefit Plan currently in effect
would not be characterized as an "excess parachute payment" or a "parachute
payment" (as such terms are defined in Section 280G(b)(1) of the Code).
(i) The Japanese trademark registrations for "FINESSE" and
"SALON SELECTIVES" are owned by the Company or a U.S. subsidiary of the
Company. For greater certainty, such trademark registrations are not owned
by a Japanese subsidiary of the Company. The statute of limitations for
assessment and collection of Japanese income tax from Helene Curtis
Enterprises, Inc. and Helene Curtis Japan, Inc. has expired with respect to
all taxable years ended on or prior to December 15, 1991, and will expire
with respect to the
<PAGE>
27
taxable year ended December 15, 1992, on or before March 15, 1996. The
Japanese tax authorities have examined the income tax return filed by
Helene Curtis Japan, Inc. for its taxable year ended December 15, 1995,
specifically with respect to the issue of whether the 5% rate in the
Technical License Agreement dated January 1, 1993, as amended, between the
Company and Helene Curtis Japan, Inc. is at arm's-length and such tax
authorities have proposed no adjustment.
(j) As used in this Agreement, "taxes" shall include all
Federal, state, local and foreign income, property, sales, excise,
withholding and other taxes, tariffs or governmental charges of any nature
whatsoever.
SECTION 4.15. State Takeover Statutes; Charter Provisions. The
--------------------------------------------
action of the Board of Directors of the Company in approving the Offer, the
Merger, this Agreement and the Stockholder Agreement is sufficient to
render inapplicable to the Offer, the Merger, this Agreement and the
Stockholder Agreement and the transactions contemplated by this Agreement
and the Stockholder Agreement (a) the provisions of Section 203 of the DGCL
and (b) the supermajority voting provisions of Article TENTH of the
Company's Certificate of Incorporation. To the knowledge of the Company,
no other state takeover statute or similar statute or regulation applies or
purports to apply to the Offer, the Merger, this Agreement, the Stockholder
Agreement or any of the transactions contemplated by this Agreement or the
Stockholder Agreement.
SECTION 4.16. Environmental Matters. (a) Except as set forth in
----------------------
Item 4.16 of the Company Letter, neither the Company nor any of its
subsidiaries has (i) placed, held, located, released, transported or
disposed of any Hazardous Substances (as defined below) on, under, from or
at any of the Company's or any of its subsidiaries' properties or any other
properties, other than in a manner that could not, in all such cases taken
individually or in the aggregate, reasonably be expected to result in a
material adverse effect on the Company, (ii) any knowledge or reason to
know of the presence of any Hazardous Substances on, under or at any of the
Company's or any of its subsidiaries' properties or any other property but
arising from the Company's or any of its subsidiaries' properties, other
than in a manner that
<PAGE>
28
could not reasonably be expected to result in a material adverse effect on
the Company, or (iii) received any written notice (A) of any violation of
any statute, law, ordinance, regulation, rule, judgment, decree or order of
any Governmental Entity relating to any matter of pollution, protection of
the environment, environmental regulation or control or regarding Hazardous
Substances on, under or emanating from any of the Company's or any of its
subsidiaries' properties or any other properties (collectively,
"Environmental Laws") that has not been resolved or settled with the
relevant Governmental Entity, (B) of the institution or pendency of any
suit, action, claim, proceeding or investigation by any Governmental Entity
or any third party in connection with any such violation, (C) requiring the
response to or remediation of Hazardous Substances at or arising from any
of the Company's or any of its subsidiaries' properties or any other
properties, (D) alleging noncompliance by the Company or any of its
subsidiaries with the terms of any permit required under any Environmental
Law in any manner reasonably likely to require material expenditures or to
result in material liability or (E) demanding payment for response to or
remediation of Hazardous Substances at or arising from any of the Company's
or any of its subsidiaries' properties or any other properties, except in
each case for the notices set forth in Item 4.16 of the Company Letter.
For purposes of this Agreement, the term "Hazardous Substance" shall mean
any toxic or hazardous materials or substances, including asbestos, buried
contaminants, chemicals, flammable explosives, radioactive materials,
petroleum and petroleum products and any substances defined as, or included
in the definition of, "hazardous substances", "hazardous wastes,"
"hazardous materials" or "toxic substances" under any Environmental Law.
(b) Except as set forth in Item 4.16 of the Company Letter, no
Environmental Law imposes any obligation upon the Company or its
subsidiaries arising out of or as a condition to any transaction
contemplated by this Agreement or the Stockholder Agreement, including any
requirement to modify or to transfer any permit or license, any requirement
to file any notice or other submission with any Governmental Entity, the
placement of any notice, acknowledgment or covenant in any land records, or
the modification of or
<PAGE>
29
provision of notice under any agreement, consent order or consent decree,
except where any failure to notify or place any notice would not reasonably
be expected to result in a material adverse effect on the Company or
prevent or materially delay the consummation of the Offer and/or the
Merger. No Lien has been placed upon any of the Company's or its
subsidiaries' properties under any Environmental Law.
(c) None of the Company or any of its subsidiaries owns,
operates or leases any facility qualifying as an industrial establishment
under the New Jersey Industrial Site Recovery Act.
SECTION 4.17. Intellectual Property. The Company and its
----------------------
subsidiaries own, or are validly licensed or otherwise have the right to
use, all patents, patent rights, trademarks, trade names, service marks,
copyrights, know how and other proprietary intellectual property rights and
computer programs (collectively, "Intellectual Property Rights") that are
material to the conduct of the business of the Company and its subsidiaries
taken as a whole. Item 4.17 of the Company Letter sets forth a description
of all Intellectual Property Rights that are material to the conduct of the
business of the Company and its subsidiaries taken as a whole. Except as
set forth in Item 4.17 of the Company Letter, no claims are pending or, to
the knowledge of the Company, threatened that the Company or any of its
subsidiaries is infringing or otherwise adversely affecting the rights of
any person with regard to any Intellectual Property Right so as to
materially adversely affect any of the Company's material Intellectual
Property Rights, and the Company is not aware of any basis for any such
claims. To the knowledge of the Company, except as set forth in Item 4.17
of the Company Letter, no person is infringing the rights of the Company or
any of its subsidiaries with respect to any material Intellectual Property
Right so as to materially adversely effect such Intellectual Property
Right.
SECTION 4.18. Brokers; Schedule of Fees and Expenses. No
---------------------------------------
broker, investment banker, financial advisor or other person, other than
Lazard Freres & Co. LLC., the fees and expenses of which will be paid by
the Company, is entitled to any broker's, finder's, financial advisor's or
<PAGE>
30
other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of the Company. The estimated fees and expenses incurred and to be
incurred by the Company in connection with this Agreement and the
transactions contemplated by this Agreement (including the fees of the
Company's legal counsel and the legal counsel for its financial advisor)
are set forth in Item 4.18 of the Company Letter.
SECTION 4.19. Opinion of Financial Advisor. The Company has
-----------------------------
received the opinion of Lazard Freres & Co. LLC, dated the date of this
Agreement, to the effect that, as of the date of this Agreement, the
consideration to be received in the Offer and the Merger by the Company's
stockholders is fair to the Company's stockholders from a financial point
of view, and a complete and correct signed copy of such opinion has been,
or promptly upon receipt thereof will be, delivered to Parent.
ARTICLE V
Representations and Warranties
------------------------------
of Parent and Sub
-----------------
Parent and Sub represent and warrant to the Company as follows:
SECTION 5.01. Organization. Each of Parent and Sub is a
-------------
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to carry on its business as now being
conducted.
SECTION 5.02. Authority. Parent and Sub have requisite
----------
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of Parent and Sub and no other corporate proceedings on
the part of Parent and Sub are necessary to authorize this Agreement or to
<PAGE>
31
consummate such transactions. No vote of Parent stockholders is required
to approve this Agreement or the transactions contemplated hereby. This
Agreement has been duly executed and delivered by Parent and Sub, as the
case may be, and, assuming this Agreement constitutes a valid and binding
obligation of the Company, constitutes a valid and binding obligation of
each of Parent and Sub enforceable against them in accordance with its
terms.
SECTION 5.03. Consents and Approvals; No Violations. Except for
--------------------------------------
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Exchange Act (including
the filing with the SEC of the Offer Documents), the HSR Act, the DGCL, the
laws of other states in which Parent is qualified to do or is doing
business, state takeover laws and foreign and supranational laws relating
to antitrust and anticompetition clearances, neither the execution,
delivery or performance of this Agreement by Parent and Sub nor the
consummation by Parent and Sub of the transactions contemplated hereby will
(i) conflict with or result in any breach of any provision of the
respective certificate of incorporation or by-laws of Parent and Sub,
(ii) require any filing with, or permit, authorization, consent or approval
of, any Governmental Entity (except where the failure to obtain such
permits, authorizations, consents or approvals or to make such filings
would not be reasonably expected to prevent or materially delay the
consummation of the Offer and/or the Merger), (iii) result in a violation
or breach of, or constitute (with or without due notice or lapse of time or
both) a default (or give rise to any right of termination, amendment,
cancelation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, lease,
contract, agreement or other instrument or obligation to which Parent or
any of its subsidiaries is a party or by which any of them or any of their
properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to Parent, any
of its subsidiaries or any of their properties or assets, except in the
case of clauses (iii) and (iv) for violations, breaches or defaults which
would not, individually or in the aggregate, be reasonably expected to
prevent or materially delay the consummation of the Offer and/or the
Merger.
<PAGE>
32
SECTION 5.04. Information Supplied. None of the information
---------------------
supplied or to be supplied by Parent or Sub specifically for inclusion or
incorporation by reference in (i) the Offer Documents, (ii) the
Schedule 14D-9, (iii) the Information Statement or (iv) the Proxy Statement
will, in the case of the Offer Documents, the Schedule 14D-9 and the
Information Statement, at the respective times the Offer Documents, the
Schedule 14D-9 and the Information Statement are filed with the SEC or
first published, sent or given to the Company's stockholders, or, in the
case of the Proxy Statement, at the time the Proxy Statement is first
mailed to the Company's stockholders or at the time of the Stockholders
Meeting, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
are made, not misleading. The Offer Documents will comply as to form in
all material respects with the requirements of the Exchange Act and the
rules and regulations thereunder, except that no representation or warranty
is made by Parent or Sub with respect to statements made or incorporated by
reference therein based on information supplied by the Company specifically
for inclusion or incorporation by reference therein.
SECTION 5.05. Interim Operations of Sub. Sub was formed solely
--------------------------
for the purpose of engaging in the transactions contemplated hereby, has
engaged in no other business activities and has conducted its operations
only as contemplated hereby.
SECTION 5.06. Brokers. No broker, investment banker, financial
--------
advisor or other person, other than Morgan Stanley & Co. Incorporated, the
fees and expenses of which will be paid by Parent, is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission
in connection with the transactions contemplated by this Agreement based
upon arrangements made by or on behalf of Parent or Sub.
SECTION 5.07. Financing. Parent has sufficient funds available
----------
to purchase, or to cause Sub to purchase, on a fully diluted basis, all the
outstanding Shares and Class B Shares pursuant to the Offer and the Merger
and to
<PAGE>
33
pay all fees and expenses related to the transactions contemplated by this
Agreement.
SECTION 5.08. Ownership of Shares. As of the date of this
--------------------
Agreement, other than pursuant to the Stockholder Agreement or through
pension plan or similar fiduciary investment accounts, the investment
decisions of which are not controlled by Parent or its affiliates, neither
Parent nor any of its affiliates is the record owner of, or has any
beneficial interest in, any Shares.
ARTICLE VI
Covenants
---------
SECTION 6.01. Covenants of the Company. Until such time as
-------------------------
Parent's designees shall constitute a majority of the members of the Board
of Directors of the Company, the Company agrees as to itself and its
subsidiaries that (except as expressly contemplated or permitted by this
Agreement or except to the extent that Parent shall otherwise consent in
writing):
(a) Ordinary Course. The Company shall, and shall cause its
----------------
subsidiaries to, carry on their respective businesses in the usual, regular
and ordinary course in substantially the same manner as heretofore
conducted and shall use all reasonable efforts to preserve intact their
present business organizations, keep available the services of their
present officers and employees and preserve their relationships with
customers, suppliers and others having business dealings with the Company
and its subsidiaries.
(b) Dividends; Changes in Stock. The Company shall not, and
----------------------------
shall not permit any of its subsidiaries to, (i) declare or pay any
dividends on or make other distributions in respect of any of its capital
stock (other than regular quarterly cash dividends not in excess of $.08
per Share or $.08 per Class B Share with usual record and payment dates and
in accordance with the Company's present dividend policy), except for
dividends by a direct or indirect wholly owned subsidiary of the Company to
its parent, (ii) split, combine or reclassify any of its capital
<PAGE>
34
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) repurchase, redeem or otherwise acquire any shares of
capital stock of the Company or its subsidiaries or any other securities
thereof or any rights, warrants or options to acquire any such shares or
other securities.
(c) Issuance of Securities. The Company shall not, and shall
-----------------------
not permit any of its subsidiaries to, issue, deliver, sell, pledge or
encumber, or authorize or propose the issuance, delivery, sale, pledge or
encumbrance of, any shares of its capital stock of any class or any
securities convertible into, or any rights, warrants, calls, subscriptions
or options to acquire, any such shares or convertible securities, or any
other ownership interest (including stock appreciation rights or phantom
stock) other than (i) the issuance of Shares upon the exercise of Company
Stock Options outstanding on the date of this Agreement and in accordance
with the terms of such Company Stock Options and (ii) the issuance of
Shares upon the conversion of Class B Shares.
(d) Governing Documents. The Company shall not, and shall not
--------------------
permit any of its subsidiaries to, amend or propose to amend its
certificate of incorporation or by-laws (or similar organizational
documents).
(e) No Acquisitions. The Company shall not, and shall not
----------------
permit any of its subsidiaries to, acquire or agree to acquire (i) by
merging or consolidating with, or by purchasing a substantial equity
interest in or substantial portion of the assets of, or by any other
manner, any business or any corporation, partnership, joint venture,
association or other business organization or division thereof or (ii) any
assets that are material, individually or in the aggregate, to the Company
and its subsidiaries taken as a whole, except purchases of inventory in the
ordinary course of business consistent with past practice and expenditures
consistent with the Company's current capital budget previously furnished
to Parent.
(f) No Dispositions. Other than sales of its products to
----------------
customers and immaterial dispositions of
<PAGE>
35
personal property, in each case in the ordinary course of business
consistent with past practice, the Company shall not, and shall not permit
any of its subsidiaries to, sell, lease, license, encumber or otherwise
dispose of, or agree to sell, lease, license, encumber or otherwise dispose
of, any of its assets.
(g) Indebtedness. The Company shall not, and shall not permit
-------------
any of its subsidiaries to, (i) incur any indebtedness for borrowed money
or guarantee any such indebtedness or issue or sell any debt securities or
warrants or rights to acquire any debt securities of the Company or any of
its subsidiaries, guarantee any debt securities of others, enter into any
"keep-well" or other agreement to maintain any financial statement
condition of another person or enter into any arrangement having the
economic effect of any of the foregoing, except for working capital
borrowings incurred in the ordinary course of business consistent with past
practice, or (ii) make any loans, advances or capital contributions to, or
investments in, any other person, other than (A) to the Company or any
direct or indirect wholly owned subsidiary of the Company or (B) any
advances to employees (1) in accordance with the terms of the Stock Option
Plans at a rate not less than the Company's cost of funds for short-term
borrowings and payable within 12 business days following the borrowing or
(2) in accordance with past practice.
(h) Advice of Changes; Filings. The Company shall confer on a
---------------------------
regular basis with Parent with respect to operational matters and promptly
advise Parent orally and in writing of any material adverse change with
respect to the Company. The Company shall promptly provide to Parent (or
its counsel) copies of all filings made by the Company with any
Governmental Entity in connection with this Agreement and the transactions
contemplated hereby.
(i) Tax Matters. The Company shall not make any tax election
------------
that would have a material effect on the tax liability of the Company or
any of its subsidiaries or settle or compromise any tax liability of the
Company or any of its subsidiaries that would materially affect the
aggregate tax liability of the Company or any of its subsidiaries. The
Company shall, before filing or causing
<PAGE>
36
to be filed any material tax return of the Company or any of its
subsidiaries or settling any tax liability not described in the preceding
sentence, consult with Parent and its advisors as to the positions and
elections that may be taken or made with respect to such return or with
respect to such settlement.
(j) Capital Expenditures. Neither the Company nor any of its
---------------------
subsidiaries shall make or agree to make any new capital expenditure or
expenditures other than expenditures consistent with the Company's current
capital budget previously furnished to Parent.
(k) Discharge of Liabilities. The Company shall not, and shall
-------------------------
not permit any of its subsidiaries to, pay, discharge, settle or satisfy
any claims, liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment, discharge,
settlement or satisfaction, (i) in the ordinary course of business
consistent with past practice or in accordance with their terms, of claims,
liabilities or obligations recognized or disclosed in the most recent
consolidated financial statements (or the notes thereto) of the Company
included in the Company Filed SEC Documents or incurred since the date of
such financial statements in the ordinary course of business consistent
with past practice or (ii) of claims, liabilities or obligations to the
extent they are less than $10,000 and unrelated to the Company's
stockholders or the transactions contemplated by this Agreement and the
Stockholder Agreement, or waive the benefits of, or agree to modify in any
manner, any confidentiality, standstill or similar agreement to which the
Company or any of its subsidiaries is a party.
(l) Material Contracts. Except in the ordinary course of
-------------------
business, neither the Company nor any of its subsidiaries shall (i) modify,
amend or terminate any material contract or agreement to which the Company
or such subsidiary is a party or (ii) waive, release or assign any material
rights or claims.
(m) General. The Company shall not, and shall not permit any of
--------
its subsidiaries to, authorize any of, or
<PAGE>
37
commit or agree to take any of, the foregoing actions otherwise prohibited
by this Section 6.01.
SECTION 6.02. No Solicitation. (a) The Company shall, and
----------------
shall direct and use reasonable efforts to cause its officers, directors,
employees, representatives and agents to, immediately cease any discussions
or negotiations with any parties that may be ongoing with respect to a
Takeover Proposal (as hereinafter defined). The Company shall not, nor
shall it permit any of its subsidiaries to, nor shall it authorize or
permit any of its officers, directors or employees or any investment
banker, financial advisor, attorney, accountant or other representative
retained by it or any of its subsidiaries to, directly or indirectly,
(i) solicit, initiate or knowingly encourage (including by way of
furnishing information), or take any other action designed or reasonably
likely to facilitate, any inquiries or the making of any proposal which
constitutes, or may reasonably be expected to lead to, any Takeover
Proposal or (ii) participate in any discussions or negotiations regarding
any Takeover Proposal; provided, however, that if, at any time prior to the
-------- -------
acceptance for payment of Shares pursuant to the Offer, the Board of
Directors of the Company determines in good faith, after consultation with
outside counsel, that it is necessary to do so in order to comply with its
fiduciary duties to the Company's stockholders under applicable law, the
Company may, in response to a Takeover Proposal which was not solicited
subsequent to the date hereof, and subject to compliance with
Section 6.02(c), (x) furnish information with respect to the Company to any
person pursuant to a customary confidentiality agreement (as determined by
the Company after consultation with its outside counsel) and
(y) participate in negotiations regarding such Takeover Proposal. Without
limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by any director or
executive officer of the Company or any of its subsidiaries, whether or not
such person is purporting to act on behalf of the Company or any of its
subsidiaries or otherwise, shall be deemed to be a breach of this
Section 6.02(a) by the Company. For purposes of this Agreement, "Takeover
Proposal" means any inquiry, proposal or offer from any person relating to
any direct or indirect acquisition or purchase of 20% or more of the
<PAGE>
38
assets of the Company and its subsidiaries or 20% or more of any class of
equity securities of the Company or any of its subsidiaries, any tender
offer or exchange offer that if consummated would result in any person
beneficially owning 20% or more of any class of equity securities of the
Company or any of its subsidiaries, any merger, consolidation, business
combination, recapitalization, liquidation, dissolution or similar
transaction involving the Company or any of its subsidiaries, other than
the transactions contemplated by this Agreement, or any other transaction
the consummation of which could reasonably be expected to impede, interfere
with, prevent or materially delay the Offer and/or the Merger or which
would reasonably be expected to dilute materially the benefits to Parent of
the transactions contemplated by this Agreement and the Stockholder
Agreements
(b) Except as set forth in this Section 6.02, neither the Board
of Directors of the Company nor any committee thereof shall (i) withdraw or
modify, or propose publicly to withdraw or modify, in a manner adverse to
Parent, the approval or recommendation by such Board of Directors or such
committee of the Offer, the Merger or this Agreement, (ii) approve or
recommend, or propose publicly to approve or recommend, any Takeover
Proposal or (iii) cause the Company to enter into any letter of intent,
agreement in principle, acquisition agreement or other similar agreement
(each, an "Acquisition Agreement") related to any Takeover Proposal.
Notwithstanding the foregoing, in the event that prior to the acceptance
for payment of Shares pursuant to the Offer the Board of Directors of the
Company determines in good faith, after consultation with outside counsel,
that it is necessary to do so in order to comply with its fiduciary duties
to the Company's stockholders under applicable law, the Board of Directors
of the Company may (subject to this and the following sentences)
(x) withdraw or modify its approval or recommendation of the Offer, the
Merger and this Agreement or (y) approve or recommend a Superior Proposal
(as defined below) or terminate this Agreement (and concurrently with or
after such termination, if it so chooses, cause the Company to enter into
any Acquisition Agreement with respect to any Superior Proposal), but in
each of the cases set forth in this clause (y), only at a time that is
after the second business
<PAGE>
39
day following Parent's receipt of written notice (a "Notice of Superior
Proposal") advising Parent that the Board of Directors of the Company has
received a Superior Proposal, specifying the material terms and conditions
of such Superior Proposal and identifying the person making such Superior
Proposal. For purposes of this Agreement, a "Superior Proposal" means any
bona fide proposal made by a third party to acquire, directly or
indirectly, for consideration consisting of cash and/or securities, more
than 50% of the combined voting power of the shares of Company Common Stock
and Class B Common Stock then outstanding or all or substantially all the
assets of the Company and otherwise on terms which the Board of Directors
of the Company determines in its good faith judgment (based on the advice
of a financial advisor of nationally recognized reputation) to be more
favorable to the Company's stockholders than the Offer and the Merger and
for which financing, to the extent required, is then committed or which, in
the good faith judgment of the Board of Directors of the Company, is
reasonably capable of being financed by such third party.
(c) In addition to the obligations of the Company set forth in
paragraphs (a) and (b) of this Section 6.02, the Company shall immediately
advise Parent orally and in writing of any request for information or of
any Takeover Proposal, the material terms and conditions of such request or
Takeover Proposal and the identity of the person making such request or
Takeover Proposal. The Company will keep Parent fully informed of the
status and details (including amendments or proposed amendments) of any
such request or Takeover Proposal.
(d) Nothing contained in this Section 6.02 shall prohibit the
Company from taking and disclosing to its stockholders a position
contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from
making any disclosure to the Company's stockholders if, in the good faith
judgment of the Board of Directors of the Company, after consultation with
outside counsel, failure so to disclose would be inconsistent with its
fiduciary duties to the Company's stockholders under applicable law;
provided, however, neither the Company nor its Board of Directors nor any
- -------- -------
committee thereof shall, except as permitted by
<PAGE>
40
Section 6.02(b), withdraw or modify, or propose publicly to withdraw or
modify, its position with respect to the Offer, this Agreement or the
Merger or approve or recommend, or propose publicly to approve or
recommend, a Takeover Proposal.
SECTION 6.03. Other Actions. (a) Except as expressly
--------------
contemplated or permitted by this Agreement, the Company shall not, and
shall not permit any of its subsidiaries to, take any action that would, or
that could reasonably be expected to, result in (i) any of the
representations and warranties of the Company set forth in this Agreement
that are qualified as to materiality becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue in
any material respect or (iii) any of the Offer Conditions not being
satisfied (subject to the Company's right to take actions specifically
permitted by Section 6.02).
(b) Nothing contained in this Section 6.03 or elsewhere in this
Agreement shall be deemed to prohibit the Board of Directors of the Company
from adopting a resolution contemplated by subparagraph (9) of
paragraph (D) of Article FOURTH of the Company's Certificate of
Incorporation in the event that the Board determines in good faith, after
consultation with outside counsel, that the failure to do so would be
inconsistent with its fiduciary duties under applicable law, subject to the
right of Parent or Sub to terminate this Agreement pursuant to the terms
hereof.
ARTICLE VII
Additional Agreements
---------------------
SECTION 7.01. Stockholder Approval; Preparation of Proxy
------------------------------------------
Statement. (a) If the Company Stockholder Approval is required by law,
- ----------
the Company shall, as soon as practicable following the expiration of the
Offer, duly call, give notice of, convene and hold a meeting of its
stockholders (the "Stockholders Meeting") for the purpose of obtaining the
Company Stockholder Approval. The Company shall, through its Board of
Directors (but subject to the right of its Board of Directors to withdraw
or modify its
<PAGE>
41
approval or recommendation of the Offer, the Merger and this Agreement as
set forth in Section 6.02(b)), recommend to its stockholders that the
Company Stockholder Approval be given. Notwithstanding the foregoing, if
Sub or any other subsidiary of Parent shall acquire at least 90% of the
outstanding Shares and at least 90% of the outstanding Class B Shares, the
parties shall, at the request of Parent, take all necessary and appropriate
action to cause the Merger to become effective as soon as practicable after
the expiration of the Offer without a Stockholders Meeting in accordance
with Section 253 of the DGCL. Without limiting the generality of the
foregoing, the Company agrees that its obligations pursuant to the first
sentence of this Section 7.01(a) shall not be affected by (i) the
commencement, public proposal, public disclosure or communication to the
Company of any Takeover Proposal or (ii) the withdrawal or modification by
the Board of Directors of the Company of its approval or recommendation of
the Offer, this Agreement or the Merger.
(b) If the Company Stockholder Approval is required by law, the
Company shall, at Parent's request, as soon as practicable following the
expiration of the Offer, prepare and file a preliminary Proxy Statement
with the SEC and shall use its best efforts to respond to any comments of
the SEC or its staff and to cause the Proxy Statement to be mailed to the
Company's stockholders as promptly as practicable after responding to all
such comments to the satisfaction of the staff. The Company shall notify
Parent promptly of the receipt of any comments from the SEC or its staff
and of any request by the SEC or its staff for amendments or supplements to
the Proxy Statement or for additional information and will supply Parent
with copies of all correspondence between the Company or any of its
representatives, on the one hand, and the SEC or its staff, on the other
hand, with respect to the Proxy Statement or the Merger. If at any time
prior to the Stockholders Meeting there shall occur any event that should
be set forth in an amendment or supplement to the Proxy Statement, the
Company shall promptly prepare and mail to its stockholders such an
amendment or supplement. The Company shall not mail any Proxy Statement,
or any amendment or supplement thereto, to which Parent reasonably objects.
Parent shall cooperate
<PAGE>
42
with the Company in the preparation of the Proxy Statement or any amendment
or supplement thereto.
(c) Parent agrees to cause all Shares accepted for payment
pursuant to the Offer and all other Shares owned by Parent or any
subsidiary of Parent to be voted in favor of the Company Stockholder
Approval.
SECTION 7.02. Access to Information. Upon reasonable notice and
----------------------
subject to restrictions contained in confidentiality agreements to which
the Company is subject (from which it shall use reasonable efforts to be
released), the Company shall, and shall cause each of its subsidiaries to,
afford to Parent and to the officers, employees, accountants, counsel and
other representatives of Parent all reasonable access, during normal
business hours during the period prior to the Effective Time, to all their
respective properties, books, contracts, commitments and records and,
during such period, the Company shall (and shall cause each of its
subsidiaries to) furnish promptly to Parent (a) a copy of each report,
schedule, registration statement and other document filed or received by it
during such period pursuant to the requirements of the Federal or state
securities laws or the Federal tax laws and (b) all other information
concerning its business, properties and personnel as Parent may reasonably
request. In no event shall the Company be required to supply to Parent or
its officers, employees, accountants, counsel and other representatives any
information relating to indications of interest from, or discussions with,
any other potential acquirors of the Company which were received or
conducted prior to the date hereof, except to the extent necessary for use
in the Offer Documents, the Schedule 14D-9 or the Proxy Statement. Except
as otherwise agreed to by the Company, unless and until Parent and Sub
shall have purchased Shares having a majority of the outstanding voting
power of the Company pursuant to the Offer or otherwise, and
notwithstanding termination of this Agreement, the terms of the
Confidentiality Agreement dated as of November 30, 1995, shall apply to all
information about the Company that has been furnished under this Agreement
by the Company to Parent or Sub.
<PAGE>
43
SECTION 7.03. Reasonable Efforts. Except as otherwise
-------------------
contemplated in this Agreement, each of the Company, Parent and Sub agree
to use its reasonable efforts to take, or cause to be taken, all actions
necessary to comply promptly with all legal requirements that may be
imposed on itself with respect to the Offer and the Merger (which actions
shall include furnishing all information required under the HSR Act and in
connection with approvals of or filings with any other Governmental Entity)
and shall promptly cooperate with and furnish information to each other in
connection with any such requirements imposed upon any of them or any of
their subsidiaries in connection with the Offer and the Merger. Except as
otherwise contemplated in this Agreement, each of the Company, Parent and
Sub shall, and shall cause its subsidiaries to, use its reasonable efforts
to take all reasonable actions necessary to obtain (and shall cooperate
with each other in obtaining) any consent, authorization, order or approval
of, or any exemption by, any Governmental Entity or other public or private
third party required to be obtained or made by Parent, Sub, the Company or
any of their subsidiaries in connection with the Offer and the Merger or
the taking of any action contemplated thereby or by this Agreement, except
that no party need waive any substantial rights or agree to any substantial
limitation on its operations or to dispose of any assets.
SECTION 7.04. Directors. Promptly upon Sub having acquired a
----------
majority of the combined voting power of the Shares and Class B Shares, Sub
shall be entitled to designate such number of directors on the Board of
Directors of the Company as will give Sub, subject to compliance with
Section 14(f) of the Exchange Act, a majority of such directors, and the
Company shall, at such time, cause Sub's designees to be so elected by its
existing Board of Directors; provided, however, that in the event that
-------- -------
Sub's designees are elected to the Board of Directors of the Company, until
the Effective Time such Board of Directors shall have at least three
directors who are directors on the date of this Agreement and who are not
officers of the Company (the "Independent Directors"); and provided further
-------- -------
that, in such event, if the number of Independent Directors shall be
reduced below three for any reason whatsoever, the remaining Independent
Directors or Director shall designate
<PAGE>
44
a person or persons to fill such vacancy or vacancies, each of whom shall
be deemed to be an Independent Director for purposes of this Agreement or,
if no Independent Directors then remain, the other directors shall
designate three persons to fill such vacancies who shall not be officers or
affiliates of the Company or any of its subsidiaries, or officers or
affiliates of Parent or any of its subsidiaries, and such persons shall be
deemed to be Independent Directors for purposes of this Agreement. Subject
to applicable law, the Company shall take all action requested by Parent
that is reasonably necessary to effect any such election, including mailing
to its stockholders the Information Statement containing the information
required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated
thereunder, and the Company agrees to make such mailing with the mailing of
the Schedule 14D-9 (provided that Sub shall have provided to the Company on
a timely basis all information required to be included in the Information
Statement with respect to Sub's designees). In connection with the
foregoing, the Company will promptly, at the option of Parent, either
increase the size of the Company's Board of Directors and/or obtain the
resignation of such number of its current directors as is necessary to
enable Sub's designees to be elected or appointed to, and to constitute a
majority of the directors on, the Company's Board of Directors as provided
above.
SECTION 7.05. Fees and Expenses. (a) Except as provided below
------------------
in this Section 7.05, all fees and expenses incurred in connection with the
Offer, the Merger, this Agreement and the transactions contemplated by this
Agreement shall be paid by the party incurring such fees or expenses,
whether or not the Offer or the Merger is consummated.
(b) The Company shall pay, or cause to be paid, in same day
funds to Parent (x) the Expenses (as hereinafter defined) in an amount up
to but not to exceed $5,000,000 and (y) $15,000,000 (the "Termination Fee")
under the circumstances and at the times set forth as follows:
(i) if Parent or Sub terminates this Agreement under
Section 9.01(d) and at the time of such termination there is no
pending Takeover Proposal, the
<PAGE>
45
Company shall pay the Expenses and the Termination Fee upon demand;
(ii) if Parent or Sub terminates this Agreement under
Section 9.01(d) and at the time of such termination a Takeover
Proposal shall then be pending, the Company shall pay the Expenses
upon demand; in addition, if within 18 months after such termination,
the Company shall enter into an Acquisition Agreement providing for a
Takeover Proposal or a Takeover Proposal shall be consummated, the
Company shall pay the Termination Fee concurrently with the earlier of
the entering into of such Acquisition Agreement or the consummation of
such Takeover Proposal;
(iii) if the Company terminates this Agreement under
Section 9.01(e), the Company shall pay the Expenses concurrently
therewith; in addition, if within 18 months after such termination,
the Company shall enter into an Acquisition Agreement providing for a
Takeover Proposal or a Takeover Proposal shall be consummated, the
Company shall pay the Termination Fee concurrently with the earlier of
the entering into of such Acquisition Agreement or the consummation of
such Takeover Proposal; and
(iv) if, at the time of any other termination of this Agreement
(other than by the Company pursuant to Section 9.01(f) or 9.01(g)), a
Takeover Proposal shall have been made (other than a Takeover Proposal
made prior to the date hereof), the Company shall pay the Expenses, if
terminated by the Company, concurrently therewith or, if terminated by
Parent, upon demand; in addition, if within 18 months of such
termination, the Company shall enter into an Acquisition Agreement
providing for a Takeover Proposal or a Takeover Proposal shall be
consummated, the Company shall pay the Termination Fee concurrently
with the earlier of the entering into of such Acquisition Agreement or
the consummation of such Takeover Proposal.
"Expenses" shall mean documented out-of-pocket fees and expenses incurred
or paid by or on behalf of Parent in connection with the Offer, the Merger
or the consummation of
<PAGE>
46
any of the transactions contemplated by this Agreement, including all fees
and expenses of law firms, commercial banks, investment banking firms,
accountants, experts and consultants to Parent.
SECTION 7.06. Indemnification; Insurance. (a) Parent and Sub
---------------------------
agree that all rights to indemnification for acts or omissions occurring
prior to the Effective Time now existing in favor of the current or former
directors, officers, employees and agents (the "Indemnified Parties") of
the Company and its subsidiaries as provided in their respective
certificates of incorporation or by-laws (or similar organizational
documents) shall survive the Merger and shall continue in full force and
effect in accordance with their terms. From and after the Effective Time,
Parent shall, and shall cause the Surviving Corporation to, indemnify and
hold harmless any and all Indemnified Parties to the full extent such
persons may be indemnified by the Company or such subsidiaries, as the case
may be, pursuant to their respective certificates of incorporation or by-
laws (or similar organizational documents) or pursuant to indemnification
agreements as in effect on the date of this Agreement for acts or omissions
occurring at or prior to the Effective Time, and Parent shall, or shall
cause the Surviving Corporation to, advance litigation expenses incurred by
such persons in connection with defending any action arising out of such
acts or omissions to the extent provided by with the respective terms and
provisions of such certificates of incorporation, by-laws, similar
documents or indemnification agreements.
(b) For six years from the Effective Time, Parent shall maintain
in effect the Company's current directors' and officers' liability
insurance covering those persons who are currently covered by the Company's
directors' and officers' liability insurance policy (a copy of which has
been heretofore delivered to Parent); provided, however, that in no event
-------- -------
shall Parent be required to pay a premium in any one year in an amount in
excess of $360,000; and, provided, further, that if the annual premiums of
-------- -------
such insurance coverage exceed such amount, Parent shall be obligated to
obtain a policy with the greatest coverage available for a cost not
exceeding such amount.
<PAGE>
47
(c) This Section 7.06 shall survive the consummation of the
Merger at the Effective Time, is intended to benefit the Company, Parent,
the Surviving Corporation and the Indemnified Parties, and shall be binding
on all successors and assigns of Parent and the Surviving Corporation.
SECTION 7.07. Employee Benefits. (a) During the period from the
Effective Time until the first anniversary thereof, Parent shall (i)
maintain or cause to be maintained the Benefit Plans that are in effect as
of the Effective Time, other than any Benefit Plan providing benefits based
on equity securities or any equivalent thereof or any incentive-based
compensation, bonus or other similar arrangement, and (ii) provide each
person employed by the Surviving Corporation and its subsidiaries
compensation (including salary, bonus and incentive compensation) that is
in the aggregate substantially comparable to that enjoyed by such employee
at the Effective Time, other than as referred to in clause (i) above
(taking into account salary, bonus and equity-based and incentive-based
benefits). From and after the first anniversary of the Effective Time,
Parent shall continue the employment arrangements described in the
preceding sentence or shall offer to each person then employed by the
Surviving Corporation and its subsidiaries, compensation and benefits
substantially comparable to those then enjoyed by other similarly situated
employees of Parent and its affiliates. For purposes of eligibility to
participate in and vesting in benefits provided under employee benefit
plans maintained by Parent and its affiliates (but not for purposes of
determining benefits (or accruals thereof) under such plans), all persons
previously employed by the Company and then employed by Parent or its
affiliates shall be credited with their years of service with the Company
and its subsidiaries and years of service with prior employers to the
extent service with prior employers is taken into account under the Benefit
Plans.
(b) On or before the Effective Time, the Company shall take any
action necessary to terminate the Helene Curtis Industries, Inc. Employee
Stock Ownership Plan and Trust (the "ESOP") as of the Effective Time and
shall cause the ESOP to make lump sum distributions to ESOP participants
<PAGE>
48
within a reasonable period of time following the Effective Time pursuant to
the terms of the ESOP and applicable law.
(c) The foregoing shall not constitute any commitment, contract,
understanding or guarantee (express or implied) on the part of the Parent
or Sub of a post-Effective Time employment relationship of any term of
duration or on any terms other than those the Parent or Sub may establish.
Employment of any of the employees by Parent or Sub shall be "at will" and
may be terminated by Parent or Sub at any time for any reason (subject to
any legally binding agreement other than this Agreement, or any applicable
laws or collective bargaining agreement, or any other arrangement or
commitment).
SECTION 7.08. Severance Policy and Other Agreements. (a) With
--------------------------------------
respect to any officer who is covered by a severance policy separate from
the standard severance policy for the Company's employees (which separate
severance policy is described in the Company Letter), Parent shall maintain
(or shall cause Sub to maintain) such separate policy as in effect as of
the Effective Time until the first anniversary of the Effective Time, and,
as to all other officers and employees, Parent shall maintain (or shall
cause to be maintained) the Company's standard severance policy as in
effect as of the Effective Time for a period of at least six months from
the Effective Time.
(b) Parent shall honor or cause to be honored all severance
agreements, employment agreements and death benefit agreements with the
Company's officers and employees to the extent disclosed in the Company
Letter.
(c) Parent and its subsidiaries shall, until the first
anniversary of the Effective Time, provide reasonable and customary
outplacement services ("Outplacement Services") to officers of the Company
and its subsidiaries whose employment is terminated without cause, which
Outplacement Services provided to such officer shall include one-on-one
counseling and assistance.
SECTION 7.09. Stock Options, SARs and Restricted Stock. (a) As
-----------------------------------------
soon as practicable following the date of this Agreement, the Board of
Directors of the Company (or,
<PAGE>
49
if appropriate, any committee of the Board of Directors administering the
Stock Option Plans (as defined below)) may adopt such resolutions or take
such other actions as are required to provide that (i) each stock option to
purchase shares of Company Common Stock heretofore granted under any stock
option, stock appreciation rights or stock purchase plan of the Company
(collectively, the "Stock Option Plans") outstanding immediately prior to
the consummation of the Offer, whether or not then exercisable, shall
become fully exercisable immediately following the acceptance for payment
of Shares pursuant to the Offer (the "Acceleration Time"); (ii) each stock
appreciation right heretofore granted under any Stock Option Plan
outstanding immediately prior to the Offer, whether or not then
exercisable, shall become fully exercisable at the Acceleration Time; and
(iii) all restrictions applicable to any restricted stock award heretofore
granted under any Stock Option Plan outstanding immediately prior to the
Offer shall lapse at the Acceleration Time.
(b) At the Effective Time, each award then outstanding under any
Stock Option Plan, other than an award held by an officer (as such term is
defined in Rule 16a-1(f) under the Exchange Act) or director of the
Company, shall be canceled and the holder thereof shall have no further
rights with respect thereof other than the right to receive in
consideration for the cancelation thereof an amount of cash equal to the
product of (i) the number of Shares subject to such stock option or stock
appreciation right and (ii) the excess of the price paid in the Offer over
the per share exercise price, in the case of any such stock option, or the
excess of the price paid in the Offer over the per share base price, in the
case of any such stock appreciation right, in each such case minus all
applicable taxes required to be withheld by the Company; provided, however,
that no such cash payment shall be made with respect to any stock
appreciation right which is related to a stock option in respect of which
such a cash payment shall be made. Such payment to each such holder shall
be made as soon as practicable following the Effective Time upon the
delivery by such holder of a signed statement in a form satisfactory to
Parent acknowledging that such holder waives any claims against Parent, Sub
or the Company for any other consideration in respect of such stock option
or stock
<PAGE>
50
appreciation right.
(c) As soon as practicable following the Acceleration Time, but
prior to the Effective Time, the Company shall purchase each Share issued
pursuant to the 1979 Stock Option Plan in accordance with the Item 4.10(i)
Letter.
SECTION 7.10. Certain Litigation. The Company agrees that it
-------------------
shall not settle any litigation commenced after the date hereof against the
Company or any of its directors by any stockholder of the Company relating
to the Offer, the Merger, this Agreement or the Stockholder Agreements,
without the prior written consent of Parent. In addition, the Company
shall not voluntarily cooperate with any third party that may hereafter
seek to restrain or prohibit or otherwise oppose the Offer or the Merger
and shall cooperate with Parent and Sub to resist any such effort to
restrain or prohibit or otherwise oppose the Offer or the Merger.
SECTION 7.11. Plans for the Company. Parent and its affiliates
----------------------
presently intend, among other things, that the Company will be
headquartered in Chicago, will maintain manufacturing and product
development facilities in the United States and will continue to operate
under its present corporate name. In addition, Parent and its affiliates
presently intend that the Company will have primary responsibility for the
haircare operations of Parent and its affiliates in the United States and
global responsibilities as an innovation center for haircare and will
operate in other personal care categories.
ARTICLE VIII
Conditions
----------
SECTION 8.01. Conditions to Each Party's Obligation To Effect
-----------------------------------------------
the Merger. The respective obligation of each party to effect the Merger
- -----------
shall be subject to the satisfaction (or waiver by each party) prior to the
Closing Date of the following conditions:
<PAGE>
51
(a) Company Stockholder Approval. If required by applicable
-----------------------------
law, the Company Stockholder Approval shall have been obtained.
(b) No Injunctions or Restraints. No statute, rule, regulation,
-----------------------------
executive order, decree, temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other Governmental Entity preventing the consummation
of the Merger shall be in effect; provided, however, that each of the
-------- -------
parties shall have used reasonable efforts to prevent the entry of any
such injunction or other order and to appeal as promptly as possible
any injunction or other order that may be entered.
(c) Purchase of Shares. Sub shall have previously accepted for
-------------------
payment and paid for Shares pursuant to the Offer.
ARTICLE IX
Termination and Amendment
-------------------------
SECTION 9.01. Termination. This Agreement may be terminated at
------------
any time prior to the Effective Time, whether before or after approval of
the terms of this Agreement by the stockholders of the Company:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company:
(i) if (x) as a result of the failure of any of the Offer
Conditions the Offer shall have terminated or expired in
accordance with its terms without Sub having accepted for payment
any Shares pursuant to the Offer or (y) Sub shall not have
accepted for payment any Shares pursuant to the Offer prior to
September 30, 1996; provided, however, that the right to
-------- -------
terminate this Agreement pursuant to this Section 9.01(b)(i)
<PAGE>
52
shall not be available to any party whose failure to perform any
of its obligations under this Agreement results in the failure of
any such condition or if the failure of such condition results
from facts or circumstances that constitute a breach of
representation or warranty under this Agreement by such party; or
(ii) if any Governmental Entity shall have issued an order,
decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the acceptance for payment
of, or payment for, shares of Company Common Stock pursuant to
the Offer or shares of Company Common Stock or Class B Common
Stock pursuant to the Merger and such order, decree or ruling or
other action shall have become final and nonappealable;
(c) by Parent or Sub prior to the purchase of Shares pursuant to
the Offer in the event of a breach by the Company of any
representation, warranty, covenant or other agreement contained in
this Agreement which (i) would give rise to the failure of a condition
set forth in paragraph (e) or (f) of Exhibit A and (ii) cannot be or
has not been cured within 20 days after the giving of written notice
to the Company;
(d) by Parent or Sub if (i) either Parent or Sub is entitled to
terminate the Offer as a result of the occurrence of any event set
forth in paragraph (d) of Exhibit A to this Agreement or (ii) the
Board of Directors of the Company (or any authorized committee
thereof) takes the action referred to in Section 6.03(b);
(e) by the Company in accordance with Section 6.02(b), provided
that it has complied with all provisions thereof, including the notice
provisions therein, and that it complies with applicable requirements
relating to the payment (including the timing of any payment) of
Expenses and the Termination Fee;
<PAGE>
53
(f) by the Company, if Sub or Parent shall have breached in any
material respect any of their respective representations, warranties,
covenants or other agreements contained in this Agreement, which
breach or failure to perform is incapable of being cured or has not
been cured within 20 days after the giving of written notice to Parent
or Sub, as applicable; or
(g) by the Company, if the Offer has not been timely commenced
in accordance with Section 1.01.
SECTION 9.02. Effect of Termination. In the event of a
----------------------
termination of this Agreement by either the Company or Parent as provided
in Section 9.01, this Agreement shall forthwith become void and there shall
be no liability or obligation on the part of Parent, Sub or the Company or
their respective officers or directors, except with respect to the last
sentence of Section 1.02(c), Section 4.18, Section 5.06, the last sentence
of Section 7.02, Section 7.05, this Section 9.02 and Article X; provided,
--------
however, that nothing herein shall relieve any party for liability for any
- -------
breach hereof.
SECTION 9.03. Amendment. This Agreement may be amended by the
----------
parties hereto, by action taken or authorized by their respective Boards of
Directors, at any time before or after obtaining the Company Stockholder
Approval (if required by law), but, after the purchase of Shares pursuant
to the Offer, no amendment shall be made which decreases the Merger
Consideration and, after the Company Stockholder Approval, no amendment
shall be made which by law requires further approval by such shareholders
without obtaining such further approval. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto. Following the election or appointment of the Sub's designees
pursuant to Section 7.04 and prior to the Effective Time, the affirmative
vote of a majority of the Independent Directors then in office shall be
required by the Company to (i) amend or terminate this Agreement by the
Company, (ii) exercise or waive any of the Company's rights or remedies
under this Agreement, (iii) extend the time for performance of Parent and
Sub's respective obligations under this Agreement or (iv) take any action
to
<PAGE>
54
amend or otherwise modify the Company's Certificate of Incorporation or By-
Laws.
SECTION 9.04. Extension; Waiver. At any time prior to the
------------------
Effective Time, the parties hereto, by action taken or authorized by their
respective Boards of Directors, may, to the extent legally allowed,
(i) subject to the provisions of Section 9.03, extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, (ii) subject to the provisions of Section 9.03, waive any
inaccuracies in the representations and warranties contained herein or in
any document delivered pursuant hereto or (iii) subject to the provisions
of Section 9.03, waive compliance with any of the agreements or conditions
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in a written
instrument signed on behalf of such party. The failure of any party to
this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Nonsurvival of Representations, Warranties and
----------------------------------------------
Agreements. None of the representations and warranties in this Agreement
- -----------
or in any instrument delivered pursuant to this Agreement shall survive the
Effective Time or, in the case of the Company, shall survive the acceptance
for payment of, and payment for, Shares by Sub pursuant to the Offer. This
Section 10.01 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective Time of the
Merger.
SECTION 10.02. Notices. All notices and other communications
--------
hereunder shall be in writing and shall be deemed given if delivered
personally, telecopied (which is confirmed), sent by overnight courier
(providing proof of delivery) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses
<PAGE>
55
(or at such other address for a party as shall be specified by like
notice):
(a) if to Parent or Sub, to
Conopco, Inc.
390 Park Avenue
New York, New York 10022
Attention: Ronald M. Soiefer, Esq.
Telecopy No.: (212) 688-3411
and
(b) if to the Company, to
Helene Curtis Industries, Inc. 325
North Wells Street
Chicago, Illinois 60610
Attention: Roy A. Wentz
Telecopy No.: (312) 527-5103
SECTION 10.03. Interpretation. When a reference is made in this
---------------
Agreement to an Article or a Section, such reference shall be to an Article
or a Section of this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words "include", "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the
words "without limitation". The phrase "made available" in this Agreement
shall mean that the information referred to has been made available if
requested by the party to whom such information is to be made available.
As used in this Agreement, the term "subsidiary" of any person means
another person, an amount of the voting securities, other voting ownership
or voting partnership interests of which is sufficient to elect at least a
majority of its Board of Directors or other governing body (or, if there
are no such voting interests, 50% or more of the equity interests of which)
is owned directly or indirectly by such first person. As used in this
Agreement, (a) "Significant Subsidiary" of any person means any Significant
Subsidiary of such person within the meaning of Rule 1-02 of Regulation S-X
of the SEC
<PAGE>
56
and (b) "material adverse change" or "material adverse effect" means, when
used in connection with the Company, any change or effect (or any
development that, insofar as can reasonably be foreseen, is likely to
result in any change or effect) or fact or condition that, individually or
in the aggregate with any such other changes or effects, is materially
adverse to the business, properties, assets, financial condition or results
of operations of the Company and its subsidiaries taken as a whole (other
than any such change, effect, fact or condition that shall have been
disclosed under Item 4.08 of the Company Letter).
SECTION 10.04. Counterparts. This Agreement may be executed in
-------------
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have
been signed by each of the parties and delivered to the other parties, it
being understood that all parties need not sign the same counterpart.
SECTION 10.05. Entire Agreement; No Third Party Beneficiaries.
-----------------------------------------------
This Agreement (including the documents and the instruments referred to
herein) (a) constitutes the entire agreement and supersede all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof, and (b) except as provided in
Section 7.06 is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
SECTION 10.06. Governing Law. This Agreement shall be governed
--------------
and construed in accordance with the laws of the State of Delaware without
regard to any applicable conflicts of law.
SECTION 10.07. Publicity. Except as otherwise required by law,
----------
court process or the rules of the NYSE, for so long as this Agreement is in
effect, neither the Company nor Parent shall, or shall permit any of its
subsidiaries to, issue or cause the publication of any press release or
other public announcement with respect to the transactions contemplated by
this Agreement without prior consultation with the other party, which
consent shall not be unreasonably withheld.
<PAGE>
57
SECTION 10.08. Assignment. Neither this Agreement nor any of
-----------
the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto (whether by operation of law or otherwise) without the
prior written consent of the other parties, except that Sub may assign, in
its sole discretion, any or all of its rights, interests and obligations
hereunder to Parent or to any direct or indirect wholly owned subsidiary of
Parent. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
SECTION 10.09. Enforcement. The parties agree that irreparable
------------
damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State of
Delaware or in a Delaware state court, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each
of the parties hereto (i) consents to submit such party to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated hereby, (ii) agrees that such party
will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, (iii) agrees that such party
will not bring any action relating to this Agreement or any of the
transactions contemplated hereby in any court other than a Federal court
sitting in the state of Delaware or a Delaware state court
<PAGE>
58
and (iv) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
CONOPCO, INC.,
by
/s/ Mart Laius
-----------------------------
Name: Mart Laius
Title: Vice President
CONOPCO ACQUISITION COMPANY, INC.,
by
/s/ Mart Laius
--------------------------
Name: Mart Laius
Title: President
HELENE CURTIS INDUSTRIES, INC.,
by
/s/ Ronald J. Gidwitz
---------------------------
Name: Ronald J. Gidwitz
Title: Executive Officer
<PAGE>
EXHIBIT A
Conditions of the Offer
-----------------------
Notwithstanding any other term of the Offer or this Agreement,
Sub shall not be required to accept for payment or, subject to any
applicable rules and regulations of the SEC, including Rule 14e-1(c) under
the Exchange Act (relating to Sub's obligation to pay for or return
tendered Shares after the termination or withdrawal of the Offer), to pay
for any Shares tendered pursuant to the Offer unless (i) there shall have
been validly tendered and not withdrawn prior to the expiration of the
Offer such number of Shares that, together with the Class B Shares subject
to the Stockholder Agreement, would constitute a majority of the combined
voting power of the Shares and Class B Shares (determined on a fully
diluted basis for all outstanding stock options and any other rights to
acquire Shares) assuming for such determination that each Class B Share
subject to the Stockholder Agreement is only entitled to one vote per
share (the "Minimum Condition") and (ii) any waiting period under the HSR
Act applicable to the purchase of Shares pursuant to the Offer shall have
expired or been terminated (the "HSR Condition"). Furthermore,
notwithstanding any other term of the Offer or this Agreement, Sub shall
not be required to accept for payment or, subject as aforesaid, to pay for
any Shares not theretofore accepted for payment or paid for, and may
terminate the Offer if, at any time on or after the date of this Agreement
and before the acceptance of such Shares for payment or the payment
therefor, any of the following conditions exists (other than as a result of
any action or inaction of Parent or any of its subsidiaries that
constitutes a breach of this Agreement):
(a) there shall be threatened or pending by any Governmental
Entity any suit, action or proceeding (i) challenging the acquisition
by Parent or Sub of any Shares under the Offer or pursuant to the
Stockholder Agreement, seeking to restrain or prohibit the making or
consummation of the Offer or the Merger or the performance of any of
the other transactions contemplated by this Agreement or the
Stockholder Agreement (including the voting provisions thereunder),
or seeking to obtain from the Company, Parent or Sub any damages that
are material in relation to the Company and its subsidiaries taken as
a whole, (ii) seeking to prohibit or materially limit the
<PAGE>
ownership or operation by the Company, Parent or any of their
respective subsidiaries of a material portion of the business or
assets of the Company and its subsidiaries, taken as a whole, or
Parent and its subsidiaries, taken as a whole, or to compel the
Company or Parent to dispose of or hold separate any material portion
of the business or assets of the Company and its subsidiaries, taken
as a whole, or Parent and its subsidiaries, taken as a whole, as a
result of the Offer or any of the other transactions contemplated by
this Agreement or the Stockholder Agreement, (iii) seeking to impose
material limitations on the ability of Parent or Sub to acquire or
hold, or exercise full rights of ownership of, any Shares to be
accepted for payment pursuant to the Offer or purchased under the
Stockholder Agreement including, without limitation, the right to vote
such Shares on all matters properly presented to the stockholders of
the Company, (iv) seeking to prohibit Parent or any of its
subsidiaries from effectively controlling in any material respect any
material portion of the business or operations of the Company or its
subsidiaries or (v) which otherwise is reasonably likely to have a
material adverse effect on the business, properties, assets, financial
condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole; or there shall be pending by any other
person any suit, action or proceeding which is reasonably likely to
have a material adverse effect on the business, properties, assets,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(b) there shall be enacted, entered, enforced, promulgated or
deemed applicable to the Offer or the Merger by any Governmental
Entity any statute, rule, regulation, judgment, order or injunction,
other than the application to the Offer or the Merger of applicable
waiting periods under the HSR Act, that is reasonably likely to
result, directly or indirectly, in any of the consequences referred to
in clauses (i) through (v) of paragraph (a) above;
(c) there shall have occurred any material adverse change with
respect to the Company;
(d) (i) the Board of Directors of the Company or any committee
thereof shall have withdrawn or modified in a manner adverse to Parent
or Sub its approval or
<PAGE>
recommendation of the Offer, the Merger or this Agreement, or approved
or recommended any Takeover Proposal or (ii) the Board of Directors of
the Company or any committee thereof shall have resolved to take any
of the foregoing actions;
(e) any of the representations and warranties of the Company set
forth in this Agreement that are qualified as to materiality shall not
be true and correct or any such representations and warranties that
are not so qualified shall not be true and correct in any material
respect, in each case at the date of this Agreement and at the
scheduled or extended expiration of the Offer;
(f) the Company shall have failed to perform in any material
respect any material obligation or to comply in any material respect
with any material agreement or covenant of the Company to be performed
or complied with by it under this Agreement;
(g) there shall have occurred and continued to exist for not less
than three business days (i) any general suspension of trading in, or
limitation on prices for, securities on a national securities exchange
in the United States (excluding any coordinated trading halt triggered
solely as a result of a specified decrease in a market index), (ii) a
declaration of a banking moratorium or any suspension of payments in
respect of banks in the United States, (iii) any limitation (whether
or not mandatory) by any Governmental Entity on, or other event that
materially adversely affects, the extension of credit by banks or
other lending institutions, (iv) a commencement of a war or armed
hostilities or other national or international calamity directly or
indirectly involving the United States which in any case is reasonably
expected to have a material adverse effect on the Company or to
materially adversely affect Parent's or Sub's ability to complete the
Offer and/or the Merger or materially delay the consummation of the
Offer and/or the Merger; or
(h) this Agreement shall have been terminated in accordance with
its terms.
The foregoing conditions are for the sole benefit of Parent and
Sub and may, subject to the terms of this Agreement, be waived by Parent
and Sub in whole or in part at any time and
<PAGE>
from time to time in their sole discretion. The failure by Parent or Sub
at any time to exercise any of the foregoing rights shall not be deemed a
waiver of any such right, the waiver of any such right with respect to
particular facts and circumstances shall not be deemed a waiver with
respect to any other facts and circumstances and each such right shall be
deemed an ongoing right that may be asserted at any time and from time to
time. Terms used but not defined herein shall have the meanings assigned
to such terms in the Agreement to which this Exhibit A is a part.
Exhibit (c)(2)
CONFORMED COPY
STOCKHOLDER AGREEMENT, dated as of February 13, 1996,
among CONOPCO, INC., a New York corporation ("Parent"),
CONOPCO ACQUISITION COMPANY, INC., a Delaware corporation
and a wholly owned subsidiary of Parent ("Sub"), and the
individual and partnerships listed on Schedule A hereto
(each a "Stockholder" and, collectively, the
"Stockholders").
WHEREAS, Parent, Sub and Helene Curtis Industries, Inc., a
Delaware corporation (the "Company"), propose to enter into an Agreement
and Plan of Merger of even date herewith (as the same may be amended or
supplemented, the "Merger Agreement") providing for the making of a cash
tender offer (as such offer may be amended from time to time, the "Offer")
by Sub for any and all shares of Common Stock, par value $.50 per share, of
the Company (the "Common Stock") and the merger of the Company and Sub (the
"Merger"); and
WHEREAS, each Stockholder owns the number of shares of Class B
Common Stock, par value $.50 per share, of the Company (the "Class B Common
Stock") set forth opposite his or its name on Schedule A hereto; such
shares of Class B Common Stock, as such shares may be adjusted by
conversion into shares of Common Stock or by any stock dividend, stock
split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, other than the payment of regular cash dividends consistent with
past practice (each, an "Adjustment Event"), being referred to herein as
the "Subject Shares"; and
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Sub have requested that the Stockholders enter
into this Agreement;
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in
consideration of the premises and
<PAGE>
the representations, warranties and agreements contained herein, the
parties agree as follows:
1. Purchase of Subject Shares.
---------------------------
(a) Each Stockholder hereby grants Sub an irrevocable option
(the "Option") to purchase all of the Subject Shares owned by him or
it for a purchase price per share equal to $70.00 (as such amount may
be adjusted to appropriately reflect any Adjustment Events, the
"Original Offer Price"). The Option may be exercised in whole (but
not in part) at any time after the date hereof and on or prior to the
first anniversary of the date hereof (such first anniversary, the
"Option Expiration Date") in the event that (i) a Specified Event (as
defined in Section 1(b) below) shall have occurred on or prior to the
Option Expiration Date and (ii) the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act")
with respect to the exercise of the Option shall have expired or been
terminated.
(b) The term "Specified Event" shall mean (i) Parent or Sub
shall have terminated the Merger Agreement under Section 9.01(d)
thereof, (ii) the Company shall have terminated the Merger Agreement
under Section 9.01(e) thereof, (iii) prior to termination of the
Merger Agreement (other than by the Company pursuant to
Section 9.01(f) or 9.01(g)), a Takeover Proposal (as defined in the
Merger Agreement) shall have been commenced or the Company shall have
entered into an agreement with respect to, approved or recommended or
taken any action to facilitate, a Takeover Proposal or (iv) Sub shall
have accepted for payment, and paid for, shares of Common Stock in the
Offer.
(c) In the event that Sub wishes to exercise the Option, Sub may do
so by giving written notice (the date of such notice being herein called
the "Notice Date") to each of the Stockholders specifying that all the
Subject Shares are to be purchased and specifying the place, time and
date (not earlier than two trading days, nor later than 10 trading days,
from the Notice
<PAGE>
Date) for the closing of the purchase by Sub pursuant to such
exercise. In the event that any share of Common Stock is accepted for
payment, and paid for, by Sub pursuant to the Offer, Sub shall be
obligated to exercise the Option no later than two trading days
following the date of such payment and close the purchase of and pay
for such Subject Shares within two trading days following the date of
such exercise. A "trading day" shall mean any date on which the New
York Stock Exchange shall be open for business.
2. Payments to Parent or Stockholders.
-----------------------------------
(a) In the event that a Specified Event shall have occurred and
during the period from the first anniversary of the date hereof to and
including the second anniversary of the date hereof, the Stockholder
sells, transfers, assigns or otherwise disposes of (including by
conversion or exchange in a merger, exchange offer or the like) any of
the Subject Shares for value in a bona fide arm's length transaction,
the Stockholder shall pay to Parent an amount in cash equal to the
product of (i) the number of Subject Shares disposed of by the
Stockholder and (ii) 50% of the excess, if any, of (A) the per share
cash consideration or the per share fair market value of any non-cash
consideration, as the case may be, received by the Stockholder as a
result of such disposition less (B) the Original Offer Price;
provided, however, that no such payment shall be required to be made
-------- -------
in the event the Company shall have terminated the Merger Agreement
pursuant to Section 9.01(f) or 9.01(g) thereof or Parent or Sub shall
be in material breach of this Agreement (and such breach shall not
have been cured within 10 days following receipt by Parent or Sub of
written notice of such breach).
(b) In the event that Sub shall have exercised the Option
pursuant to Section 1 with respect to the Subject Shares and, on or
prior to the second anniversary of the date hereof, Sub shall sell,
transfer, assign or otherwise dispose of (including by conversion or
exchange in a merger, exchange offer or the like) any of such Subject
Shares for value in a
<PAGE>
bona fide arm's length transaction, Sub shall pay to the Stockholder
an amount in cash equal to the product of (i) the number of such
Subject Shares disposed of by Sub and (ii) 50% of the excess, if any,
of (A) the per share cash consideration or the per share fair market
value of any non-cash consideration, as the case may be, received by
Sub as a result of such disposition less (B) the Original Offer Price;
provided, however, that no such payment shall be required to be made
-------- -------
to any Stockholder in the event such Stockholder shall be in material
breach of this Agreement (and such breach shall not have been cured
within 10 days following receipt by such Stockholder of written notice
of such breach).
(c) For purposes of Section 2 of this Agreement, the fair market
value of any non-cash consideration consisting of:
(i) securities listed on a national securities exchange or
traded on the NASDAQ/NMS shall be equal to the average
closing price per share of such security as reported on
such exchange or NASDAQ/NMS for the five trading days
after the date of disposition; and
(ii) consideration which is other than cash or securities of
the form specified in clause (i) of this Section 2(c)
shall be determined by a nationally recognized
independent investment banking firm mutually agreed
upon by the parties within 10 business days of the
selection of such banking firm; provided, however, that
-------- -------
if the parties are unable to agree within two business
days after the date of disposition as to the investment
banking firm, then the parties shall draw lots to
select the investment banking firm from among the
following three firms: Goldman Sachs & Co., CS First
Boston Corporation and Salomon Brothers Inc; provided
--------
further, that the
-------
<PAGE>
fees and expenses of such investment banking firm shall
be borne equally by Parent and the Stockholder. The
determination of the investment banking firm shall be
binding upon the parties.
(d) Any payment required to be made pursuant to Section 2 of
this Agreement shall be made two trading days after the later of
(i) the fifth trading day after settlement of any disposition or
(ii) the date on which the investment banking firm delivers to the
parties its determination of the per share value of any non-cash
consideration received by the Stockholder or Sub, as the case may be,
pursuant to any disposition. In the event that Sub or any Stockholder
shall sell, transfer, assign or otherwise dispose of any Subject
Shares, other than for value in a bona fide arm's length transaction,
the obligation of Sub or such Stockholder, as the case may be, to make
payments pursuant to this Section 2 shall continue until and apply to
any subsequent disposition of such Subject Shares in a bona fide arm's
length transaction for value.
3. Representations and Warranties of the Stockholder. Each
--------------------------------------------------
Stockholder hereby, severally and not jointly, represents and warrants to
Parent in respect of himself or itself as follows:
(a) Authority. The Stockholder has all requisite power and
----------
authority to enter into this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Stockholder and constitutes
a valid and binding obligation of the Stockholder enforceable in
accordance with its terms. The execution and delivery of this
Agreement does not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will not,
conflict with, or result in any violation of, or default (with or
without notice or lapse of time or both) under any provision of, any
trust agreement, loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession,
franchise, license, judgment, order, notice, decree,
<PAGE>
statute, law, ordinance, rule or regulation applicable to the
Stockholder or to the Stockholder's property or assets. Except for
the expiration or termination of the waiting period under the HSR Act
and informational filings with the SEC, no consent, approval, order or
authorization of, or registration, declaration or filing with, any
court, administrative agency or commission or other governmental
authority or instrumentality, domestic, foreign or supranational, is
required by or with respect to the Stockholder in connection with the
execution and delivery of this Agreement or the consummation by the
Stockholder of the transactions contemplated hereby.
(b) The Subject Shares. The Stockholder has good and marketable
-------------------
title to the Subject Shares, free and clear of any claims, liens,
encumbrances and security interests whatsoever. The Stockholder owns
no shares of Class B Common Stock other than the Subject Shares.
4. Representations and Warranties of Parent and Sub.
-------------------------------------------------
(a) Parent and Sub hereby represent and warrant to the Stockholder that
each of Parent and Sub has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by Parent and Sub,
and the consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of Parent and
Sub. This Agreement has been duly executed and delivered by Parent and Sub
and constitutes a valid and binding obligation of Parent and Sub
enforceable in accordance with its terms.
(b) Securities Act. The Subject Shares will be acquired in
---------------
compliance with, and Sub will not offer to sell or otherwise dispose of any
Subject Shares so acquired by it in violation of any of, the registration
requirements of the Securities Act of 1933, as amended.
(c) Financing. Sub has, or will have at the time that any
----------
payment is required to be made to any Stockholder hereunder, the funds
necessary to make such payment to such Stockholder.
<PAGE>
5. Covenants of the Stockholder. Up to and including the
-----------------------------
Option Expiration Date, each Stockholder, severally and not jointly, agrees
as follows:
(a) At any meeting of stockholders of the Company called to vote
upon the Merger and the Merger Agreement or at any adjournment thereof
or in any other circumstances upon which a vote, consent or other
approval with respect to the Merger and the Merger Agreement is
sought, the Stockholder shall vote (or cause to be voted) the Subject
Shares in favor of the Merger, the adoption by the Company of the
Merger Agreement and the approval of the terms thereof and each of the
other transactions contemplated by the Merger Agreement, provided that
the terms of the Merger Agreement shall not have been amended to
adversely affect the Stockholder.
(b) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the
Stockholder's vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares
against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), consolidation, combination, sale of
substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by the Company or any other Takeover
Proposal or (ii) any amendment of the Company's certificate of
incorporation or by-laws or other proposal or transaction involving
the Company or any of its subsidiaries, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent
or nullify the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement.
(c) The Stockholder agrees not to (i) other than by operation of
law, sell, transfer, pledge, assign or otherwise dispose of, or enter
into any contract, option or other arrangement (including any profit
sharing arrangement) with respect to the sale, transfer, pledge,
assignment or other disposition of, the Subject Shares to any person
other than Sub or
<PAGE>
Sub's designee, (ii) enter into any voting arrangement, whether by
proxy, voting agreement or otherwise, in connection, directly or
indirectly, with any Takeover Proposal or (iii) convert the Subject
Shares into Common Stock (except as required to effect the transaction
contemplated by Section 1 of this Agreement).
(d) Until the Merger is consummated or the Merger Agreement is
terminated, the Stockholder shall not, nor shall it permit any
investment banker, attorney or other adviser or representative of the
Stockholder to, (i) directly or indirectly solicit, initiate or
encourage the submission of, any Takeover Proposal or (ii) directly or
indirectly 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.
6. Further Assurances. Each Stockholder will, from time to
-------------------
time, execute and deliver, or cause to be executed and delivered, such
additional or further transfers, assignments, endorsements, consents and
other instruments as Parent or Sub may reasonably request for the purpose
of effectively carrying out the transactions contemplated by this
Agreement.
7. Assignment. Neither this Agreement nor any of the rights,
-----------
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to any direct or indirect wholly owned
subsidiary of Parent. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the
parties and their respective successors and assigns.
8. Termination. Except as provided otherwise herein, this
------------
Agreement shall terminate upon the earlier of (i) the close of business on
the second anniversary of the date hereof and (ii) the disposition by each
Stockholder of
<PAGE>
all the Subject Shares in one or more bona fide arm's length transactions
for value; provided, however, that to the extent any Stockholder or Sub, as
-------- -------
the case may be, shall be required to make payment to the other pursuant to
Section 2, this Agreement shall not terminate until all such payments shall
have been made.
9. General Provisions.
-------------------
(a) Payments. All payments required to be made to any party to
--------
this Agreement shall be made by wire transfer of immediately available
funds to an account designated by such party within one trading day
prior to such payment.
(b) Specific Performance. The parties hereto acknowledge that
--------------------
damages would be an inadequate remedy for any breach of the provisions
of this Agreement and agree that the obligations of the parties
hereunder shall be specifically enforceable.
(c) Expenses. Except as set forth in Section 1 of this
---------
Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense.
(d) Amendments. This Agreement may not be amended except by an
-----------
instrument in writing signed by each of the parties hereto.
(e) Notice. All notices and other communications hereunder
-------
shall be in writing and shall be deemed given if delivered personally
or sent by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address for a
party as shall be specified by like notice):
(i) if to Parent, to
Conopco, Inc.
390 Park Avenue
New York, New York 10022
Facsimile: (212) 688-3411
<PAGE>
Attention: Ronald M. Soiefer, Esq.
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Facsimile: (212) 474-3700
Attention: Allen Finkelson, Esq., and
(ii) if to a Stockholder, to the address set forth under the name
of such Stockholder on Schedule A hereto
with a copy to:
Winston & Strawn
35 Wacker Drive
Chicago, Illinois 60601
Facsimile: (312) 558-5700
Attention: Robert F. Wall, Esq.
(e) Interpretation. When a reference is made in this Agreement
---------------
to Sections, such reference shall be to a Section to this Agreement
unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Wherever the words
"include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in one or more
-------------
counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more of the
counterparties have been signed by each of the parties and delivered
to the other party, it being understood that each party need not sign
the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This
-----------------------------------------------
Agreement (including the documents and instruments referred to herein)
(i) constitutes the
<PAGE>
entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect
to the subject matter hereof and (ii) is not intended to confer upon
any person other than the parties hereto any rights or remedies
hereunder.
(h) Governing Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of Delaware without
regard to any applicable conflicts of law.
10. Stockholder Capacity. No person executing this Agreement
---------------------
who is or becomes during the term hereof a director or officer of the
Company makes any agreement or understanding herein in his or her capacity
as such director or officer. Each Stockholder signs solely in his or her
capacity as the record holder and beneficial owner of, or the trustee of a
trust whose beneficiaries are the beneficial owners of, such Stockholder's
Subject Shares and nothing herein shall limit or affect any actions taken
by a Stockholder in its capacity as an officer or director of the Company
to the extent specifically permitted by the Merger Agreement.
11. Performance by Sub. Parent covenants and agrees for the
-------------------
benefit of the Stockholders that it shall cause Sub to perform in full each
obligation of Sub set forth in this Agreement.
12. Enforcement. The parties agree that irreparable damage
------------
would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any
court of the United States located in the State of Delaware or in a
Delaware state court, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties
hereto (i) consents to submit such party to the personal jurisdiction of
any Federal court located in the State of Delaware or any Delaware state
court
<PAGE>
in the event any dispute arises out of this Agreement or any of the
transactions contemplated hereby, (ii) agrees that such party will not
attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court, (iii) agrees that such party will
not bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a Federal court sitting in the
state of Delaware or a Delaware state court and (iv) waives any right to
trial by jury with respect to any claim or proceeding related to or arising
out of this Agreement or any of the transactions contemplated hereby.
<PAGE>
IN WITNESS WHEREOF, each of Parent and Sub has caused this
Agreement to be signed by its officer thereunto duly authorized and each
Stockholder has signed this Agreement or has caused this Agreement to be
signed by its managing general partners, all as of the date first written
above.
CONOPCO, INC.
By: /s/ Mart Laius
---------------------------
Name: Mart Laius
Title: Vice President
CONOPCO ACQUISITION COMPANY, INC.
By: /s/Mart Laius
---------------------------
Name: Mart Laius
Title: President
/s/Ronald J. Gidwitz
--------------------------------
Ronald J. Gidwitz
GIDWITZ FAMILY PARTNERSHIP
By: /s/Gerald S. Gidwitz
---------------------------
Name: Gerald S. Gidwitz
Title: Managing General
Partner
By: /s/Ronald J. Gidwitz
---------------------------
Name: Ronald J. Gidwitz
Title: Managing General
Partner
<PAGE>
By: /s/James G. Gidwitz
---------------------------
Name: James G. Gidwitz
Title: Managing General
Partner
By: /s/Ralph W. Gidwitz
---------------------------
Name: Ralph W. Gidwitz
Title: Managing General
Partner
By: /s/Betsy R. Gidwitz
---------------------------
Name: Dr. Betsy R. Gidwitz
Title: Managing General
Partner
HCI PARTNERSHIP
By: /s/Gerald S. Gidwitz
---------------------------
Name: Gerald S. Gidwitz
Title: Managing General
Partner
By: /s/Ronald J. Gidwitz
---------------------------
Name: Ronald J. Gidwitz
Title: Managing General
Partner
By: /s/James G. Gidwitz
---------------------------
Name: James G. Gidwitz
Title: Managing General
Partner
<PAGE>
By: /s/Ralph W. Gidwitz
---------------------------
Name: Ralph W. Gidwitz
Title: Managing General
Partner
By: /s/Betsy R. Gidwitz
---------------------------
Name: Dr. Betsy R. Gidwitz
Title: Managing General
Partner
SCHEDULE A
----------
Number of
Class B Shares
Owned of Record
---------------
Ronald J. Gidwitz 120,000
c/o Helene Curtis Industries, Inc.
325 North Wells Street
Chicago, Illinois 60610
HCI Partnership 569,909
c/o Helene Curtis Industries, Inc.
325 North Wells Street
Chicago, Illinois 60610
Gidwitz Family Partnership 2,084,197
c/o Helene Curtis Industries, Inc.
325 North Wells Street
Chicago, Illinois 60610
Exhibit (c)(3)
[Helene Curtis Inc. Letterhead]
November 30, 1995
Mr. Paul V. Dolan
Senior Sourcing and Supply Member
Unilever PLC
Unilever House
P.O. Box 68, Blackfriars
London EC4P 4BQ
England
Dear Mr. Dolan:
Unilever PLC and Helene Curtis Industries, Inc. have been and expect to engage
in discussions concerning opportunities of mutual interest. During the course
of such discussions, each party may disclose to the other certain Confidential
Information. This letter agreement will set forth the terms and conditions
pursuant to which such disclosure will be made:
1. All Information (whether written or oral) furnished under this Agreement
("Confidential Information") by one party ("Information Provider") to the
other party ("Information Recipient") shall be kept in strict confidence
and not disclosed or used for any purpose except as required or
contemplated by this Letter Agreement.
2. All Confidential Information disclosed by the Information Provider shall
remain the property of the Information Provider.
3. All Confidential Information furnished under the Agreement shall be used
solely for the purpose of this Agreement and shall only be made available
to employees, attorneys or financial advisors of the Information Recipient
on a need to know basis. All employees, attorneys or financial advisors of
the Information Recipient who have access to or utilize any Confidential
Information shall be advised of and provided a copy of this Agreement.
Confidential Information shall not be disclosed to any other person,
firm or corporation without the prior written permission of the Information
Provider.
4. The Information Recipient shall not make any copies of Confidential
Information received under this Agreement except as agreed to by the
Information Provider.
<PAGE>
Page Two
Paul V. Dolan
November 30, 1995
5. The obligations and limitations set forth herein regarding the Confidential
Information shall not apply to information which:
(a) is generally available to the public at the time of disclosure by the
Information Provider or thereafter becomes generally available to the
public by publication or otherwise other than by a breach of this
Agreement;
(b) at any time is rightfully received from a third party which has the
right to furnish it without restrictions on disclosure or use;
(c) is rightfully known to a party without any restriction on disclosure
or use prior to its receipt; or
(d) is generally made available to third parties by the parties without
any restriction on disclosure or use.
6. The obligation set forth herein regarding disclosure and use of
Confidential Information shall survive the expiration, termination or
cancellation of this Agreement and shall remain in force for a period of
five (5) years from the date of this Letter Agreement.
7. The Information Recipient shall promptly cease using and shall return or
destroy (and certify destruction of) all Confidential Information which it
receives from the Information Provider including all copies which it may
have made, whether tangible or stored in any computer memory or storage
medium, when it no longer has need thereof for the purpose set forth in
this Agreement or upon the request of the Information Provider, whichever
is the earlier to occur.
8. This Agreement is not included to and shall not be construed as creating a
joint venture, partnership, or other form of business association between
the parties, and, except for the use of Confidential Information for the
purpose set forth in this Agreement, no other rights, licenses, trademarks,
inventions, copyrights or patents are implied or granted under this
Agreement.
<PAGE>
Page Three
Paul V. Dolan
November 30, 1995
9. This Agreement states the entire agreement and supersedes all prior
agreements, written or oral, between the parties hereto with respect to the
subject matter hereof and may not be amended except in writing signed by a
duly authorized representative of the respective parties.
If the foregoing confirms your understanding, please sign as indicated below.
HELENE CURTIS, INC.
By /s/ Ronald J. Gidwitz
-----------------------------
Accepted and Agreed to:
UNILEVER PLC
By /s/
-----------------------------
