<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 24, 1994.
REGISTRATION NO. 33-55645
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ARROW ELECTRONICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
NEW YORK 5065 11-1806155
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
25 HUB DRIVE, MELVILLE, NEW YORK 11747, (516) 391-1300
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROBERT E. KLATELL
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ARROW ELECTRONICS, INC.
25 HUB DRIVE, MELVILLE, NEW YORK 11747, (516) 391-1300
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
<TABLE>
<S> <C>
HOWARD S. KELBERG, ESQ. EDWARD M. LEONARD, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS BROBECK, PHLEGER & HARRISON
ONE BATTERY PARK PLAZA TWO EMBARCADERO PLACE
NEW YORK, NEW YORK 10004-1490 2200 GENG ROAD
(212) 858-1000 PALO ALTO, CALIFORNIA 94303-0913
(415) 424-0160
</TABLE>
Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after this Registration Statement becomes
effective and all other conditions to the merger (the "Merger") of MTA
Acquisition Company, a Delaware corporation and a wholly owned subsidiary of
Arrow Electronics, Inc. ("Registrant" or "Arrow"), with and into Anthem
Electronics, Inc., a Delaware corporation ("Anthem"), pursuant to the Agreement
and Plan of Merger described in the enclosed Joint Proxy Statement/Prospectus
have been satisfied or waived.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
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<PAGE> 2
ARROW ELECTRONICS, INC.
Cross Reference Sheet Pursuant to Rule 404(a) of the Securities Act of 1933
and Item 501(b) of Regulation S-K, showing the Location or Heading in the Joint
Proxy Statement/Prospectus of the Information Required by Part I of Form S-4.
<TABLE>
<CAPTION>
LOCATION OR HEADING IN JOINT PROXY
S-4 ITEM NUMBER AND CAPTION STATEMENT/PROSPECTUS
----------------------------------------------- -----------------------------------------
<S> <C> <C> <C>
A. INFORMATION ABOUT THE TRANSACTION
1. Forepart of Registration Statement and
Outside Front Cover Page of Prospectus... Facing page of Registration Statement;
Cross Reference Sheet; Cover Page of
Prospectus
2. Inside Front and Outside Back Cover Pages
of Prospectus............................ Available Information; Incorporation of
Certain Documents by Reference; Table of
Contents
3. Risk Factors, Ratio of Earnings to Fixed
Charges and Other Information............ Summary; Selected Consolidated Financial
Data; Comparative Per Share Data;
Comparative Market Price Data
4. Terms of the Transaction................. Summary; The Merger; The Merger
Agreement; The Stock Option Agreement;
Comparison of Rights of Holders of Anthem
Common Stock and Arrow Common Stock;
Exhibit A; Exhibit C
5. Pro Forma Financial Information.......... Pro Forma Financial Information
6. Material Contacts with the Company
Being Acquired........................... Summary; The Merger
7. Additional Information Required for
Reoffering by Persons and Parties Deemed
to be Underwriters....................... Not Applicable
8. Interests of Named Experts and Counsel... Not Applicable
9. Disclosure of Commission Position on
Indemnification for Securities
Act Liabilities.......................... Comparison of Rights of Holders of Anthem
Common Stock and Arrow Common Stock
B. INFORMATION ABOUT THE REGISTRANT
10. Information With Respect to S-3
Registrants.............................. Available Information; Incorporation of
Certain Documents by Reference; Arrow
Selected Consolidated Financial Data;
Arrow Management's Discussion and
Analysis of Financial Condition and
Results of Operations; Supplemental
Consolidated Financial Statements of
Arrow
11. Incorporation of Certain Information by
Reference................................ Incorporation of Certain Documents by
Reference
12. Information With Respect to S-2 or S-3
Registrants.............................. Not Applicable
13. Incorporation of Certain Information by
Reference................................ Not Applicable
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
LOCATION OR HEADING IN JOINT PROXY
S-4 ITEM NUMBER AND CAPTION STATEMENT/PROSPECTUS
----------------------------------------------- -----------------------------------------
<S> <C> <C> <C>
14. Information With Respect to Registrants
Other Than S-3 or S-2 Registrants........ Not Applicable
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15. Information With Respect to S-3
Companies................................ Available Information; Incorporation of
Certain Documents by Reference
16. Information With Respect to S-2 or S-3
Companies................................ Not Applicable
17. Information With Respect to Companies
Other Than S-2 or S-3 Companies.......... Not Applicable
D. VOTING AND MANAGEMENT INFORMATION
18. Information if Proxies, Consents or
Authorizations are to be Solicited....... Incorporation of Certain Documents by
Reference; Summary; Arrow Special
Meeting; Anthem Special Meeting; The
Merger; The Merger Agreement; The Stock
Option Agreement
19. Information if Proxies, Consents or
Authorizations are not to be Solicited,
or in an Exchange Offer.................. Not Applicable
</TABLE>
<PAGE> 4
[ARROW Letterhead]
STEPHEN P. KAUFMAN
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
October 26, 1994
Dear Shareholder:
You are cordially invited to attend a Special Meeting of Shareholders of
Arrow Electronics, Inc., which will be held on Wednesday, November 23, 1994 at
11:00 a.m., at Arrow's executive offices, 25 Hub Drive, Melville, New York
11747.
At this important meeting, you will be asked to consider and approve the
merger agreement pursuant to which Anthem Electronics, Inc. will become a wholly
owned subsidiary of Arrow and Anthem stockholders will receive shares of common
stock of Arrow. You will also be asked to approve proposed amendments to the
Arrow Electronics, Inc. Stock Option Plan and the Arrow Electronics, Inc.
Restricted Stock Plan increasing the number of shares of common stock issuable
thereunder, and a proposed amendment to the Certificate of Incorporation of
Arrow increasing the number of authorized shares of common stock from 60,000,000
shares to 80,000,000 shares.
The accompanying Joint Proxy Statement/Prospectus, which relates to a
Special Meeting of Shareholders of Arrow and to a Special Meeting of
Stockholders of Anthem, will provide you a description of the proposals to be
presented at the Special Meeting and extensive information concerning the
proposed transactions between Arrow and Anthem. Please give this information
your careful attention.
The Board of Directors of Arrow has voted unanimously in favor of the
merger, which will bring together under one corporate umbrella two of the
nation's most successful distributors, and believes that the merger is in the
best interests of Arrow and its shareholders. We believe that maintaining Anthem
as a separate operating unit, with its distinctive strategy and highly focused
marketing approach, will enable Arrow more efficiently to satisfy a broader
range of customers and suppliers. At the same time, combining computer systems
and certain finance, accounting, and other corporate staff functions will enable
our company to benefit from the resultant cost savings and economies of scale.
The Board therefore recommends a vote for approval of the merger and the related
issuance of Arrow common stock, as well as the other matters to be considered at
the Special Meeting.
Your vote is important regardless of the number of shares you own. Please
be sure you are represented at the meeting, whether or not you plan to attend,
by signing, dating and mailing the proxy card promptly. A postage paid return
envelope is enclosed for your convenience.
Sincerely yours,
STEPHEN P. KAUFMAN
Stephen P. Kaufman
Chairman and Chief Executive Officer
<PAGE> 5
ARROW ELECTRONICS, INC.
25 HUB DRIVE
MELVILLE, NEW YORK 11747
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
OCTOBER 26, 1994
A Special Meeting of Shareholders of Arrow Electronics, Inc. ("Arrow") will
be held at 25 Hub Drive, Melville, New York 11747 on Wednesday, November 23,
1994, at 11:00 a.m. local time, for the following purposes:
1. To consider and vote upon a proposal to approve and adopt the
Agreement and Plan of Merger, dated as of September 21, 1994 (the "Merger
Agreement"), which provides for the merger (the "Merger") of MTA
Acquisition Company, a wholly owned subsidiary of Arrow, with and into
Anthem Electronics, Inc., a Delaware corporation ("Anthem"), the issuance
of shares of Arrow common stock to the holders of the outstanding shares of
Anthem common stock, and the assumption of the stock options outstanding
under the Anthem stock option plans, all on the terms and subject to the
conditions set forth in the Merger Agreement, which is attached to and
described in the enclosed Joint Proxy Statement/Prospectus;
2. To consider and vote upon a proposal to amend the Arrow
Electronics, Inc. Stock Option Plan to increase the number of shares of
common stock subject thereto from 4,500,000 shares to 6,000,000 shares;
3. To consider and vote upon a proposal to amend the Arrow
Electronics, Inc. Restricted Stock Plan to increase the number of shares of
common stock subject thereto from 1,330,000 shares to 1,480,000 shares;
4. To consider and vote upon a proposal to amend the Certificate of
Incorporation of Arrow to increase the number of authorized shares of
common stock from 60,000,000 shares to 80,000,000 shares; and
5. To transact such other business as may properly come before the
meeting or any adjournments or postponements thereof.
The foregoing items are fully described in the Joint Proxy
Statement/Prospectus accompanying this Notice. Only shareholders of record at
the close of business on October 21, 1994 are entitled to notice of and to vote
at the meeting and any adjournments or postponements thereof.
BY ORDER OF THE BOARD OF DIRECTORS,
ROBERT E. KLATELL
Secretary
Melville, New York
October 26, 1994
IMPORTANT
PLEASE COMPLETE, SIGN AND DATE THE ENCLOSED PROXY AND RETURN IT PROMPTLY IN
THE ENCLOSED RETURN ENVELOPE WHICH HAS BEEN PROVIDED FOR YOUR CONVENIENCE,
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING. THE PROMPT RETURN OF PROXIES WILL
ASSURE A QUORUM AND REDUCE SOLICITATION EXPENSE.
<PAGE> 6
[ANTHEM LETTERHEAD]
October 26, 1994
Dear Stockholder:
You are cordially invited to attend a Special Meeting of Stockholders of
Anthem Electronics, Inc., which will be held on Tuesday, November 22, 1994 at
10:30 a.m., at Anthem's executive offices, 1160 Ridder Park Drive, San Jose,
California 95131.
At this important meeting, you will be asked to consider and approve the
merger agreement pursuant to which Anthem will become a wholly owned subsidiary
of Arrow Electronics, Inc. and Anthem stockholders will receive shares of common
stock of Arrow.
The accompanying Joint Proxy Statement/Prospectus, which relates to a
Special Meeting of Stockholders of Anthem and to a Special Meeting of
Shareholders of Arrow, will provide you a description of the proposals to be
presented at the Special Meeting and extensive information concerning the
proposed transactions between Anthem and Arrow. Please give this information
your careful attention.
The Board of Directors of Anthem has voted unanimously in favor of the
merger and believes, based upon careful consideration of various factors
including the opinion of Anthem's financial advisor, Lehman Brothers Inc., that
it is in the best interests of Anthem and its stockholders. The Board therefore
recommends a vote FOR approval of the merger.
Your vote is important regardless of the number of shares you own. Please
be sure you are represented at the meeting, whether or not you plan to attend,
by signing, dating and mailing the proxy card promptly. A postage paid return
envelope is enclosed for you convenience.
Sincerely yours,
ROBERT S. THROOP
Robert S. Throop
Chairman and Chief Executive Officer
<PAGE> 7
ANTHEM ELECTRONICS, INC.
1160 RIDDER PARK DRIVE
SAN JOSE, CALIFORNIA 95131
----------------------------------
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
OCTOBER 26, 1994
----------------------------------
A Special Meeting of Stockholders of Anthem Electronics, Inc. ("Anthem")
will be held at 1160 Ridder Park Drive, San Jose, California 95131 on Tuesday,
November 22, 1994, at 10:30 a.m. local time, for the following purposes:
1. To consider and vote upon a proposal to approve and adopt the
Agreement and Plan of Merger, dated as of September 21, 1994 (the "Merger
Agreement"), which provides for the merger (the "Merger") of MTA
Acquisition Company, a wholly owned subsidiary of Arrow Electronics, Inc.,
a New York Corporation ("Arrow"), with and into Anthem, on the terms and
subject to the conditions set forth in the Merger Agreement, which is
attached to and described in the enclosed Joint Proxy Statement/Prospectus;
and
2. To transact such other business as may properly come before the
meeting or any adjournments or postponements thereof.
The foregoing items are fully described in the Joint Proxy
Statement/Prospectus accompanying this Notice. Only stockholders of record at
the close of business on October 21, 1994 are entitled to notice of and to vote
at the meeting and any adjournments or postponements thereof.
BY ORDER OF THE BOARD OF DIRECTORS,
WAYNE B. SNYDER
Secretary
San Jose, California
October 26, 1994
IMPORTANT
PLEASE COMPLETE, SIGN AND DATE THE ENCLOSED PROXY AND RETURN IT PROMPTLY IN
THE ENCLOSED RETURN ENVELOPE WHICH HAS BEEN PROVIDED FOR YOUR CONVENIENCE,
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING. THE PROMPT RETURN OF PROXIES WILL
ASSURE A QUORUM AND REDUCE SOLICITATION EXPENSE.
<PAGE> 8
ARROW ELECTRONICS, INC.
AND
ANTHEM ELECTRONICS, INC.
- --------------------------------------------------------------------------------
ARROW ELECTRONICS, INC. PROXY STATEMENT/PROSPECTUS
ANTHEM ELECTRONICS, INC. PROXY STATEMENT
- --------------------------------------------------------------------------------
This Joint Proxy Statement/Prospectus is being furnished to holders of
common stock, $1.00 par value per share ("Arrow Common Stock"), of Arrow
Electronics, Inc., a New York corporation ("Arrow"), in connection with the
solicitation of proxies by the Board of Directors of Arrow for a special meeting
of Arrow's shareholders (the "Arrow Special Meeting") scheduled to be held on
November 23, 1994. This Joint Proxy Statement/Prospectus is also being furnished
to holders of common stock, par value $.125 per share ("Anthem Common Stock"),
of Anthem Electronics, Inc., a Delaware corporation ("Anthem"), in connection
with the solicitation of proxies by the Board of Directors of Anthem for a
special meeting of Anthem's stockholders (the "Anthem Special Meeting", and
collectively with the Arrow Special Meeting, the "Special Meetings") scheduled
to be held on November 22, 1994. At the Special Meetings, shareholders of Arrow
and stockholders of Anthem will be asked to consider and vote upon proposals to
approve and adopt the Merger Agreement and the Merger (each as defined herein)
and, in the case of Arrow's shareholders, the issuance of shares of Arrow Common
Stock in exchange for outstanding shares of Anthem Common Stock. At the Arrow
Special Meeting, Arrow shareholders will also be asked to consider and vote upon
proposed amendments to the Arrow Option Plan and the Arrow Restricted Stock Plan
(each as defined herein) increasing the number of shares subject thereto from
4,500,000 shares to 6,000,000 shares and from 1,330,000 shares to 1,480,000
shares, respectively, and a proposed amendment to the Arrow Certificate of
Incorporation (as defined herein) increasing the number of authorized shares of
Arrow Common Stock from 60,000,000 shares to 80,000,000 shares.
Arrow Common Stock is traded on the New York Stock Exchange (the "NYSE").
On September 20, 1994, the last trading day prior to the announcement by Arrow
and Anthem of the Merger, the last reported sales price of Arrow Common Stock on
the NYSE was $39.625 and on October 21, 1994, the last trading day prior to the
date of this Joint Proxy Statement/Prospectus, the last reported sales price was
$35.125.
This Joint Proxy Statement/Prospectus also constitutes the Prospectus of
Arrow under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the shares of Arrow Common Stock to be issued pursuant to the Merger
in exchange for outstanding shares of Anthem Common Stock.
------------------------
THE SECURITIES TO WHICH THIS JOINT PROXY STATEMENT/PROSPECTUS RELATES HAVE
NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR BY ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS JOINT PROXY STATEMENT/PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
This Joint Proxy Statement/Prospectus and the accompanying forms of proxy
are first being mailed to shareholders of Arrow and stockholders of Anthem on or
about October 26, 1994.
------------------------
The date of this Joint Proxy Statement/Prospectus is October 24, 1994.
<PAGE> 9
INTRODUCTION
SPECIAL MEETING OF ARROW SHAREHOLDERS
At the Arrow Special Meeting, shareholders of record of Arrow as of the
close of business on October 21, 1994 will consider and vote upon a proposal to
approve and adopt the Agreement and Plan of Merger (the "Merger Agreement")
dated as of September 21, 1994 by and among Arrow, MTA Acquisition Company, a
Delaware corporation and a wholly owned subsidiary of Arrow ("Sub"), and Anthem,
pursuant to which, among other things, Sub will be merged (the "Merger") with
and into Anthem, which will be the surviving corporation (the "Surviving
Corporation"), Arrow will issue shares of Arrow Common Stock to the holders of
Anthem Common Stock outstanding immediately prior to the Merger, and Arrow will
assume the stock options outstanding under the Anthem stock option plans. Arrow
shareholders will also be asked to consider and vote upon a proposal to amend
the Arrow Electronics, Inc. Stock Option Plan (the "Arrow Option Plan") to
increase the number of shares of Arrow Common Stock subject thereto from
4,500,000 shares to 6,000,000 shares, a proposal to amend the Arrow Electronics,
Inc. Restricted Stock Plan (the "Arrow Restricted Stock Plan") to increase the
number of shares of Arrow Common Stock subject thereto from 1,330,000 shares to
1,480,000 shares, and a proposal to amend Arrow's Restated Certificate of
Incorporation, as amended (the "Arrow Certificate of Incorporation"), to
increase the number of authorized shares of Arrow Common Stock from 60,000,000
shares to 80,000,000 shares. Approval of the proposed amendments to the Arrow
Option Plan, the Arrow Restricted Stock Plan and the Arrow Certificate of
Incorporation by the shareholders of Arrow is not required for the consummation
of the Merger.
SPECIAL MEETING OF ANTHEM STOCKHOLDERS
At the Anthem Special Meeting, stockholders of record of Anthem as of the
close of business on October 21, 1994 will consider and vote upon a proposal to
approve and adopt the Merger Agreement pursuant to which, among other things,
the Merger will be consummated, holders of Anthem Common Stock will receive
shares of Arrow Common Stock and Anthem will become a wholly owned subsidiary of
Arrow.
CONVERSION OF ANTHEM COMMON STOCK INTO ARROW COMMON STOCK
Upon consummation of the Merger, each issued and outstanding share of
Anthem Common Stock (other than shares, if any, owned by Anthem as treasury
stock and shares owned by Arrow, Sub or any wholly owned subsidiary of Arrow,
which will be canceled), will be converted into the right to receive .875 (the
"Conversion Ratio") shares of Arrow Common Stock, including the corresponding
number of Arrow Rights (as defined herein), subject to adjustment. Pursuant to
the Merger Agreement, if the average closing price on the NYSE of Arrow Common
Stock over the twenty day trading period immediately preceding the two trading
days before the closing date of the Merger (the "Arrow Stock Price") is greater
than $41.625, the Conversion Ratio will be adjusted to provide that each
outstanding share of Anthem Common Stock will be converted into that number of
shares of Arrow Common Stock having a value (based on the Arrow Stock Price)
equal to 87.5% of $41.625 plus 87.5% of one-half of the amount by which the
Arrow Stock Price exceeds $41.625, and if the Arrow Stock Price is less than
$37.625, the Conversion Ratio will be adjusted to provide that each such share
of Anthem Common Stock will be converted into that number of shares of Arrow
Common Stock having a value (based on the Arrow Stock Price) equal to 87.5% of
$37.625 minus 87.5% of one-half of the amount by which $37.625 exceeds the Arrow
Stock Price. On October 21, 1994, the last trading day prior to the date of this
Joint Proxy Statement/Prospectus, the last reported sale price of Arrow Common
Stock on the NYSE was $35.125, and the last reported sale price of Anthem Common
Stock on the NYSE was $30.875.
Upon consummation of the Merger, all shares of Anthem Common Stock shall
automatically be canceled and retired and shall cease to exist and be
outstanding, and each holder of a certificate
2
<PAGE> 10
representing any shares of Anthem Common Stock shall cease to have any rights
with respect thereto, except the right to receive the shares of Arrow Common
Stock to be issued in consideration therefor upon the surrender of such
certificate, without interest. Fractional shares of Arrow Common Stock will not
be issuable in connection with the Merger. Anthem stockholders otherwise
entitled to a fractional share will be paid the value of such fraction in cash,
determined as described under "THE MERGER AGREEMENT -- No Fractional Shares."
ASSUMPTION OF ANTHEM STOCK OPTIONS
In connection with the Merger, Arrow will assume all of the stock options
outstanding under the Anthem Incentive Stock Option and Non-Qualified Stock
Option Plans (the "Anthem Stock Plans"). The number of shares of Anthem Common
Stock subject to each such option immediately prior to the Merger will be
converted into shares of Arrow Common Stock at the same Conversion Ratio at
which shares of Anthem Common Stock are converted into shares of Arrow Common
Stock in the Merger. In addition, the exercise price per share of the Anthem
Common Stock in effect under each Anthem option immediately before the Merger
will be divided by the Conversion Ratio to establish the price per share payable
for the Arrow Common Stock subject to that option immediately after the Merger.
In this Joint Proxy Statement/Prospectus, unless the context otherwise
requires, all references to Arrow Common Stock include the associated rights
(the "Arrow Rights") to purchase shares of Participating Preferred Stock of
Arrow (the "Arrow Participating Preferred Stock") pursuant to a Rights Agreement
dated as of March 2, 1988, as amended, between Arrow and Chemical Bank (formerly
Manufacturers Hanover Trust Company), as Rights Agent (the "Rights Agreement").
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
JOINT PROXY STATEMENT/PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS JOINT
PROXY STATEMENT/PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO PURCHASE, THE SECURITIES OFFERED BY THIS JOINT PROXY
STATEMENT/PROSPECTUS, OR THE SOLICITATION OF A PROXY, IN ANY JURISDICTION OR
FROM ANY PERSON TO WHOM OR FROM WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER,
SOLICITATION OF AN OFFER OR PROXY SOLICITATION IN SUCH JURISDICTION. THE
DELIVERY OF THIS JOINT PROXY STATEMENT/PROSPECTUS SHALL NOT, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
INFORMATION SET FORTH HEREIN OR INCORPORATED BY REFERENCE HEREIN OR IN THE
AFFAIRS OF ARROW OR ANTHEM OR ANY OF THEIR RESPECTIVE SUBSIDIARIES SINCE THE
DATE OF THIS JOINT PROXY STATEMENT/PROSPECTUS. HOWEVER, IF ANY MATERIAL CHANGE
OCCURS DURING THE PERIOD THAT THIS JOINT PROXY STATEMENT/PROSPECTUS IS REQUIRED
TO BE DELIVERED, THIS JOINT PROXY STATEMENT/PROSPECTUS WILL BE AMENDED AND
SUPPLEMENTED ACCORDINGLY. IN THIS JOINT PROXY STATEMENT/PROSPECTUS, ALL
INFORMATION CONCERNING ANTHEM HAS BEEN SUPPLIED BY ANTHEM, AND ALL INFORMATION
CONCERNING ARROW HAS BEEN SUPPLIED BY ARROW.
3
<PAGE> 11
AVAILABLE INFORMATION
Each of Arrow and Anthem is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission ("SEC"). Copies of such reports, proxy
statements and other information are available for inspection and copying at the
public reference facilities maintained by the SEC at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 and at certain of the Regional
Offices of the SEC located at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and 7 World Trade Center, New York, New York 10048. Copies
of such material can be obtained at prescribed rates from the Public Reference
Section of the SEC, Judiciary Square, 450 Fifth Street, N.W., Washington, D.C.
20549. In addition, material filed by Arrow and Anthem can be inspected at the
offices of the NYSE, 20 Broad Street, New York, New York 10005, on which Arrow
Common Stock and the Arrow Rights and Anthem Common Stock are listed.
Arrow has filed with the SEC a Registration Statement on Form S-4 (together
with any amendments thereto, the "Registration Statement") with respect to the
registration under the Securities Act of the securities to be issued pursuant to
the Merger Agreement. This Joint Proxy Statement/Prospectus does not contain all
information set forth in the Registration Statement, certain portions of which
have been omitted pursuant to the rules and regulations of the SEC, and to which
portions reference is hereby made for further information with respect to Arrow
and Anthem and the securities offered hereby. Such additional information may be
obtained from the SEC's principal office in Washington, D.C. Statements
contained in this Joint Proxy Statement/Prospectus or in any document
incorporated by reference in this Joint Proxy Statement/Prospectus as to the
contents of any contract or other document referred to herein or therein are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Registration Statement or
such other document, each such statement being qualified in all respects by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
THIS JOINT PROXY STATEMENT/PROSPECTUS INCORPORATES CERTAIN DOCUMENTS BY
REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH. THESE DOCUMENTS
ARE AVAILABLE UPON REQUEST FROM, IN THE CASE OF ARROW, OFFICE OF THE SECRETARY,
ARROW ELECTRONICS, INC., 25 HUB DRIVE, MELVILLE, NEW YORK 11747, TELEPHONE
NUMBER (516) 391-1300, AND IN THE CASE OF ANTHEM, OFFICE OF THE SECRETARY,
ANTHEM ELECTRONICS, INC., 1160 RIDDER PARK DRIVE, SAN JOSE, CALIFORNIA 95131,
TELEPHONE NUMBER (408) 453-1200. IN ORDER TO ENSURE TIMELY DELIVERY OF THESE
DOCUMENTS, ANY REQUEST SHOULD BE MADE BY NOVEMBER 15, 1994.
Arrow and Anthem hereby undertake to provide without charge to each person,
including any beneficial owner, to whom a copy of this Joint Proxy
Statement/Prospectus has been delivered, upon the written or oral request of any
such person, a copy of any and all the documents referred to below which have
been or may be incorporated by reference herein, other than exhibits to such
documents, unless such exhibits are specifically incorporated by reference.
Requests for such documents should be directed to the offices indicated above.
The following documents, which have been filed with the SEC pursuant to the
Exchange Act, are hereby incorporated by reference herein:
(1) Arrow's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993;
(2) Arrow's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1994 and June 30, 1994;
(3) Arrow's Current Report on Form 8-K dated September 13, 1994;
(4) Anthem's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 ("Anthem's 1993 Form 10-K"); and
4
<PAGE> 12
(5) Anthem's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1994 and June 30, 1994 ("Anthem's 1994 Second Quarter Form
10-Q").
The information with regard to Arrow's capital stock contained in Arrow's
Registration Statement pursuant to the Exchange Act, including any amendment or
report filed for the purpose of updating such information, is hereby
incorporated by reference herein.
The information relating to Arrow and Anthem contained in this Joint Proxy
Statement/Prospectus does not purport to be comprehensive and should be read
together with the information in the documents incorporated by reference.
All documents filed by Anthem and Arrow pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date hereof and prior to the date of
the Special Meetings shall be deemed to be incorporated by reference herein and
to be a part hereof from the date of filing of such documents. All information
appearing in this Joint Proxy Statement/Prospectus is qualified in its entirety
by the information and financial statements (including notes thereto) appearing
in the documents incorporated by reference herein.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Joint Proxy Statement/Prospectus to the extent that a
statement contained herein or in any other subsequently filed document which is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Joint Proxy
Statement/Prospectus.
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TABLE OF CONTENTS
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INTRODUCTION.......................................................................... 2
AVAILABLE INFORMATION................................................................. 4
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE....................................... 4
SUMMARY............................................................................... 9
SELECTED CONSOLIDATED FINANCIAL DATA.................................................. 16
COMPARATIVE PER SHARE DATA............................................................ 19
COMPARATIVE MARKET PRICE DATA......................................................... 20
ARROW SPECIAL MEETING................................................................. 21
General............................................................................. 21
Purpose of Meeting.................................................................. 21
Date, Place and Time; Record Date................................................... 21
Voting Rights....................................................................... 21
Proxies............................................................................. 22
ANTHEM SPECIAL MEETING................................................................ 24
General............................................................................. 24
Purpose of Meeting.................................................................. 24
Date, Place and Time; Record Date................................................... 24
Voting Rights....................................................................... 24
Proxies............................................................................. 25
THE MERGER............................................................................ 25
Background; Recommendations of the Boards of Directors and Reasons for
the Merger....................................................................... 25
Opinions of Financial Advisors...................................................... 29
Interests of Certain Persons in the Merger.......................................... 36
Certain Federal Income Tax Consequences............................................. 37
Accounting Treatment................................................................ 38
Regulatory Filings and Approvals.................................................... 38
Restrictions on Sales by Affiliates................................................. 39
Listing on Stock Exchange........................................................... 39
No Dissenters' Rights............................................................... 39
THE MERGER AGREEMENT.................................................................. 39
The Merger.......................................................................... 39
Closing; Effective Time............................................................. 40
Exchange of Stock Certificates...................................................... 40
No Fractional Shares................................................................ 41
Representations and Warranties...................................................... 42
Covenants........................................................................... 44
No Solicitation of Transactions..................................................... 44
Indemnification and Insurance....................................................... 45
Anthem Stock Options................................................................ 45
Conditions.......................................................................... 45
Amendments, Termination and Waivers................................................. 46
Expenses............................................................................ 48
THE STOCK OPTION AGREEMENT............................................................ 48
General............................................................................. 48
Certain Repurchases................................................................. 49
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<TABLE>
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Registration Rights................................................................. 49
ARROW SELECTED CONSOLIDATED FINANCIAL DATA............................................ 50
ARROW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS.......................................................................... 51
ANTHEM SELECTED CONSOLIDATED FINANCIAL DATA........................................... 55
PRO FORMA FINANCIAL INFORMATION....................................................... 56
COMPARISON OF RIGHTS OF HOLDERS OF ANTHEM COMMON STOCK AND ARROW COMMON STOCK......... 63
General............................................................................. 63
Business Combinations............................................................... 63
Appraisal Rights.................................................................... 63
State Takeover Legislation.......................................................... 64
Stockholder Rights Plans............................................................ 65
Amendments to Certificate of Incorporation.......................................... 65
Amendments to By-laws............................................................... 65
Preemptive Rights................................................................... 66
Dividend Sources.................................................................... 66
Duration of Proxies................................................................. 67
Stockholder Action.................................................................. 67
Special Stockholder Meetings........................................................ 67
Cumulative Voting................................................................... 68
Removal of Directors................................................................ 68
Vacancies on the Board.............................................................. 68
Indemnification of Directors........................................................ 68
Limitation of Personal Liability of Directors....................................... 70
PROPOSED AMENDMENT OF THE ARROW STOCK OPTION PLAN..................................... 71
Summary of the Arrow Electronics, Inc. Stock Option Plan............................ 71
Federal Income Tax Consequences..................................................... 72
Required Vote....................................................................... 73
PROPOSED AMENDMENT OF THE ARROW RESTRICTED STOCK PLAN................................. 73
Summary of the Arrow Electronics, Inc. Restricted Stock Plan........................ 73
Required Vote....................................................................... 75
ARROW STOCK OPTIONS AND RESTRICTED SHARES............................................. 75
ARROW EXECUTIVE COMPENSATION AND OTHER MATTERS........................................ 76
Summary Compensation Table.......................................................... 76
Stock Option Grants in Last Fiscal Year............................................. 77
Aggregated Option Exercises in Last Fiscal Year and Year-End Option Values.......... 78
Employment Agreements............................................................... 78
Extended Separation Benefits........................................................ 78
Unfunded Pension Plan............................................................... 79
Certain Transactions................................................................ 79
PROPOSED AMENDMENT OF THE ARROW CERTIFICATE OF INCORPORATION.......................... 79
Increase in Authorized Shares of Common Stock....................................... 80
Potential Anti-Takeover Effects of Increase in Authorized Capital Stock............. 80
LEGAL OPINION......................................................................... 81
EXPERTS............................................................................... 81
SOLICITATION OF PROXIES............................................................... 82
PROPOSALS BY ARROW SHAREHOLDERS....................................................... 82
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PROPOSALS BY ANTHEM STOCKHOLDERS...................................................... 83
INDEX TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS OF ARROW...................... F-1
EXHIBIT A -- AGREEMENT AND PLAN OF MERGER............................................. A-1
EXHIBIT B-1 -- OPINION OF MORGAN STANLEY & CO. INCORPORATED........................... B-1
EXHIBIT B-2 -- OPINION OF LEHMAN BROTHERS INC......................................... B-2
EXHIBIT C -- STOCK OPTION AGREEMENT................................................... C-1
EXHIBIT D -- PROPOSED AMENDMENT OF THE ARROW CERTIFICATE OF
INCORPORATION......................................................... D-1
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SUMMARY
The following is a summary of certain information contained elsewhere in
this Joint Proxy Statement/Prospectus. The following summary is qualified in its
entirety by the detailed information appearing elsewhere in this Joint Proxy
Statement/Prospectus and the Exhibits hereto or incorporated by reference
herein. Capitalized terms used and not otherwise defined in this summary have
the meanings ascribed to them elsewhere in this Joint Proxy
Statement/Prospectus. Shareholders of Arrow and stockholders of Anthem are urged
to read this Joint Proxy Statement/Prospectus and the Exhibits hereto in their
entirety.
THE PARTIES
Arrow. Arrow is the world's largest distributor of electronic components
and computer products to industrial and commercial customers.
On August 29, 1994, Arrow completed the acquisition of Gates/FA
Distributing, Inc. ("Gates"), a leading national wholesale distributor of
micro-computers, networking products, mass storage products, Unix products and
computer peripheral equipment. The transaction was accounted for as a
pooling-of-interests, and therefore all of the supplemental financial
information of Arrow contained in this Joint Proxy Statement/Prospectus reflects
the combination of Arrow and Gates.
The principal executive office of Arrow is located at 25 Hub Drive,
Melville, New York 11747, and the telephone number is (516) 391-1300.
Anthem. Anthem is an industrial distributor of the electronic products
supplied by a limited number of suppliers. Products are distributed through 23
distribution centers and five sales offices throughout the United States. Anthem
focuses on advanced technology, semiconductors and disk drive products and
providing materials and manufacturing management services to its customers.
The principal executive office of Anthem is located at 1160 Ridder Park
Drive, San Jose, California 95131, and the telephone number is (408) 453-1200.
ARROW SPECIAL MEETING
Purpose. At the Arrow Special Meeting and any adjournment or postponement
thereof, the shareholders of Arrow will be asked to consider and vote upon (i) a
proposal to approve and adopt the Merger Agreement providing for, among other
things, the Merger, (ii) a proposal to amend the Arrow Option Plan to increase
the number of shares of Arrow Common Stock subject thereto from 4,500,000 shares
to 6,000,000 shares, (iii) a proposal to amend the Arrow Restricted Stock Plan
to increase the number of shares of Arrow Common Stock subject thereto from
1,330,000 shares to 1,480,000 shares, (iv) a proposal to amend the Arrow
Certificate of Incorporation to increase the number of authorized shares of
Arrow Common Stock from 60,000,000 shares to 80,000,000 shares, and (v) such
other business as may properly be brought before the Arrow Special Meeting.
Time, Date and Place. The Arrow Special Meeting is scheduled to be held at
11:00 a.m., local time, on Wednesday, November 23, 1994, at Arrow's executive
office at 25 Hub Drive, Melville, New York 11747, and at any adjournment or
postponement thereof.
Record Date; Shares Entitled to Vote. The Board of Directors of Arrow (the
"Arrow Board") has fixed the close of business on October 21, 1994 as the record
date (the "Arrow Record Date") for the determination of holders of Arrow Common
Stock entitled to notice of and to vote at the Arrow Special Meeting. On the
Arrow Record Date, there were 35,298,860 shares of Arrow Common Stock
outstanding, each entitled to one vote.
Required Vote. Although applicable New York law does not require that the
shareholders of Arrow approve the Merger, the Arrow Common stock is listed on
the NYSE, and the NYSE requires as a prerequisite for listing of shares on the
NYSE the approval by shareholders of any plan or arrangement involving (i) the
issuance of common stock equal to or in excess of 20% of the voting
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<PAGE> 17
power outstanding before the issuance of such stock or (ii) the issuance of a
number of shares of common stock in excess of 20% of the number of shares of
common stock outstanding before the issuance of such stock. As of the Arrow
Record Date, there were 35,298,860 shares of Arrow Common Stock outstanding and
12,327,563 shares of Anthem Common Stock outstanding. Assuming an adjusted
Conversion Ratio based upon the last reported sale price of Arrow Common Stock
on the NYSE on October 21, 1994 of $35.125, the Merger would result in the
issuance by Arrow of approximately 11,168,772 additional shares of Arrow Common
Stock, which would represent 31.6% of the outstanding shares of Arrow Common
Stock. Under the rules of the NYSE, Arrow's shareholders are therefore required
to approve the issuance of Arrow Common Stock in connection with the Merger by a
majority of votes cast at the Arrow Special Meeting, provided that the total
vote cast represents over 50% in interest of the outstanding shares of Arrow
Common Stock.
Under applicable New York law, the Exchange Act and the terms of the Arrow
Option Plan and the Arrow Restricted Stock Plan, respectively, approval of the
amendments to such plans increasing the number of shares of Arrow Common Stock
subject thereto requires the affirmative vote of the holders of a majority of
the outstanding shares of Arrow Common Stock.
Under applicable New York law and the Arrow Certificate of Incorporation,
approval of the amendment to the Arrow Certificate of Incorporation increasing
the authorized number of shares of Arrow Common Stock requires the affirmative
vote of the holders of a majority of the outstanding shares of Arrow Common
Stock.
ANTHEM SPECIAL MEETING
Purpose. At the Anthem Special Meeting and any adjournment or postponement
thereof, the stockholders of Anthem will be asked to consider and vote upon (i)
a proposal to approve and adopt the Merger Agreement providing for, among other
things, the Merger and (ii) such other business as may properly be brought
before the Anthem Special Meeting.
Time, Date and Place. The Anthem Special Meeting is scheduled to be held
at 10:30 a.m., local time, on Tuesday, November 22, 1994 at Anthem's executive
office at 1160 Ridder Park Drive, San Jose, California 95131, and at any
adjournment or postponement thereof.
Record Date; Shares Entitled to Vote. The Board of Directors of Anthem (
the "Anthem Board") has fixed the close of business on October 21, 1994 as the
record date (the "Anthem Record Date") for the determination of holders of
Anthem Common Stock entitled to notice of and to vote at the Anthem Special
Meeting. On the Anthem Record Date, there were 12,327,563 shares of Anthem
Common Stock outstanding, each entitled to one vote.
Required Vote. Under applicable Delaware law, the affirmative vote of the
holders of a majority of the outstanding shares of Anthem Common Stock is
required to approve and adopt the Merger Agreement and the terms of the Merger.
Certain officers and directors of Anthem, who collectively are the beneficial
owners of approximately 4% of the outstanding shares of Anthem Common Stock,
have granted to Arrow irrevocable proxies with respect to the vote to approve
and adopt the Merger Agreement. Arrow intends to vote such proxies in favor of
approval and adoption of the Merger Agreement. See "ANTHEM SPECIAL
MEETING -- Voting Rights."
THE MERGER
General. At the Effective Time (as defined below) of the Merger, Sub will
be merged with and into Anthem, which will be the Surviving Corporation, and
Anthem will become a wholly owned subsidiary of Arrow.
Effective Time. After all the conditions set forth in the Merger Agreement
have been fulfilled or waived, the Merger will become effective at such time
(the "Effective Time") as a copy of the Certificate of Merger is delivered to
the Delaware Secretary of State for filing and is filed by the Delaware
Secretary of State, or at such later time as is provided in the Certificate of
Merger. Delivery of the Certificate of Merger to the Delaware Secretary of State
for filing thereby will be
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made as soon as practicable after the closing. See "THE MERGER
AGREEMENT -- Closing; Effective Time."
Conversion of Shares. At the Effective Time, each then outstanding share
of Anthem Common Stock (other than shares owned by Anthem as treasury stock and
shares held by Arrow, Sub or any wholly owned subsidiary of Arrow, which will be
canceled) will be converted into the right to receive .875 (the "Conversion
Ratio") shares of Arrow Common Stock, subject to adjustment if the average
closing price on the NYSE of one share of Arrow Common Stock over the twenty day
trading period ending on (and including) the trading day immediately preceding
the two trading days before the closing date of the Merger is greater than
$41.625 or less than $37.625. See "THE MERGER AGREEMENT -- The Merger."
No fractional shares of Arrow Common Stock will be issued pursuant to the
Merger, and holders of Anthem Common Stock will receive a cash payment in lieu
of fractional shares of Arrow Common Stock. See "THE MERGER AGREEMENT -- No
Fractional Shares."
The shares of Arrow Common Stock to be issued pursuant to the Merger will
have been registered under the Securities Act and, as such, will be freely
transferable except for shares issued to any person who may be deemed to be an
affiliate of Anthem. See "THE MERGER -- Restrictions on Sales by Affiliates."
Assumption of Anthem Stock Options. At the Effective Time, Arrow will
assume each unexpired and unexercised option to purchase shares of Anthem Common
Stock under the Anthem Stock Plans (each an "Anthem Stock Option") and
thereafter each Anthem Stock Option will be deemed to constitute an option (each
an "Arrow Stock Option") to acquire the number of shares of Arrow Common Stock
determined by multiplying the number of shares of Anthem Common Stock subject to
the Anthem Stock Option immediately prior to the Merger by the Conversion Ratio
and rounding down to the next whole share of Arrow Common Stock. The exercise
price of the Anthem Common Stock in effect under each Anthem Stock Option
immediately before the Merger will be divided by the Conversion Ratio and
rounded up to the next whole cent to establish the price per share payable for
the Arrow Common Stock subject to the Arrow Stock Option immediately after the
Merger.
Operations After the Merger. At the Effective Time of the Merger, Sub will
be merged with and into Anthem, and Anthem will thereafter operate its business
as a wholly owned subsidiary of Arrow.
Recommendations of Anthem and Arrow Boards of Directors; Reasons for the
Merger. The Anthem Board and the Arrow Board each unanimously approved the
Merger Agreement and the terms of the Merger and determined to recommend that
their respective shareholders vote FOR approval and adoption of the Merger
Agreement and the terms of the Merger. See "THE MERGER -- Background;
Recommendations of the Boards of Directors and Reasons for the Merger" for
additional information with respect to the recommendations of the Arrow Board
and the Anthem Board and the reasons therefor. The Arrow Board also unanimously
approved the proposed amendments to the Arrow Option Plan and the Arrow
Restricted Stock Plan to increase the number of shares of Arrow Common Stock
subject thereto from 4,500,000 shares to 6,000,000 shares and from 1,330,000
shares to 1,480,000 shares, respectively, and the proposed amendment to the
Arrow Certificate of Incorporation to increase the number of authorized shares
of Arrow Common Stock from 60,000,000 shares to 80,000,000 shares, and
determined to recommend that the Arrow shareholders vote FOR approval of such
proposed amendments to the Arrow Option Plan, the Arrow Restricted Stock Plan
and the Arrow Certificate of Incorporation.
Security Ownership of Management and Certain Other Persons. As of the
Arrow Record Date, Arrow's directors, executive officers and their affiliates as
a group held shares representing approximately 3% of the votes entitled to be
cast by the Arrow Common Stock. Each of the directors and executive officers of
Arrow has advised Arrow that he intends to vote or direct the vote of all the
outstanding shares of Arrow Common Stock over which he has voting control in
favor of approval and adoption of the Merger Agreement and in favor of approval
of the proposed amendments to the Arrow Option Plan, the Arrow Restricted Stock
Plan and the Arrow Certificate of Incorporation. The
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only shareholder known to Arrow to own beneficially more than 5% of the
outstanding shares of Arrow Common Stock as of October 21, 1994 is FMR Corp., 82
Devonshire Street, Boston, Massachusetts 02109, which, based upon information
set forth in its Schedule 13G dated October 7, 1994, and filed with the SEC,
beneficially owned 3,677,478 shares (10.4%) of Arrow Common Stock, including
3,405,600 shares (9.6%) beneficially owned by Fidelity Magellan Fund. See "ARROW
SPECIAL MEETING -- Voting Rights."
As of the Anthem Record Date, Anthem's directors, executive officers and
their affiliates as a group held shares representing approximately 4% of the
votes entitled to be cast by the Anthem Common Stock. Each of the directors and
executive officers of Anthem has advised Anthem that he intends to vote or
direct the vote of all the outstanding shares of Anthem Common Stock over which
he has voting control in favor of approval and adoption of the Merger Agreement.
Additionally, directors and officers of Anthem, who collectively are the
beneficial owners of approximately 4% of the outstanding shares of Anthem Common
Stock, have granted to Arrow irrevocable proxies with respect to the vote at the
Anthem Special Meeting to approve and adopt the Merger Agreement. Arrow intends
to vote such proxies in favor of approval and adoption of the Merger Agreement.
See "ANTHEM SPECIAL MEETING -- Voting Rights."
Opinions of Financial Advisors. Morgan Stanley & Co. Incorporated ("Morgan
Stanley") has delivered to the Arrow Board written opinions, dated September 21,
1994 and October 24, 1994, to the effect that, as of the dates of such opinions,
the Conversion Ratio is fair, from a financial point of view, to Arrow and the
holders of Arrow Common Stock. The written opinion of Morgan Stanley dated
October 24, 1994 is attached to this Joint Proxy Statement/Prospectus as Exhibit
B-1 and should be read in its entirety. Lehman Brothers Inc. ("Lehman Brothers")
has delivered to the Anthem Board written opinions, dated September 21, 1994 and
October 24, 1994, to the effect that, as of the dates of such opinions, from a
financial point of view, the Conversion Ratio to be offered to the holders of
Anthem Common Stock in the proposed Merger is fair to such stockholders. The
written opinion of Lehman Brothers dated October 24, 1994 is attached to this
Joint Proxy Statement/Prospectus as Exhibit B-2 and should be read in its
entirety.
For additional information concerning the matters considered and
assumptions made by Morgan Stanley and Lehman Brothers in reaching their
respective opinions and the fees received by them, see "THE MERGER -- Opinions
of Financial Advisors" and Exhibits B-1 and B-2 hereto.
Conditions to the Merger. In addition to the approval and adoption of the
Merger Agreement and the terms of the Merger by the stockholders of Anthem and
the shareholders of Arrow, the obligation of each of Arrow and Anthem to effect
the Merger is subject to the fulfillment or waiver, at or prior to the Effective
Time, of certain conditions specified in the Merger Agreement, including, among
others, (i) the receipt of approval for listing on the NYSE, upon official
notice of issuance, of the Arrow Common Stock to be issued pursuant to the
Merger; (ii) the absence of any injunction prohibiting consummation of the
Merger; (iii) the absence of any governmental investigation, action or
proceeding seeking to restrain, prevent or change the Merger or questioning the
legality thereof or seeking damages in connection therewith; (iv) the receipt by
the respective parties and confirmation at the Effective Time of accountants'
letters with respect to the qualification of the Merger as a
pooling-of-interests; (v) the receipt by the respective parties of certain
satisfactory opinions of tax counsel; (vi) the receipt of the consents required
to permit Arrow and Anthem to consummate the transaction; and (vii) the absence
of any events, changes or occurrences since September 21, 1994 which have had,
or are reasonably likely to have, individually or in the aggregate, a Material
Adverse Effect on the other party. For purposes of the Merger Agreement, a
"Material Adverse Effect" means, with respect to any party, a material adverse
effect on the financial condition, assets, liabilities (contingent or
otherwise), results of operation, business or business prospects of such party
and its subsidiaries, if any, taken as a whole, but shall not include any such
material adverse effect (i) with respect to Anthem, which (a) results from the
proposed Merger and the impact thereof on the operating performance of Anthem
pursuant to the terms of the Merger Agreement or (b) is disclosed either in
certain documents filed by Anthem with the SEC or in the disclosure memorandum
furnished by Anthem to Arrow pursuant to the Merger Agreement or (ii) with
respect to Arrow, which (a) results from the proposed Merger and the impact
thereof on the operating performance of Arrow pursuant to the terms of the
Merger Agreement or (b) is disclosed either in certain documents filed by Arrow
with the SEC or in the disclosure memorandum
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furnished by Arrow to Anthem pursuant to the Merger Agreement. See "THE MERGER
AGREEMENT -- Conditions."
The obligation of Arrow to effect the Merger is subject to additional
conditions, including (i) the absence of any action or proceeding (other than
those referred to in (iii) of the preceding paragraph) seeking to restrain the
Merger or questioning the legality thereof or seeking damages in connection
therewith; and (ii) the receipt of certain letters from persons who may be
deemed to be affiliates of Anthem under Rule 145 of the Securities Act (the
"Affiliate Agreements").
The consummation of the Merger is also conditioned upon the receipt of all
required governmental authorizations, consents, orders and approvals, including
expiration or termination of the relevant waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"). Anthem and Arrow have filed the requisite notices under the HSR Act and
the relevant waiting period under the HSR Act has been terminated. Neither Arrow
nor Anthem is aware of any additional regulatory approvals required to
consummate the Merger.
Rights to Terminate, Amend or Waive Conditions. The Merger Agreement may
be terminated at any time prior to the Effective Time by mutual consent of Arrow
and Anthem and by either Arrow or Anthem if, without fault of the terminating
party, the Merger has not been consummated on or before February 15, 1995 (or
such later date as the parties may agree to in writing), or in certain other
situations, including (i) the failure to obtain the requisite stockholder vote;
(ii) the withdrawal or modification of the Anthem Board's approval of the Merger
Agreement and the terms of the Merger after the occurrence of certain events and
the Anthem Board's determination that to proceed with the Merger would be
inconsistent with the Anthem Board's fiduciary duties; and (iii) the issuance of
a final and nonappealable order, judgment or decree preventing the consummation
of the Merger.
The Merger Agreement may be terminated by Arrow prior to the Effective Time
if (i) Anthem breaches any of its representations, warranties or obligations
under the Merger Agreement and such breach is not cured or waived and Anthem
fails to provide reasonable assurance that such breach will be cured by the
Closing Date (as defined in "THE MERGER AGREEMENT -- Closing; Effective Time");
or (ii) the Arrow Stock Price is less than $32.00. The Merger Agreement may be
terminated by Anthem prior to the Effective Time if (i) Arrow or Sub breaches
any of their respective representations, warranties or obligations under the
Merger Agreement and such breach is not cured or waived and Arrow fails to
provide reasonable assurance that such breach will be cured by the Closing Date;
(ii) the Arrow Stock Price is less than $32.00; or (iii) any person or group of
persons (excluding certain specified persons or groups of persons) acquires 30%
of the outstanding shares of Arrow Common Stock or the Arrow Board accepts an
offer to acquire 50% or more of the outstanding shares of Arrow Common Stock or
of Arrow's consolidated assets.
In certain events, if Arrow or Anthem terminates the Merger Agreement,
Anthem must pay Arrow liquidated damages of $9,000,000, plus out-of-pocket fees
and expenses incurred by Arrow in connection with the Merger Agreement and the
transactions contemplated thereby (including without limitation, the fees and
expenses of its advisors, accountants and legal counsel) up to a maximum amount
of $2,500,000. See "THE MERGER AGREEMENT -- Amendments, Termination and
Waivers."
The Merger Agreement may be amended at any time before or after its
approval by the stockholders of Anthem or Arrow by written agreement executed by
Arrow, Sub and Anthem, except that after approval of the Merger Agreement by
such stockholders, no such amendment, modification or supplement may be made
which by law requires the further approval of such stockholders without such
further approval. See "THE MERGER AGREEMENT -- Conditions," and "-- Amendments,
Termination and Waivers." Any amendment to the Merger Agreement must be
authorized by the Boards of Directors of the respective parties. Such directors
will exercise their fiduciary duties in determining whether any such amendment
is in the best interests of the stockholders and exercise their business
judgment in determining whether stockholder approval of such amendment is
required or desirable in light of the nature of the amendment.
The conditions to each of the parties' obligations to consummate the
Merger, other than obtaining stockholder approval, may be waived by such party.
Neither Arrow, Sub nor Anthem presently intends to waive any condition to its
obligations to consummate the Merger. However, each of the parties reserves the
right to waive any condition in the future. Any determination to waive a
condition would depend upon the facts and circumstances existing at the time of
such
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waiver and would be made by such party's Board of Directors, exercising its
fiduciary duties to such party and its stockholders. The Merger Agreement does
not require that any waiver be approved by the stockholders of Arrow or Anthem,
even if such waiver may be deemed by some stockholders to be adverse to their
interests. In the event the Merger is approved by Anthem stockholders, Anthem
stockholders may not independently determine not to exchange their shares upon
the occurrence of an event some stockholders may deem adverse to their
interests, including, without limitation, in the event of a material decline in
Arrow's earnings or stock price. However, each of Arrow and Anthem has the right
to determine not to effect the Merger if there occurs after September 21, 1994
any events, changes or occurrences which have had, or are reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on the other
party; and each of Arrow and Anthem has the right to terminate the Merger
Agreement if the Arrow Stock Price is less than $32.00.
For additional information concerning the rights to terminate, amend or
waive conditions, see "THE MERGER AGREEMENT -- Amendments, Termination and
Waivers."
No Dissenters' Rights. Holders of Anthem Common Stock and Arrow Common
Stock are not entitled to dissenters' rights under the Delaware General
Corporation Law (the "DGCL") or the New York Business Corporation Law (the
"NYBCL"), as the case may be, in connection with the Merger. See "THE
MERGER -- No Dissenters' Rights."
Certain Federal Income Tax Consequences. The Merger is intended to
qualify, for Federal income tax purposes, as a tax-free "reorganization" under
Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code")
and, accordingly, no taxable gain or loss is expected to be recognized by the
stockholders of Anthem in the Merger, except that cash received by holders of
Anthem Common Stock in lieu of fractional shares will give rise to taxable
income. See "THE MERGER -- Certain Federal Income Tax Consequences." Each Anthem
stockholder is urged to consult such holder's own tax adviser to determine the
specific tax consequences of the Merger to such holder.
Accounting Treatment. Arrow and Anthem believe that the Merger will
qualify as a "pooling-of-interests" for accounting purposes. It is a condition
precedent to consummation of the Merger that Ernst & Young LLP, independent
auditors for Arrow, and Price Waterhouse LLP, independent accountants for
Anthem, will issue letters to each of Arrow and Anthem, respectively, that the
Merger will qualify as a "pooling-of-interests" for accounting purposes. See
"THE MERGER -- Accounting Treatment."
Exchange of Stock Certificates. As of the Effective Time, the
certificates, which prior to the Merger represented shares of Anthem Common
Stock, will be deemed, for all corporate purposes, to evidence the number of
shares of Arrow Common Stock into which they have been converted pursuant to the
Merger Agreement. Holders of certificates, which prior to the Effective Time
represented shares of Anthem Common Stock, will not be entitled to receive any
payment of dividends on, or other distributions with respect to, their shares
unless such certificates have been exchanged for certificates representing
shares of Arrow Common Stock. As soon as practicable after the Merger is
effective, the Exchange Agent will send transmittal instructions to each Anthem
stockholder of record at the Effective Time, advising the stockholder of the
procedure for exchanging certificates for Arrow certificates. Cash will be paid
to Anthem stockholders in lieu of fractional shares. See "THE MERGER
AGREEMENT -- No Fractional Shares." Certificates should not be surrendered until
the letter of transmittal and such instructions are received. See "THE MERGER
AGREEMENT -- Exchange of Stock Certificates."
INTERESTS OF CERTAIN PERSONS IN THE MERGER
Anthem Stock Options. At the Effective Time, each outstanding Anthem Stock
Option will be assumed by Arrow and thereafter will be deemed to constitute an
Arrow Stock Option to acquire that number of shares of Arrow Common Stock
determined by multiplying the number of shares of Anthem Common Stock subject to
the Anthem Stock Option immediately prior to the Merger by the Conversion Ratio
and rounding down to the next whole share of Arrow Common Stock. The exercise
price of the Arrow Common Stock in effect under each Arrow Stock Option
immediately after the Merger will be determined by dividing the exercise price
per share in effect under the Anthem Stock Option immediately prior to the
Merger by the Conversion Ratio and rounding up to
14
<PAGE> 22
the next whole cent. Each such Arrow Stock Option will continue to vest in
accordance with the same vesting schedule in effect for the Anthem Stock Option
immediately prior to the Merger and no accelerated vesting of the Anthem Stock
Options will occur by reason of the Merger (other than those options issued
under the automatic option grant program in effect for non-employee members of
the Anthem Board).
However, certain Anthem Stock Options to be assumed by Arrow provide for
full and immediate vesting in the event the optionee's employment should be
terminated involuntarily after an acquisition of Anthem by a merger which does
not otherwise trigger the vesting of those options, such as the Merger.
Indemnification and Insurance. From and after the Effective Time, Arrow
and the Surviving Corporation shall indemnify the present and former officers
and directors of Anthem against certain liabilities including, without
limitation, liabilities arising out of or pertaining to the transactions
contemplated by the Merger Agreement. From and after the Effective Time, Arrow
and the Surviving Corporation shall also use their best efforts to maintain in
effect for two years Anthem's current policies for directors and officers'
liability insurance, or policies substantially equivalent to the policies then
maintained by Arrow with respect to its directors and officers. As of the
Effective Time, Arrow and the Surviving Corporation shall also assume all
obligations of Anthem to its officers, directors or employees under any
indemnification agreement in effect on September 21, 1994 to which Anthem is a
party.
Anthem Employment Agreements. Certain directors and officers of Anthem
have entered into employment agreements with Arrow, which employment agreements
will become effective upon consummation of the Merger.
Election of Arrow Director. Arrow has undertaken in the Merger Agreement
to cause Robert S. Throop to be nominated for election as an Arrow director at
the first meeting of the Arrow Board following the Merger.
For a detailed description of these arrangements, see "THE
MERGER -- Interests of Certain Persons in the Merger."
CERTAIN OTHER TRANSACTIONS
Stock Option Agreement. Arrow and Anthem have entered into a Stock Option
Agreement dated as of September 21, 1994 (the "Stock Option Agreement"),
pursuant to which Arrow has the right, under certain circumstances, to acquire
up to 2,451,427 shares of authorized and unissued Anthem Common Stock (or
approximately 19.9% of the outstanding Anthem Common Stock prior to such
issuance) at a price per share of $34.67. See "THE STOCK OPTION AGREEMENT."
Proxies. Certain directors and officers of Anthem have granted to Arrow
irrevocable proxies to vote the shares of Anthem Common Stock held by them at
the Anthem Special Meeting in connection with approval and adoption of the
Merger Agreement. Arrow intends to vote such proxies in favor of approval and
adoption of the Merger Agreement. See "ANTHEM SPECIAL MEETING -- Voting Rights."
Comparison of Shareholder Rights. See "COMPARISON OF RIGHTS OF HOLDERS OF
ANTHEM COMMON STOCK AND ARROW COMMON STOCK" for a summary of the material
differences between the rights of holders of Arrow Common Stock and Anthem
Common Stock.
15
<PAGE> 23
SELECTED CONSOLIDATED FINANCIAL DATA
The following tables set forth certain selected supplemental financial data
for Arrow, selected historical financial data for Anthem, and selected pro forma
supplemental financial data for Arrow giving effect to the Merger. Such
financial data should be read in conjunction with the supplemental financial
statements and related notes for Arrow, the consolidated financial statements
and related notes for Anthem, and the pro forma combined financial statements,
which appear elsewhere, or are incorporated by reference, in this Joint Proxy
Statement/Prospectus. The financial data for the six month periods ended June
30, 1993 and 1994 and at June 30, 1993 and 1994 are unaudited, however, such
data include all adjustments which are, in the opinion of the applicable
management, necessary for a fair presentation. The results of operations for the
interim periods are not necessarily indicative of results for the full year.
ARROW
SUMMARY INCOME STATEMENT DATA:
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
---------------------------------------------------------------- -----------------------
1989 1990 1991(A) 1992 1993(B) 1993 1994
---------- ---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Sales.............. $1,074,419 $1,134,502 $1,238,529 $1,884,671 $2,897,663 $1,304,408 $1,890,026
Operating income... 31,360 35,197 39,951(c) 112,471 195,355 91,932 126,518
Earnings before
extraordinary
charges, net of
income taxes..... 4,156 9,752 10,584 54,451 88,547 40,691 55,491
Extraordinary
charges, net of
income taxes..... -- -- -- 5,424 -- -- --
Net income(d)...... 4,156 9,752 10,584 49,027 88,547 40,691 55,491
Per common share:
Income (loss)
before
extraordinary
charges, net of
income taxes..... (.09) .33 .35 1.76 2.54 1.18 1.55
Extraordinary
charges, net of
income taxes..... -- -- -- (.19) -- -- --
Net income
(loss)(d)........ (.09) .33 .35 1.57 2.54 1.18 1.55
</TABLE>
16
<PAGE> 24
SUMMARY BALANCE SHEET DATA:
<TABLE>
<CAPTION>
AT DECEMBER 31, AT JUNE 30,
---------------------------------------------------------- ------------------------
1989 1990 1991(A) 1992 1993(B) 1993 1994
-------- -------- -------- -------- ---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Accounts receivable and inven-
tories....................... $379,315 $362,614 $566,757 $608,894 $ 909,097 $ 766,601 $1,108,379
Total assets................... 543,794 530,559 813,395 864,497 1,317,967 1,120,392 1,572,988
Long-term debt, including cur-
rent portion................. 109,331 105,104 243,640 117,517 195,165 167,251 219,976
Subordinated debentures, in-
cluding current
portion...................... 108,326 107,300 105,965 125,000 125,000 125,000 125,000
Total long-term debt
and subordinated
debentures................... 217,657 212,404 349,605 242,517 320,165 292,251 344,976
Shareholders' equity........... 165,699 166,564 243,127 381,531 495,413 446,135 561,685
</TABLE>
- ---------------
(a) Reflects the acquisition in September 1991 of the North American electronics
distribution businesses of Lex Service PLC (see Note 2 of the Notes to
Supplemental Consolidated Financial Statements).
(b) Includes results of Spoerle Electronic, which was accounted for under the
equity method prior to January 1993 when Arrow increased its holdings to a
majority interest (see Note 2 of the Notes to Supplemental Consolidated
Financial Statements).
(c) Includes special charges of $9.8 million reflecting expenses associated with
the integration of the businesses acquired from Lex Service PLC.
(d) After preferred stock dividends of $5.4 million in 1989, $4.9 million in
1990, $4.6 million in 1991, $3.9 million in 1992, $.9 million in 1993, and
$.6 million for the six months ended June 30, 1993.
ANTHEM
SUMMARY INCOME STATEMENT DATA:
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
------------------------------------------------------------ ---------------------
1989 1990 1991 1992 1993 1993 1994
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Sales......................... $319,020 $408,170 $419,648 $538,362 $663,193 $303,084 $341,644
Operating income.............. 26,729 39,330 39,250 51,228 30,734(a) 19,954 17,762
Net income.................... 15,775 23,210 23,305 30,434 18,012 11,845 10,791
Per common share.............. 1.39 1.97 1.92 2.48 1.46 .96 .87
</TABLE>
SUMMARY BALANCE SHEET DATA:
<TABLE>
<CAPTION>
AT DECEMBER 31, AT JUNE 30,
------------------------------------------------------------ ---------------------
1989 1990 1991 1992 1993 1993 1994
-------- -------- -------- -------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Accounts receivable and inven-
tory........................ $ 95,942 $115,947 $134,274 $172,373 $185,078 $186,920 $178,733
Total assets.................. 118,816 145,930 181,779 215,666 251,185 235,916 263,897
Shareholders' equity.......... 93,373 120,611 149,166 184,569 206,386 199,561 218,027
</TABLE>
- ---------------
(a) Includes a pre-tax restructuring charge of $7.8 million relating to the sale
and cessation of Eagle Technology.
17
<PAGE> 25
PRO FORMA -- ARROW WITH ANTHEM
The following pro forma financial data does not reflect any sales attrition
which may result from the Merger, the cost savings and synergies Arrow expects
to receive from the Merger, or certain integration expenses to be incurred in
connection with the Merger which will be charged to current operations, and
should be read in conjunction with the pro forma financial information which
appears elsewhere in this Joint Proxy Statement/Prospectus. The following pro
forma financial data assumes an adjusted Conversion Ratio based upon the last
sale price of Arrow Common Stock on the NYSE on October 21, 1994 of $35.125.
SUMMARY INCOME STATEMENT DATA:
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEARS ENDED DECEMBER 31, JUNE 30,
------------------------------------ -----------------------
1991 1992 1993 1993 1994
---------- ---------- ---------- ---------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Sales.......................... $1,658,177 $2,423,033 $3,560,856 $1,607,492 $2,231,670
Operating income............... 79,201 163,699 226,089 111,886 144,280
Earnings before extraordinary
charges, net of income
taxes........................ 33,889 84,885 106,559 52,536 66,282
Extraordinary charges, net of
income taxes................. -- 5,424 -- -- --
Net income..................... 33,889 79,461 106,559 52,536 66,282
Per common share:
Earnings before extraordinary
charges................... 1.04 2.03 2.31 1.15 1.41
Extraordinary charges........ -- (.14) -- -- --
Net income..................... 1.04 1.89 2.31 1.15 1.41
</TABLE>
SUMMARY BALANCE SHEET DATA:
<TABLE>
<CAPTION>
AT DECEMBER 31, AT JUNE 30,
---------------------------------- -----------------------
1991 1992 1993 1993 1994
-------- ---------- ---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Accounts receivable and invento-
ries........................... $701,031 $ 781,267 $1,094,175 $ 953,521 $1,287,112
Total assets..................... 995,174 1,080,163 1,569,152 1,356,308 1,836,885
Long-term debt, including current
portion........................ 243,640 117,517 195,165 167,251 219,976
Subordinated debentures, includ-
ing current portion............ 105,965 125,000 125,000 125,000 125,000
Total long-term debt and subordi-
nated debentures............... 349,605 242,517 320,165 292,251 344,976
Shareholders' equity............. 392,293 566,100 701,799 645,696 779,712
</TABLE>
18
<PAGE> 26
COMPARATIVE PER SHARE DATA
Set forth below are earnings, cash dividends declared and book value per
common share data of Arrow on a supplemental basis and Anthem on an historical
basis, and on a pro forma per share basis for Arrow, and an equivalent pro forma
per share basis for Anthem. The Arrow pro forma combined data was derived by
combining financial information of Arrow and Anthem after giving effect to the
Merger under the pooling-of-interests method of accounting. The per share
equivalent pro forma data for Anthem was calculated by multiplying the Arrow pro
forma combined data by the adjusted Conversion Ratio of Anthem Common Stock
pursuant to the Merger, assuming an Arrow Stock Price of $35.125 (the closing
price of one share of Arrow Common Stock on the NYSE on the last trading day
prior to the date of this Joint Proxy Statement/Prospectus).
The information set forth below should be read in conjunction with the
respective audited and unaudited financial statements of Arrow and Anthem, which
appear elsewhere, or are incorporated by reference, in this Joint Proxy
Statement/Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
----------------------------- ------------------
1991 1992 1993 1993 1994
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
ARROW SUPPLEMENTAL PER COMMON SHARE:
Earnings before extraordinary charges...... $ .35 $ 1.76 $ 2.54 $ 1.88 $ 1.57
Cash dividends declared.................... -- -- -- -- --
Book value (end of period)................. $ 14.14 $ 15.94
ARROW PRO FORMA (UNAUDITED) COMBINED PER
PRO FORMA ARROW COMMON SHARE:
Earnings before extraordinary charges...... $ 1.04 $ 2.03 $ 2.31 $ 1.15 $ 1.41
Cash dividends declared.................... -- -- -- -- --
Book value (end of period)................. $ 15.21 $ 16.77
</TABLE>
<TABLE>
<CAPTION>
SIX MONTHS
YEARS ENDED DECEMBER 31, ENDED JUNE 30,
----------------------------- ------------------
1991 1992 1993 1993 1994
------- ------- ------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
ANTHEM HISTORICAL PER COMMON SHARE:
Earnings................................... $ 1.92 $ 2.48 $ 1.46 $ .96 $ .87
Cash dividends declared.................... -- -- -- -- --
Book value (end of period)................. $ 16.86 $ 17.70
EQUIVALENT ANTHEM PRO FORMA (UNAUDITED) PER
SHARE DATA:
Earnings................................... $ .94 $ 1.84 $ 2.09 $ 1.04 $ 1.28
Cash dividends declared.................... -- -- -- -- --
Book value (end of period)................. $ 13.78 $ 15.19
</TABLE>
19
<PAGE> 27
COMPARATIVE MARKET PRICE DATA
The Arrow Common Stock and Anthem Common Stock are each traded on the NYSE.
The following table sets forth, for the calendar periods indicated, the high and
low sales prices of Arrow Common Stock and Anthem Common Stock as reported on
the NYSE Composite Tape.
<TABLE>
<CAPTION>
ARROW ANTHEM
COMMON STOCK COMMON STOCK
------------- -------------
HIGH LOW HIGH LOW
---- ---- ---- ----
<S> <C> <C> <C> <C>
1992:
First Quarter......................................... $18 1/2 $14 3/8 $46 1/4 $36 5/8
Second Quarter........................................ 19 1/2 15 1/8 47 3/4 33 7/8
Third Quarter......................................... 22 3/4 18 1/2 41 1/8 31 3/4
Fourth Quarter........................................ 30 1/2 22 1/8 44 1/8 35 1/8
1993:
First Quarter......................................... 34 3/8 26 1/2 49 1/4 31 3/4
Second Quarter........................................ 36 1/4 29 3/4 39 3/4 30 1/2
Third Quarter......................................... 43 1/8 34 5/8 38 32 1/4
Fourth Quarter........................................ 42 1/4 33 5/8 35 1/4 26
1994:
First Quarter......................................... 45 1/8 36 1/8 34 28 1/8
Second Quarter........................................ 41 1/8 33 5/8 30 20 1/2
Third Quarter......................................... 40 1/8 35 1/8 32 1/2 19 5/8
Fourth Quarter (through October 21, 1994)............. 37 5/8 34 7/8 32 1/4 29 7/8
</TABLE>
On September 20, 1994, the last full trading day prior to the public
announcement of the execution and delivery of the Merger Agreement, the last
reported sale prices of Arrow Common Stock and Anthem Common Stock, as reported
on the NYSE Composite Tape, were $39.625 and $24.625, respectively. On October
21, 1994, the last trading day prior to the date of this Joint Proxy
Statement/Prospectus, the last reported sale price of Arrow Common Stock was
$35.125, and the last reported sale price of Anthem Common Stock was $30.875.
Each issued and outstanding share of Anthem Common Stock (other than
shares, if any, owned by Anthem as treasury stock and shares owned by Arrow, Sub
or any wholly owned subsidiary of Arrow) will be converted pursuant to the
Merger into the right to receive .875 shares of Arrow Common Stock, subject to
adjustment as described elsewhere in this Joint Proxy Statement/Prospectus.
Because the market price of Arrow Common Stock is subject to fluctuation, the
market value of the shares of Arrow Common Stock that holders of Anthem Common
Stock will receive in the Merger may increase or decrease prior to the Merger.
See "THE MERGER AGREEMENT -- The Merger." Shareholders of Arrow and stockholders
of Anthem are urged to obtain current market quotations for the Arrow Common
Stock and the Anthem Common Stock.
20
<PAGE> 28
ARROW SPECIAL MEETING
GENERAL
This Joint Proxy Statement/Prospectus is provided to the shareholders of
Arrow in connection with the Arrow Special Meeting to be held on the date, at
the time, in the location, and to consider the matters, set forth below under
"ARROW SPECIAL MEETING". The Arrow Board is soliciting proxies hereby for use at
the Arrow Special Meeting and forms of proxy are being provided with this Joint
Proxy Statement/Prospectus. Information about executing or revoking a proxy is
provided below under "Proxies."
This Joint Proxy Statement/Prospectus and the accompanying forms of proxy
are first being mailed to the shareholders of Arrow on or about October 26,
1994.
PURPOSE OF MEETING
At the Arrow Special Meeting, the shareholders of Arrow will be asked to
consider and vote upon (i) a proposal to approve and adopt the Merger Agreement
and the terms of the Merger contemplated thereby; (ii) a proposal to amend the
Arrow Option Plan to increase the number of shares of Arrow Common Stock subject
thereto from 4,500,000 shares to 6,000,000 shares; (iii) a proposal to amend the
Arrow Restricted Stock Plan to increase the number of shares of Arrow Common
Stock subject thereto from 1,330,000 shares to 1,480,000 shares; (iv) a proposal
to amend the Arrow Certificate of Incorporation to increase the number of
authorized shares of Arrow Common Stock from 60,000,000 shares to 80,000,000
shares; and (v) such other business as may properly be brought before the Arrow
Special Meeting. A copy of the Merger Agreement is attached to this Joint Proxy
Statement/Prospectus as Exhibit A. A copy of the proposed amendment to the Arrow
Certificate of Incorporation is attached to this Joint Proxy
Statement/Prospectus as Exhibit D.
The Arrow Board unanimously approved the Merger Agreement and the terms of
the Merger and recommends that Arrow shareholders vote FOR approval and adoption
of the Merger Agreement and the terms of the Merger. The Arrow Board also
unanimously approved the proposed amendments to the Arrow Option Plan and the
Arrow Restricted Stock Plan to increase the number of shares of Arrow Common
Stock subject thereto from 4,500,000 shares to 6,000,000 shares and from
1,330,000 shares to 1,480,000 shares, respectively, and the proposed amendment
to the Arrow Certificate of Incorporation to increase the number of authorized
shares of Arrow Common Stock from 60,000,000 shares to 80,000,000 shares, and
recommends that Arrow shareholders vote FOR approval of such proposed amendments
to the Arrow Option Plan, the Arrow Restricted Stock Plan and the Arrow
Certificate of Incorporation.
DATE, PLACE AND TIME; RECORD DATE
The Arrow Special Meeting is scheduled to be held at 11:00 a.m., local
time, on Wednesday, November 23, 1994 at Arrow's executive office, 25 Hub Drive,
Melville, New York 11747, and at any adjournment or postponement thereof.
The Arrow Board has fixed the close of business on October 21, 1994 as the
Arrow Record Date for the determination of holders of Arrow Common Stock
entitled to notice of, and to vote at, the Arrow Special Meeting. As of the
Arrow Record Date, there were 35,298,860 shares of Arrow Common Stock
outstanding and entitled to vote (held by approximately 4,000 holders of
record).
VOTING RIGHTS
The presence, in person or by properly executed proxy, of the holders of a
majority of the outstanding shares of Arrow Common Stock entitled to vote is
necessary to constitute a quorum at the Arrow Special Meeting. Under the NYBCL
and the Arrow Certificate of Incorporation, the approval of Arrow shareholders
is not required to adopt and approve the Merger Agreement and the terms of the
Merger. However, the Arrow Common Stock is listed on the NYSE, and the NYSE
21
<PAGE> 29
requires as a prerequisite for listing of shares on the NYSE the approval by
shareholders of any plan or arrangement involving (i) the issuance of common
stock equal to or in excess of 20% of the voting power outstanding before the
issuance of such stock or (ii) the issuance of a number of shares of common
stock in excess of 20% of the number of shares of common stock outstanding
before the issuance of such stock. As of the Arrow Record Date, there were
35,298,860 shares of Arrow Common Stock outstanding and 12,327,563 shares of
Anthem Common Stock outstanding. Assuming an adjusted Conversion Ratio based
upon the last reported sale price of Arrow Common Stock on the NYSE on October
21, 1994 of $35.125, the Merger would result in the issuance by Arrow of
approximately 11,168,772 additional shares of Arrow Common Stock, which would
represent 31.6% of the outstanding shares of Arrow Common Stock. Under the rules
of the NYSE, Arrow's shareholders are therefore required to approve the issuance
of Arrow Common Stock in connection with the Merger by a majority of votes cast
at the Arrow Special Meeting (with each share entitled to one vote), provided
that the total vote cast represents over 50% in interest of the outstanding
shares of Arrow Common Stock.
Under the NYBCL, the Exchange Act and the terms of the Arrow Option Plan
and the Arrow Restricted Stock Plan, respectively, approval of the amendments to
such plans increasing the number of shares of Arrow Common Stock subject thereto
requires the affirmative vote of the holders of a majority of the outstanding
shares of Arrow Common Stock (with each share entitled to one vote).
Under the NYBCL and the Arrow Certificate of Incorporation, approval of the
amendment to the Arrow Certificate of Incorporation increasing the authorized
number of shares of Arrow Common Stock from 60,000,000 shares to 80,000,000
shares requires the affirmative vote of the holders of a majority of the
outstanding shares of Arrow Common Stock (with each share entitled to one vote).
For each vote, abstentions will be counted, but "broker non-votes" will not
be so counted, as shares present for purposes of determining a quorum at the
Arrow Special Meeting. An "abstention" and a "broker non-vote" do not count as
votes cast in connection with the proposal to approve and adopt the Merger
Agreement and the terms of the Merger contemplated thereby and thus will have no
effect on the outcome of the vote, provided that the total vote cast represents
over 50% in interest of all shares of Arrow Common Stock entitled to vote on the
proposal. Both an "abstention" and a "broker non-vote" will have the same effect
as a vote against the proposals to approve the amendments to the Arrow Option
Plan, the Arrow Restricted Stock Plan and the Arrow Certificate of
Incorporation.
As of the Arrow Record Date, Arrow's directors, executive officers and
their affiliates as a group held shares representing approximately 3% of the
votes entitled to be cast by the Arrow Common Stock. Each of the directors and
executive officers of Arrow has advised Arrow that he intends to vote or direct
the vote of all the outstanding shares of Arrow Common Stock over which he has
voting control in favor of approval and adoption of the Merger Agreement and in
favor of approval of the proposed amendments to the Arrow Option Plan, the Arrow
Restricted Stock Plan and the Arrow Certificate of Incorporation.
The only shareholder known to Arrow to own beneficially more than 5% of the
outstanding shares of Arrow Common Stock as of October 21, 1994 is FMR Corp., 82
Devonshire Street, Boston, Massachusetts 02109, which, based upon information
set forth in its Schedule 13G dated October 7, 1994, and filed with the SEC,
beneficially owned 3,677,478 shares (10.4%) of Arrow Common Stock, including
3,405,600 shares (9.6%) beneficially owned by Fidelity Magellan Fund.
PROXIES
Shares of Arrow Common Stock represented by properly executed proxies
received by Arrow prior to or at the Arrow Special Meeting, and not revoked,
will be voted at the Arrow Special Meeting in accordance with the instructions
specified in the proxies. If no instructions are specified in such proxies,
shares will be voted FOR approval and adoption of the Merger Agreement and the
terms of
22
<PAGE> 30
the Merger and FOR approval of the proposed amendments to the Arrow Option Plan,
the Arrow Restricted Stock Plan and the Arrow Certificate of Incorporation.
If any other matters are properly presented at the Arrow Special Meeting
for consideration, including, among other things, consideration of a motion to
adjourn the Arrow Special Meeting to another time and/or place (including,
without limitation, for the purpose of soliciting additional proxies or because
the conditions to the Merger have not been satisfied or waived), the persons
named in the enclosed form of proxy and acting thereunder will have discretion
to vote on such matters in accordance with their best judgment. In this regard,
an adjournment will require the affirmative vote of a majority of the shares
present at the session of the Arrow Special Meeting to be adjourned. A proxy
granting authority to vote upon such business incidental to the conduct of the
Arrow Special Meeting as may properly come before the Arrow Special Meeting will
constitute authority to vote in favor of one or more adjournments of the Arrow
Special Meeting.
Any Arrow shareholder who executes and returns a proxy has the power to
revoke such proxy at any time before it is voted by filing with the Secretary of
Arrow written notice of such revocation or a duly executed proxy bearing a later
date, or by attending and voting in person at the Arrow Special Meeting.
Attendance at the Arrow Special Meeting will not in and of itself constitute
revocation of a proxy. Any written notice of revocation or subsequent proxy
should be sent so as to be delivered to Arrow Electronics, Inc., 25 Hub Drive,
Melville, New York 11747, Attention: Secretary, or hand delivered to the
Secretary of Arrow, at or before the taking of the vote at the Arrow Special
Meeting.
23
<PAGE> 31
ANTHEM SPECIAL MEETING
GENERAL
This Joint Proxy Statement/Prospectus is provided to the stockholders of
Anthem in connection with the Anthem Special Meeting to be held on the date, at
the time, in the location, and to consider the matters, set forth below under
"ANTHEM SPECIAL MEETING". The Anthem Board is soliciting proxies hereby for use
at the Anthem Special Meeting and forms of proxy are being provided with this
Joint Proxy Statement/Prospectus. Information about executing or revoking a
proxy is provided below under "Proxies."
This Joint Proxy Statement/Prospectus and the accompanying forms of proxy
are first being mailed to the stockholders of Anthem on or about October 26,
1994.
PURPOSE OF MEETING
At the Anthem Special Meeting, the stockholders of Anthem will be asked to
consider and vote upon (i) a proposal to approve and adopt the Merger Agreement
and the terms of the Merger contemplated thereby; and (ii) such other business
as may properly be brought before the Anthem Special Meeting. A copy of the
Merger Agreement is attached to this Joint Proxy Statement/Prospectus as Exhibit
A.
The Anthem Board unanimously approved the Merger Agreement and the terms of
the Merger and recommends that Anthem stockholders vote FOR approval and
adoption of the Merger Agreement and the terms of the Merger.
DATE, PLACE AND TIME; RECORD DATE
The Anthem Special Meeting is scheduled to be held at 10:30 a.m., local
time, on Tuesday, November 22, 1994 at Anthem's executive office, 1160 Ridder
Park Drive, San Jose, California 95131, and at any adjournment or postponement
thereof.
The Anthem Board has fixed the close of business on October 21, 1994 as the
Anthem Record Date for the determination of holders of Anthem Common Stock
entitled to notice of, and to vote at, the Anthem Special Meeting. As of the
Anthem Record Date, there were 12,327,563 shares of Anthem Common Stock
outstanding and entitled to vote (held by approximately 281 holders of record).
VOTING RIGHTS
The presence, in person or by properly executed proxy, of the holders of a
majority of the outstanding shares of Anthem Common Stock entitled to vote is
necessary to constitute a quorum at the Anthem Special Meeting. Under the DGCL,
the affirmative vote of the holders of a majority of the outstanding shares of
Anthem Common Stock (with each share entitled to one vote) is required to
approve and adopt the Merger Agreement and the terms of the Merger. Abstentions
will be counted, but "broker non-votes" will not be so counted, as shares
present for purposes of determining a quorum at the Anthem Special Meeting. Both
an "abstention" and a "broker non-vote" will have the same effect as a vote
against the proposal to approve and adopt the Merger Agreement and the terms of
the Merger contemplated thereby.
As of the Anthem Record Date, Anthem's directors, executive officers and
their affiliates as a group held shares representing approximately 4% of the
votes entitled to be cast by the Anthem Common Stock. Each of the directors and
executive officers of Anthem has advised Anthem that he intends to vote or
direct the vote of all the outstanding shares of Anthem Common Stock over which
he has voting control in favor of approval and adoption of the Merger Agreement.
Certain directors and officers of Anthem, who collectively are the
beneficial owners of approximately 4% of the outstanding shares of Anthem Common
Stock, have granted to Arrow irrevocable
24
<PAGE> 32
proxies with respect to the vote to approve and adopt the Merger Agreement.
Arrow intends to vote such proxies in favor of approval and adoption of the
Merger Agreement.
Upon the occurrence of certain events, Arrow has the right to purchase from
Anthem pursuant to the Stock Option Agreement up to 2,451,427 shares of Anthem
Common Stock. See "THE STOCK OPTION AGREEMENT."
PROXIES
Shares of Anthem Common Stock represented by properly executed proxies
received by Anthem prior to or at the Anthem Special Meeting, and not revoked,
will be voted at the Anthem Special Meeting in accordance with the instructions
specified in the proxies. If no instructions are specified in such proxies,
shares will be voted FOR approval and adoption of the Merger Agreement and the
terms of the Merger.
If any other matters are properly presented at the Anthem Special Meeting
for consideration, including, among other things, consideration of a motion to
adjourn the Anthem Special Meeting to another time and/or place (including,
without limitation, for the purpose of soliciting additional proxies or because
the conditions to the Merger have not been satisfied or waived), the persons
named in the enclosed form of proxy and acting thereunder will have discretion
to vote on such matters in accordance with their best judgment. In this regard,
an adjournment will require the affirmative vote of a majority of the shares
present at the session of the Anthem Special Meeting to be adjourned. A proxy
granting authority to vote upon such business incidental to the conduct of the
Anthem Special Meeting as may properly come before the Anthem Special Meeting
will constitute authority to vote in favor of one or more adjournments of the
Anthem Special Meeting.
Any Anthem stockholder who executes and returns a proxy has the power to
revoke such proxy at any time before it is voted by filing with the Secretary of
Anthem written notice of such revocation or a duly executed proxy bearing a
later date, or by attending and voting in person at the Anthem Special Meeting.
Attendance at the Anthem Special Meeting will not in and of itself constitute
revocation of a proxy. Any written notice of revocation or subsequent proxy
should be sent so as to be delivered to Anthem Electronics, Inc., 1160 Ridder
Park Drive, San Jose, California 95131, Attention: Secretary, or hand delivered
to the Secretary of Anthem, at or before the taking of the vote at the Anthem
Special Meeting.
ANTHEM STOCKHOLDERS SHOULD NOT SEND ANY STOCK
CERTIFICATES WITH THEIR PROXY CARDS.
THE MERGER
BACKGROUND; RECOMMENDATIONS OF THE BOARDS OF DIRECTORS AND REASONS FOR THE
MERGER
Background. In the months preceding April 1994, the management and Board
of Directors of Anthem reviewed and assessed various strategic alternatives,
including possible business combinations and other business relationships with
other participants in the distribution industry.
During a meeting in Santa Clara, California on April 13, 1994 between
Stephen P. Kaufman, Arrow's Chairman and Chief Executive Officer, and Robert S.
Throop, Anthem's Chairman and Chief Executive Officer, Mr. Kaufman inquired as
to the interest of Anthem in exploring a business combination involving Arrow
and Anthem. At such meeting, Messrs. Kaufman and Throop concluded that a
business combination between Arrow and Anthem might offer significant strategic
advantages to both companies, and that they should pursue these discussions.
On April 27, 1994, Messrs. Kaufman and Throop met again in New York City to
continue their discussions of the benefits of a business combination between
Arrow and Anthem.
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On May 2, 1994, Mr. Kaufman met in San Francisco with Mr. Throop, Wayne B.
Snyder, Anthem's Senior Vice President and Chief Financial Officer, and John J.
Powers, III, President of Anthem's Electronics Distribution Business Unit. The
discussions at this meeting once again explored generally the possibility of a
business combination between Arrow and Anthem.
On June 13, 1994, Mr. Kaufman and Robert E. Klatell, Arrow's Senior Vice
President and Chief Financial Officer, met in San Francisco with Messrs. Throop
and Snyder to discuss further a possible business combination between Arrow and
Anthem. At this meeting, the parties discussed possible structures for the
combination as well as possible price ranges for an acquisition of Anthem.
On July 11, 1994, Messrs. Kaufman and Klatell again met with Messrs. Throop
and Snyder in San Francisco to continue their discussions of possible structures
for the combination between Arrow and Anthem and to discuss possible prices at
which the transaction could be accomplished.
On August 5, 1994, Mr. Snyder met with Messrs. Kaufman and Klatell in New
York. Once again, the parties discussed various ways in which a business
combination between Arrow and Anthem could be structured as well as the various
possibilities for the consideration that would be paid by Arrow.
On August 10, 1994, Messrs. Kaufman and Klatell met with Messrs. Throop and
Snyder in Boston. At this meeting, the parties discussed in more detail possible
transaction structures and possible prices to be paid for Anthem.
On August 22, 1994, Messrs. Kaufman and Klatell met with Mr. Snyder in New
York. At this meeting, the parties again discussed the structure for the
transaction and the consideration to be paid for Anthem.
On August 24, 1994, Messrs. Kaufman and Klatell met with Messrs. Throop and
Snyder in San Francisco. At this meeting, the parties determined to commence
preparation and negotiation of transaction documents.
On August 25, 1994 and September 2, 1994, the Anthem Board met with
representatives of Brobeck, Phleger & Harrison, counsel to Anthem ("Brobeck
Phleger"), and its financial advisor, Lehman Brothers, to consider the
preliminary proposals received from Arrow regarding the business combination.
On September 7, 1994, Messrs. Klatell and Snyder, together with
representatives of Winthrop, Stimson, Putnam & Roberts, counsel to Arrow
("Winthrop Stimson"), and Brobeck Phleger, discussed by teleconference draft
forms of the Merger Agreement and the Stock Option Agreement and the terms of
the transactions contemplated thereby.
On September 8 and 9, 1994, Messrs. Throop, Powers and Snyder, together
with representatives from Lehman Brothers, met with Mr. Klatell and Steven W.
Menefee, Vice President of Arrow and President of Arrow/Schweber Electronics
Group, together with representatives from Morgan Stanley, in Roslyn, New York,
to discuss due diligence issues pertaining to the transaction.
On September 12 and 13, 1994, Mr. Snyder and representatives of Brobeck
Phleger met with Mr. Klatell and representatives of Winthrop Stimson in New York
City to further discuss and negotiate the Merger Agreement and the Stock Option
Agreement.
On September 16, 1994, Mr. Snyder and representatives of Brobeck Phleger
spoke by teleconference with Mr. Klatell and representatives of Winthrop Stimson
to further discuss and negotiate the Merger Agreement and the Stock Option
Agreement.
In the months of April, May, July, August and September, the Anthem Board
met and discussed both the progress of discussions with Arrow in connection with
the proposed acquisition of Anthem as well as general strategic alternatives.
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In the course of meetings of the Arrow Board in May, July and August, the
Arrow Board reviewed the discussions with Anthem and the benefits to Arrow from
the proposed acquisition. On September 20, 1994, the Arrow Board reviewed drafts
of the Merger Agreement and the Stock Option Agreement and received the oral
opinion of Morgan Stanley that the Conversion Ratio is fair, from a financial
point of view, to Arrow and the holders of the Arrow Common Stock. Following
careful deliberation, the Arrow Board, subject to receipt from Morgan Stanley of
written confirmation of its opinion, approved unanimously the Merger Agreement
and the Stock Option Agreement and determined unanimously that the Merger is
advisable and fair and in the best interests of Arrow and Arrow's shareholders.
On September 20, 1994, the Anthem Board also reviewed drafts of the Merger
Agreement and the Stock Option Agreement and received the oral opinion of Lehman
Brothers that, from a financial point of view, the Conversion Ratio to be
offered to the stockholders of Anthem in the proposed Merger is fair to such
stockholders. Following careful deliberation, the Anthem Board, subject to
receipt from Lehman Brothers of written confirmation of its opinion, approved
unanimously the Merger Agreement and the Stock Option Agreement and determined
unanimously that the Merger is advisable and fair and in the best interests of
Anthem and Anthem's stockholders.
Recommendation of Arrow Board and Reasons for the Merger. On September 20,
1994, the Arrow Board, subject to receipt of Morgan Stanley's written opinion,
approved unanimously the Merger Agreement and determined unanimously that the
Merger is advisable and fair and in the best interests of Arrow and Arrow's
shareholders. Such written opinion, dated September 21, 1994, was delivered to
the Arrow Board on September 21, 1994, and is substantially identical to the
opinion dated October 24, 1994 attached as Exhibit B-1 to this Joint Proxy
Statement/Prospectus and incorporated by reference herein. Accordingly, the
Arrow Board has recommended that the holders of Arrow Common Stock vote FOR
approval of the Merger and the Merger Agreement. In reaching its decision to
approve the Merger Agreement, the Arrow Board considered that the Merger will
bring together under one corporate umbrella two of the nation's most successful
distributors, that maintaining Anthem as a separate operating unit, with its
distinctive strategy and highly focused marketing approach, will enable Arrow
more efficiently to satisfy a broader range of customers and suppliers, and that
combining computer systems and certain finance, accounting, and other corporate
staff functions will enable Arrow to benefit from the resultant cost savings and
economies of scale. The Arrow Board also considered the strengthened balance
sheet of Arrow that will result from the Merger, including an increase in
shareholders' equity from approximately $562 million to $780 million and an
improvement of its debt to equity ratio from .77 to 1 to .55 to 1 (pro forma as
of June 30, 1994). Further, the Arrow Board concluded that the transaction would
provide Arrow with a broader group of senior management to support the
significant growth that Arrow has achieved over the past few years.
On September 20, 1994, the Arrow Board also approved unanimously the
proposed amendment to the Arrow Certificate of Incorporation to increase the
number of authorized shares of Arrow Common Stock from 60,000,000 shares to
80,000,000 shares. Although the proposed amendment to the Arrow Certificate of
Incorporation is not necessary for the consummation of the Merger and the
issuance of the shares of Arrow Common Stock pursuant thereto, the Arrow Board
determined that it is advisable and in the best interests of Arrow and Arrow's
shareholders to effect such amendment concurrently with the Merger so as to
provide for a number of authorized shares of Arrow Common Stock sufficient to
allow for issuances of Arrow Common Stock in the ordinary course following the
Merger.
Recommendation of Anthem Board and Reasons for the Merger. On September
20, 1994, the Anthem Board, subject to receipt of Lehman Brothers' written
opinion, approved unanimously the Merger Agreement and determined unanimously
that the Merger is advisable and fair and in the best interests of Anthem and
Anthem's stockholders. Such written opinion, dated September 21, 1994, was
delivered to the Anthem Board on September 21, 1994, and is substantially
identical to the opinion dated October 24, 1994 attached as Exhibit B-2 to this
Joint Proxy Statement/Prospectus
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and incorporated by reference herein. Accordingly, the Anthem Board has
recommended that the holders of Anthem Common Stock vote FOR approval of the
Merger and the Merger Agreement. In reaching its decision to approve the Merger
Agreement, the Anthem Board has identified several potential benefits that the
Merger will bring to Anthem.
- Anthem will more effectively serve its strategic supply partners with a
larger global operation.
- Anthem will gain access to resources that will enable it to compete more
effectively in a wider range of more complex, value added services and to more
fully exploit the market potential for materials and manufacturing management
services.
- Anthem will compete more effectively through economies of scale.
- Anthem will improve efficiency through the consolidation of duplicative
functions.
In the course of its deliberations during the August 25, September 2,
September 7 and September 20, 1994 Board of Directors meetings, the Anthem Board
reviewed with Anthem's management a number of additional factors relevant to the
Merger, including the strategic overview and prospects for Anthem, its products
and its finances. The Anthem Board also considered, among other matters, (i)
information concerning Arrow's and Anthem's respective businesses, prospects,
financial performance and condition, operations, technology, management and
competitive position; (ii) the financial condition, results of operations and
businesses of Arrow and Anthem before and after giving effect to the Merger;
(iii) current financial market conditions and historical market prices,
volatility and trading information with respect to Arrow Common Stock and Anthem
Common Stock; (iv) the consideration to be received by Anthem stockholders in
the Merger and the fact that the market value of Arrow Common Stock to be issued
in exchange for each share of Anthem Common Stock represented a significant
premium over the historical price range of the Anthem Common Stock (the Merger
consideration represented a premium of approximately 41% over the closing sales
price of $24.625 per share of Anthem Common Stock on September 20, 1994, the
last trading day prior to the announcement of the Merger); (v) a comparison of
selected recent acquisition and merger transactions in the industry; (vi) the
belief that the terms of the Merger Agreement, including the parties' mutual
representations, warranties and covenants, are reasonable and the fact that the
Merger Agreement did not contain any extraordinary closing conditions on Arrow's
obligations; (vii) the ability of Anthem to consider and negotiate other
acquisition proposals and to terminate the Merger Agreement for a superior
proposal, subject to the payment of a fee to Arrow; (viii) the fact that the
Merger is expected to be accounted for as a pooling-of-interests and that no
goodwill is expected to be created on the financial statements of Arrow as a
result thereof and is intended to be tax-free for federal income tax purposes;
(ix) a financial presentation by Lehman Brothers including the oral opinion of
Lehman Brothers rendered at the September 20, 1994 meeting of the Anthem Board
that, from a financial point of view, the Conversion Ratio to be offered to the
holders of Anthem Common Stock in the proposed Merger is fair to Anthem
stockholders; (x) the impact of the Merger upon Anthem's customers and
employees; and (xi) reports from management, financial advisors and legal
advisors as to the results of their due diligence investigation of Arrow.
The Anthem Board also considered a number of potentially negative factors
in its deliberations concerning the Merger, including, but not limited to, (i)
the loss of control over the future operations of Anthem following the Merger;
and (ii) the risk that the benefits sought to be achieved in the Merger will not
be achieved. The Anthem Board discussed with management the prospects for
combinations with companies other than Arrow and the possibility that the
benefits described above could be achieved through any such combination, as well
as the risks and benefits of a strategy in which Anthem would continue to
operate independently.
In view of the wide variety of factors considered by the Anthem Board, the
Anthem Board did not find it practicable to quantify or otherwise assign
relative weight to the specific factors considered. However, after taking into
account all of the factors set forth above, the Anthem Board
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determined unanimously that the Merger Agreement and Merger were in the best
interests of Anthem and its stockholders and that Anthem should proceed with the
Merger and the Merger Agreement.
OPINIONS OF FINANCIAL ADVISORS
Arrow Financial Advisor.
Arrow retained Morgan Stanley to act as its financial advisor in connection
with the Merger. Morgan Stanley was selected by the Arrow Board to act as
Arrow's financial advisor based on Morgan Stanley's qualifications, expertise
and reputation, as well as Morgan Stanley's investment banking relationship and
familiarity with Arrow.
On September 20, 1994, Morgan Stanley orally advised the Arrow Board that,
based upon and subject to the various considerations to be set forth in a
written opinion, the Conversion Ratio is fair from a financial point of view to
Arrow and to the holders of Arrow Common Stock on such date. Such advice was
confirmed in a written opinion dated as of and delivered on September 21, 1994,
which opinion is substantially identical to the opinion dated October 24, 1994
attached as Exhibit B-1 to this Joint Proxy Statement/Prospectus and
incorporated by reference herein. No limitations were imposed by the Arrow Board
upon Morgan Stanley with respect to the investigations made or procedures
followed by it in rendering its opinions.
THE FULL TEXT OF THE OPINION OF MORGAN STANLEY DATED OCTOBER 24, 1994,
WHICH SETS FORTH ASSUMPTIONS MADE AND MATTERS CONSIDERED, IS SET FORTH AS
EXHIBIT B-1. ARROW SHAREHOLDERS ARE URGED TO READ SUCH OPINION CAREFULLY AND IN
ITS ENTIRETY. MORGAN STANLEY'S OPINION IS DIRECTED ONLY TO THE FAIRNESS OF THE
CONVERSION RATIO FROM A FINANCIAL POINT OF VIEW AND DOES NOT CONSTITUTE A
RECOMMENDATION TO ANY SHAREHOLDER OF ARROW AS TO HOW SUCH SHAREHOLDER SHOULD
VOTE AT THE ARROW SPECIAL MEETING. THE SUMMARY OF THE OPINION OF MORGAN STANLEY
DATED OCTOBER 24, 1994 SET FORTH BELOW IS QUALIFIED IN ITS ENTIRETY BY REFERENCE
TO THE FULL TEXT OF SUCH OPINION.
In rendering its opinions, Morgan Stanley, among other things: (i) analyzed
certain publicly available financial statements and other information of Anthem;
(ii) analyzed certain internal financial statements and other financial and
operating data concerning Anthem prepared by the management of Anthem; (iii)
analyzed certain financial projections prepared by the management of Anthem;
(iv) discussed the past and current operations and financial condition and the
prospects of Anthem with senior executives of Anthem; (v) analyzed certain
publicly available financial statements and other information concerning Arrow;
(vi) analyzed certain internal financial statements and other financial and
operating data concerning Arrow prepared by the management of Arrow; (vii)
analyzed certain financial projections prepared by the management of Arrow;
(viii) discussed the past and current operations and financial condition and the
prospects of Arrow with senior executives of Arrow, and analyzed the pro forma
impact of the Merger on Arrow's earnings per share and consolidated
capitalization; (ix) reviewed the reported prices and trading activity of the
Anthem Common Stock; (x) compared the financial performance of Anthem and the
prices and trading activity of the Anthem Common Stock with that of certain
other comparable publicly traded companies and their securities; (xi) reviewed
the reported prices and trading activity for the Arrow Common Stock; (xii)
compared the financial performance of Arrow and the prices and trading activity
of the Arrow Common Stock with that of certain other comparable publicly traded
companies and their securities; (xiii) reviewed the financial terms, to the
extent publicly available, of certain comparable acquisition transactions; (xiv)
reviewed and discussed with the senior management of Arrow the strategic
rationale for the Merger and the synergies and other benefits of the Merger to
Arrow; (xv) participated in discussions and negotiations among representatives
of Anthem and Arrow and their financial and legal advisors; (xvi) reviewed the
Merger Agreement dated September 21, 1994 and certain related documents; and
(xvii) performed such other analyses as it deemed appropriate.
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Morgan Stanley assumed and relied upon, without independent verification,
the accuracy and completeness of the information reviewed by it for the purpose
of rendering its opinion. With respect to the financial projections, Morgan
Stanley assumed that they were reasonably prepared on bases reflecting the best
currently available estimates and judgments of the future financial performance
of Anthem and Arrow. Morgan Stanley also relied upon, without independent
verification, estimates by the management of Arrow of the cost savings and other
synergies arising from the Merger. Morgan Stanley's opinion stated that it is
necessarily based on economic, market and other conditions as in effect on, and
the information made available to Morgan Stanley as of, the date of such
opinion.
The following is a brief summary of certain financial analyses performed by
Morgan Stanley in connection with the preparation of its opinion letter and its
presentation to the Arrow Board on September 20, 1994:
Comparative Stock Price Performance: As part of its analysis, Morgan
Stanley reviewed the stock market performance of Anthem and compared it to
Arrow's stock market performance. Morgan Stanley also reviewed the ratios of
Anthem's to Arrow's stock prices over various periods ending September 16, 1994
(the Friday trading date preceding the public announcement of the Merger
Agreement on September 21, 1994). The ratios of closing stock prices of Anthem
and Arrow for selected periods ending September 21, 1994 were: 0.719 for the
previous 12 months; 0.646 for the previous 6 months; 0.598 for the previous 2
months; 0.609 for the past 1 month; and 0.607 for September 16, 1994.
Peer Group Comparison: Morgan Stanley compared certain financial
information of Anthem with a group of several publicly traded companies in the
electronics distribution industry, including, but not limited to, Arrow, Avnet,
Inc., Bell Industries, Inc., Marshall Industries, and Pioneer-Standard
Electronics, Inc. Such financial information included, among other things,
market valuation, market value as a multiple of earnings, and aggregate value as
a multiple of revenue. In particular, such analysis showed that, as of September
16, 1994, based on closing prices for Arrow and Anthem, Anthem traded at 13.3
times forecasted earnings for calendar year 1994 and Arrow traded at 13.0 times
forecasted earnings for calendar year 1994 (in each case based on research
analysts' estimates). Based on closing prices as of September 16, 1994, Arrow
traded at 11.6 times forecasted earnings for calendar year 1995 (based on
research analysts' estimates) compared to multiples of 10.5 times for Anthem,
11.9 times for Avnet, Inc., 11.2 times for Bell Industries, Inc., 10.5 times for
Marshall Industries, and 10.2 times for Pioneer-Standard Electronics, Inc.
Contribution Analysis: Morgan Stanley analyzed the pro forma contribution
of each of Anthem and Arrow to the combined company if the Merger were to be
consummated. Such analysis was based on financial data provided by the
managements of Anthem and Arrow. Such analysis showed that, for the six months
ended June 30, 1994, Anthem would contribute approximately 15%, 13%, 12% and 16%
of the revenues, gross profit, EBIT (earnings before interest and taxes) and net
income of the combined company, respectively. For the calendar year 1993, such
analysis showed that Anthem would contribute approximately 17%, 10%, 17% and 21%
of the revenues, gross profit, EBIT and net income of the combined company,
respectively.
Analysis of Selected Precedent Transactions: Morgan Stanley examined
selected precedent transactions involving electronics distribution companies.
Such analysis resulted in a mean of 17 times the last twelve months' net income,
0.6 times the last twelve months' revenue and 12 times the last twelve months'
EBIT. In addition, Morgan Stanley analyzed other selected precedent transactions
in the technology industry. Such analysis resulted in a mean of a 44% premium
over the unaffected stock price.
Pro Forma Analysis of the Merger: Morgan Stanley analyzed certain pro
forma effects of the Merger on the earnings and capitalization of the combined
company. These analyses were based on certain forecasts provided by Arrow senior
management regarding the financial performance of Arrow and Anthem and research
analyst estimates regarding the financial performance of Arrow and Anthem. Based
on such analysis, Morgan Stanley computed the resulting dilution/pickup to
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Arrow's earnings per share estimates pursuant to the Merger after taking into
account various amounts of potential cost savings and other synergies and other
Merger effects that Arrow could achieve if the Merger were consummated and
before certain nonrecurring costs.
In connection with its opinion dated October 24, 1994, Morgan Stanley
confirmed the appropriateness of its reliance on the analyses discussed above
that were used to render its September 21, 1994 opinion by performing procedures
to update certain of such analyses and by reviewing the assumptions on which
such analyses were based and the factors considered in connection therewith.
The summary of the Morgan Stanley analyses set forth above does not purport
to be a complete description of the presentation by Morgan Stanley to the Arrow
Board. Morgan Stanley believes that its analyses and the summary set forth above
must be considered as a whole and that selecting portions of its analyses, or of
the above summary, could create an incomplete view of the process underlying the
analyses performed by Morgan Stanley in connection with the preparation of its
opinion letter. In performing its analyses, Morgan Stanley made numerous
assumptions with respect to industry performance, general business and economic
conditions and other matters, many of which are beyond the control of Arrow or
Anthem. The analyses performed by Morgan Stanley are not necessarily indicative
of actual values or actual future results, which may be significantly more or
less favorable than suggested by such analyses. In addition, analyses relating
to value of businesses do not purport to be appraisals or to reflect the prices
at which businesses actually may be sold.
Arrow retained Morgan Stanley based upon its experience and expertise.
Morgan Stanley is an internationally recognized investment banking and advisory
firm. Morgan Stanley, as part of its investment banking business, is regularly
engaged in the valuation of businesses and their securities in connection with
mergers and acquisitions, negotiated underwritings, competitive biddings,
secondary distributions of listed and unlisted securities, private placements
and valuations for corporate and other purposes. In the course of its various
business activities, Morgan Stanley may, from time to time, have a long or short
position in, and buy and sell, securities of Arrow and Anthem. Morgan Stanley
and its affiliates have provided financial advisory and financing services to
Arrow in the past and have received customary fees in connection with these
services.
Upon Arrow and Anthem reaching a transaction agreement, a fee of $750,000
became payable by Arrow to Morgan Stanley. Morgan Stanley will receive an
additional fee of $1,750,000 if the Merger is successfully consummated. Arrow
has also agreed to reimburse Morgan Stanley for its out-of-pocket expenses and
to indemnify Morgan Stanley and its affiliates, their respective directors,
officers, agents and employees and each person, if any, controlling Morgan
Stanley, or any of its affiliates against certain liabilities, including
liabilities under federal securities laws, and expenses, related to Morgan
Stanley's engagement.
Anthem Financial Advisor.
Anthem has engaged Lehman Brothers to act as its financial advisor in
connection with the Merger and to render its opinion as to the fairness, from a
financial point of view, to Anthem's stockholders of the Conversion Ratio to be
offered in the Merger.
On September 20, 1994, in connection with the evaluation of the Merger
Agreement by the Anthem Board, Lehman Brothers made a presentation to the Anthem
Board with respect to the Merger and on September 21, 1994 rendered a written
opinion dated September 21, 1994 that, as of the date of such opinion, and
subject to certain assumptions, factors and limitations set forth in such
written opinion as described below, the Conversion Ratio is fair, from a
financial point of view, to Anthem's stockholders. Such opinion is substantially
identical to the opinion dated October 24, 1994 attached as Exhibit B-2 to this
Joint Proxy Statement/Prospectus and incorporated by reference herein.
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The full text of the written opinion of Lehman Brothers dated October 24,
1994, which sets forth assumptions made, factors considered and limitations on
the review undertaken by Lehman Brothers, is set forth in Exhibit B-2 to this
Joint Proxy Statement/Prospectus. Anthem stockholders are urged to read such
opinion carefully in its entirety.
No limitations were imposed by Anthem on the scope of Lehman Brothers'
investigation or the procedures to be followed by Lehman Brothers in rendering
its opinions, except that Lehman Brothers was not authorized to solicit any
indications of interest from any third party with respect to the purchase of all
or a part of Anthem's business. Lehman Brothers was not requested to and did not
make any recommendation to the Anthem Board as to the form or amount of
consideration to be paid to Anthem stockholders in the Merger, which was
determined through arm's-length negotiations between Anthem and Arrow and their
advisors. In arriving at its opinion, Lehman Brothers did not ascribe a specific
range of value to Anthem, but made its determination as to fairness, from a
financial point of view, of the Conversion Ratio on the basis of the financial
and comparative analyses referenced below. Lehman Brothers' opinion is directed
solely to the Board of Directors of Anthem and does not constitute a
recommendation to any Anthem stockholder as to how such stockholder should vote
with respect to the Merger at the Anthem Special Meeting. Lehman Brothers was
not requested to opine as to, and its opinion does not in any manner address,
Anthem's underlying business decision to proceed with or effect the Merger.
In arriving at its opinion, Lehman Brothers reviewed and analyzed: (i) the
Merger Agreement and the Registration Statement relating to the Merger; (ii)
such publicly available information concerning Anthem and Arrow which it
believed to be relevant to its inquiry; (iii) financial and operating
information with respect to the business, operations and prospects of Anthem
furnished to it by Anthem; (iv) financial and operating information with respect
to the business, operations and prospects of Arrow furnished to it by Arrow; (v)
a trading history of the Anthem Common Stock and a comparison of that trading
history with those of other companies which it deemed relevant; (vi) a trading
history of the Arrow Common Stock and a comparison of that trading history with
those of other companies which it deemed relevant; (vii) a comparison of the
historical financial results and present financial condition of Anthem with
those of other companies which it deemed relevant; (viii) a comparison of the
historical financial results and present financial condition of Arrow with those
of other companies which it deemed relevant; (ix) a comparison of the financial
terms of the Merger with the financial terms of certain other recent
transactions which it deemed relevant; (x) the potential pro forma earnings per
share ("EPS") impact of the Merger on Anthem's earnings; and (xi) the potential
pro forma EPS impact of the Merger on Arrow's earnings. In addition, Lehman
Brothers had discussions with the managements of Anthem and Arrow concerning
their respective businesses, operations, assets, financial conditions and
prospects and the potential cost savings and other benefits resulting from a
combination of the businesses of Anthem and Arrow and undertook such other
studies, analyses and investigations as it deemed appropriate.
In connection with its review, Lehman Brothers assumed and relied upon the
accuracy and completeness of the financial and other information used by it in
arriving at its opinion without assuming any responsibility for independent
verification of such information and further relied upon the assurances of the
management of Anthem that they were not aware of any facts that would make such
information inaccurate or misleading. With respect to the financial projections
of Anthem and Arrow, upon advice of Anthem, Lehman Brothers assumed that such
projections were reasonably prepared on a basis reflecting the best currently
available estimates and judgments of the managements of Anthem and Arrow, as the
case may be, as to the future financial performance of Anthem and Arrow,
respectively, and Lehman Brothers relied on such projections in arriving at its
opinion. In arriving at its opinion, Lehman Brothers did not conduct a physical
inspection of the properties and facilities of Anthem or Arrow and did not make
nor obtain any evaluations or appraisals of the assets or liabilities of Anthem
or Arrow. In addition, Lehman Brothers was not authorized to solicit, and did
not solicit, any indications of interest from any third party with respect to
the purchase of all or a part of Anthem's business. Upon advice of Anthem and
its legal and
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accounting advisors, Lehman Brothers assumed that the Merger will qualify (i)
for pooling-of-interests accounting treatment and (ii) as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended, and therefore as a tax-free transaction to the stockholders of Anthem.
Lehman Brothers' opinion was necessarily based upon market, economic and other
conditions as they existed on, and could be evaluated as of, the date of its
opinion.
In connection with preparing its presentation to the Anthem Board on
September 20, 1994 and its written opinions on September 21, 1994 and October
24, 1994, Lehman Brothers performed a variety of financial and comparative
analyses which are summarized below. The preparation of a fairness opinion
involves various determinations as to the most appropriate and relevant methods
of financial analysis and application of those methods to the particular
circumstances, and therefore such an opinion is not readily susceptible to
summary description. Furthermore, in arriving at its fairness opinion, Lehman
Brothers did not attribute any particular weight to any analysis or factor
considered by it, but rather made qualitative judgments as to the significance
and relevance of each analysis and factor. Accordingly, Lehman Brothers believes
that its analyses must be considered as a whole and that considering any
portions of such analyses and factors, without considering all analyses and
factors, could create a misleading or incomplete view of the process underlying
the opinion. In its analyses, Lehman Brothers made numerous assumptions with
respect to industry performance, general business and economic conditions and
other matters, many of which are beyond the control of Anthem and Arrow. Any
estimates contained in these analyses are not necessarily indicative of actual
values or predictive of future results or values, which may be significantly
more or less favorable than as set forth therein. In addition, analyses relating
to the value of businesses do not purport to be appraisals or to necessarily
reflect the prices at which businesses actually may be sold.
Purchase Price and Conversion Ratio Analysis. Based on closing prices for
Anthem and Arrow common stock on September 19, 1994 (the last trading day before
the date of the presentation made by Lehman Brothers to the Anthem Board) of
$24.50 and $39.75 per share, respectively, the Conversion Ratio values Anthem
Common Stock at $34.78 per share, which represented a premium of 42.0% over the
September 19, 1994 closing price of Anthem Common Stock. At the 0.875 Conversion
Ratio, Anthem stockholders would own approximately 21.9% of Arrow on a pro forma
fully diluted basis.
Analysis of Selected Publicly Traded Comparable Companies. Using publicly
available information and information provided by the managements of Anthem and
Arrow, Lehman Brothers compared selected financial data of Anthem with similar
data of selected publicly traded companies engaged in businesses considered by
Lehman Brothers to be comparable to those of Anthem. Specifically, Lehman
Brothers considered Anthem, Arrow, Avnet, Inc., Bell Industries, Inc., Marshall
Industries, Pioneer-Standard Electronics, Inc. and Wyle Laboratories. Lehman
Brothers calculated, among other things, total equity value as a multiple of
book value, last twelve months ("LTM") EPS, estimated 1994 EPS and estimated
1995 EPS and total equity value plus net debt as a multiple of LTM revenues and
earnings before interest and taxes ("EBIT") for each of Anthem, Arrow and such
comparable companies. Estimated 1994 and 1995 EPS for all companies except
Anthem and Arrow was based on Institutional Brokers Estimate Service ("IBES")
median estimates and for Anthem and Arrow was based on IBES estimates and
projections provided by the managements of Anthem and Arrow. On the basis of
these calculations, Lehman Brothers observed that such multiples for Anthem,
based on a $34.78 value of the Conversion Ratio, represented a 24.8% to 48.1%
premium to the median P/E ratios, and a 14.3% to 38.5% premium to the median
multiples of revenues and EBIT. However, because of the inherent differences
between the business, operations and prospects of Anthem, Arrow and the
comparable companies, Lehman Brothers believed that an appropriate use of a
comparable company analysis in this instance would involve both quantitative
analysis and qualitative judgments concerning differences between the financial
and operating characteristics of Anthem, Arrow and the comparable companies
which would affect the public trading values of Anthem, Arrow and such
comparable companies.
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Analysis of Selected Comparable Transactions. Using publicly available
information, Lehman Brothers compared selected financial data (including equity
value as a multiple of book value and LTM EPS and total equity value plus net
debt as a multiple of LTM revenues and EBIT) for Anthem, based on a $34.78 value
of the Conversion Ratio, with similar data for selected transactions in the
electronics distribution industry. These transactions were announced between
August 1986 and June 1994 and included the acquisition of Gates by Arrow, the
acquisition of a minority position in Sonepar Electronique International by
Marshall Industries, the acquisition of Zentronics by Pioneer-Standard
Electronics, the acquisition of the passives distribution business of Richey
Electronics by Brajada Cypress Electronics, the acquisition of Multicomponents
by Farnell Electronics plc, the acquisition of Vantage Components Inc. by Bell
Microproducts Inc., the acquisition of the Franchise and Distribution Division
of ComputerLand Corp. by Merisel Inc., the acquisition of Hall-Mark Electronics
by Avnet, the acquisition of Zeus Components Inc. by Arrow, the acquisition of
Lex Service PLC's electronics distribution companies in the United Kingdom,
France and Germany by Arrow, the acquisition of Lex Service's North American
electronics distribution business by Arrow, the acquisition of FHTech Components
by Avnet, the acquisition of The Access Group, UK by Avnet, the acquisition of
Microamerica by Softsel, the acquisition of three operating units of Ducommun
Inc. by Arrow and the acquisition of Lionex Corp. by Anthem.
Lehman Brothers observed that, based on a $34.78 value, the Conversion
Ratio represented a multiple of LTM EPS and revenues above the median of the
comparable transactions and a multiple of book value and EBIT somewhat below the
median of the comparable transactions. Lehman Brothers observed that a
comparison of the multiples of LTM EPS and EBIT and book value for the Merger to
the comparable transactions is somewhat misleading due to the fact that many of
the comparable transactions involved companies with weak capital structures
and/or depressed levels of profitability, resulting in abnormally high
multiples. Lehman Brothers observed that the two most comparable transactions
were the acquisition of Gates by Arrow and the acquisition of Hall-Mark by
Avnet. Lehman Brothers observed that, based on a $34.78 value, the Conversion
Ratio represented a multiple of LTM EPS and revenues above those of the Gates
acquisition and a multiple of book value and EBIT somewhat below those of the
Gates acquisition. Lehman Brothers observed that, based on a $34.78 value, the
Conversion Ratio represented a multiple of LTM EPS above that of the Hall-Mark
acquisition and a multiple of book value and LTM revenues and EBIT somewhat
below those of the Hall-Mark acquisition. Lehman Brothers further observed that
the Gates acquisition incorporated a premium of 25.0% to Gates' stock price one
day prior to the announcement of the acquisition and that the Hall-Mark
acquisition incorporated a premium of 41.5% to Hall-Mark's price one day prior
to the announcement of the acquisition. However, because the reasons for and the
circumstances surrounding each of the transactions analyzed were specific to
each transaction and because of the inherent differences between the business,
operations and prospects of Anthem, Arrow and the acquired companies in such
transactions, Lehman Brothers believed that an appropriate use of a comparable
transaction analysis in this instance also would involve qualitative judgments
concerning differences between the characteristics of the Merger and these
transactions which would affect the acquisition value of Anthem and the acquired
companies in such transactions.
Contribution Analysis. Lehman Brothers analyzed the contribution of each
of Anthem and Arrow to revenues and operating income of the combined entity for
1990 through 1995 based on the projections for Anthem and Arrow provided by the
managements of Anthem and Arrow. This analysis did not incorporate any cost
savings or synergies associated with the Merger. This analysis indicated that on
a revenue basis Anthem and Arrow would have contributed respectively, 29.6% and
70.4% in 1990, 25.3% and 74.7% in 1991, 22.2% and 77.8% in 1992, 18.6% and 81.4%
in 1993 and a projected range of approximately 15.0% to 17.0% and 83.0% to 85.0%
in 1994 and 1995 for the combined entity. This analysis indicated that on an
operating income basis Anthem and Arrow would have contributed respectively,
54.6% and 45.4% in 1990, 44.2% and 55.8% in 1991, 31.4% and 68.6% in 1992, 16.5%
and 83.5% in 1993 and a projected range of approximately 13.0% to 17.0% and
83.0% to 87.0% in 1994 and 1995 for the combined entity. Lehman Brothers
compared the approximately
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21.9% pro forma ownership of Anthem stockholders and 78.1% ownership of Arrow
shareholders of the combined entity with the revenues and operating income
contributions set forth above.
Discounted Cash Flow Analysis. Lehman Brothers calculated the present
value of the future streams of after-tax cash flows that Anthem and Arrow could
be expected to produce over a four year period. The analysis utilized financial
and operating information relating to the business, operations and prospects of
Anthem and Arrow provided by Anthem and Arrow managements and relied on certain
assumptions with respect to Anthem's and Arrow's future business and operations.
After-tax cash flows were calculated as the unlevered after-tax earnings plus
amortization and depreciation less net changes in non-cash working capital and
capital expenditures. Lehman Brothers calculated terminal values for Anthem and
Arrow in 1998 by applying to projected EBIT a range of multiples of 6x to 8x.
Lehman Brothers' determination of the appropriate range of multiples was based
on an assessment of current trading multiples of the comparable companies and on
Lehman Brothers' general experience in valuations of companies. The cash flow
streams and terminal values were then discounted to present values using a range
of discount rates of 13%-16%, which were chosen based on several assumptions
regarding factors such as inflation rate, interest rates, the inherent business
risk in Anthem's and Arrow's businesses as well as the electronics distribution
industry as a whole, and the cost of capital of Anthem and Arrow.
Pro Forma Merger Analysis. Lehman Brothers analyzed the pro forma EPS
dilution effects of the Merger to Arrow for 1994 through 1997. This analysis was
based on the projections underlying the discounted cash flow analysis for Anthem
and Arrow described above and incorporated the estimates of potential cost
savings resulting from the Merger provided by the managements of Anthem and
Arrow. Lehman Brothers calculated the EPS for the combined company for 1994 (not
incorporating the estimated potential cost savings) and 1994, 1995 and 1997
(incorporating the estimated potential cost savings) which indicated that the
Merger would be dilutive to Arrow's stand-alone EPS, as estimated by Arrow's
management, in 1994 and accretive in 1995, 1996 and 1997.
Analysis of Historical Stock Price Performance of Anthem. Lehman Brothers
reviewed various historical data concerning the history of the trading price of
Anthem Common Stock and the relative price performance of Anthem Common Stock
and an index of publicly traded electronics distributors. Lehman Brothers also
compared Anthem's common stock price based on the Conversion Ratio of $34.78 per
share and an implied LTM P/E multiple based thereon of 20.0x to Anthem's common
stock price on September 19, 1994 of $24.50 and a LTM P/E multiple of 14.1x and
a last five years historical average LTM P/E multiple of 15.3x.
Lehman Brothers is an internationally recognized investment banking firm
and, as part of its investment banking activities, is regularly engaged in the
evaluation of businesses and their securities in connection with mergers and
acquisitions, negotiated underwritings, competitive bids, secondary
distributions of listed and unlisted securities, private placements, and
valuations for corporate and other purposes. The Anthem Board selected Lehman
Brothers because of its expertise, reputation and familiarity with Anthem and
the electronics distribution industry in general.
Pursuant to an engagement letter between Anthem and Lehman Brothers, Anthem
has agreed to pay Lehman Brothers a fee of $1,200,000 for acting as financial
advisor in connection with the Merger, including rendering its opinion. Of such
fee, $600,000 is payable upon delivery of the written opinion, with the
remainder to become payable upon consummation of the Merger. Anthem also has
agreed to reimburse Lehman Brothers for reasonable expenses incurred by Lehman
Brothers and to indemnify Lehman Brothers for certain liabilities that may arise
out of the rendering of this opinion. Lehman Brothers has performed various
investment banking services for Anthem in the past and has received customary
fees for such services. In the ordinary course of its business, Lehman Brothers
actively trades in the securities of Anthem and Arrow for its own account and
for the accounts of its customers and, accordingly, may at any time hold a long
or short position in such securities.
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INTERESTS OF CERTAIN PERSONS IN THE MERGER
Anthem Stock Options. The Anthem Board has granted Anthem Stock Options
pursuant to Anthem's Incentive Stock Option Plan and Anthem's Non-Qualified
Stock Option Plan (such plans, collectively, the "Anthem Stock Plans"). The
Anthem Stock Options will continue in effect in accordance with their terms
until the Effective Time.
At the Effective Time, each outstanding Anthem Stock Option to purchase
shares of Anthem Common Stock issued under the Anthem Stock Plans will be
assumed by Arrow and thereafter will be deemed to constitute an Arrow Stock
Option to acquire, on the same terms and conditions as were applicable under
such Anthem Stock Option, such number of shares of Arrow Common Stock as the
holder of such Anthem Stock Option would have been entitled to receive pursuant
to the Merger had such holder exercised such Anthem Stock Option in full
immediately prior to the Effective Time (whether or not then exercisable), at a
price per share equal to (x) the exercise price for the shares of Anthem Common
Stock otherwise purchasable pursuant to such Anthem Stock Option divided by (y)
the Conversion Ratio.
However, certain of the Anthem Stock Options to be assumed by Arrow provide
for full and immediate vesting in the event the optionee's employment should be
terminated involuntarily after an acquisition of Anthem by a merger which does
not otherwise trigger the vesting of those options, such as the Merger. For
purposes of these special options, an involuntary termination of employment will
be deemed to occur in the event of the optionee's dismissal or discharge other
than for misconduct or such individual's resignation following (A) a material
reduction in responsibilities, (B) a reduction in compensation or (C) a
relocation of employment by more than 50 miles.
The number of option shares subject to such accelerated vesting is as
follows for each of the five most highly compensated executive officers of
Anthem: Mr. Throop, 47,040 shares; Mr. Powers, 25,800 shares; Mr. Esto, 15,800
shares; Mr. Dusa, 0 shares; and Mr. Gannaway, 1,500 shares.
Indemnification and Insurance. From and after the Effective Time, Arrow
and the Surviving Corporation shall indemnify the present and former officers
and directors of Anthem against certain liabilities arising out of or pertaining
to the transactions contemplated by the Merger Agreement. From and after the
Effective Time, Arrow and the Surviving Corporation shall also use their best
efforts to maintain in effect for two years Anthem's current policies for
director's and officer's liability insurance, or policies substantially
equivalent to the policies then maintained by Arrow with respect to its
directors and officers. As of the Effective Time, Arrow and the Surviving
Corporation shall also assume all obligations of Anthem to its officers,
directors or employees under any indemnification agreement in effect on
September 21, 1994 to which Anthem is a party. See "THE MERGER
AGREEMENT -- Indemnification and Insurance."
Employment Agreements. Arrow has entered into an employment agreement with
Robert S. Throop, Anthem's Chairman and Chief Executive Officer, having a term
of seven years and with John J. Powers, III, the President of Anthem's
Distribution Business Unit, and Marvin Wenger, Anthem's Senior Vice President of
Sales, each having a term of two years (subject to automatic renewal from year
to year unless Arrow or the executive elect not to renew), and all of which will
become effective upon the consummation of the Merger. Arrow's agreement with Mr.
Throop provides for annual base compensation through December 31, 1996 in the
amount of $500,000, and for the remaining term of the agreement in the amount of
$225,000. Arrow's agreements with Mr. Powers and Mr. Wenger provide for annual
base compensation in the amounts of $300,000 and $235,000, respectively. Each of
Mr. Throop, Mr. Powers and Mr. Wenger are entitled to participate in Arrow's
management incentive program with eligibility for incentive pay up to 200% of
the targeted incentive, which for 1995 will be $125,000, $100,000 and $90,000,
respectively, each with a guaranteed minimum of 75% of the target. Messrs.
Throop, Powers and Wenger are also entitled to receive annual bonuses based upon
the achievement of specified goals, and to participate in the other long-term
incentive programs of Arrow.
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Election of Arrow Director. Under the Merger Agreement, Arrow has agreed
to take such actions as are necessary or appropriate to cause Mr. Throop to be
nominated for election to the Arrow Board at its first meeting after the
Effective Time.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
Set forth below is a discussion of certain federal income tax consequences
of the Merger to holders of Anthem Common Stock under the Internal Revenue Code
of 1986, as amended (the "Code"). The discussion does not deal with (i) all
federal income tax considerations of the Merger; (ii) all of the tax
considerations that may be relevant to particular Anthem stockholders, such as
stockholders who are dealers in securities, foreign persons, tax-exempt entities
or stockholders who received their stock in Anthem in connection with stock
option or stock purchase plans or in other compensatory transactions; (iii) the
impact of the alternative minimum tax; or (iv) tax consequences to holders of
options to purchase stock of Anthem. In addition, the discussion does not
address any state, local or foreign tax considerations, nor does it address any
federal estate, gift, employment, excise or other non-income tax consideration.
The following discussion is based upon provisions of the Code, regulations,
administrative rulings and judicial decisions presently in effect, all of which
are subject to change (possibly with retroactive effect) or to different
interpretations. ALL ANTHEM STOCKHOLDERS ARE URGED TO CONSULT THEIR OWN TAX
ADVISORS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE MERGER, INCLUDING
THE APPLICABILITY OF FEDERAL, STATE, LOCAL AND FOREIGN TAX LAWS.
Subject to the limitations and qualifications described herein and in the
tax opinions of Winthrop Stimson and Brobeck Phleger referenced below, the
following tax consequences will result:
(i) the Merger will constitute a reorganization within the meaning of
Section 368(a) of the Code, and Arrow, Anthem and Sub will each be a party
to the reorganization within the meaning of Section 368(b) of the Code;
(ii) no gain or loss will be recognized by Arrow, Anthem or Sub in the
Merger;
(iii) no gain or loss will be recognized by the stockholders of Anthem
upon their receipt of Arrow Common Stock in exchange for their Anthem
Common Stock, except that stockholders who receive cash in lieu of
fractional interests in Arrow Common Stock will recognize gain or loss
equal to the difference between such cash proceeds and the tax basis
allocated to their fractional share interests, and such gain or loss will
constitute capital gain or loss if their Anthem Common Stock is held as a
capital asset at the Effective Time;
(iv) the tax basis of the shares of Arrow Common Stock (including
fractional share interests) received by the stockholders of Anthem will be
the same as the tax basis of their Anthem Common Stock exchanged therefor;
and
(v) the holding period of Arrow Common Stock in the hands of Anthem
stockholders will include the holding period of their Anthem Common Stock
exchanged therefor, provided such Anthem Common Stock is held as a capital
asset at the Effective Time.
Qualification of the Merger as a "reorganization" and the other tax
consequences set forth above are based on certain assumptions and qualifications
including, among other things, the assumption that the Merger satisfies the
"continuity of interest" requirement. In order for this requirement to be met,
Anthem stockholders must not, pursuant to a plan or intent existing at or prior
to the time of the Merger, dispose of or transfer so much of either (i) their
Anthem Common Stock in anticipation of the Merger or (ii) the Arrow Common Stock
received in the Merger (collectively, "Planned Dispositions") such that Anthem
stockholders as a group would no longer have a meaningful equity interest in the
Anthem business being conducted by Arrow after the Merger. Anthem stockholders
will generally be regarded as having a meaningful equity interest as long as the
Arrow Common Stock received in the Merger (after taking into account Planned
Dispositions), in the aggregate, represents a "substantial portion" of the
entire consideration
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received by the Anthem stockholders in the Merger. The law is unclear as to what
constitutes a meaningful equity interest or a "substantial portion." The
Internal Revenue Service ("IRS") ruling guidelines require that the Arrow Common
Stock received in the Merger, after excluding all shares subject to a Planned
Disposition, equal at least 50% of the total consideration received in the
Merger for the Anthem Common Stock. Such guidelines, however, do not purport to
represent the applicable substantive law. If the "continuity of interest"
requirement were not satisfied, the Merger would not be treated as a
"reorganization."
No ruling from the IRS has been or will be sought with respect to any of
the tax matters discussed herein. As a condition to the consummation of the
Merger, Arrow will receive an opinion from Winthrop Stimson, and Anthem will
receive an opinion from Brobeck Phleger, to the effect that the tax consequences
outlined above will obtain with respect to the Merger. Such tax opinions will be
subject to certain assumptions and qualifications and will be based on various
representations of Arrow, Sub and Anthem. An opinion of counsel, unlike a
ruling, will neither be binding on the IRS nor preclude it from adopting a
contrary position.
A successful IRS challenge to the "reorganization" status of the Merger (as
a result of a failure to satisfy the "continuity of interest" requirement or
otherwise) would result in an Anthem stockholder recognizing gain or loss with
respect to each share of Anthem Common Stock surrendered equal to the difference
between the fair market value, as of the Effective Time of the Merger, of the
Arrow Common Stock received in exchange therefor and the stockholder's basis in
such Anthem Common Stock. In such event, an Anthem stockholder's aggregate basis
in the shares of Arrow Common Stock received in the exchange would equal the
fair market value of such shares, and the stockholder's holding period for such
Arrow Common Stock would not include the period during which the shares of
Anthem Common Stock had been held.
Consummation of the Merger is conditioned upon the opinions described above
by Winthrop Stimson to Arrow and by Brobeck Phleger to Anthem not being
withdrawn or modified in any material respect prior to the Effective Time.
ACCOUNTING TREATMENT
The Merger is designed to qualify as a "pooling-of-interests" for
accounting and financial reporting purposes. Under this method of accounting,
the recorded assets and liabilities of Arrow and Anthem will be carried forward
to the combined corporation at their recorded amounts; income of the combined
corporation will include income of Arrow and Anthem for the entire fiscal year
in which the Merger occurs; and the reported income of the separate corporations
for prior periods will be combined and restated as income of the combined
corporation. The obligations of the parties to the Merger Agreement to
consummate the Merger are subject to the receipt from Ernst & Young LLP, the
independent auditors for Arrow, and from Price Waterhouse LLP, the independent
accountants for Anthem, of their respective letters that the Merger will qualify
as a "pooling-of-interests." See "THE MERGER AGREEMENT -- Conditions."
REGULATORY FILINGS AND APPROVALS
The Merger is subject to the requirements of the HSR Act and the rules and
regulations thereunder, which provide that certain transactions may not be
consummated until required information and material have been furnished to the
Antitrust Division of the Department of Justice (the "Antitrust Division") and
the Federal Trade Commission (the "FTC") and certain waiting periods have
expired or been terminated. Arrow and Anthem filed the required information and
material with the Antitrust Division and FTC on September 22, 1994 and the
relevant waiting period under the HSR Act was terminated on October 5, 1994. The
requirements of the HSR Act are satisfied for one year following expiration of
the waiting period. If the Merger is not consummated by the end of this one
year-period, Arrow and Anthem will be required to refile under the HSR Act. The
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expiration of the waiting period does not preclude the Antitrust Division or FTC
from challenging the Merger on antitrust grounds.
Neither Arrow nor Anthem is aware of any other regulatory approvals
required to consummate the Merger.
RESTRICTIONS ON SALES BY AFFILIATES
The shares of Arrow Common Stock to be issued in the Merger will have been
registered under the Securities Act. Such shares will be freely transferable
under the Securities Act, except for shares issued to any person who may be
deemed to be an affiliate (as such term is defined for purposes of Rule 145
under the Securities Act, an "Affiliate") of Anthem. Affiliates may not sell
their shares of Arrow Common Stock acquired in connection with the Merger except
pursuant to (i) an effective registration statement under the Securities Act
covering such shares; (ii) paragraph (d) of Rule 145; or (iii) any other
applicable exemption under the Securities Act. SEC guidelines indicate further
that the "pooling-of-interests" method of accounting will generally not be
challenged on the basis of sales by Affiliates of the acquiring or acquired
company if they do not dispose of any of the shares of the corporation they own
or shares of a corporation they receive in connection with a merger during the
period beginning 30 days before the merger and ending when financial results
covering at least 30 days of post-merger operations of the combined entity have
been published. Anthem has agreed to use its best efforts to procure written
agreements ("Affiliate Agreements") from directors and other Affiliates of
Anthem containing appropriate representations and commitments intended to ensure
compliance with the Securities Act and preserve the ability to treat the Merger
as a "pooling-of-interests."
LISTING ON STOCK EXCHANGE
Arrow has agreed to use its best efforts to list the shares of Arrow Common
Stock to be issued in the Merger on the NYSE. The obligations of the parties to
the Merger Agreement to consummate the Merger are subject to the approval of
such listing by the NYSE. See "THE MERGER AGREEMENT -- Conditions".
NO DISSENTERS' RIGHTS
Holders of Anthem Common Stock are not entitled to dissenters' rights under
the DGCL in connection with the Merger.
Holders of Arrow Common Stock are not entitled to dissenters' rights under
the NYBCL in connection with the Merger.
THE MERGER AGREEMENT
Set forth below is a description of certain of the terms and conditions of
the Merger Agreement. The descriptions of the terms and conditions of the Merger
Agreement set forth in this Joint Proxy Statement/Prospectus are qualified in
their entirety by the complete texts thereof set forth in Exhibit A hereto (and
the exhibits thereto) and the texts thereof are incorporated by reference
herein.
THE MERGER
At the Effective Time of the Merger, Sub will be merged with and into
Anthem, which will be the Surviving Corporation, and Anthem will thereby become
a wholly owned subsidiary of Arrow.
At the Effective Time of the Merger,
(i) each then outstanding share of Anthem Common Stock (other than
shares held in the treasury of Anthem and shares held by Arrow, Sub, or any
wholly owned subsidiary of Arrow, which shares will be canceled) will be
converted into the right to receive .875 (the "Conversion Ratio") shares of
Arrow Common Stock; provided, however, that (i) if the average closing
price
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on the NYSE of one share of Arrow Common Stock over the twenty day trading
period ending on (and including) the trading day immediately preceding the
two trading days before the closing date for the Merger (the "Arrow Stock
Price") is not greater than $41.625 and not less than $37.625, there shall
be no adjustment to the Conversion Ratio, (ii) if the Arrow Stock Price is
greater than $41.625, the Conversion Ratio shall be adjusted to equal the
product of (x) .875 and (y) a fraction the numerator of which is equal to
the sum of (1) $41.625 and (2) one-half ( 1/2) of the difference between
the Arrow Stock Price and $41.625 and the denominator of which is the Arrow
Stock Price and (iii) if the Arrow Stock Price is less than $37.625, the
Conversion Ratio shall be adjusted to equal the product of (x) .875 and (y)
a fraction the numerator of which is equal to the sum of (1) the Arrow
Stock Price and (2) one-half ( 1/2) of the difference between $37.625 and
the Arrow Stock Price and the denominator of which is the Arrow Stock
Price;
(ii) each then outstanding share of Sub common stock will be converted
into one share of common stock of the Surviving Corporation; and
(iii) each Anthem Stock Option outstanding under the Anthem Stock
Plans will be assumed by Arrow and will become exercisable for that number
of shares of Arrow Common Stock determined by multiplying the number of
shares of Anthem Common Stock subject to the Anthem Stock Option
immediately prior to the Merger by the Conversion Ratio; and the exercise
price per share payable for the Arrow Common Stock subject to the assumed
option will be determined by dividing the exercise price of the Anthem
Common Stock in effect under the Anthem Stock Option immediately before the
Merger by the Conversion Ratio.
Notwithstanding the foregoing, no fractional shares of Arrow Common Stock
will be issued to the holders of Anthem Common Stock in the Merger and holders
of Anthem Common Stock converted as described in paragraph (i) above will be
entitled to a cash payment in lieu of fractional shares of Arrow Common Stock as
described below under "-- No Fractional Shares."
A description of the relative rights, privileges and preferences of the
Arrow Common Stock to be issued to Anthem stockholders in the Merger is set
forth below under "COMPARISON OF RIGHTS OF HOLDERS OF ANTHEM COMMON STOCK AND
ARROW COMMON STOCK."
CLOSING; EFFECTIVE TIME
The closing (the "Closing", and the date of which is the "Closing Date") of
the transactions contemplated by the Merger Agreement will take place no later
than the third business day following the satisfaction or waiver of the
conditions provided by the Merger Agreement, or at such other time as Arrow and
Anthem shall mutually agree.
The Effective Time will occur at such time as a copy of the Certificate of
Merger as required under the DGCL is filed by the Secretary of State of
Delaware, or at such later time as is provided in the Certificate of Merger.
Delivery for such filing will be made as soon as practicable after the Closing.
EXCHANGE OF STOCK CERTIFICATES
From and after the Effective Time, each holder of an outstanding
certificate which immediately prior to the Effective Time represented shares of
Anthem Common Stock (each such Anthem stock certificate is hereinafter referred
to as a "Certificate" and collectively as "Certificates") will be entitled to
receive in exchange therefor, upon surrender thereof to Chemical Bank (or such
other exchange agent selected by Arrow and reasonably acceptable to Anthem) (the
"Exchange Agent"), a certificate or certificates representing the number of
whole shares of Arrow Common Stock into which such holder's shares were
converted pursuant to the Merger Agreement and, in respect of any fractional
share of Arrow Common Stock to which such holder would otherwise be entitled, a
cash payment in accordance with the Merger Agreement as described below under
"-- No Fractional Shares."
No holder of a Certificate will be entitled to receive any dividend or
payment for any fractional share from Arrow until surrender of such holder's
Certificate for a certificate or certificates
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representing shares of Arrow Common Stock in accordance with the Merger
Agreement. Upon surrender of their Certificates, holders of such Certificates
will be paid the amount of any dividends or distributions (without interest)
which theretofore became payable, but which were not paid by reason of the
foregoing, with respect to the number of whole shares of Arrow Common Stock
represented by the certificate or certificates issued upon such surrender.
After the Effective Time, each Certificate, until surrendered and
exchanged, will be deemed, for all purposes, to evidence only the right to
receive the number of shares of Arrow Common Stock which the holder of such
Certificate is entitled to receive pursuant to the Merger and the right to
receive any cash payment in lieu of fractional shares of Arrow Common Stock. All
shares of Arrow Common Stock issued upon the surrender for exchange of shares of
Anthem Common Stock (and cash paid in lieu of fractional shares) shall be deemed
to have been issued in full satisfaction of all rights pertaining to such shares
of Arrow Common Stock, subject to the payment of any dividends or distributions
which were payable with respect to such shares but were not paid prior to
surrender of Certificates.
If any certificate for shares of Arrow Common Stock is to be issued in a
name other than that in which the Certificate for shares surrendered in exchange
therefor is registered, it will be a condition of such exchange that the person
requesting such exchange provide to the Exchange Agent all documents required to
evidence and effect such transfer and to evidence that any transfer or other
taxes required by reason of the issuance of certificates in a name other than
that of the registered holder of the Certificate surrendered have been paid or
are not applicable.
As soon as practicable after the Effective Time, the Exchange Agent will
mail to each holder of record of a Certificate or Certificates 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 actual delivery of the
Certificates to the Exchange Agent) and instructions for use in effecting the
surrender of the Certificates in exchange for certificates representing shares
of Arrow Common Stock. Stockholders of Anthem should not submit their
Certificates for exchange until such letter of transmittal and instructions are
received. Upon surrender of Certificates for cancellation to the Exchange Agent,
together with a duly executed letter of transmittal, the holder of such
Certificates will be entitled to receive in exchange therefor a certificate
representing that number of whole shares of Arrow Common Stock into which the
shares represented by the Certificates surrendered have been converted pursuant
to the Merger Agreement, plus cash in lieu of fractional shares as described
below under "-- No Fractional Shares," and the Certificates so surrendered will
be canceled. ANTHEM STOCKHOLDERS SHOULD NOT SEND IN THEIR CERTIFICATES UNTIL
THEY RECEIVE A LETTER OF TRANSMITTAL.
Neither the Exchange Agent nor any party to the Merger Agreement will be
liable to any holder of Anthem Common Stock for any shares of Arrow Common
Stock, or dividends or distributions thereon, or proceeds from the sale of
fractional interests, delivered to a public official pursuant to applicable
escheat laws.
NO FRACTIONAL SHARES
No certificates or scrip for fractional shares of Arrow Common Stock will
be issued upon the surrender for exchange of Certificates in the Merger, and
such fractional interests will not entitle the owner thereof to vote or to any
other rights of a security holder. In lieu of any such fractional shares, each
holder of Anthem Common Stock who would otherwise have been entitled to a
fraction of a share of Arrow Common Stock upon surrender of Certificates for
exchange will be entitled to receive from the Exchange Agent a cash payment
equal to such fraction multiplied by the Arrow Stock Price.
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REPRESENTATIONS AND WARRANTIES
The Merger Agreement contains various representations and warranties of the
parties thereto, including representations and warranties of Anthem that, among
other things, (i) it is duly incorporated, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and that it has the
power and authority to own, lease and operate its assets and to carry on its
business as currently being conducted; (ii) it is authorized to enter into the
Merger Agreement and, subject to required stockholder approval, to consummate
the transactions contemplated thereby; (iii) the Merger Agreement has been duly
executed and delivered by Anthem and (assuming due execution and delivery by
Arrow and Sub) constitutes a valid and binding obligation of Anthem enforceable
in accordance with its terms, except as enforcement may be limited by bankruptcy
or other similar laws affecting the enforcement of creditors' rights generally,
and except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought, and except as indemnification may be limited
by public policy; (iv) it has no subsidiaries or, except as disclosed to Arrow,
any other interests exceeding a specified value in any person; (v) it does not
have any outstanding capital stock or rights to buy capital stock except as
disclosed to Arrow, and its capital stock is validly issued, fully paid and
non-assessable and free of pre-emptive rights; (vi) except as disclosed to
Arrow, the execution and delivery of the Merger Agreement and the consummation
of the transactions contemplated thereby will neither violate any debt
instrument or certain other contracts or agreements by which it is bound, nor
violate Anthem's Certificate of Incorporation, as amended (the "Anthem
Certificate of Incorporation") or By-laws, any applicable law or regulation or
any judgment or order, except for certain municipal laws and permits where the
effect would not have a Material Adverse Effect on Anthem; (vii) except as
disclosed to Arrow and except for certain local consents and approvals which, if
not obtained, would not have a Material Adverse Effect on Anthem or impair the
transactions contemplated by the Merger Agreement, no governmental or third
party consents or approvals are required to consummate the transactions
contemplated by the Merger Agreement; (viii) except as disclosed to Arrow, its
filings with the SEC, as required, have been made and, as of their respective
dates, were materially accurate, and its financial statements contained in such
filings were prepared in accordance with generally accepted accounting
principles and fairly present its financial position as at the dates thereof;
(ix) since June 30, 1994, it has not incurred, nor had at such date, certain
undisclosed liabilities; (x) its inventory conforms to certain specifications
and satisfies certain other requirements; (xi) its accounts receivable, as
disclosed to Arrow, represent valid claims of Anthem against debtors and satisfy
certain other requirements; (xii) its real and personal property (including
intellectual property) conforms to certain specifications; (xiii) it has made
all requisite tax filings and payments with respect to certain taxes and certain
other tax matters; (xiv) it has met its obligations under existing employee
benefit plans and has complied with certain provisions of ERISA in all material
respects; (xv) it has not, since June 30, 1994, experienced any events, changes
or occurrences which have had or are likely to have a Material Adverse Effect on
Anthem; (xvi) it has, since June 30, 1994, conducted its business only in the
ordinary course and has not taken or experienced certain specified actions or
events (including, among other things, the incurrence of certain indebtedness,
the creation of certain liens, the acquisition or disposition of certain assets,
the redemption or reclassification of its capital stock or the payment of any
dividend thereon, the increase of certain compensation and the change of certain
tax matters); (xvii) it is not subject to any litigation or other proceedings
that could have a Material Adverse Effect on Anthem, except as disclosed in its
filings with the SEC, and to its knowledge there are no facts that could form a
basis for a proceeding that could have a Material Adverse Effect on Anthem;
(xviii) to its knowledge, except as disclosed to Arrow, it has complied with
applicable laws, including environmental laws, except where the failure to have
complied is not likely to have a Material Adverse Effect on Anthem, is not in
default under the Anthem Certificate of Incorporation, By-laws or any contracts
or agreements, and has obtained all permits and licenses required for its
business; (xix) its insurance conforms to certain specifications; (xx) its
dealings with affiliates have been disclosed to Arrow and were entered into on
commercially reasonable
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terms; (xxi) its customers and suppliers have not taken certain actions; (xxii)
it has not made certain specified payments; (xxiii) the information provided by
Anthem for the Registration Statement and this Joint Proxy Statement/Prospectus
does not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (xxiv) Lehman Brothers has delivered to Anthem its
opinion as to the fairness of the Merger; (xxv) no vote by the holders of
Anthem's capital stock is required to approve the Merger other than a vote of a
majority of the outstanding shares of Anthem Common Stock; (xxvi) neither it nor
its affiliates have taken any actions which would prevent the Merger from being
accounted for as a pooling-of-interests; (xxvii) it does not have a certain
status as a stockholder of Arrow; and (xxviii) Section 203 of the DGCL is not
applicable to the Merger, the Merger Agreement or the Stock Option Agreement.
The Merger Agreement also includes representations and warranties of Arrow
and Sub that, among other things, (i) each of Arrow and Sub is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has the power and authority to own, lease and
operate its assets and to carry on its business as currently being conducted;
(ii) each of Arrow and Sub is authorized to enter into the Merger Agreement and,
subject to required stockholder approval, to consummate the transactions
contemplated thereby; (iii) the Merger Agreement has been duly executed and
delivered by each of Arrow and Sub and (assuming due execution and delivery by
Anthem) constitutes a valid and binding obligation of Arrow and Sub enforceable
in accordance with its terms, except as enforcement may be limited by bankruptcy
or other similar laws affecting the enforcement of creditors' rights generally,
and except that the availability of equitable remedies, including specific
performance, is subject to the discretion of the court before which any
proceeding therefor may be brought, and except as indemnification may be limited
by public policy; (iv) Arrow does not have any outstanding capital stock or
rights to buy capital stock except as disclosed to Anthem, and the capital stock
of Arrow is validly issued, fully paid and non-assessable and free of
pre-emptive rights; (v) except as disclosed to Anthem, the execution and
delivery of the Merger Agreement and the consummation of the transactions
contemplated thereby will neither violate any debt instrument or certain other
contracts or agreements by which Arrow or Sub is bound, nor violate their
articles or certificates of incorporation or by-laws, any applicable law or
regulation or any judgment or order, except for certain municipal laws and
permits where the effect would not have a Material Adverse Effect on Arrow; (vi)
except as disclosed to Anthem and except for certain local consents and
approvals which, if not obtained, would not have a Material Adverse Effect on
Arrow or impair the transactions contemplated by the Merger Agreement, no
governmental or third party consents or approvals are required to consummate the
transactions contemplated by the Merger Agreement; (vii) Arrow's filings with
the SEC, as required, have been made and, as of their respective dates, were
materially accurate, and its financial statements contained in such filings were
prepared in accordance with generally accepted accounting principles and fairly
present its financial position as at the dates thereof; (viii) Arrow has not,
since June 30, 1994, experienced any events, changes or occurrences which have
had or are likely to have a Material Adverse Effect on Arrow; (ix) Arrow is not
subject to any litigation or other proceedings that could have a Material
Adverse Effect on Arrow, except as disclosed in its filings with the SEC, and to
its knowledge there are no facts that could form a basis for a proceeding that
could have a Material Adverse Effect on Arrow; (x) Arrow has not made certain
specified payments; (xi) the information provided by Arrow for the Registration
Statement does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (xii) Morgan Stanley has delivered to Arrow
its opinion as to the fairness of the Merger; (xiii) no vote by the holders of
Arrow's capital stock is required to approve the Merger other than the vote of a
majority of the shares of Arrow Common Stock voted at the Arrow Special Meeting,
provided that the total votes cast thereon represent a majority of the
outstanding shares of Arrow Common Stock; and (xiv) neither Arrow nor its
affiliates have taken any actions which would prevent the Merger from being
accounted for as a pooling-of-interests.
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COVENANTS
The Merger Agreement contains various agreements and covenants of the
parties thereto, including, among others, covenants of Arrow and Anthem to (i)
cooperate with respect to the preparation of the Registration Statement and this
Joint Proxy Statement/Prospectus; (ii) use its best efforts to cause to be
delivered to the other party certain letters of its accountants; (iii) take all
reasonable actions necessary to satisfy any legal requirements with respect to
the Merger and to obtain any consents or approvals required to consummate the
transactions contemplated by the Merger Agreement; (iv) call the Arrow Special
Meeting and the Anthem Special Meeting, respectively, to be held as soon as
practicable after the Registration Statement becomes effective and recommend
through its Board of Directors, subject to such Board's fiduciary duties, that
the Merger Agreement and the Merger contemplated thereby be approved and adopted
by its stockholders; (v) cooperate with each other with respect to the
investigation by each of the other's interest in the Merger; (vi) maintain the
confidentiality of any information obtained from the other; (vii) cooperate with
each other as to the form and substance of any press release or public
disclosure regarding the Merger; and (viii) use its best efforts to do all
things necessary to consummate the transactions contemplated by the Merger
Agreement.
Pursuant to the Merger Agreement, Anthem has agreed that, until the Closing
Date, it (except with the written consent of Arrow) will (i) conduct its
business in the ordinary and usual course of business and consistent with prior
practice; (ii) not take certain specified actions (including, among other
things, the incurrence of certain indebtedness, the creation of certain liens,
the acquisition or disposition of certain assets, the redemption or
reclassification of its capital stock or the payment of any dividend thereon,
the increase of certain compensation and the change of certain tax matters);
(iii) not issue any capital stock (with certain exceptions), any rights to
acquire any capital stock or any securities convertible or exchangeable for
capital stock; (iv) not amend the Anthem Certificate of Incorporation or
By-laws; (v) not take or permit any affiliate to take any action which would
result in any of Anthem's representations and warranties not to be true or in
any of the conditions to the Merger not being satisfied; (vi) preserve intact
its business organization, and use its best efforts to keep available the
services of its present officers and employees and preserve its business
relationships with suppliers, distributors, customers and others; (vii) maintain
its insurance policies in effect; (viii) pursue its rights with respect to
certain claims and proceedings; and (ix) not take certain actions with respect
to its employee benefit plans. Anthem has also agreed pursuant to the Merger
Agreement to use its best efforts to cause to be delivered to Arrow prior to the
Closing Date certain letters of persons deemed to be affiliates of Anthem under
Rule 145 of the Securities Act.
Arrow has agreed pursuant to the Merger Agreement that, until the Closing
Date, except with the written consent of Anthem, it will (i) conduct its
business and that of its subsidiaries on a consolidated basis in a manner
designed in its reasonable judgment to enhance the long-term value of the Arrow
Common Stock and, to the extent consistent therewith, use its best efforts to
preserve the goodwill of Arrow's and its subsidiaries' suppliers, customers and
others having business relations with Arrow and its subsidiaries; and (ii) not
take any action which would result in Arrow's or Sub's representations and
warranties in the Merger Agreement not to be true or in any of the conditions to
the Merger not being satisfied. Arrow has also agreed pursuant to the Merger
Agreement to (i) use its best efforts to cause the shares of Arrow Common Stock
to be issued pursuant to the Merger and such other shares to be issued pursuant
to the Arrow Stock Options, to be approved for listing on the NYSE, subject to
official notice of issuance, prior to the Closing Date; (ii) enter into
employment agreements with certain employees of Anthem; and (iii) cause Robert
S. Throop to be nominated for election to the Arrow Board at the first meeting
of the Arrow Board following the Effective Time. See "THE MERGER -- Interests of
Certain Persons in the Merger."
NO SOLICITATION OF TRANSACTIONS
The Merger Agreement provides that Anthem may not solicit, initiate or
encourage, and will cause its officers, directors and employees and investment
bankers, attorneys, accountants and
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other agents retained by it not to solicit, initiate or encourage, any inquiries
or the making of any proposal which constitutes or may reasonably be expected to
lead to any Takeover Proposal (as defined in "Amendments, Termination and
Waivers" below), or agree to or endorse any Takeover Proposal, except that, if
Anthem does not breach the foregoing covenant, Anthem may furnish information to
an entity to facilitate any Takeover Proposal received and take such other
actions, if counsel to Anthem or the Anthem Board advises the Anthem Board that
furnishing such information or taking such actions is necessary pursuant to
their fiduciary duties, provided that Anthem shall not agree to or endorse any
Takeover Proposal unless it terminates the Merger Agreement and pays to Arrow
the amounts payable upon such termination as described in "Amendments,
Termination and Waivers" below.
INDEMNIFICATION AND INSURANCE
The Merger Agreement provides that Anthem and Sub will, and from and after
the Effective Time, the Surviving Corporation and Arrow will, indemnify, defend
and hold harmless each person who was as of the date of the Merger Agreement or
has been at any time prior to the date thereof, or who becomes prior to the
Effective Time, an officer, director or employee of Anthem or Sub against all
losses, claims, damages, costs, expenses, liabilities or judgments or amounts
that are paid in settlement with the approval of the indemnifying party (which
approval shall not be unreasonably withheld) of or in connection with any claim,
action, suit, proceeding or investigation based in whole or in part on, or
arising in whole or in part out of, the fact that such person is or was a
director, officer or employee of Anthem or Sub, whether pertaining to any matter
existing or occurring at or prior to the Effective Time and whether reasserted
or claimed prior to, or at or after, the Effective Time ("Indemnified
Liabilities"), and all Indemnified Liabilities based in whole or in part on, or
arising in whole or in part out of, or pertaining to the Merger Agreement, the
Stock Option Agreement or the transactions contemplated thereby, in each case to
the full extent such corporation is permitted under the DGCL, the Anthem
Certificate of Incorporation or By-Laws or any indemnification agreement to
which Anthem is a party, in each case as in effect on the date of the Merger
Agreement, to indemnify its own directors, officers or employees, as the case
may be.
The Merger Agreement also provides that, from and after the Effective Time,
Arrow and the Surviving Corporation will use their best efforts to cause to be
maintained in effect for two years for the benefit of Anthem's directors and
officers with respect to all matters occurring prior to and including the
Effective Time, Anthem's current policies of directors' and officers' liability
insurance, provided that Arrow and the Surviving Corporation may substitute
therefor policies containing terms and conditions no less advantageous than the
policies then maintained by Arrow for its directors and officers so long as no
lapse in coverage occurs as a result of such substitution. Arrow and the
Surviving Corporation will also, as of the Effective Time, assume all of
Anthem's obligations to its directors, officers and employees under any
indemnification agreements in effect on the date of the Merger Agreement to
which Anthem is a party.
ANTHEM STOCK OPTIONS
At the Effective Time of the Merger, Arrow will assume the Anthem Stock
Options outstanding under the Anthem Stock Plans. No further option grants will
be made under the Anthem Stock Plans.
CONDITIONS
In addition to the approval and adoption of the Merger Agreement and the
terms of the Merger by the stockholders of Anthem and the shareholders of Arrow,
the obligations of the parties to effect the Merger are subject to the
fulfillment or waiver on or prior to the Closing Date of certain conditions
specified in the Merger Agreement including, among others, (i) the continuing
accuracy on the Closing Date of the representations and warranties of the
respective parties contained in the Merger Agreement; (ii) the performance by
the respective parties of all obligations under the Merger Agreement required to
be performed on or prior to the Closing Date; (iii) the approval for
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listing on the NYSE of the shares of Arrow Common Stock to be issued in the
Merger, subject to official notice of issuance; (iv) the absence of any
injunction prohibiting consummation of the Merger; (v) the absence of any
governmental investigation, action or proceeding seeking to restrain, prevent or
change the Merger or questioning the legality thereof or seeking damages in
connection therewith; (vi) the receipt by Arrow and Anthem, and confirmation at
the Effective Time, of letters from their respective accountants with respect to
the qualification of the Merger as a pooling-of-interests; (vii) the receipt by
the respective parties of certain satisfactory opinions of tax counsel; (viii)
the receipt of the non-governmental consents required to permit Arrow and Anthem
to consummate the transaction, except where the failure to obtain such consents
would not, individually or in the aggregate, have a Material Adverse Effect on
Anthem or Arrow and its subsidiaries taken as a whole, as the case may be, or
impair the consummation of the transactions contemplated by the Merger
Agreement; (ix) the absence of, since the date of the Merger Agreement, any
events, changes or occurrences which have had, or are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on the other party;
and (x) the absence of any amendment, modification or rescission of the
resolutions adopted by the other party's Board of Directors adopted with respect
to the Merger Agreement and the transactions contemplated thereby.
The obligation of each of Arrow and Sub to effect the Merger is subject to
additional conditions, including (i) the absence of any action or proceeding
(other than those referred to in (v) of the preceding paragraph) seeking to
restrain, prevent or change the Merger or questioning the legality thereof or
seeking damages in connection therewith; and (ii) the receipt of the Affiliate
Agreements.
The consummation of the Merger is also conditioned upon the receipt of all
required governmental authorizations, consents, orders and approvals, including
expiration or termination of the relevant waiting period under the HSR Act.
Anthem and Arrow filed on September 22, 1994 the requisite notices under the HSR
Act. Neither Arrow nor Anthem is aware of any additional regulatory approvals
required to consummate the Merger.
AMENDMENTS, TERMINATION AND WAIVERS
The Merger Agreement may be terminated at any time prior to the Effective
Time, whether before or after stockholder approval, (i) by the mutual consent of
Arrow and Anthem; (ii) by either Arrow or Anthem if, without fault of the
terminating party, the Merger is not consummated on or before February 15, 1995
(or such later date that the parties may agree to in writing); (iii) by Arrow,
if Anthem breaches any of its representations, warranties or obligations under
the Merger Agreement and such breach is not cured or waived and Anthem fails to
provide reasonable assurance that such breach will be cured by the Closing Date;
(iv) by Anthem, if Arrow or Sub breaches any of their respective
representations, warranties or obligations under the Merger Agreement and such
breach is not cured or waived and Arrow fails to provide reasonable assurance
that such breach will be cured by the Closing Date; (v) by either Arrow or
Anthem if a Trigger Event (as defined below) or Takeover Proposal occurs and the
Anthem Board in connection therewith, after consultation with its legal counsel,
withdraws or modifies its approval and recommendation of the Merger Agreement
and the transactions contemplated thereby after determining that to cause Anthem
to proceed with the transactions contemplated by the Merger Agreement would not
be consistent with the Anthem Board's fiduciary duty to the stockholders of
Anthem; (vi) by either Arrow or Anthem if (a) any permanent injunction or other
order of a court or other competent authority preventing the consummation of the
Merger becomes final and nonappealable or (b) any required approval of the
stockholders of Anthem or Arrow is not obtained by reason of the failure to
obtain the required vote upon a vote held at a duly held meeting of stockholders
or at any adjournment thereof; (vii) by Anthem, in the event (a) of the
acquisition, by any person or group of persons (other than persons or groups of
persons who (1) acquired shares of Arrow Common Stock pursuant to any merger of
Arrow in which Arrow was the surviving corporation or any acquisition by Arrow
of all or substantially all of the capital stock or assets of another person or
(2) disclose their beneficial
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ownership of shares of Arrow Common Stock on Schedule 13G under the Exchange
Act), of beneficial ownership of 30% or more of the outstanding shares of Arrow
Common Stock (the terms "person," "group" and "beneficial ownership" having the
meanings ascribed thereto in Section 13(d) of the Exchange Act and the
regulations promulgated thereunder), or (b) the Arrow Board accepts or publicly
recommends acceptance of an offer from a third party to acquire 50% or more of
the outstanding shares of Arrow Common Stock or of Arrow's consolidated assets;
(viii) by Arrow, if the Arrow Stock Price is less than $32.00; or (ix) by
Anthem, if the Arrow Stock Price is less than $32.00.
For purposes of the Merger Agreement, a "Trigger Event" shall occur if any
person acquires securities representing 10% or more, or commences a tender or
exchange offer following the successful consummation of which the offeror and
its affiliates would beneficially own securities representing 25% or more, of
the voting power of Anthem, and a "Takeover Proposal" shall mean any tender or
exchange offer, proposal for a merger, consolidation or other business
combination involving Anthem and made by a person other than Arrow or any
proposal or offer to acquire in any manner a substantial equity interest in, or
a substantial portion of the assets of, Anthem other than the transactions
contemplated by the Merger Agreement or the Stock Option Agreement.
The Merger Agreement may be amended by the parties at any time before or
after approval thereof by the stockholders of Anthem or Arrow by written
agreement executed by the parties thereto. After any such approval, however, no
amendment may be made which by law requires the further approval of such
stockholders without such further approval. Any amendment to the Merger
Agreement must be authorized by the Boards of Directors of the respective
parties. Such directors will exercise their fiduciary duties in determining
whether any such amendment is in the best interests of the stockholders and
exercise their business judgment in determining whether stockholder approval of
such amendment is required or desirable in light of the nature of the amendment.
The conditions to each of the parties' obligations to consummate the
Merger, other than the obtaining of stockholder approval, may be waived by such
party. Neither Arrow, Sub nor Anthem presently intends to waive any condition to
its obligations to consummate the Merger. However, each of the parties reserves
the right to waive any condition in the future. Any determination to waive a
condition would depend upon the facts and circumstances existing at the time of
such waiver and would be made by such party's Board of Directors, exercising its
fiduciary duties to such party and its stockholders. The Merger Agreement does
not require that any waiver be approved by the stockholders of Arrow or Anthem,
even if such waiver may be deemed by some stockholders to be adverse to their
interests. In the event the Merger is approved by Anthem stockholders, Anthem
stockholders may not thereafter independently determine not to exchange their
shares upon the occurrence of an event some stockholders may deem adverse to
their interests, including, without limitation, a material decline in Arrow's
earnings or stock price. However, each of Arrow and Anthem has the right to
determine not to effect the Merger if there had been, since September 21, 1994,
any events, changes or occurrences which have had, or are reasonably likely to
have, individually or in the aggregate, a Material Adverse Effect on the other
party; and each of Arrow and Anthem has the right to terminate the Merger
Agreement if the Arrow Stock Price is less than $32.00.
In the event that (i) either Arrow or Anthem terminates the Merger
Agreement following the occurrence of a Trigger Event or a Takeover Proposal and
either (1) the Anthem Board's withdrawal or modification of its approval of the
Merger Agreement or (2) the failure of Anthem to obtain the requisite
stockholder vote to approve the Merger Agreement, or (ii) Arrow terminates the
Merger Agreement due to Anthem's failure to perform and comply with all
agreements and conditions required to be performed or complied with by Anthem
prior to or on the Closing Date or any failure by Anthem's affiliates to take
any actions required to be taken pursuant to the Merger Agreement and prior
thereto there shall have occurred a Trigger Event or a Takeover Proposal, Anthem
will be required to pay to Arrow liquidated damages of $9,000,000 plus
reimbursement of out-of-pocket fees and expenses incurred by Arrow in connection
with the Merger Agreement and
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the transactions contemplated thereby (including, without limitation, the fees
and expenses of its advisors, accountants and legal counsel) up to a maximum
amount of $2,500,000.
EXPENSES
The Merger Agreement provides that, whether or not the Merger is
consummated, all expenses (other than the liquidated damages and out-of-pocket
fees and expenses described in the section entitled "Amendments, Termination and
Waivers" above) incurred in connection with the Merger Agreement and the
transactions contemplated thereby will be paid by the party incurring such
expenses, except that expenses incurred in connection with printing of the
Registration Statement and this Joint Proxy Statement/Prospectus, as well as the
filing fee payable to the SEC in connection therewith, will be shared equally by
Arrow and Anthem.
For a description of the liquidated damages and certain fees and expenses
that may become payable by Anthem to Arrow under certain circumstances pursuant
to the terms of the Merger Agreement, see "-- Amendments, Termination and
Waivers" above.
THE STOCK OPTION AGREEMENT
The following is a brief summary of the terms of the Stock Option
Agreement, a copy of which is attached as Exhibit C to this Joint Proxy
Statement/Prospectus and is incorporated herein by reference. Such summary is
qualified in its entirety by reference to the Stock Option Agreement.
GENERAL
Pursuant to the Stock Option Agreement, Arrow has the right (the "Anthem
Option"), under certain circumstances, to acquire up to 2,451,427 shares of
authorized but unissued shares of Anthem Common Stock (the "Anthem Shares")
(constituting approximately 19.9% of the outstanding shares of Anthem Common
Stock prior to giving effect to such issuance and approximately 16.6% after
giving effect to such issuance) at a price, payable in cash, of $34.67 per share
(the "Exercise Price"). Pursuant to the terms of the Stock Option Agreement, the
type and number of securities subject to the Anthem Option, and the price per
share, shall be adjusted in the event of any change in Anthem Common Stock by
reason of certain events, including recapitalizations, combinations, exchange of
shares or the like. Furthermore, in the event Anthem enters into certain types
of agreements involving the merger of Anthem, or sale of substantially all its
assets, such agreements must provide Arrow with consideration for each share of
Anthem Common Stock with respect to which the Anthem Option has not been
exercised, equal to the amount of consideration a holder of Anthem Common Stock
would receive less the Exercise Price. The Stock Option Agreement could have the
effect of making an acquisition of Anthem by a third party more costly because
of the need to acquire the Anthem Shares in any such transaction.
The Stock Option Agreement is exercisable by Arrow, in whole or in part, at
any time or from time to time after any event occurs which would permit Arrow to
terminate the Merger Agreement and recover the liquidated damages and
out-of-pocket fees and expenses described in "THE MERGER
AGREEMENT -- Amendments, Termination and Waivers". The Anthem Option will
terminate upon the earlier of: (i) the Effective Time; (ii) the termination of
the Merger Agreement pursuant to its terms (other than a termination in
connection with which Arrow is entitled to the payment of such liquidated
damages and out-of-pocket fees and expenses); or (iii) 180 days following any
termination of the Merger Agreement in connection with which Arrow is entitled
to the payment of such liquidated damages and out-of-pocket fees and expenses
(or, if at the expiration of such 180-day period the Anthem Option cannot be
exercised by reason of any applicable judgment, decree, order, law or
regulation, 10 business days after such impediment to exercise shall have been
removed or shall have become final and not subject to appeal, but in no event
later than September 21, 1996). Notwithstanding the foregoing, the Anthem Option
may not be exercised if
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Arrow is in material breach of any of its representations, warranties, covenants
or agreements contained in the Stock Option Agreement or in the Merger
Agreement.
CERTAIN REPURCHASES
Under the terms of the Stock Option Agreement, at any time during which the
Anthem Option is exercisable (the "Repurchase Period"), Arrow has the right to
require Anthem (or any successor entity thereof) to repurchase from Arrow the
Anthem Option, and Anthem (or any successor entity thereof) has the right to
require Arrow to sell to Anthem (or such successor entity) the Anthem Option, at
the price set forth in subparagraph (i) below. Also, at any time prior to
September 21, 1996, Arrow has the right to require Anthem (or any successor
entity thereof) to repurchase from Arrow, and Anthem (or any successor entity
thereof) has the right to require Arrow to sell to Anthem (or such successor
entity), the Anthem Shares purchased by Arrow pursuant to the Anthem Option at
the price set forth in subparagraph (ii) below:
(i) The difference between the Market/Tender Offer Price for shares of
Anthem Common Stock as of the date the requesting party gives notice of its
intent to exercise its rights and the Exercise Price, multiplied by the
number of Anthem Shares purchasable pursuant to the Anthem Option, or
portion thereof, but only if the Market/Tender Offer Price exceeds the
Exercise Price. The "Market/Tender Offer Price" means the higher of (A) the
price per share offered as of such date pursuant to any tender or exchange
offer or other Takeover Proposal (as defined above in "THE MERGER
AGREEMENT -- Amendments, Termination and Waivers") which was made prior to
such date and not terminated or withdrawn as of such date (the "Tender
Price") or (B) the average of the closing prices of shares of Anthem Common
Stock on the NYSE for the ten trading days immediately preceding such date
(the "Market Price").
(ii) The Exercise Price paid by Arrow for Anthem Shares acquired
pursuant to the Anthem Option plus the difference between the Market/Tender
Offer Price and the Exercise Price, but only if the Market/Tender Offer
Price is greater than the Exercise Price, multiplied by the number of
Anthem Shares so purchased. For purposes of this clause (ii), the Tender
Offer Price shall be the highest price per share offered pursuant to a
tender or exchange offer or other Takeover Proposal during the Repurchase
Period.
Notwithstanding the foregoing, the right of Anthem or any successor thereof
to require Arrow to sell the Anthem Option or the Anthem Shares shall not be
exercisable unless Anthem shall have consummated the transaction provided by a
Takeover Proposal or Anthem's stockholders shall have transferred their shares
of Anthem Common Stock pursuant to a tender or exchange offer or other Takeover
Proposal.
REGISTRATION RIGHTS
Subsequent to the termination of the Merger Agreement, Arrow may by written
notice ("Registration Notice") request Anthem to register under the Securities
Act all or any part of the Restricted Shares (as defined in Section 8 of the
Stock Option Agreement). Anthem may, at its option, purchase these shares
("Registrable Shares") at their market price within ten business days after the
receipt of the Registration Notice. If Anthem does not elect to exercise its
option to purchase the Registrable Shares, it shall use its best efforts to
register the unpurchased Registrable Shares; provided, however, (i) Arrow shall
not be entitled to more than an aggregate of two effective registration
statements and (ii) Anthem will not be required to file any such registration
statement for a certain period of time when (A) Anthem is in possession of
material non-public information which it reasonably believes would be
detrimental to be disclosed at such time and, in the written opinion of counsel
to Anthem, such information would have to be disclosed if a registration
statement were filed at such time; (B) Anthem is required under the Securities
Act to include audited financial statements for any period in such registration
statement and such financial statements are not yet available for inclusion in
such registration statement; or (C) Anthem determines, in its reasonable
judgment, that such registration would interfere with any financing, acquisition
or other material transaction involving Anthem or any of its affiliates.
49
<PAGE> 57
ARROW SELECTED CONSOLIDATED FINANCIAL DATA
On August 29, 1994, Arrow completed the acquisition of Gates through the
exchange of approximately 3,700,000 shares of newly issued Arrow Common Stock.
This acquisition was accounted for as a pooling-of-interests, and accordingly,
Arrow's supplemental consolidated financial statements have been restated to
include Gates for all periods presented. The summary financial information of
Arrow set forth below has been derived from and should be read in conjunction
with the audited financial statements and other financial information contained
in Arrow's supplemental consolidated financial statements with respect to the
three years ended December 31, 1993 and with the unaudited financial statements
contained in Arrow's supplemental financial statements with respect to the six
months ended June 30, 1994, which appear elsewhere, or which are incorporated by
reference, in this Joint Proxy Statement/Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
-------------------------------------------------------------- -----------------------
1989 1990 1991(A) 1992 1993(B) 1993 1994
---------- ---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales......................... $1,074,419 $1,134,502 $1,238,529 $1,884,671 $2,897,663 $1,304,408 $1,890,026
Operating income.............. 31,360 35,197 39,951(c) 112,471 195,355 91,932 126,518
Equity in earnings of
affiliated companies........ 5,466 6,395 5,657 6,550 1,673 613 --
Interest expense.............. 32,319 31,609 31,431 31,873 27,103 14,284 19,866
Earnings before extraordinary
charges, net of
income taxes................ 4,156 9,752 10,584 54,451 88,547 40,691 55,491
Extraordinary charges, net of
income taxes................ -- -- -- 5,424 -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income.................... $ 4,156 $ 9,752 $ 10,584 $ 49,027 $ 88,547 $ 40,691 $ 55,491
========== ========== ========== ========== ========== ========== ==========
Per common share
Earnings (loss) before
extraordinary charges(d).. $ (.09) $ .33 $ .35 $ 1.76 $ 2.54 $ 1.18 $ 1.55
Extraordinary charges....... -- -- -- (.19) -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income (loss)(d).......... $ (.09) $ .33 $ .35 $ 1.57 $ 2.54 $ 1.18 $ 1.55
========== ========== ========== ========== ========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
AT DECEMBER 31, AT JUNE 30,
-------------------------------------------------------------- -----------------------
1989 1990 1991 1992 1993 1993 1994
---------- ---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Accounts receivable and
inventories................. $ 379,315 $ 362,614 $ 566,757 $ 608,894 $ 909,097 $ 766,601 $1,108,379
Total assets.................. 543,794 530,559 813,395 864,497 1,317,967 1,120,392 1,572,988
Long-term debt, including
current portion............. 109,331 105,104 243,640 117,517 195,165 167,251 219,976
Subordinated debentures,
including current portion... 108,326 107,300 105,965 125,000 125,000 125,000 125,000
Total long-term debt and
subordinated debentures..... 217,657 212,404 349,605 242,517 320,165 292,251 344,976
Shareholders' equity.......... 165,699 166,564 243,127 381,531 495,413 446,135 561,685
</TABLE>
- ---------------
(a) Reflects the acquisition in September 1991 of the North American
electronics distribution businesses of Lex Service PLC (see Note 2 of the
Notes to Supplemental Consolidated Financial Statements).
(b) Includes results of Spoerle Electronic, which was accounted for under the
equity method prior to January 1993 when Arrow increased its holdings to a
majority interest (see Note 2 of the Notes to Supplemental Consolidated
Financial Statements).
(c) Includes special charges of $9.8 million reflecting expenses associated
with the integration of the business acquired from Lex Service PLC.
(d) After preferred stock dividends of $5.4 million in 1989, $4.9 million in
1990, $4.6 million in 1991, $3.9 million in 1992, $.9 million in 1993, and
$.6 million for the six months ended June 30, 1993.
50
<PAGE> 58
ARROW MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
For an understanding of the significant factors that influenced Arrow's
performance during the past three years and the six months ended June 30, 1994,
the following discussion should be read in conjunction with the supplemental
consolidated financial statements and other information appearing elsewhere
herein.
On August 29, 1994, Arrow completed the acquisition of Gates, a leading
commercial distributor of microcomputers through the exchange of approximately
3,700,000 shares of Arrow's stock for all the stock of Gates. This merger is
accounted for as a pooling-of-interests, and accordingly, the accompanying
supplemental consolidated financial statements have been restated to include the
operations of Gates for all periods prior to the merger.
Included in 1994's consolidated results is Silverstar, which was accounted
for under the equity method prior to January 1994 when Arrow increased its
holdings to a majority interest.
Included in the 1993 consolidated results is Spoerle Electronic, which had
been accounted for under the equity method prior to January 1993 when Arrow
acquired an additional 15% share, increasing its holdings to a majority
interest. The 1993 consolidated results also include the acquired businesses of
Zeus Components, Inc., a distributor of high-reliability electronic components
and value-added services, Microprocessor & Memory Distribution Limited, a
focused U.K. distributor of high-technology semiconductor products, and
Components Agent Limited, one of the largest distributors in Hong Kong. In
addition, the 1993 results include Amitron-Arrow S.A. and ATD Electronica S.A.,
distributors serving the Spanish and Portuguese markets, and CCI Electronique, a
distributor serving the French marketplace. On February 28, 1992, Arrow acquired
the electronics distribution businesses of Lex Service PLC ("Lex") in the U.K.
and France (the "European businesses"), and Spoerle Electronic acquired the
electronics distribution business of Lex in Germany. On September 27, 1991,
Arrow acquired Lex Electronics Inc. and Almac Electronics Corporation, the North
American electronics distribution businesses of Lex (the "North American
businesses"), the third largest electronics distribution business in the United
States. See Note 2 of the Notes to Supplemental Consolidated Financial
Statements for information with respect to the 1993 and 1992 acquisitions and
the pro forma effect of these transactions on Arrow's statement of operations.
THREE YEARS ENDED DECEMBER 31, 1993
SALES
In 1993, consolidated sales of $2.9 billion were 54% ahead of the 1992
sales of $1.9 billion. Excluding Spoerle, sales were $2.5 billion, an advance of
34% over the year-earlier period. This sales growth was principally due to
increased activity levels in each of Arrow's distribution groups and, to a
lesser extent, acquisitions in North America, Europe, and the Pacific Rim,
offset in part by weaker currencies in Europe.
Consolidated sales of $1.9 billion in 1992 were 52% higher than 1991 sales
of $1.2 billion. This increase principally reflects the acquisitions of the
North American and European businesses in September 1991 and February 1992,
respectively, and increased North American sales.
OPERATING INCOME
In 1993, Arrow's consolidated operating income increased to $195.4 million,
compared with 1992 operating income of $112.5 million. The significant
improvement in operating income reflects the impact of increased sales and the
consolidation of Spoerle, offset in part by lower gross profit margins primarily
reflecting proportionately higher sales of low-margin microprocessors. Excluding
Spoerle, operating income was $160.1 million in 1993, and operating expenses as
a percentage of sales were 11.4%, the lowest in Arrow's history.
51
<PAGE> 59
Arrow's 1992 consolidated operating income increased to $112.5 million,
compared with operating income of $40 million in 1991. Operating income in 1991
included the recognition of approximately $9.8 million of costs associated with
the integration of the North American businesses. The significant improvement in
operating income in 1992 primarily reflected the impact of Arrow's acquisition
of the North American businesses, improved gross profit margins reflecting a
product mix now more heavily weighted to semiconductor products, and improved
North American sales. The rapid and successful integration of the North American
businesses resulted in the realization of sizable economies of scale which, when
combined with increased sales, enabled Arrow to reduce operating expenses as a
percentage of sales from 16% in 1991 to 13.5% in 1992, the then lowest level in
Arrow's history. Such economies of scale principally resulted from reductions in
personnel performing duplicative functions and the elimination of duplicative
administrative facilities, selling and stocking locations, and computer and
telecommunications equipment.
INTEREST
In 1993, interest expense decreased to $27.1 million from $31.9 million in
1992. The decrease principally reflects the full-year effect of the retirement
during 1992 of $46 million of Arrow's 13 3/4% subordinated debentures and the
refinancing of Arrow's remaining high-yield debt with securities bearing lower
interest rates, offset in part by the consolidation of Spoerle and borrowings
associated with acquisitions.
Interest expense of $31.9 million in 1992 increased by $.5 million from the
1991 level, reflecting Arrow's borrowings to finance the cash portion of the
purchase price of the North American and European businesses, to pay fees and
expenses relating to the acquisitions, to refinance existing credit facilities
of Arrow, and to provide Arrow with working capital. Such increased borrowings
were partially offset by Arrow's redemption in May of $46 million of its 13 3/4%
subordinated debentures with the proceeds from the public offering of 4.7
million shares of common stock and lower effective interest rates.
INCOME TAXES
In 1993, Arrow's effective tax rate was 40.7% compared with 37.5% in 1992.
The higher effective tax rate reflects increased U.S. taxes as a result of
higher statutory rates and the consolidation of Spoerle.
Arrow recorded a provision for taxes at an effective tax rate of 37.5% in
1992 compared with 25.3% in 1991. The higher effective tax rate reflects the
depletion of Arrow's remaining $5.8 million U.S. net operating loss
carryforwards in 1991.
NET INCOME
Net income in 1993 was $88.5 million, an advance from $49 million in 1992
(after giving effect to extraordinary charges of $5.4 million reflecting the net
unamortized discount and issuance expenses associated with the redemption of
high-coupon subordinated debentures and other debt in 1992). The increase in net
income is due principally to the increase in operating income and lower interest
expense offset in part by higher taxes.
Arrow recorded net income of $54.5 million in 1992, before extraordinary
charges aggregating $5.4 million, compared with net income of $10.6 million in
1991. Including these charges, net income in 1992 was $49 million. Included in
1991's results was a special charge of $9.8 million ($6.5 million after taxes)
associated with the integration of the acquired businesses. The improvement in
net income was principally the result of the increase in operating income offset
in part by the higher provision for income taxes.
52
<PAGE> 60
Net income also included Arrow's equity in earnings of affiliated companies
of $1.7 million in 1993, and $6.6 million in 1992. The decrease in Arrow's
equity in earnings of affiliated companies in 1993 was due to the consolidation
of Spoerle.
In 1993, the earnings of Silverstar, Arrow's Italian affiliate, advanced as
a result of significant sales growth offset in part by a weaker lira. The
increase in Arrow's equity in earnings of affiliated companies in 1992 was the
result of Silverstar's profitability.
LIQUIDITY AND CAPITAL RESOURCES
Arrow maintains a high level of current assets, primarily accounts
receivable and inventories. Consolidated current assets as a percentage of total
assets were 74% in 1993 and 72% in 1992.
Working capital increased in 1993 by $186.7 million, or 46%, compared with
1992, as a result of increased sales, the consolidation of Spoerle, and
acquisitions. Working capital increased by $45 million in 1992, as a result of
the acquisition of the European businesses and increased sales.
The net amount of cash provided by operations in 1993 was $22.3 million,
the principal element of which was the cash flow resulting from higher net
earnings offset by increased working capital needs to support sales growth. The
net amount of cash used by Arrow for investing activities in 1993 amounted to
$113.2 million, including $87.9 million for various acquisitions and $18.3
million for the acquisition of property, plant and equipment. Cash flows from
financing activities were $121.2 million, principally resulting from increased
borrowings to finance the 1993 acquisitions in the U.S., Europe, and the Pacific
Rim (see Notes 2 and 4 of the Notes to Supplemental Consolidated Financial
Statements for additional information regarding these acquisitions).
In September 1993, Arrow completed the conversion of all of its outstanding
series B $19.375 convertible exchangeable preferred stock, into 1,009,086 shares
of its common stock. This conversion eliminated Arrow's obligation to pay $1.3
million of annual dividends.
The net amount of cash provided by operating activities in 1992 was $73.4
million, attributable primarily to the higher net earnings of Arrow. The net
amount of cash used by Arrow for investing activities in 1992 amounted to $48
million, including $37.2 million for the acquisition of the European businesses.
The aggregate cost of Arrow's acquisition of the electronics distribution
businesses of Lex in the U.K. and France, and Spoerle's acquisition of the Lex
electronics distribution business in Germany, was $52 million, of which $32
million was paid in cash and $20 million was paid in the form of a senior
subordinated note due in June 1997. Arrow financed the cash portion of the
purchase price through the sale of 66,196 shares of newly-created series B
preferred stock and U.K. bank borrowings. In addition, a portion of the proceeds
from Arrow's public offering of common stock and the issuance of the 5 3/4%
convertible subordinated debentures was used to repay the senior subordinated
note. The German business was purchased by Spoerle for cash (see Notes 2, 4, and
6 of the Notes to Supplemental Consolidated Financial Statements for additional
information regarding these acquisitions).
The net amount of cash used for financing activities in 1992 was $23.5
million, principally reflecting the redemption of high-yield subordinated
debentures, repayment of long-term debt, and the payment of preferred stock
dividends and financing fees, offset by the public offering of 4,703,500 shares
of common stock and the 5 3/4% convertible subordinated debentures, the issuance
of the senior secured notes, and U.K. bank borrowings.
In September 1992, Arrow completed the conversion of all of its outstanding
depositary shares, each representing one-tenth share of its $19.375 convertible
exchangeable preferred stock, into 3,615,056 shares of its common stock. This
conversion eliminated Arrow's obligation to pay $4.6 million of annual dividends
relating to the depositary shares.
53
<PAGE> 61
Early in 1994, Arrow purchased an additional 15% share in Spoerle for
approximately $23 million in cash. Arrow financed the acquisition through its
U.S. credit agreement and German bank borrowings. Additionally, Arrow increased
its holdings in Silverstar to a majority share and acquired the electronic
component distribution business of Field Oy, the largest distributor of
electronic components in Finland, TH:s Elektronik, a leading distributor in
Sweden and Norway, and Exatec A/S, one of the largest distributors in Denmark.
Arrow also expanded its role in the Pacific Rim by acquiring Texny (Holdings)
Limited, one of Hong Kong's leading distributors.
SIX MONTHS ENDED JUNE 30, 1994 AND 1993
SALES
Consolidated sales for the first six months of 1994 increased 44.9%
compared with the year-earlier period. Excluding Silverstar, sales for the first
six months of 1994 were $1.8 billion, an increase of 36.5% over the comparable
year-earlier period.
OPERATING INCOME
Arrow recorded operating income of $127 million in the first six months of
1994, compared with $91.9 million in the year-earlier period. The improvement in
operating income over the 1993 period reflects the impact of increased sales,
acquisitions, continued economies of scale and expense containment efforts
reducing operating expenses as a percentage of sales, and the consolidation of
Silverstar. Excluding Silverstar, operating income was $115.7 million in the
first six months of 1994 and operating expenses as a percentage of sales
decreased from 12.6% in the first six months of 1993 to 11.4%.
INTEREST
Interest expense of $19.9 million in the first six months of 1994 increased
from $14.3 million during the first six months of 1993.
The increase from the first six months of 1993 reflects the borrowings
associated with the consolidation of Silverstar, the acquisition of the
incremental 15% of Spoerle in 1994, and the incremental interest associated with
businesses acquired subsequent to the second quarter of 1993.
INCOME TAXES
During the first six months of 1994, Arrow recorded a provision for taxes
at an effective tax rate of 39.9% compared with 39.6% in the earlier period.
NET INCOME
Arrow recorded net income of $56 million in the first six months of 1994
compared with $40.7 million in the first six months of 1993. The increase in net
income over the year-earlier period is due to increased sales and lower
operating expenses as a percentage of sales offset in part by an increase in
interest expense as previously discussed.
LIQUIDITY AND CAPITAL RESOURCES
Arrow maintains a high level of current assets, primarily accounts
receivable and inventories. Consolidated current assets as a percentage of total
assets were approximately 74% at June 30, 1994 and 1993.
The net amount of cash provided by Arrow's operating activities during the
first six months of 1994 was $35 million, principally reflecting higher net
earnings. The net amount of cash used for investing activities was $79.8
million, including $80.6 million for various acquisitions. The net amount
54
<PAGE> 62
of cash provided by financing activities was $28.9 million, principally
reflecting Arrow's U.S. credit agreements and German bank borrowings, offset in
part by the distribution to partners and the net repayment of debt.
The net amount of cash provided by Arrow's operating activities during the
first six months of 1993 was $14.6 million, principally reflecting increased
earnings offset in part by increased working capital requirements supporting
higher sales. The net amount of cash used for investing activities was $70.6
million, including approximately $57.7 million for the acquisition of Zeus, MMD,
and an additional 15% interest in Spoerle. The net amount of cash provided by
financing activities was $67.8 million, principally reflecting the proceeds from
Arrow's U.S. credit agreement, German bank borrowings, and the company's May
1993 common stock offering, offset in part by the payment of financing fees and
preferred stock dividends.
Arrow believes that its working capital, funds available under its credit
agreements, and additional funds generated from operations will be sufficient to
satisfy its cash requirements at least through 1996.
ANTHEM SELECTED CONSOLIDATED FINANCIAL DATA
The summary financial information of Anthem set forth below has been
derived from and should be read in conjunction with the audited financial
statements and other financial information contained in Anthem's 1993 Form 10-K
and with the unaudited financial statements contained in Anthem's 1994 Second
Quarter Form 10-Q, which are incorporated by reference in this Joint Proxy
Statement/Prospectus.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
-------------------------------------------------------- ---------------------
1989 1990 1991 1992 1993 1993 1994
--------- --------- --------- --------- -------- --------- ---------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales.................. $319,020 $408,170 $419,648 $538,362 $663,193 $303,084 $341,644
Operating income....... 26,729 39,330 39,250 51,228 30,734(a) 19,954 17,762
Net income............. 15,775 23,210 23,305 30,434 18,012 11,845 10,791
Per common share....... 1.39 1.97 1.92 2.48 1.46 .96 .87
</TABLE>
<TABLE>
<CAPTION>
AT DECEMBER 31, AT JUNE 30,
-------------------------------------------------------- ---------------------
1989 1990 1991 1992 1993 1993 1994
--------- --------- --------- --------- -------- --------- ---------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Accounts receivable and
inventory............ $ 95,942 $115,947 $134,274 $172,373 $185,078 $186,920 $178,733
Total assets........... 118,816 145,930 181,779 215,666 251,185 235,916 263,897
Stockholders' equity... 93,373 120,611 149,166 184,569 206,386 199,561 218,027
</TABLE>
- ---------------
(a) Includes a pre-tax restructuring charge of $7.8 million relating to the sale
and cessation of Eagle Technology.
55
<PAGE> 63
PRO FORMA FINANCIAL INFORMATION
The following unaudited pro forma combined financial statements give effect
to the Merger of Anthem and Arrow pursuant to the Merger Agreement. These pro
forma combined financial statements have been prepared utilizing the
supplemental financial statements of Arrow ("Supplemental Arrow") and the
historical financial statements of Anthem ("Historical Anthem") and should be
read in conjunction with such financial statements and accompanying notes.
The pro forma combined financial statements do not reflect any sales
attrition which may result from the Merger and the previous merger of Arrow and
Gates, the cost savings and synergies Arrow expects to achieve from the Merger
and the previous merger of Arrow and Gates, and the integration expenses to be
incurred in connection with the Merger and the previous merger of Arrow and
Gates, which relate to facilities and personnel and, therefore, will be charged
to current operations. Accordingly, the pro forma combined financial statements
do not purport to be indicative of the results which actually would have been
obtained if the Merger and the previous merger of Arrow and Gates had been
effected on the date or dates indicated or the results which may be obtained in
the future.
The pro forma combined financial statements are based on the
pooling-of-interests method of accounting. The pro forma combined financial
statements assume an adjusted Conversion Ratio based upon the last sale price of
Arrow Common Stock on the NYSE on October 21, 1994 of $35.125. The pro forma
combined balance sheet assumes a June 30, 1994 merger date. The pro forma
combined statement of operations assumes that the Merger had occurred on January
1 for each of the years ended December 31, 1993, 1992 and 1991, and for the six
months ended June 30, 1994 and 1993.
56
<PAGE> 64
ARROW ELECTRONICS, INC.
WITH
ANTHEM ELECTRONICS, INC.
PRO FORMA COMBINED BALANCE SHEET
JUNE 30, 1994
ASSETS
<TABLE>
<CAPTION>
PRO FORMA
SUPPLEMENTAL HISTORICAL COMBINED
ARROW ANTHEM COMPANIES
---------- ---------- ----------
(IN THOUSANDS)
<S> <C> <C> <C>
Current assets:
Cash............................................... $ 45,932 $ 39,653 $ 85,585
Accounts receivable, net........................... 556,499 79,993 636,492
Inventories........................................ 551,880 98,740 650,620
Prepaid expenses and other current assets.......... 17,391 16,487 33,878
---------- --------- ----------
Total current assets....................... 1,171,702 234,873 1,406,575
---------- --------- ----------
Property and equipment:
Land............................................... 6,030 6,046 12,076
Buildings and improvements......................... 38,947 7,959 46,906
Machinery and equipment............................ 67,610 13,104 80,714
---------- --------- ----------
112,587 27,109 139,696
Less accumulated depreciation...................... 46,812 8,820 55,632
---------- --------- ----------
65,775 18,289 84,064
Investment in net assets of acquired businesses...... 44,842 -- 44,842
Costs in excess of net assets acquired, less
amortization....................................... 248,112 6,602 254,714
Other assets......................................... 42,557 4,133 46,690
---------- --------- ----------
$1,572,988 $ 263,897 $1,836,885
========== ========= ==========
</TABLE>
LIABILITIES AND SHAREHOLDERS' EQUITY
<TABLE>
<S> <C> <C> <C>
Current liabilities:
Accounts payable................................... $ 313,408 $ 28,292 $ 341,700
Accrued expenses................................... 125,652 17,144 142,796
Accrued interest................................... 6,353 -- 6,353
Short-term borrowings, including current maturities
of long-term debt............................... 93,736 -- 93,736
---------- -------- ----------
Total current liabilities.................. 539,149 45,436 584,585
---------- -------- ----------
Long-term debt....................................... 213,804 -- 213,804
Deferred income taxes................................ 13,077 434 13,511
Other long-term liabilities.......................... 36,029 -- 36,029
Minority interest.................................... 84,244 -- 84,244
Subordinated debentures.............................. 125,000 -- 125,000
Shareholders' equity:
Common stock....................................... 35,252 1,540 36,792
Additional paid-in capital......................... 338,585 55,832 394,417
Retained earnings.................................. 192,340 162,142 354,482
Foreign currency translation adjustment............ (1,596) -- (1,596)
---------- -------- ----------
564,581 219,514 784,095
Less: Treasury shares, at cost..................... 13 -- 13
Unamortized employee stock awards............ 2,883 -- 2,883
Notes receivable from officers............... -- 1,487 1,487
---------- -------- ----------
Total shareholders' equity................. 561,685 218,027 779,712
---------- -------- ----------
$1,572,988 $263,897 $1,836,885
========== ======== ==========
</TABLE>
57
<PAGE> 65
ARROW ELECTRONICS, INC.
WITH
ANTHEM ELECTRONICS, INC.
PRO FORMA COMBINED STATEMENT OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1994
<TABLE>
<CAPTION>
PRO FORMA
SUPPLEMENTAL HISTORICAL COMBINED
ARROW ANTHEM COMPANIES
------------ ---------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Sales................................................ $1,890,026 $341,644 $2,231,670
----------- --------- ----------
Costs and expenses:
Cost of products sold.............................. 1,544,005 288,719 1,832,724
Selling, general and administrative expenses....... 208,121 33,586 241,707
Depreciation and amortization...................... 11,382 1,577 12,959
----------- --------- ----------
1,763,508 323,882 2,087,390
----------- --------- ----------
Operating income..................................... 126,518 17,762 144,280
Interest income (expense)............................ (19,866) 876 (18,990)
----------- --------- ----------
Earnings before income taxes and minority interest... 106,652 18,638 125,290
Provision for income taxes........................... 42,819 7,847 50,666
----------- --------- ----------
Earnings before minority interest.................... 63,833 10,791 74,624
Minority interest.................................... 8,342 -- 8,342
----------- --------- ----------
Net income........................................... $ 55,491 $ 10,791 $ 66,282
=========== ========= ==========
Per common share:
Primary............................................ $ 1.55 $ .87 $ 1.41
=========== ========= ==========
Fully diluted...................................... $ 1.46 $ .87 $ 1.31
=========== ========= ==========
Average number of common shares and common share
equivalents outstanding:
Primary............................................ 35,719 12,397 46,951
=========== ========= ==========
Fully diluted...................................... 39,495 12,397 50,727
=========== ========= ==========
</TABLE>
58
<PAGE> 66
ARROW ELECTRONICS, INC.
WITH
ANTHEM ELECTRONICS, INC.
PRO FORMA COMBINED STATEMENT OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1993
<TABLE>
<CAPTION>
PRO FORMA
SUPPLEMENTAL HISTORICAL COMBINED
ARROW ANTHEM COMPANIES
------------ ---------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Sales................................................ $1,304,408 $ 303,084 $1,607,492
---------- --------- ----------
Costs and expenses:
Cost of products sold.............................. 1,047,930 246,401 1,294,331
Selling, general and administrative expenses....... 157,163 35,122 192,285
Depreciation and amortization...................... 7,383 1,607 8,990
---------- --------- ----------
1,212,476 283,130 1,495,606
---------- --------- ----------
Operating income..................................... 91,932 19,954 111,886
Equity in earnings of affiliated companies........... 613 -- 613
Interest income (expense)............................ (14,284) 191 (14,093)
---------- --------- ----------
Earnings before income taxes and minority interest... 78,261 20,145 98,406
Provision for income taxes........................... 31,002 8,300 39,302
---------- --------- ----------
Earnings before minority interest.................... 47,259 11,845 59,104
Minority interest.................................... 6,568 -- 6,568
---------- --------- ----------
Net income........................................... $ 40,691 $ 11,845 $ 52,536
========== ========= ==========
Net income used in per common share calculation
(reflecting deduction of preferred stock
dividends)......................................... $ 40,049 $ 11,845 $ 51,894
========== ========= ==========
Per common share:
Primary............................................ $ 1.18 $ .96 $ 1.15
========== ========= ==========
Fully diluted...................................... $ 1.11 $ .96 $ 1.09
========== ========= ==========
Average number of common shares and common share
equivalents outstanding:
Primary............................................ 33,943 12,387 45,199
========== ========= ==========
Fully diluted...................................... 38,771 12,387 49,994
========== ========= ==========
</TABLE>
59
<PAGE> 67
ARROW ELECTRONICS, INC.
WITH
ANTHEM ELECTRONICS, INC.
PRO FORMA COMBINED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1993
<TABLE>
<CAPTION>
PRO FORMA
SUPPLEMENTAL HISTORICAL COMBINED
ARROW ANTHEM COMPANIES
------------ ---------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Sales................................................ $2,897,663 $ 663,193 $3,560,856
---------- --------- ----------
Costs and expenses:
Cost of products sold.............................. 2,351,450 550,198 2,901,648
Selling, general and administrative expenses....... 332,551 71,319 403,870
Depreciation and amortization...................... 18,307 3,132 21,439
Restructuring charge............................... -- 7,810 7,810
---------- --------- ----------
2,702,308 632,459 3,334,767
---------- --------- ----------
Operating income..................................... 195,355 30,734 226,089
Equity in earnings of affiliated companies........... 1,673 -- 1,673
Interest income (expense)............................ (27,103) 530 (26,573)
---------- --------- ----------
Earnings before income taxes and minority interest... 169,925 31,264 201,189
Provision for income taxes........................... 69,157 13,252 82,409
---------- --------- ----------
Earnings before minority interest.................... 100,768 18,012 118,780
Minority interest.................................... 12,221 -- 12,221
---------- --------- ----------
Net income........................................... $ 88,547 $ 18,012 $ 106,559
========== ========= ==========
Net income used in per common share calculation
(reflecting deduction of preferred stock
dividends)......................................... $ 87,667 $ 18,012 $ 105,679
========== ========= ==========
Per common share:
Primary............................................ $ 2.54 $ 1.46 $ 2.31
========== ========= ==========
Fully diluted...................................... $ 2.38 $ 1.46 $ 2.20
========== ========= ==========
Average number of common shares and common share
equivalents outstanding:
Primary............................................ 34,528 12,379 45,743
========== ========= ==========
Fully diluted...................................... 39,076 12,379 50,296
========== ========= ==========
</TABLE>
60
<PAGE> 68
ARROW ELECTRONICS, INC.
WITH
ANTHEM ELECTRONICS, INC.
PRO FORMA COMBINED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1992
<TABLE>
<CAPTION>
PRO FORMA
SUPPLEMENTAL HISTORICAL COMBINED
ARROW ANTHEM COMPANIES
------------ -------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Sales............................................... $1,884,671 $538,362 $2,423,033
---------- -------- ----------
Costs and expenses:
Cost of products sold............................. 1,517,721 420,848 1,938,569
Selling, general and administrative expenses...... 241,380 63,428 304,808
Depreciation and amortization..................... 13,099 2,858 15,957
---------- -------- ----------
1,772,200 487,134 2,259,334
---------- -------- ----------
Operating income.................................... 112,471 51,228 163,699
Equity in earnings of affiliated companies.......... 6,550 -- 6,550
Interest income (expense)........................... (31,873) 266 (31,607)
---------- -------- ----------
Earnings before income taxes and extraordinary
charges........................................... 87,148 51,494 138,642
Provision for income taxes.......................... 32,697 21,060 53,757
---------- -------- ----------
Earnings before extraordinary charges............... 54,451 30,434 84,885
Extraordinary charges............................... 5,424 -- 5,424
---------- -------- ----------
Net income.......................................... $ 49,027 $ 30,434 $ 79,461
========== ======== ==========
Net income used in per common share calculation
(reflecting deduction of preferred stock
dividends)........................................ $ 45,124 $ 30,434 $ 75,558
========== ======== ==========
Per common share:
Primary:
Earnings before extraordinary charges.......... $ 1.76 $ 2.48 $ 2.03
Extraordinary charges.......................... (.19) -- (.14)
---------- -------- ----------
Net income..................................... $ 1.57 $ 2.48 $ 1.89
========== ======== ==========
Fully diluted:
Earnings before extraordinary charges.......... $ 1.69 $ 2.48 $ 1.95
Extraordinary charges.......................... (.17) -- (.12)
---------- -------- ----------
Net income..................................... $ 1.52 $ 2.48 $ 1.83
========== ======== ==========
Average number of common shares and common share
equivalents outstanding:
Primary........................................... 28,824 12,281 39,951
========== ======== ==========
Fully diluted..................................... 32,660 12,281 43,787
========== ======== ==========
</TABLE>
61
<PAGE> 69
ARROW ELECTRONICS, INC.
WITH
ANTHEM ELECTRONICS, INC.
PRO FORMA COMBINED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1991
<TABLE>
<CAPTION>
PRO FORMA
SUPPLEMENTAL HISTORICAL COMBINED
ARROW ANTHEM COMPANIES
---------- -------- ----------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C>
Sales................................................ $1,238,529 $419,648 $1,658,177
---------- -------- ----------
Costs and expenses:
Cost of products sold.............................. 1,000,709 324,292 1,325,001
Selling, general and administrative expenses....... 187,616 53,954 241,570
Depreciation and amortization...................... 10,253 2,152 12,405
---------- -------- ----------
1,198,578 380,398 1,578,976
---------- -------- ----------
Operating income..................................... 39,951 39,250 79,201
Equity in earnings of affiliated companies........... 5,657 -- 5,657
Interest income (expense)............................ (31,431) 184 (31,247)
---------- -------- ----------
Earnings before income taxes......................... 14,177 39,434 53,611
Provision for income taxes........................... 3,593 16,129 19,722
---------- -------- ----------
Net income........................................... $ 10,584 $ 23,305 $ 33,889
========== ======== ==========
Net income used in per common share calculation
(reflecting deduction of preferred stock
dividends)......................................... $ 5,988 $ 23,305 $ 29,293
========== ======== ==========
Per common share:
Primary............................................ $ .35 $ 1.92 $ 1.04
========== ======== ==========
Fully diluted...................................... $ .35 $ 1.92 $ 1.04
========== ======== ==========
Average number of common shares and common share
equivalents outstanding:
Primary............................................ 17,249 12,119 28,229
========== ======== ==========
Fully diluted...................................... 17,249 12,119 28,229
========== ======== ==========
</TABLE>
62
<PAGE> 70
COMPARISON OF RIGHTS OF HOLDERS OF
ANTHEM COMMON STOCK AND ARROW COMMON STOCK
GENERAL
Arrow is incorporated in the State of New York. Anthem is incorporated in
the State of Delaware. The rights of stockholders of Anthem are currently
governed by the DGCL and by the Anthem Certificate of Incorporation and By-laws.
Stockholders of Anthem who receive Arrow Common Stock pursuant to the Merger
will become shareholders of Arrow and their rights as such will be governed by
the NYBCL and the Arrow Certificate of Incorporation and By-laws, as amended
from time to time in accordance with the NYBCL.
Certain differences between the rights of Arrow shareholders and Anthem
stockholders are summarized below. This summary is qualified in its entirety by
reference to the full text of such documents. For information as to how such
documents may be obtained, see "AVAILABLE INFORMATION."
BUSINESS COMBINATIONS
Generally, under the DGCL, the affirmative vote of the holders of a
majority of the outstanding shares entitled to vote on the matter is required to
approve mergers, consolidations, and any sales, leases or exchanges of all or
substantially all of the assets of a corporation.
With certain exceptions, the Anthem Certificate of Incorporation requires
the affirmative vote of the holders of not less than 66 2/3% of the outstanding
shares of Anthem Common Stock and Anthem Preferred Stock held by stockholders
other than a beneficial owner, together with all affiliates and associates of
such beneficial owner, of 20% or more of the outstanding voting stock of Anthem
for the approval or authorization of any merger or consolidation of Anthem with
or into such beneficial owner and for the sale, lease, exchange or other
disposition of all or substantially all the assets of Anthem to such beneficial
owner. In addition, the Anthem Certificate of Incorporation provides that the
affirmative vote of the holders of 66 2/3% of the outstanding Anthem Common
Stock is required for the approval of certain business combinations, including
the merger or consolidation of Anthem with or into another corporation, unless
the Anthem Board has approved a memorandum of understanding with such other
corporation prior to the time it became the owner of 5% or more of the
outstanding Anthem Common Stock.
Under the NYBCL, the affirmative vote of the holders of two-thirds of all
outstanding shares of stock of a New York corporation entitled to vote thereon
is required to approve mergers and consolidations, and for sales, leases,
exchanges or other dispositions of all or substantially all the assets of a
corporation, if not made in the usual or regular course of the business actually
conducted by such corporation.
In addition, the Arrow Certificate of Incorporation requires the
affirmative vote of 90% of the outstanding shares of Arrow Common Stock to
authorize certain mergers into, sales of assets to, and other transactions with
any person or entity that acquires directly or indirectly 30% or more of the
outstanding shares of capital stock entitled to vote generally in the election
of directors. A 90% vote of such shares is also required to approve corporate
reorganizations which materially reduce the percentage of outstanding shares
entitled to vote.
APPRAISAL RIGHTS
Under Section 262 of the DGCL, except as otherwise provided by the DGCL,
stockholders who continuously hold their shares through the effective date of a
merger or consolidation, who perfect their appraisal rights under Section 262(d)
of the DGCL, and who neither vote in favor of the merger or consolidation nor
otherwise consent thereto in writing are entitled upon petition to receive
63
<PAGE> 71
payment of the fair value of their stock, as determined by the Delaware Court of
Chancery, in the event the merger or consolidation is consummated.
Under certain Sections of the NYBCL, including Sections 806(b)(6) and 910,
shareholders of a New York corporation have the right to dissent and receive
payment of the fair value of their shares, except as otherwise provided by the
NYBCL, in the event of certain amendments or changes to the certificate of
incorporation adversely affecting their shares, certain mergers or
consolidations, certain sales, exchanges or other dispositions of all or
substantially all of the corporation's assets and certain share exchanges. A
shareholder intending to enforce such right must comply with the procedures set
forth in Section 623 of the NYBCL.
STATE TAKEOVER LEGISLATION
Section 203 of the DGCL prohibits a publicly held Delaware corporation from
engaging in a "business combination" with an "interested stockholder" for a
period of three years after the date such person became an interested
stockholder, unless (i) prior to such date, the business combination or the
transaction which resulted in the stockholder becoming an interested stockholder
is approved by the board of directors of the corporation, (ii) upon consummation
of the transaction which resulted in the stockholder becoming an interested
stockholder, the interested stockholder owned at least 85% of the outstanding
voting stock of the corporation outstanding at the time the transaction
commenced, or (iii) on or after such date the business combination is approved
by the board of directors of the corporation and by the affirmative vote, not by
written consent, of at least 66 2/3% of the voting stock which is not owned by
the interested stockholder. A "business combination" includes mergers,
consolidations, asset transfers (including any sale, lease, exchange, mortgage,
pledge or other disposition of assets) and other transactions resulting in a
financial benefit to the interested stockholder. An "interested stockholder" is
a person who (i) owns 15% or more of the outstanding voting stock of the
corporation or (ii) is an affiliate or associate of a corporation and was the
owner of 15% or more of the outstanding voting stock at any time within the past
three years.
On September 20, 1994, prior to the execution of the Merger Agreement, the
Anthem Board duly adopted irrevocable resolutions that approved the Merger and
provide that, for as long as the Merger Agreement remains in full force and
effect, the transactions contemplated by the Merger Agreement are exempt from
Section 203 of the DGCL to the extent that the statute is applicable thereto.
The NYBCL prohibits any business combination (defined to include a variety
of transactions, including mergers, consolidations, sales or dispositions of
assets, issuances of stock, liquidations, reclassifications and the receipt of
certain benefits from the corporation, including loans or guarantees) with,
involving or proposed by any interested shareholder (defined generally as any
person who, (i) directly or indirectly, beneficially owns 20% or more of the
outstanding voting stock of a resident domestic New York corporation or (ii) is
an affiliate or associate of such resident domestic corporation and at any time
within the past five years was a beneficial owner of 20% or more of such stock)
for a period of five years after the date on which the interested shareholder
became such. After such five-year period a business combination between a
resident domestic New York corporation and such interested shareholder is
prohibited unless either certain "fair price" provisions are complied with or
the business combination is approved by a majority of the outstanding voting
stock not beneficially owned by such interested shareholder or its affiliates or
associates. The NYBCL exempts from its prohibitions any business combination
with an interested shareholder if such business combination, or the purchase of
stock by the interested shareholder that caused such shareholder to become such,
is approved by the board of directors of the resident domestic New York
corporation prior to the date on which the interested shareholder becomes such.
Provided that at least ten percent of the voting stock of Arrow is owned
beneficially by residents of (or organizations having their principal offices
in) the State of New York, Arrow is a resident domestic New York corporation.
The NYBCL also excludes resident domestic corporations
64
<PAGE> 72
having no class of voting stock registered with the SEC, unless the certificate
of incorporation provides otherwise.
A resident domestic New York corporation may adopt an amendment to its
by-laws, approved by the affirmative vote of the holders, other than interested
shareholders and their affiliates and associates, of a majority of the
outstanding voting stock, excluding the voting stock of interested shareholders
and their affiliates and associates, expressly electing not to be governed by
the NYBCL. However, such amendment will not be effective until 18 months after
such shareholder vote and will not apply to any business combination with an
interested shareholder who was such on or prior to the effective date of such
amendment. Arrow has not amended the Arrow By-laws to elect not to be governed
by the NYBCL.
STOCKHOLDER RIGHTS PLANS
Anthem does not have a stockholder rights plan.
In March 1988, Arrow paid a dividend of one Arrow Right on each outstanding
share of Arrow Common Stock pursuant to the Rights Agreement. Each Arrow Right
entitles the registered holder to purchase from Arrow one one-hundredth of a
share of Arrow Participating Preferred Stock for a price of $50, subject to
adjustment. Although the Arrow Rights are not intended to prevent a takeover of
Arrow at a full and fair price, they may have certain anti-takeover effects.
They may deter an attempt to acquire Arrow in a manner which seeks to deprive
Arrow's shareholders of the full and fair value of their investment and may
deter attempts by significant shareholders to take advantage of Arrow and its
shareholders through certain self-dealing transactions. The Arrow Rights may
cause substantial dilution to a person or group that acquires or attempts to
acquire Arrow without the Arrow Rights being redeemed by the Arrow Board.
Accordingly, the Arrow Rights should encourage any potential acquiror to seek to
negotiate with the Arrow Board. Unless the approval is first obtained from the
Arrow Board, the Arrow Rights may deter transactions, including tender offers,
which the majority of shareholders may believe are beneficial to them. Under the
Rights Agreement, one Arrow Right will also be issued with each share of Arrow
Common Stock issued pursuant to the Merger.
AMENDMENTS TO CERTIFICATE OF INCORPORATION
Under Section 242 of the DGCL, a charter amendment proposed by the board
requires an affirmative vote of a majority of the outstanding stock entitled to
vote thereon and a majority of the outstanding stock of each class entitled to
vote thereon. Whether or not entitled by the charter, the holders of the
outstanding shares of a class are entitled to vote on a charter amendment if the
amendment would increase or decrease the aggregate number of authorized shares
of such class or adversely affect the powers, preferences or special rights of
such class. Under the terms of the Anthem Certificate of Incorporation, certain
amendments to the Anthem Certificate of Incorporation require the affirmative
vote of at least 66 2/3% of the total voting power of all outstanding shares of
voting stock of Anthem.
Under Section 803 of the NYBCL, amendments of the certificate of
incorporation may be authorized by vote of the board, followed by a vote of the
holders of a majority of all outstanding shares entitled to vote thereon at a
meeting of shareholders. Certain categories of amendments which adversely affect
the rights of any holders of shares of a class or series of stock require the
affirmative vote of the holders of a majority of all outstanding shares of such
class or series, voting separately.
AMENDMENTS TO BY-LAWS
Under Section 109 of the DGCL, the by-laws of a corporation generally may
be amended or repealed by the affirmative vote of the holders of a majority of
the shares entitled to vote thereon. As permitted by the DGCL, the Anthem
Certificate of Incorporation provides that the Anthem By-laws
65
<PAGE> 73
may be made, altered or repealed by the Anthem Board. Under the terms of the
Anthem Certificate of Incorporation and Anthem By-laws, amendment by the
stockholders of the Anthem By-laws requires the affirmative vote of at least
66 2/3% of the total voting power of all outstanding shares of voting stock of
Anthem.
Under Section 601 of the NYBCL, except as otherwise provided in the
certificate of incorporation, by-laws may be amended, repealed or adopted by the
holders of shares entitled to vote in the election of any director. When so
provided in the certificate of incorporation or a by-law adopted by the
shareholders, by-laws may also be amended, repealed or adopted by the board by
such vote as may be therein specified, which may be greater than the vote
otherwise prescribed by law, but any by-law adopted by the board may be amended
or repealed by the shareholders entitled to vote thereon as provided by the
NYBCL.
The Arrow By-laws may be amended, repealed or adopted by the holders of
voting shares or the Arrow Board, except that any amendment changing the number
of directors requires a vote of the majority of the entire Arrow Board. Any
by-law adopted by the Arrow Board may be amended or repealed by the shareholders
in accordance with the NYBCL.
PREEMPTIVE RIGHTS
Under Section 102(b)(3) of the DGCL, unless the certificate of
incorporation provides otherwise, a stockholder is granted no preemptive rights.
The Anthem Certificate of Incorporation does not provide for preemptive rights.
Under Section 622 of the NYBCL, except as otherwise provided in the NYBCL
or in the certificate of incorporation, the holders of equity shares are granted
certain preemptive rights. The Arrow Certificate of Incorporation provides that
no holder of shares of Arrow Common Stock has any preemptive rights to purchase
any shares or other securities of Arrow.
DIVIDEND SOURCES
Section 170 of the DGCL permits the payment of dividends on capital stock,
subject to any restrictions contained in the certificate of incorporation, out
of a corporation's surplus (the excess of net assets over capital) or, in case
there is no surplus, out of net profits for the current and/or preceding fiscal
year. If the capital of the corporation is diminished to an amount less than the
aggregate amount of capital represented by the outstanding stock having a
preference on the distribution of assets, then dividends may not be declared and
paid out of such net profits until the deficiency in the amount of capital
represented by the shares having a preference on the distribution of assets
shall have been repaired. The Anthem Certificate of Incorporation and By-laws do
not restrict the sources of payment of dividends on Anthem Common Stock. Section
7.3 of the By-laws allows the directors, in their absolute discretion, to set
aside reserves out of any funds available for dividends for any purpose the
directors shall think conducive to Anthem's interests. Anthem, however, is a
party to certain agreements which currently limit the amount of dividends that
can be paid by Anthem.
Under Section 510 of the NYBCL, except as otherwise provided in the NYBCL,
dividends may be declared or paid and other distributions may be made out of
surplus only, so that the net assets of the corporation remaining after such
declaration, payment or distribution must at least equal the amount of its
stated capital. When any dividend is paid or any other distribution is made from
sources other than earned surplus, a written notice must accompany such payment
or distribution as provided by the NYBCL. A corporation may declare and pay
dividends or make other distributions except when currently the corporation is
insolvent or would thereby be made insolvent, or when the declaration, payment
or distribution would be contrary to any restrictions contained in the
corporation's certificate of incorporation. Arrow is a party to certain
agreements which currently limit the amount of dividends that can be paid by
Arrow.
66
<PAGE> 74
DURATION OF PROXIES
Under Section 212 of the DGCL, no proxy is valid for more than three years
after its date unless provided otherwise in the proxy.
Under Section 609 of the NYBCL, no proxy is valid after the expiration of
eleven months from the date thereof unless otherwise provided in the proxy.
Irrevocable proxies may be created for (i) a pledgee, (ii) a person who has
purchased or agreed to purchase the shares, (iii) a creditor of the corporation
who extends or continues credit in consideration of the proxy, (iv) a person who
has contracted to perform services as an officer of the corporation if the proxy
is required by the employment contract and (v) a person designated under a
voting agreement.
STOCKHOLDER ACTION
Under Section 228 of the DGCL, unless otherwise provided in the certificate
of incorporation, any action required or permitted to be taken at any meeting of
stockholders may instead be taken without a meeting, without prior notice and
without a vote, if a written consent setting forth the action taken is signed by
holders of outstanding stock having not less than the minimum number of votes
that would be required to authorize such action at a meeting of stockholders at
which all shares entitled to vote thereon were present and voting and a prompt
notice of the action so taken is provided to those stockholders who have not
consented in writing. The Anthem Certificate of Incorporation does not prohibit
or otherwise limit action by written consent.
Under Section 615 of the NYBCL, any action required or permitted to be
taken by vote may be taken without a meeting by written consent, setting forth
the action so taken, signed by the holders of all outstanding shares entitled to
vote thereon, provided that the certificate of incorporation may contain a
provision requiring the written consent of the holders of less than all
outstanding shares. The Arrow Certificate of Incorporation does not contain such
a provision.
SPECIAL STOCKHOLDER MEETINGS
Under Section 211 of the DGCL, a special meeting of stockholders may be
called only by the board of directors or by such person or persons as may be
authorized by the certificate of incorporation or by-laws. The Anthem
Certificate of Incorporation and By-laws provide that a special meeting of
stockholders may be called, for any purpose or purposes, by the Anthem Board, or
a duly designated committee of the Anthem Board whose powers and authority
specifically include the power to call such meetings, and such special meetings
may not be called by any other person or persons.
Under Section 602 of the NYBCL, a special meeting of shareholders may be
called by the board of directors or by such person or persons as may be
authorized by the certificate of incorporation or by-laws. The Arrow By-laws
provide that special meetings of the shareholders may be called at any time by
the Chairman of the Board or by the Board of Directors. In addition, Section 603
of the NYBCL provides that if, for a period of one month after the date fixed by
or under the by-laws for the annual meeting of shareholders, or if no date has
been so fixed, for a period of thirteen months after the last annual meeting,
there is a failure to elect a sufficient number of directors to conduct the
business of the corporation, the board shall call a special meeting for the
election of directors. If such special meeting is not called by the board within
two weeks after the expiration of such period or if it is called but there is a
failure to elect such directors for a period of two months after the expiration
of such period, holders of ten percent of the shares entitled to vote in an
election of directors may, in writing, demand the call of a special meeting for
the election of directors.
67
<PAGE> 75
CUMULATIVE VOTING
Under Section 214 of the DGCL, the certificate of incorporation may provide
for cumulative voting of shares in all elections of directors. The Anthem
Certificate of Incorporation does not provide for cumulative voting for the
election of directors.
Under Section 618 of the NYBCL, the certificate of incorporation may
provide that in all elections of directors each shareholder is entitled to
cumulate such shareholder's votes. The Arrow Certificate of Incorporation does
not contain such a provision.
REMOVAL OF DIRECTORS
Except as otherwise provided in the DGCL, under Section 141(k) of the DGCL,
the entire board of directors or any individual director may be removed from
office, with or without cause, by the holders of a majority of the shares then
entitled to vote at an election of directors.
Section 706 of the NYBCL provides that any or all of the directors may be
removed for cause by vote of the shareholders and, if the certificate of
incorporation or the specific provisions of a by-law adopted by the shareholders
provide, directors may be removed by action of the board of directors. If the
certificate of incorporation or the by-laws so provide, any or all of the
directors may be removed without cause by vote of the shareholders. The removal
of directors, with or without cause, is subject to the following: (i) in the
case of a corporation having cumulative voting, no director may be removed when
the votes cast against such director's removal would be sufficient to elect the
director if voted cumulatively and (ii) if a director is elected by the holders
of shares of any class or series, such director may be removed only by the
applicable vote of the holders of the shares of that class or series voting as a
class. An action to procure a judgment removing a director for cause may be
brought by the attorney-general or by the holders of ten percent of the
outstanding shares, whether or not entitled to vote.
The Arrow Certificate of Incorporation provides that any or all of the
directors may be removed without cause by action of the shareholders.
VACANCIES ON THE BOARD
As permitted under Section 223 of the DGCL, the Anthem By-laws provide that
the Anthem Board may fill any vacancy on the Anthem Board, including vacancies
resulting from an increase in the number of directors.
Under Section 705 of the NYBCL, newly created directorships resulting from
an increase in the number of directors and vacancies occurring in the board for
any reason except the removal of directors without cause may be filled by vote
of the board. However, the certificate of incorporation or by-laws may provide
that such newly created directorships or vacancies are to be filled by vote of
the shareholders. Unless the certificate of incorporation or the specific
provision of a by-law adopted by the shareholders provide that the board may
fill vacancies occurring in the board by reason of the removal of directors
without cause, such vacancies may be filled only by vote of the shareholders. A
director elected to fill a vacancy, unless elected by the shareholders, will
hold office until the next meeting of shareholders at which the election of
directors is in the regular order of business and until his or her successor has
been elected and qualified.
The Arrow By-laws provide that any vacancy in the Arrow Board (other than
removal without cause) may be filled by a majority vote of the remaining
directors.
INDEMNIFICATION OF DIRECTORS
Section 145 of the DGCL generally provides that a corporation may, and in
certain circumstances, must, indemnify any person who is or was threatened with
any action, suit or proceeding by reason of the fact that he or she is or was a
director, officer, employee or agent of such corporation
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<PAGE> 76
for expenses, judgments or settlements actually and reasonably incurred by such
person in connection with suits and other legal action or proceedings if such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the corporation and, with respect to
any criminal action or proceeding, had no reasonable cause to believe their
conduct was unlawful. The determination of whether a director, officer, employee
or agent has met the applicable standard of conduct is made (i) by a majority
vote of a quorum of directors not party to the action, suit or proceeding, or
(ii) by an independent legal counsel in a written opinion if a quorum of
disinterested directors is unobtainable or if the disinterested directors so
direct or (iii) by the shareholders. In the case of shareholder derivative
suits, the corporation may indemnify any person who is or was threatened with
any action, suit or proceeding by reason of the fact that he or she is or was a
director, officer, employee or agent if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification may be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged liable to the corporation unless and only to the extent that the Court
of Chancery or the court in which the action was brought determined upon
application that, in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses as the court deems
proper. The DGCL also permits a corporation to adopt procedures for advancing
expenses to directors, officers and others without the need for a case-by-case
determination of eligibility, so long as in the case of officers and directors
they undertake to repay the amounts advanced if it is ultimately determined that
the officer or director was not entitled to be indemnified. The aforementioned
provisions relating to indemnification and advancement of expenses are not
exclusive and a corporation may provide additional rights to those seeking
indemnification or advancement of expenses. The Anthem By-laws provide for
indemnification of directors and officers to the fullest extent authorized under
the DGCL. The Anthem By-laws also authorize the advancement of expenses relating
to actions for which such persons may be indemnified.
Under Section 722 of the NYBCL, a corporation may indemnify any person
made, or threatened to be made, a party to any action or proceeding, except for
shareholder derivative suits, by reason of the fact that he or she was a
director or officer of the corporation, provided such director or officer acted
in good faith for a purpose which he or she reasonably believed to be in the
best interests of the corporation and, in criminal proceedings, in addition, had
no reasonable cause to believe his or her conduct was unlawful. In the case of
shareholder derivative suits, the corporation may indemnify any person by reason
of the fact that he or she was a director or officer of the corporation if he or
she acted in good faith for a purpose which he or she reasonably believed to be
in the best interests of the corporation, except that no indemnification may be
made in respect of (i) a threatened action, or a pending action which is settled
or otherwise disposed of, or (ii) any claim, issue or matter as to which such
person has been adjudged to be liable to the corporation, unless and only to the
extent that the court on which the action was brought, or, if no action was
brought, any court of competent jurisdiction, determines upon application that,
in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
The indemnification described above under the NYBCL is not exclusive of
other indemnification rights to which a director or officer may be entitled,
whether contained in the certificate of incorporation or by-laws, or, when
authorized by (i) such certificate of incorporation or by-laws, (ii) a
resolution of shareholders, (iii) a resolution of directors, or (iv) an
agreement providing for such indemnification, provided that no indemnification
may be made to or on behalf of any director or officer if a judgment or other
final adjudication adverse to the director or officer establishes that his or
her acts were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that he
or she personally gained in fact a financial profit or other advantage to which
he or she was not legally entitled.
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Any person who has been successful on the merits or otherwise in the
defense of a civil or criminal action or proceeding will be entitled to
indemnification. Except as provided in the preceding sentence, unless ordered by
a court pursuant to the NYBCL, any indemnification under the NYBCL pursuant to
the above paragraphs may be made only if authorized in the specific case and
after a finding that the director or officer met the requisite standard of
conduct (i) by the disinterested directors if a quorum is available, or (ii) in
the event a quorum of disinterested directors is not available or so directs by
either (A) the board upon the written opinion of independent legal counsel, or
(B) by the shareholders.
The Arrow Certificate of Incorporation provides that Arrow shall indemnify
directors, officers and employees of Arrow with respect to proceedings by reason
of the fact that he or she was a director, officer or employee of Arrow, except
where such officer, director or employee is liable for negligence or misconduct
in the performance of his or her duties. The Arrow Certificate of Incorporation
also provides that such rights to indemnification are not exclusive.
The Arrow By-laws provide that Arrow is authorized, by (i) a resolution of
shareholders, (ii) a resolution of directors or (iii) an agreement providing for
such indemnification, to provide indemnification and to advance expenses to its
directors and officers in respect of claims, actions, suits or proceedings based
upon, arising from, relating to or by reason of the fact that any such director
or officer serves or served in such capacity with Arrow or at the request of
Arrow in any capacity with any other enterprise.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling Arrow or Anthem
pursuant to the foregoing provisions, Arrow and Anthem have been informed that
in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
LIMITATION OF PERSONAL LIABILITY OF DIRECTORS
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision that would eliminate a director's
monetary liability for breaches of his fiduciary duty in a lawsuit by or on
behalf of the corporation or in an action by stockholders of the corporation,
provided that such provision may not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or stock purchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. The Anthem Certificate of Incorporation contains such
a provision providing for the limitation of liability of directors for monetary
damages to the fullest extent permitted by the DGCL.
Section 402(b) of the NYBCL provides that a corporation's certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of directors to the corporation or its shareholders for damages for
any breach of duty in such capacity. However, no such provision can eliminate or
limit (i) the liability of any director if a judgment or other final
adjudication adverse to such director establishes that such director's acts or
omissions were in bad faith, or involved intentional misconduct or a knowing
violation of law, or that the director personally gained in fact a financial
profit or other advantage to which such director was not legally entitled or
that the director's acts violated certain provisions of the NYBCL or (ii) the
liability of any director for any act or omission prior to the adoption of such
a provision in the certificate of incorporation.
The Arrow Certificate of Incorporation provides that no director shall be
personally liable to Arrow or any of its shareholders for damages for any breach
of duty as a director, except for liability resulting from a judgment or other
final adjudication adverse to the director (i) for acts or omissions in bad
faith or which involve intentional misconduct or a knowing violation of the law,
(ii) for any transaction from which the director derived a financial profit or
other advantage to which the director was not legally entitled, or (iii) under
Section 719 of the NYBCL.
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PROPOSED AMENDMENT OF THE ARROW STOCK OPTION PLAN
The Arrow Board believes that the future growth and profitability of Arrow
depends, in large measure, on its ability to retain and motivate key employees
with outstanding ability. To further this goal, in 1981 the Arrow Board adopted
a stock option plan (the "Arrow Option Plan"), which was approved by Arrow's
shareholders in 1982. As so adopted, the Arrow Option Plan provided for the
grant of incentive stock options ("ISOs"). In 1986, the Arrow Option Plan was
amended to also provide for the grant of nonqualified stock options ("ASOs") to
purchase shares of Arrow Common Stock. ISOs and ASOs are hereinafter
occasionally collectively referred to as "Options." On November 12, 1987, the
Arrow Board adopted an amendment and restatement of the Arrow Option Plan,
subject to shareholder approval (which was obtained on January 11, 1988), that,
among other things, increased the number of shares of Arrow Common Stock
issuable under the Arrow Option Plan by 750,000, permitted the grant of ASOs at
an exercise price determined by the Arrow Board and extended the expiration date
of the Arrow Option Plan to November 11, 1997. On June 6, 1991, the Arrow Board
adopted an amendment and restatement of the Arrow Option Plan, subject to
shareholder approval (which was obtained on September 25, 1991), that, among
other things, further increased the aggregate number of shares of Arrow Common
Stock that may be issued pursuant to Options awarded thereunder by 1,250,000. On
February 9, 1993, the Arrow Board adopted an amendment of the Arrow Option Plan,
subject to shareholder approval (which was obtained on May 18, 1993) that
further increased the aggregate number of shares of Arrow Common Stock that may
be issued pursuant to Options awarded thereunder by 1,500,000. In order for
Arrow to have sufficient Options available for future grants under the Arrow
Option Plan, including options to be granted to current Arrow employees and
those employees of Anthem who will become employees of Arrow upon consummation
of the Merger, on October 7, 1994, the Arrow Board approved the amendment of the
Arrow Option Plan, subject to shareholder approval. The effect of such amendment
is to increase the aggregate number of shares of Arrow Common Stock that may be
issued pursuant to Options awarded thereunder by 1,500,000. The Arrow Option
Plan is intended to offer those employees of Arrow and its subsidiaries who are
most responsible for the growth and profitability of Arrow a means of becoming
owners of shares of Arrow Common Stock and thereby to encourage such employees
to continue in the employ of Arrow or a subsidiary. Accordingly, the Arrow Board
recommends to Arrow's shareholders the approval of the proposed amendment of the
Arrow Option Plan.
SUMMARY OF THE ARROW ELECTRONICS, INC. STOCK OPTION PLAN
The Arrow Option Plan, as amended, provides for the granting of Options to
purchase up to 6,000,000 shares of Arrow Common Stock to key employees of Arrow
and its subsidiaries. Arrow Common Stock issued pursuant to the Arrow Option
Plan may be either authorized but unissued Arrow Common Stock or reacquired
Arrow Common Stock, or both. The Arrow Option Plan shall be administered by the
Arrow Board or by a committee of three or more of Arrow's directors, who are not
eligible to receive Options under the Arrow Option Plan, as may be appointed by
the Arrow Board. References to the Arrow Board in the following description of
the Arrow Option Plan should be deemed to refer to the committee if at such time
a committee is appointed.
The Arrow Board shall determine the employees to whom grants of Options
shall be made under the Arrow Option Plan, the number of shares of Arrow Common
Stock subject to the Options to be granted to each employee selected, the time
or times when Options will be granted, the exercise price per share of Arrow
Common Stock and the period during which Options will be exercisable. The
exercise price of an ISO may not be less than the fair market value of the
shares of Arrow Common Stock on the date the ISO is granted. The exercise price
of ASOs shall be determined in the discretion of the Arrow Board. No employee is
eligible to receive an ISO if he owns stock (including stock the ownership of
which is attributed to him pursuant to Section 424(d) of the Code) possessing
more than 10 percent of the total voting power of all classes of stock of Arrow
or a subsidiary. The aggregate fair market value, determined on the date of
grant, of shares with respect to which ISOs are granted which are exercisable
for the first time by any employee during any calendar year may not exceed
$100,000.
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Options granted to an employee under the Arrow Option Plan may not be
transferred by the employee otherwise than by will or by the laws of descent and
distribution and such Option may be exercisable, during his lifetime, only by
him and only during his employ with Arrow or a subsidiary. The terms of an
Option may provide that it is exercisable only in specified installments during
the option period. Any such Option shall be exercisable in full, however, and
shall become free of any restrictions imposed upon exercise of the Option by
reason of the installment requirements if the employee's employment with Arrow
or its subsidiaries is terminated by reason of his death, total and permanent
disability, as determined by the Arrow Board, retirement under a retirement plan
of Arrow or a subsidiary at or after his normal retirement date or, with the
consent of the Arrow Board, at his early retirement date.
Shares of Arrow Common Stock acquired under the Arrow Option Plan by an
employee are subject to Arrow's right of first refusal. Thus, such shares of
Arrow Common Stock may not be sold or otherwise disposed of until the employee
first offers to sell them to Arrow at the market price per share of Arrow Common
Stock on the date such offer is received by the Secretary of Arrow. If Arrow
fails to accept the offer to purchase the shares of Arrow Common Stock within
seven days after receipt of such offer, such shares will be free of all
restrictions under the Arrow Option Plan.
The Arrow Option Plan provides that, if there is any change in the
outstanding shares of Arrow Common Stock by reason of any stock split, stock
dividend, recapitalization, merger, consolidation, reorganization, combination
or exchange of shares or other similar event, the Arrow Board may, in its
discretion, and without further shareholder approval, make such adjustments as
may be equitably required in the number or kind of shares that may be issued
under the plan, in the number or kind of shares which are subject to outstanding
options or in the purchase price per share relating thereto.
The Arrow Board may amend the Arrow Option Plan at any time, but no
amendment that increases the aggregate number of shares which may be subject to
Options granted pursuant to the Option Plan shall be effective unless and until
the amendment is approved by the shareholders of Arrow (other than equitable
adjustments referred to in the immediately preceding paragraph which will not
constitute amendments).
The Arrow Option Plan will terminate on November 11, 1997 unless terminated
earlier by action of the Arrow Board.
It is expected that Options to purchase shares under the Arrow Option Plan
will be granted in the future to highly paid corporate officers and divisional
managers and employees, including those named in the tables appearing under
"ARROW EXECUTIVE COMPENSATION AND OTHER MATTERS." Such future grants are not
presently determinable. See the table entitled "ARROW STOCK OPTIONS AND
RESTRICTED SHARES" for previous grants and awards.
FEDERAL INCOME TAX CONSEQUENCES
Arrow has been advised that under the present provisions of the Code the
Federal income tax consequences of the Arrow Option Plan are as follows:
1. With respect to ASOs: The granting of an ASO to an employee will
not result in taxable income to the employee or a deduction in computing
the income tax of Arrow or any subsidiary. Upon exercise of an ASO, the
excess of the fair market value of the shares acquired over the option
price is (a) taxable to the optionee as ordinary income and (b) deductible
in computing Arrow's income tax, subject to satisfying applicable
withholding requirements and general rules relating to reasonableness of
compensation.
2. With respect to ISOs: An optionee will not be deemed to receive
any income at the time an ISO is granted or exercised. If an optionee does
not dispose of the shares acquired on exercise of an ISO within the two
year period beginning on the day after the day of the grant of the ISO or
within the one year period beginning on the day after the day of the
transfer of the shares to him, under present Federal income tax law the
gain (if any) on a subsequent sale
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(i.e., the excess of the proceeds received over the option price) will be
long-term capital gain and any loss he or she may sustain on such sale will
be treated as a long-term capital loss.
If the optionee disposes of the shares within the two year or one year
period referred to above, the disposition is a "disqualifying disposition," and
the optionee will generally realize ordinary income taxable as compensation in
the year of the disqualifying disposition to the extent of the excess of the
fair market value of the shares on the date of purchase over the option price,
and the balance, if any, will be long-term or short-term capital gain depending,
generally, on whether the shares were held more than one year (six months for
shares acquired prior to January 1, 1988) after the ISO was exercised. To the
extent the optionee recognizes compensation income with respect to a
disqualifying disposition, Arrow will be entitled to a corresponding deduction.
REQUIRED VOTE
The affirmative vote of the holders of a majority of the outstanding shares
of Arrow Common Stock is required for the approval of the proposed amendment to
the Arrow Option Plan. Consequently, any shares not voted (whether by abstention
or broker non-votes) have the same effect as votes against the proposed
amendment to the Arrow Option Plan.
THE ARROW BOARD RECOMMENDS THAT THE ARROW SHAREHOLDERS VOTE FOR THIS PROPOSAL.
PROPOSED AMENDMENT OF THE ARROW RESTRICTED STOCK PLAN
To provide a similar incentive to key employees of Arrow to continue in the
employ of Arrow, in 1979 the Arrow Board adopted, and the shareholders approved,
a Restricted Stock Plan (the "Arrow Restricted Stock Plan"). In 1982, the Arrow
Restricted Stock Plan was amended, with shareholder approval, to provide for the
grant of up to 580,000 shares and, in 1986, by the Arrow Board to provide for a
revised schedule of the lapse of restrictions on shares awarded under the Arrow
Restricted Stock Plan. On November 12, 1987, the Arrow Board adopted an
amendment and restatement of the Arrow Restricted Stock Plan, subject to
shareholder approval (which was obtained on January 11, 1988), which, among
other things, increased the aggregate number of shares that may be awarded under
the Arrow Restricted Stock Plan by 250,000 and extended the term of the Arrow
Restricted Stock Plan to December 31, 1998. On June 6, 1991, the Arrow Board
adopted an amendment and restatement of the Arrow Restricted Stock Plan, subject
to shareholder approval (which was obtained on September 25, 1991), which, among
other things, increased the aggregate number of shares that may be awarded under
the Arrow Restricted Stock Plan by 500,000. Because the Arrow Board wants to
ensure that the Arrow Restricted Stock Plan continues to meet the goals for
which it was adopted, on October 7, 1994, the Arrow Board adopted an amendment
to the Arrow Restricted Stock Plan, subject to shareholder approval, which would
increase the aggregate number of shares that may be awarded under the Arrow
Restricted Stock Plan by 150,000. The shares covered by the Arrow Restricted
Stock Plan are referred to hereinafter as the "Restricted Shares." The Arrow
Board believes that the Arrow Restricted Stock Plan encourages the retention and
motivation of key employees and, accordingly, the Arrow Board recommends to
Arrow's shareholders the approval of the proposed amendment to the Arrow
Restricted Stock Plan.
SUMMARY OF THE ARROW ELECTRONICS, INC. RESTRICTED STOCK PLAN
The Arrow Restricted Stock Plan, as amended, provides for the issuance of
up to 1,480,000 Restricted Shares to key employees of Arrow and its
subsidiaries. Restricted Shares issued pursuant to the Arrow Restricted Stock
Plan may be either authorized but unissued shares or reacquired shares, or both.
The Arrow Restricted Stock Plan shall be administered by the Arrow Board or by a
committee of three or more of Arrow's directors, who are not eligible to receive
awards under the Arrow Restricted Stock Plan, as may be appointed by the Arrow
Board. No committee has been appointed, and the Arrow Restricted Stock Plan is
therefore administered by the Arrow Board. References to the Arrow Board in the
following description of the Arrow Restricted Stock Plan should be deemed to
refer to the committee if at such time a committee is appointed.
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The Arrow Board shall determine the employees to whom awards of Restricted
Shares shall be made under the Arrow Restricted Stock Plan, the number of
Restricted Shares covered by each award and the time or times when awards of
Restricted Shares will be made. Restricted Shares shall be awarded under the
Arrow Restricted Stock Plan to employees without such employees being required
to pay for such Restricted Shares. However, the Arrow Board may require that
Restricted Shares awarded to an employee be issued to him only if he pays a
purchase price determined by the Arrow Board but not in excess of $1.00 per
share.
Restricted Shares awarded to an employee pursuant to the Arrow Restricted
Stock Plan may not be sold, assigned, transferred, pledged, alienated,
hypothecated or otherwise disposed of except as provided in the Arrow Restricted
Stock Plan. Except as the Arrow Board may otherwise determine, Restricted Shares
awarded under the Arrow Restricted Stock Plan become free of such restrictions
upon the expiration of specified periods of time as follows: 25% of the awarded
shares on the first anniversary of the date of the awards, an additional 25% of
the shares on the second anniversary thereof, an additional 25% of the shares on
the third anniversary thereof and the remaining 25% of the shares on the fourth
anniversary thereof. In addition, Restricted Shares awarded an employee will
become free of such restrictions if the employee's employment with Arrow or its
subsidiaries is terminated by reason of his death, permanent disability, as
determined by the Arrow Board, retirement under a retirement plan of Arrow or a
subsidiary at or after his normal retirement date or, with the consent of the
Arrow Board, at his early retirement date. If an employee's employment with
Arrow is terminated for any other reason, any Restricted Shares awarded to the
employee which have not become free of such restrictions (by reason of the
expiration of the time periods specified above) will be forfeited to Arrow (or,
if the employee purchased the Restricted Shares, will become subject to optional
repurchase by Arrow at the price paid by the employee).
Shares awarded under the Arrow Restricted Stock Plan which become free of
the restrictions described in the preceding paragraph will remain subject to
Arrow's right of first refusal. Thus, such Restricted Shares may not be sold or
otherwise disposed of until the employee first offers to sell the Restricted
Shares to Arrow at the market price per share on the date such offer is received
by the Secretary of Arrow. If Arrow fails to accept the offer to purchase such
Restricted Shares within seven days after receipt of such offer, the Restricted
Shares will be free of all restrictions under the Arrow Restricted Stock Plan.
Employees awarded Restricted Shares will have full voting rights on such
Restricted Shares and will have the right to receive and retain cash dividends
paid on such Restricted Shares from the date of award.
The Arrow Restricted Stock Plan provides that, if there is any change in
the outstanding shares of Arrow Common Stock by reason of any stock split, stock
dividend, recapitalization, merger, consolidation, reorganization, combination
or exchange of shares or other similar event, the Arrow Board may, in its
discretion, and without further shareholder approval, make such adjustments as
may be equitably required in the number or kind of Restricted Shares that may be
issued under the Arrow Restricted Stock Plan, in the number or kind of
Restricted Shares which have been awarded under the Arrow Restricted Stock Plan
or in the repurchase price per Restricted Share relating thereto; any additional
Restricted Shares or other property received in respect of the Restricted Shares
issued pursuant to an award under the Arrow Restricted Stock Plan may be
subjected to the restrictions imposed by the Arrow Restricted Stock Plan. In
addition to the restrictions specified in the Arrow Restricted Stock Plan, the
Arrow Board may impose such other restrictions on Restricted Shares issued under
the Arrow Restricted Stock Plan as it deems advisable, including restrictions
required under applicable securities laws or stock exchange rules or
regulations.
The Arrow Board may amend the Arrow Restricted Stock Plan at any time, but
no amendment that increases the aggregate number of Restricted Shares which may
be issued pursuant to the Arrow Restricted Stock Plan shall be effective unless
and until the amendment is approved by the
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shareholders of Arrow (other than equitable adjustments referred to in the
immediately preceding paragraph which will not constitute amendments).
The Arrow Restricted Stock Plan will terminate on December 31, 1998 unless
terminated earlier by action of the Arrow Board.
It is expected that awards of Restricted Shares under the Arrow Restricted
Stock Plan will be made in the future to highly paid corporate officers and
divisional managers and employees, including those named in the tables appearing
under "ARROW EXECUTIVE COMPENSATION AND OTHER MATTERS." Such future awards are
not presently determinable. See the table entitled "ARROW STOCK OPTIONS AND
RESTRICTED SHARES" for previous grants and awards.
REQUIRED VOTE
The affirmative vote of the holders of a majority of the outstanding shares
of Arrow Common Stock is required for the approval of the proposed amendment to
the Arrow Restricted Stock Plan. Consequently, any shares not voted (whether by
abstention or broker non-votes) have the same effect as votes against the
proposed amendment to the Arrow Restricted Stock Plan.
THE ARROW BOARD RECOMMENDS THAT THE ARROW SHAREHOLDERS VOTE FOR THIS PROPOSAL.
ARROW STOCK OPTIONS AND RESTRICTED SHARES
The following tabulation shows as to each of Arrow's executive officers,
for the periods such persons were executive officers, as to all present officers
as a group, and as to all employees as a group: (i) the number of shares subject
to options granted during the period from January 1, 1991 to December 31, 1993
and the average per share exercise price thereof; (ii) the number of such
options exercised and the net value of shares acquired through the exercise of
options during the period from January 1, 1991 to December 31, 1993; and (iii)
the number of shares of restricted stock granted during the period from January
1, 1991 to December 31, 1993 and the number of such shares of restricted stock
vested during such period.
<TABLE>
<CAPTION>
ALL EXECUTIVE
STEPHEN P. CARLO STEVEN W. ROBERT E. ROBERT J. OFFICERS ALL EMPLOYEES
KAUFMAN GIERSCH MENEFEE KLATELL MCINERNEY(1) AS A GROUP AS A GROUP
---------- ------- --------- ---------- ------------ ------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Three years ended December 31, 1993
Options Granted...................... 220,000 10,000 77,000 139,000 22,500 521,000 1,466,450
Average per share option price..... $16.10 $28.625 $20.96 $16.42 $26.04 $20.34 $22.65
Options exercised.................. 159,375 -- -- 114,537 47,270 461,316 1,573,605
Net value realized (market value
less exercise price)............. $3,968,313 -- -- $2,861,105 $931,410 $10,385,414 $28,919,213
Shares of Restricted Stock Granted... 17,500 -- 33,000 15,500 6,000 89,500 182,100
Shares of Restricted Stock Vested.... 25,500 -- 16,000 25,500 9,125 105,000 225,888
</TABLE>
At December 31, 1993, the market value per share of common stock was
$41.75. The exercise price of options outstanding at that date ranged from $3.63
to $39.75.
- ---------------
(1) Mr. McInerney is no longer employed by Arrow.
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ARROW EXECUTIVE COMPENSATION AND OTHER MATTERS
SUMMARY COMPENSATION TABLE
The following table provides certain summary information concerning the
compensation for the past three years of the Chief Executive Officer and each of
the other four most highly compensated executive officers of Arrow (the "named
executive officers").
<TABLE>
<CAPTION>
LONG TERM COMPENSATION
AWARDS
--------------------------
ANNUAL COMPENSATION RESTRICTED SECURITIES
NAME AND ------------------------------- STOCK UNDERLYING ALL OTHER
PRINCIPAL POSITION YEAR SALARY(1) BONUS AWARD(S)(2) OPTIONS COMPENSATION(3)
- ------------------------------ ---- --------- -------- ----------- ---------- ---------------
<S> <C> <C> <C> <C> <C> <C>
Stephen P. Kaufman,........... 1993 $504,000 $635,644 $190,000 25,000 $11,572
Chairman and Chief 1992 474,000 484,753 141,250 83,000 11,230
Executive Officer 1991 424,000 358,241 90,000 112,000 10,905
Carlo Giersch,................ 1993 604,230 -- -- 10,000 --
President and Chief
Executive Officer of Spoerle
Electronic(4)
Steven W. Menefee,............ 1993 304,783 307,856 152,000 15,000 7,075
Vice President and President 1992 285,200 235,188 425,500 42,000 6,866
of the Arrow/Schweber 1991 254,950 171,500 60,000 20,000 --
Electronics Group
Robert E. Klatell,............ 1993 308,983 286,572 152,000 15,000 11,572
Senior Vice President and 1992 289,400 215,431 113,000 62,000 11,230
Chief Financial Officer 1991 249,400 190,863 90,000 62,000 10,905
Robert J. McInerney,.......... 1993 240,200 274,347 62,625 7,500 11,572
Vice President and President 1992 225,200 157,719 56,500 7,500 11,230
of the Commercial Systems 1991 209,450 126,894 30,000 7,500 10,905
Group(5)
</TABLE>
- ---------------
(1) Includes amounts deferred under Arrow's Savings Plan.
(2) Reflects the fair market value as of the date of grant of the stock awards
granted in 1993. All of such awards vest in four annual installments of 25%,
beginning one year after grant, and all awarded shares have dividend and
voting rights equivalent to all shares of common stock. As of December 31,
1993, the aggregate number and value of unvested restricted stock awards
held by Messrs. Kaufman, Menefee, Klatell, and McInerney were 16,625
($694,094), 27,000 ($1,127,250), 14,125 ($589,719), and 5,750 ($240,063),
respectively.
(3) For 1993, includes a contribution by Arrow of $7,075 to Arrow's Stock
Ownership Plan for each of the named executive officers except Mr. Giersch
and a matching contribution by Arrow of $4,497 to Arrow's Savings Plan for
each of Messrs. Kaufman, Klatell, and McInerney.
(4) Spoerle Electronic became a majority owned affiliate of Arrow in January
1993.
(5) Mr. McInerney is no longer employed by Arrow.
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STOCK OPTION GRANTS IN LAST FISCAL YEAR
The following table provides information on option grants during 1993 to
the named executive officers.
<TABLE>
<CAPTION>
INDIVIDUAL GRANTS POTENTIAL
------------------------------------------------------ REALIZABLE VALUE
% OF TOTAL AT ASSIGNED RATES
NUMBER OF OPTIONS OF STOCK PRICE
SECURITIES GRANTED TO APPRECIATION FOR
UNDERLYING EMPLOYEES EXERCISE OR OPTION TERM(3)
OPTIONS IN FISCAL BASE PRICE EXPIRATION ---------------------------
NAME GRANTED(#)(1) YEAR ($/SH)(2) DATE 5% 10%
- ------------------------------ ------------- ----------- ----------- ---------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Stephen P. Kaufman............ 25,000 6.2% $ 38.00 12/9/03 $ 597,500 $ 1,514,000
Carlo Giersch................. 10,000 2.5 28.625 2/9/03 180,050 456,250
Steven W. Menefee............. 15,000 3.7 38.00 12/9/03 358,500 908,400
Robert E. Klatell............. 15,000 3.7 38.00 12/9/03 358,500 908,400
Robert J. McInerney(5)........ 7,500 1.9 38.00 12/9/03 179,250 454,200
All shareholders.............. N/A N/A N/A N/A 821,608,778 2,081,867,788
All optionees(4).............. 401,950 100 37.30 various in 9,429,747 23,895,927
2003
All optionees value as a
percent of all shareholders
value....................... N/A N/A N/A N/A 1.1% 1.1%
</TABLE>
- ---------------
(1) All of such grants become exercisable in three annual installments,
commencing on the date of grant (except for certain grants included in "All
optionees" which become exercisable in three annual installments, commencing
on the first anniversary of the date of grant) and expire 10 years after the
date of grant.
(2) All at fair market value at date of grant.
(3) Represents gain that would be realized assuming the options were held for
the entire ten-year option period and the stock price increased at annual
compounded rates of 5% and 10%. Potential realizable values for shareholders
are based on 31,287,463 shares outstanding at December 31, 1993 from a base
price of $41.75 per share. These amounts represent assumed rates of
appreciation only. Actual gains, if any, on stock option exercises and
common stock holdings will be dependent on overall market conditions and on
the future performance of Arrow and its common stock. There can be no
assurance that the amounts reflected in this table will be achieved.
(4) Information based on all stock option grants made to employees in 1993.
Exercise price shown is the weighted average of all grants. Actual exercise
prices ranged from $27.50 to $39.75 reflecting the fair market value of the
stock on the date of the option grant.
(5) Mr. McInerney is no longer employed by Arrow.
77
<PAGE> 85
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND YEAR-END OPTION VALUES
The following table provides information concerning the exercise of stock
options during 1993 by each of the named executive officers and the year-end
value of their unexercised options.
<TABLE>
<CAPTION>
NUMBER OF VALUE OF
UNEXERCISED UNEXERCISED
OPTIONS AT IN-THE-MONEY
FISCAL OPTIONS
YEAR-END AT FISCAL YEAR-END
SHARES -------------- -------------------
ACQUIRED VALUE EXERCISABLE/ EXERCISABLE/
NAME ON EXERCISE REALIZED(1) UNEXERCISABLE UNEXERCISABLE
- ------------------------ ----------- ----------- -------------- -------------------
<S> <C> <C> <C> <C>
Stephen P. Kaufman...... 50,000 $ 1,517,969 141,293/44,332 $3,816,230/$701,114
Carlo Giersch........... -- -- 6,667/ 3,333 87,504/ 43,662
Steven W. Menefee....... -- -- 73,000/24,000 2,005,500/ 357,750
Robert E. Klatell....... 54,000 1,578,250 58,334/30,666 1,356,101/ 526,900
Robert J. McInerney(2).. 13,320 363,785 10,000/ 7,500 152,813/ 53,125
</TABLE>
- ---------------
(1) Represents the difference between the fair market value of the shares at
date of exercise and the exercise price multiplied by the number of options
exercised.
(2) Mr. McInerney is no longer employed by Arrow.
EMPLOYMENT AGREEMENTS
Arrow has employment agreements with each of the named executive officers.
Mr. Kaufman has an employment agreement with Arrow terminating December 31,
1995, which provides for an annual base salary of not less than $400,000. Mr.
Klatell has an employment agreement with Arrow terminating December 31, 1996,
which provides for an annual base salary of not less than $235,000. Mr. Menefee
and Mr. McInerney have employment agreements with Arrow terminating December 31,
1994 (subject to automatic renewals from year to year unless either Arrow or the
executive elects not to renew), which provide for annual base salaries of not
less than $245,000 and $175,000, respectively. Mr. McInerney is no longer
employed by Arrow. Mr. Giersch has an employment agreement with Spoerle
Electronic terminating on his 65th birthday (subject to earlier termination by
either Spoerle Electronic or Mr. Giersch upon six months written notice), which
provides for an annual base salary of not less than 700,000 deutsche marks
($460,500 based on the exchange rate on October 14, 1994) with annual
adjustments beginning January 1, 1995 in the same proportion in which salaries
of the employees of Spoerle have been adjusted in the preceding year.
EXTENDED SEPARATION BENEFITS
Arrow maintains a broad-based program to shelter employees at all levels
from any adverse consequences which might result from a change in control of
Arrow (as defined in the program). Pursuant to a policy adopted by the Arrow
Board in 1988, the period of salary continuation normally extended to employees
whose employment is terminated as a result of a workforce reduction or
reorganization (which period ranges from two to 12 weeks depending upon length
of service with Arrow) is tripled if employment is terminated by Arrow (other
than for cause) as a result of a change in control. In addition to this policy,
Arrow has entered into one-year employment agreements with approximately 65
management-level employees, pursuant to which among other matters, such
employees will receive one year's compensation and continuation for up to one
year of medical and life insurance benefits if their employment is terminated by
Arrow (other than for cause) within 12 months following a change in control.
Arrow also has agreements with approximately 20 divisional and group vice
presidents who are not executive officers, which provide such vice presidents
with two times their annualized includible compensation (as defined in the Code)
and continuation for up to three years of medical, life, and other welfare
benefits if their employment is terminated by Arrow (other than for cause), if
their responsibilities or base salaries are materially
78
<PAGE> 86
diminished, or if certain other adverse changes occur within 24 months following
a change in control. Similar agreements provide the executive officers with
three times their annualized includible compensation and continuation for up to
three years of their benefits if their employment is terminated by Arrow (other
than for cause approved by three-fourths of the directors then serving), if
their responsibilities or base salaries are materially diminished, or if certain
other adverse changes occur within 24 months following a change in control. The
amounts payable pursuant to such agreements to the executive officers (other
than Messrs. Kaufman, Klatell and Waddell) and to the other vice presidents will
be reduced, if necessary, to avoid excise tax under Section 4999 of the Code.
UNFUNDED PENSION PLAN
Arrow maintains the Unfunded Pension Plan for Selected Executives of Arrow
Electronics, Inc. (the "SERP"). Under the SERP, the Arrow Board determines those
employees who are eligible to participate in the SERP and the amount of their
maximum annual pension upon retirement on or after attaining age 60. Messrs.
Kaufman, Klatell, Menefee, and McInerney have been designated by Arrow as
participants in the SERP, with maximum annual pensions of $225,000, $150,000,
$125,000 and $125,000, respectively. If a designated participant retires between
the ages of 55 and 60, the amount of the annual pension is reduced based upon a
formula contained in the SERP. In addition, if there is a change of control of
Arrow and the employment of a designated participant who is at least age 50 with
15 years of service is involuntarily terminated other than for cause or
disability, or such participant terminates employment for good reason, the
participant will receive the maximum annual pension.
CERTAIN TRANSACTIONS
In each of January 1993 and January 1994, Arrow acquired an additional 15%
interest in Spoerle Electronic from Mr. Giersh, bringing its holdings in Spoerle
Electronic to a 70% share. The aggregate cost of each acquisition was
approximately $25 million. In addition, in January 1994, Arrow acquired an
additional 1% interest in its Italian affiliate, Silverstar Ltd. S.p.A., from
Mr. Giersch's wife for $300,000. Spoerle Electronic leases certain of its
premises from a partnership in which Mr. Giersch's wife, directly or indirectly,
has the entire beneficial interest and paid aggregate rentals of 3 million
deutsche marks ($1,970,000 based on the exchange rate on October 14, 1994) to
the partnership during 1993. The management of Spoerle Electronic believes that
such rentals are at fair market rates.
In May 1989, Mr. Waddell received an unsecured personal loan of $120,000
from Arrow, bearing interest at Arrow's average U.S. borrowing rate. This
obligation was satisfied in full in 1994.
PROPOSED AMENDMENT OF THE ARROW CERTIFICATE OF INCORPORATION
Based upon the 35,298,860 shares of common stock of Arrow outstanding as of
October 21, 1994, the Arrow Certificate of Incorporation need not be amended to
increase the number of authorized shares of Arrow Common Stock as a part of the
issuance of the additional shares of Arrow Common Stock in connection with the
Merger. However, the Arrow Board believes that additional shares of Arrow Common
Stock should be available for issuance by the Arrow Board for other purposes.
The reason for the proposed increase in the number of authorized shares of Arrow
Common Stock is to make additional shares available for future issuance as share
dividends, as restricted stock awards, upon exercise of stock options, for cash,
for acquisitions of property or stock of other corporations, and for other
purposes, as occasion may arise.
While Arrow frequently has various acquisitions under consideration, Arrow
has not entered into any agreement regarding the issuance of a significant
number of additional shares other than under the Merger Agreement and does not
have any other present intention to issue any of the additional shares of Arrow
Common Stock to be authorized. The Arrow Board believes it is desirable
79
<PAGE> 87
that Arrow have such additional shares available for situations in which their
issuance may be suitable without delay which would result from holding a meeting
of shareholders to authorize the issuance of additional shares.
If the proposed amendment is adopted, the additional shares of Arrow Common
Stock may be issued by the Arrow Board without further action by the
shareholders, except as may be required by law or pursuant to Arrow's listing
agreement with the NYSE. No shareholder of Arrow has, or will have, any
preemptive rights with respect to the Arrow Common Stock.
The issuance of additional shares of Arrow Common Stock may adversely
affect current shareholders. See "Potential Anti-Takeover Effects of Increase in
Authorized Capital Stock," below.
INCREASE IN AUTHORIZED SHARES OF COMMON STOCK
General. Arrow is authorized to issue 60,000,000 shares of common stock,
par value $1.00 per share. Of such number, 35,298,860 shares were issued and
outstanding at October 21, 1994. An additional 5,192,470 are reserved for
issuance pursuant to existing commitments and 332,947 shares are available under
the Arrow Restricted Stock Plan for future awards. The proposed amendment to the
Arrow Certificate of Incorporation, the text of which is attached as Exhibit D
to this Joint Proxy Statement/Prospectus, would increase the number of
authorized shares of Arrow Common Stock from 60,000,000 to 80,000,000.
Required Vote. The affirmative vote of the holders of a majority of the
outstanding shares of Arrow Common Stock is sufficient for the adoption of the
proposal to approve the amendment to the Arrow Certificate of Incorporation
increasing the number of authorized shares of Arrow Common Stock. Consequently,
any shares not voted (whether by abstention or broker non-votes) have the same
effect as votes against the proposed amendment to the Arrow Certificate of
Incorporation.
POTENTIAL ANTI-TAKEOVER EFFECTS OF INCREASE IN AUTHORIZED CAPITAL STOCK
The Arrow Board is not aware of any attempts to takeover or effect a change
in control of Arrow. As such, the proposed amendment to the Arrow Certificate of
Incorporation increasing the authorized number of shares of Arrow Common Stock
is not the result of a specific effort by the Arrow Board to thwart any known
takeover attempts. Nonetheless, the increase in the authorized shares could be
used to impede a takeover attempt since new shares could be issued to dilute the
stock ownership of a person attempting to acquire control of Arrow.
Any provision which discourages the acquisition of Arrow stock by a person
seeking control could be beneficial to Arrow's shareholders generally to the
extent that it (i) provides for greater stability and continuity of management,
(ii) protects shareholders against unfair or inequitable mergers or tender
offers, and (iii) helps discourage or prevent a takeover by an acquiror seeking
to obtain control in order to break up and auction off Arrow's component parts
or otherwise act in nonbeneficial ways with respect to Arrow or its assets.
However, such provisions could also have the effect of discouraging, making
costlier or more difficult, or preventing a merger or a tender offer which would
be beneficial to Arrow's shareholders. Moreover, the adoption of the proposed
amendment to the Arrow Certificate of Incorporation may have the effect of
assisting Arrow's management in retaining its position, even if removal would be
beneficial to shareholders generally. Consequently, management would be in a
better position to resist changes that might benefit shareholders generally, but
that might be disadvantageous to management.
Even without the adoption of the proposed amendment to the Arrow
Certificate of Incorporation, the Arrow Board has available to it a number of
ways to repel a takeover which it deems to be not in the best interests of Arrow
and its shareholders. For example, the existing authorized and unissued shares
of Arrow Common Stock are available to the Arrow Board for, among other
purposes, issuance to deter future attempts to gain control over Arrow (if such
issuance would be consistent with the Arrow Board's fiduciary responsibilities).
Moreover, the rights issued pursuant to the Rights Agreement should encourage
any potential acquiror to seek to negotiate with the
80
<PAGE> 88
Arrow Board since the exercise of the rights can cause substantial dilution to a
person seeking to acquire Arrow. See Note 6 of Notes to Supplemental
Consolidated Financial Statements for a description of the Rights Agreement.
Also, the Arrow Certificate of Incorporation contains a supermajority voting
provision requiring the affirmative vote of 90% of the outstanding shares of
Arrow Common Stock to authorize certain mergers, sales of assets, corporate
reorganizations and other transactions in the event that any person or entity
acquires 30% or more of the outstanding common stock. In addition, the present
Arrow Certificate of Incorporation authorizes the issuance of preferred stock
with any designation of rights, preferences and in any series as the Arrow Board
determines. The Arrow Board could currently use this preferred stock in various
antitakeover methods, including: (a) restrictions on dividends on Arrow Common
Stock if preferred stock is issued with a preferential (and possibly cumulative)
dividend right and dividends on the preferred stock are in arrears; (b)
substantial dilution of the voting power of the Arrow Common Stock to the extent
that the preferred stock has voting rights or to the extent that any preferred
stock is given conversion rights into Arrow Common Stock; and (c) the holders of
Arrow Common Stock not being entitled to share in Arrow's assets upon
liquidation or dissolution until satisfaction of any liquidation preference
granted to the preferred stock, which the Board can set at its discretion. The
Arrow Board could also authorize holders of the preferred stock to vote, either
separately as a class or with the holders of Arrow Common Stock, on any merger,
sale or exchange of assets by Arrow or other extraordinary corporate
transaction. Shares of preferred stock could even be privately placed with
purchasers who might ally themselves with the Arrow Board in opposing a hostile
takeover bid, diluting the stock ownership or voting power of persons seeking to
obtain control of Arrow.
Furthermore, Section 912 of the NYBCL provides that a New York corporation
may not enter into certain business transactions with an interested shareholder
for a period of five years following the date such shareholder first became an
interested shareholder unless the board of directors has approved such
transaction prior to the date such shareholder first became an interested
shareholder. Under the statute, business transactions include: (i) mergers and
consolidations; (ii) certain sales or other transfers of assets; (iii) the
issuance of shares of such corporation; (iv) liquidation of such corporation;
(v) reclassifications of securities; or (vi) loans, advances, and other
financial assistance. Also, under the statute, an interested shareholder is, in
general, a person owning 20% or more of the voting stock of a corporation.
LEGAL OPINION
The validity of the shares of Arrow Common Stock offered to Anthem
stockholders by this Joint Proxy Statement/Prospectus will be passed upon for
Arrow by Winthrop, Stimson, Putnam & Roberts.
EXPERTS
The historical consolidated financial statements and related schedules of
Arrow Electronics, Inc. at December 31, 1993 and 1992, and for each of the three
years in the period ended December 31, 1993 incorporated by reference from
Arrow's Annual Report on Form 10-K in this Joint Proxy Statement/Prospectus,
have been audited by Ernst & Young LLP, independent auditors, as set forth in
their report appearing elsewhere therein, and are incorporated in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
The supplemental consolidated financial statements of Arrow at December 31,
1993, and 1992, and for each of the three years in the period ended December 31,
1993 (which give effect to the August 29, 1994 merger of Arrow and Gates, which
was accounted for as a pooling-of-interests, such supplemental financial
statements which will become the historical financial statements of Arrow once
financial statements covering the consummation date of the Gates business
combination are issued) included elsewhere in this Joint Proxy
Statement/Prospectus have been audited by
81
<PAGE> 89
Ernst & Young LLP, independent auditors, as set forth in their report appearing
elsewhere herein, and are included herein in reliance upon such report given
upon the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Anthem incorporated in this Joint
Proxy Statement/ Prospectus by reference to Anthem's Annual Report on Form 10-K
for the year ended December 31, 1993, have been so incorporated in reliance on
the report of Price Waterhouse LLP, independent accountants, given on authority
of said firm as experts in auditing and accounting.
SOLICITATION OF PROXIES
Arrow and Anthem will share equally the expenses in connection with
printing this Joint Proxy Statement/Prospectus. The costs of solicitations of
proxies from Anthem's stockholders will be borne by Anthem. The costs of
solicitations of proxies from Arrow's shareholders will be borne by Arrow.
Directors, officers and other employees of Anthem and Arrow may, without
additional compensation (except for customary overtime pay, when applicable),
solicit proxies by mail, in person or by telecommunication for their respective
corporation. Anthem and Arrow will each reimburse brokers, fiduciaries,
custodians and other nominees for reasonable out-of-pocket expenses incurred in
sending this Joint Proxy Statement/Prospectus and other proxy materials to, and
obtaining instructions relating to such materials from, the respective
beneficial owners of the Anthem Common Stock and the Arrow Common Stock. In
addition, Anthem and Arrow have separately retained Corporate Investor
Communications and D.F. King respectively, proxy solicitation firms, to assist
in soliciting proxies from the respective beneficial owners of Anthem Common
Stock and Arrow Common Stock, held by banks, brokerage houses, and other
custodians, nominees and fiduciaries. Anthem and Arrow each anticipate that the
cost of such assistance will not exceed $10,000 and $10,500, plus expenses,
respectively.
PROPOSALS BY ARROW SHAREHOLDERS
Management of Arrow expects that its 1995 Annual Meeting of Shareholders
will be held on or about May 11, 1995. As stated in Arrow's Proxy Statement for
its 1994 Annual Meeting, proposals that Arrow shareholders desire to have
included in Arrows's proxy materials for its 1995 Annual Meeting must be
received by Arrow on or prior to December 5, 1994. As of the date hereof, Arrow
has received no such stockholder proposals.
82
<PAGE> 90
PROPOSALS BY ANTHEM STOCKHOLDERS
If the Merger is not consummated, management of Anthem expects that its
1995 Annual Meeting of Stockholders will be held in April of 1995. As stated in
Anthem's Proxy Statement for its 1994 Annual Meeting, proposals that Anthem
stockholders desire to have included in Anthem's proxy materials for its 1995
Annual Meeting must be received by Anthem on or prior to November 10, 1994. As
of the date hereof, Anthem has received no such stockholder proposals.
BY ORDER OF THE BOARD OF DIRECTORS
OF ARROW ELECTRONICS, INC.
ROBERT E. KLATELL
Secretary
BY ORDER OF THE BOARD OF DIRECTORS
OF ANTHEM ELECTRONICS, INC.
WAYNE B. SNYDER
Secretary
83
<PAGE> 91
INDEX TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS OF ARROW
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Ernst & Young, Independent Auditors........................................ F-2
Supplemental Consolidated Balance Sheet as of December 31, 1993 and 1992............. F-3
Supplemental Consolidated Statement of Operations for each of the three years in the
period ended December 31, 1993..................................................... F-4
Supplemental Consolidated Statement of Cash Flows for each of the three years in the
period ended December 31, 1993..................................................... F-5
Supplemental Consolidated Statement of Shareholders' Equity for each of the three
years in the period ended December 31, 1993........................................ F-6
Notes to Supplemental Consolidated Financial Statements.............................. F-7
Supplemental Consolidated Balance Sheet as of June 30, 1994 (unaudited) and December
31, 1993........................................................................... F-20
Supplemental Consolidated Statement of Operations for the six months ended June 30,
1994 and 1993 (unaudited).......................................................... F-21
Supplemental Consolidated Statement of Cash Flows for the six months ended June 30,
1994 and 1993 (unaudited).......................................................... F-22
Notes to Supplemental Consolidated Financial Statements at June 30, 1994
(unaudited)........................................................................ F-23
</TABLE>
F-1
<PAGE> 92
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Arrow Electronics, Inc.
We have audited the accompanying supplemental consolidated balance sheets
of Arrow Electronics, Inc. ("Arrow") as of December 31, 1993 and 1992 and the
related supplemental consolidated statements of operations, cash flows, and
shareholders' equity for each of the three years in the period ended December
31, 1993. Our audits also included the supplemental consolidated financial
statement schedules listed in the Index at Item 21(c). These supplemental
consolidated financial statements and schedules are the responsibility of the
company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
The supplemental consolidated financial statements give retroactive effect
to the acquisition of Gates/FA Distributing Inc. ("Gates") on August 29, 1994
which has been accounted for as a pooling-of-interests. The acquisition is more
fully described in the notes to the supplemental consolidated financial
statements. Generally accepted accounting principles proscribe giving effect to
a consummated business combination accounted for as a pooling-of-interests that
do not include the date of combination. The Arrow supplemental consolidated
financial statements included herein do not extend through the date of
consummation, however, they will become the historical consolidated financial
statements of Arrow after financial statements covering the consummation date of
the Gates transaction are issued.
In our opinion, the supplemental consolidated financial statements referred
to above present fairly, in all material respects, the supplemental consolidated
financial position of Arrow Electronics, Inc. at December 31, 1993 and 1992, the
supplemental consolidated results of its operations and its cash flows for each
of the three years in the period ended December 31, 1993, in conformity with
generally accepted accounting principles. Also, in our opinion, the related
supplemental consolidated financial statement schedules, when considered in
relation to the basic supplemental consolidated financial statements taken as a
whole, present fairly in all material respects the information set forth
therein.
ERNST & YOUNG LLP
New York, New York
September 23, 1994
F-2
<PAGE> 93
ARROW ELECTRONICS, INC.
SUPPLEMENTAL CONSOLIDATED BALANCE SHEET
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
DECEMBER 31,
-----------------------
1993 1992
---------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and short-term investments....................................... $ 60,730 $ 3,400
Accounts receivable, less allowance for doubtful accounts ($18,597 in
1993 and $9,666 in 1992)........................................... 411,436 273,225
Inventories........................................................... 497,661 335,669
Prepaid expenses and other assets..................................... 11,878 6,572
---------- --------
Total current assets.................................................... 981,705 618,866
---------- --------
Property, plant and equipment at cost
Land.................................................................. 6,030 4,898
Buildings and improvements............................................ 35,188 29,425
Machinery and equipment............................................... 59,636 38,199
---------- --------
100,854 72,522
Less accumulated depreciation and amortization........................ 40,900 33,697
---------- --------
59,954 38,825
---------- --------
Investments in affiliated companies..................................... 13,371 64,893
Cost in excess of net assets of companies acquired, less accumulated
amortization ($15,179 in 1993 and $9,792 in 1992)..................... 209,515 108,121
Other assets............................................................ 53,422 33,792
---------- --------
$1,317,967 $864,497
========== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable...................................................... $ 237,241 $155,343
Accrued expenses...................................................... 108,996 59,304
Accrued interest...................................................... 5,421 1,253
Short-term borrowings, including current maturities of long-term
debt............................................................... 41,075 713
---------- --------
Total current liabilities............................................... 392,733 216,613
---------- --------
Long-term debt.......................................................... 189,859 116,804
Deferred income taxes and other liabilities............................. 43,503 24,549
Subordinated debentures................................................. 125,000 125,000
Minority interest....................................................... 71,459 --
Shareholders' equity:
Preferred stock, par value $1:
Authorized -- 2,000,000 shares
Issued -- 66,196 shares in 1992, $19.375 convertible exchangeable
preferred stock................................................... -- 66
Common stock, par value $1:
Authorized -- 60,000,000 shares
Issued -- 35,038,946 shares in 1993 and 32,956,227 shares in
1992.............................................................. 35,039 32,956
Capital in excess of par value........................................ 332,700 306,989
Retained earnings..................................................... 136,849 49,182
Foreign currency translation adjustment............................... (7,492) (6,518)
---------- --------
497,096 382,675
Less: Treasury shares (10,872 in 1993 and 14,222 in 1992) at cost..... 12 19
Unamortized employee stock awards............................... 1,671 1,125
---------- --------
Total shareholders' equity.............................................. 495,413 381,531
---------- --------
$1,317,967 $864,497
========== ========
</TABLE>
See accompanying notes.
F-3
<PAGE> 94
ARROW ELECTRONICS, INC.
SUPPLEMENTAL CONSOLIDATED STATEMENT OF OPERATIONS
(IN THOUSANDS EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
----------------------------------------
1993 1992 1991
---------- ---------- ----------
<S> <C> <C> <C>
Sales.............................................. $2,897,663 $1,884,671 $1,238,529
---------- ---------- ----------
Costs and expenses:
Cost of products sold............................ 2,351,450 1,517,721 1,000,709
Selling, general and administrative expenses..... 332,551 241,380 187,616
Depreciation and amortization.................... 18,307 13,099 10,253
---------- ---------- ----------
2,702,308 1,772,200 1,198,578
---------- ---------- ----------
Operating income................................... 195,355 112,471 39,951
Equity in earnings of affiliated companies......... 1,673 6,550 5,657
Interest expense................................... 27,103 31,873 31,431
---------- ---------- ----------
Earnings before income taxes, minority interest and
extraordinary charges............................ 169,925 87,148 14,177
Provision for income taxes......................... 69,157 32,697 3,593
---------- ---------- ----------
Earnings before minority interest and extraordinary
charges.......................................... 100,768 54,451 10,584
Minority interest.................................. 12,221 -- --
Extraordinary charges.............................. -- 5,424 --
---------- ---------- ----------
Net income......................................... $ 88,547 $ 49,027 $ 10,584
========== ========== ==========
Net income used in per common share
calculation (reflecting deduction of
preferred stock dividends)....................... $ 87,667 $ 45,124 $ 5,988
========== ========== ==========
Per common share:
Primary:
Earnings before extraordinary charges......... $ 2.54 $ 1.76 $ .35
Extraordinary charges......................... -- (.19) --
---------- ---------- ----------
Net income.................................... $ 2.54 $ 1.57 $ .35
========== ========== ==========
Fully diluted:
Earnings before extraordinary charges......... $ 2.38 $ 1.69 $ .35
Extraordinary charges......................... -- (.17) --
---------- ---------- ----------
Net income.................................... $ 2.38 $ 1.52 $ .35
========== ========== ==========
Average number of common shares and common share
equivalents outstanding:
Primary....................................... 34,528 28,824 17,249
========== ========== ==========
Fully diluted................................. 39,076 32,660 17,249
========== ========== ==========
</TABLE>
See accompanying notes.
F-4
<PAGE> 95
ARROW ELECTRONICS, INC.
SUPPLEMENTAL CONSOLIDATED STATEMENT OF CASH FLOWS
(IN THOUSANDS)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-------------------------------------
1993 1992 1991
--------- --------- ---------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income................................................... $ 88,547 $ 49,027 $ 10,584
Adjustments to reconcile net income to net cash provided by
(used for) operations:
Minority interest in earnings............................ 12,221 -- --
Extraordinary charges.................................... -- 5,424 --
Special integration charge............................... -- -- 9,850
Depreciation and amortization............................ 20,739 15,519 13,516
Equity in undistributed earnings of affiliated
companies............................................. (1,673) 2,551 14
Deferred taxes........................................... 4,193 13,700 1,305
Prepaid income taxes..................................... -- -- (3,974)
Change in assets and liabilities, net of effects of
acquired businesses:
Accounts receivable................................. (72,304) (5,544) (11,294)
Inventories......................................... (78,854) (2,928) (8,342)
Prepaid expenses and other assets................... 613 81 (267)
Accounts payable.................................... 41,753 18,969 10,539
Accrued expenses.................................... (1,707) (14,959) (10,515)
Accrued interest.................................... 4,036 (4,594) 174
Other............................................... 4,755 (3,812) (1,533)
--------- --------- ---------
Net cash provided by operating activities.................... 22,319 73,434 10,057
--------- --------- ---------
Cash flows from investing activities:
Acquisition of property, plant and equipment, net............ (18,324) (5,663) (4,177)
Cash consideration paid for acquired businesses.............. (87,875) (37,183) (111,706)
Investment in and loans to affiliate......................... (7,000) (9,949) --
Proceeds from sale of property............................... -- 4,757 --
--------- --------- ---------
Net cash used for investing activities....................... (113,199) (48,038) (115,883)
--------- --------- ---------
Cash flows from financing activities:
Change in short-term borrowings.............................. 16,860 (1,520) (201)
Proceeds from long-term debt................................. 81,551 77,051 189,182
Proceeds from common stock offering.......................... 17,705 74,258 --
Proceeds from issuance of subordinated debentures............ -- 125,000 --
Proceeds from preferred stock offering....................... -- 15,721 --
Proceeds from exercise of stock options...................... 4,659 6,686 1,069
Proceeds from minority partners.............................. 2,993 -- --
Repayment of long-term debt and subordinated debentures...... (694) (311,656) (72,121)
Dividends paid............................................... (880) (4,609) (4,596)
Financing fees paid.......................................... (1,041) (4,467) (6,859)
--------- --------- ---------
Net cash provided by (used for) financing activities......... 121,153 (23,536) 106,474
--------- --------- ---------
Net increase in cash and short-term investments................ 30,273 1,860 648
Cash and short-term investments at beginning of year........... 3,400 1,540 892
Cash and short-term investments from affiliate at beginning of
year......................................................... 27,057 -- --
--------- --------- ---------
Cash and short-term investments at end of year................. $ 60,730 $ 3,400 $ 1,540
========= ========= =========
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Income taxes............................................... $ 48,143 $ 10,175 $ 4,688
Interest................................................... 22,094 33,315 29,129
</TABLE>
See accompanying notes.
F-5
<PAGE> 96
ARROW ELECTRONICS,INC.
SUPPLEMENTAL CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY
(IN THOUSANDS)
<TABLE>
<CAPTION>
PREFERRED COMMON CAPITAL FOREIGN UNAMORTIZED
STOCK STOCK IN EXCESS RETAINED CURRENCY EMPLOYEE
AT PAR AT PAR OF PAR EARNINGS TRANSLATION TREASURY STOCK
VALUE VALUE VALUE (DEFICIT) ADJUSTMENT SHARES AWARDS TOTAL
--------- ------- --------- --------- ----------- -------- ----------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December 31,
1990
As previously reported... $ 237 $11,962 $136,624 $ (290) $ 3,614 $(81) $ (894) $151,172
Pooling-of-interests with
Gates/FA Distributing,
Inc. .................. -- 2,740 13,586 (934) -- -- -- 15,392
----- ------- -------- --------- ------- ---- ------- --------
Balance, as restated....... 237 14,702 150,210 (1,224) 3,614 (81) (894) 166,564
Issuance of common stock
for acquisitions....... -- 7,765 62,116 -- -- -- -- 69,881
Exercise of stock
options................ -- 182 821 -- -- 66 -- 1,069
Restricted stock awards,
net.................... -- 11 119 -- -- (3) (127) --
Amortization of employee
stock awards........... -- -- -- -- -- -- 388 388
Net income............... -- -- -- 10,584 -- -- -- 10,584
Preferred stock cash
dividends.............. -- -- -- (4,596) -- -- -- (4,596)
Translation
adjustments............ -- -- -- -- (763) -- -- (763)
----- ------- -------- -------- ------- ---- ------- --------
Balance at December 31,
1991..................... 237 22,660 213,266 4,764 2,851 (18) (633) 243,127
Issuance of common
stock.................. -- 5,474 68,784 -- -- -- -- 74,258
Issuance of preferred
stock.................. 66 -- 15,655 -- -- -- -- 15,721
Conversion of preferred
stock.................. (237) 3,615 (3,698) -- -- -- -- (320)
Exercise of stock
options................ -- 1,109 5,238 -- -- 11 -- 6,358
Exercise of stock
warrants............... -- 14 141 -- -- -- -- 155
Tax benefits related to
exercise of stock
options................ -- -- 6,788 -- -- -- -- 6,788
Restricted stock awards,
net.................... -- 84 920 -- -- (12) (992) --
Amortization of employee
stock awards........... -- -- -- -- -- -- 500 500
Net income............... -- -- -- 49,027 -- -- -- 49,027
Preferred stock cash
dividends.............. -- -- -- (4,609) -- -- -- (4,609)
Translation
adjustments............ -- -- -- -- (9,369) -- -- (9,369)
Other.................... -- -- (105) -- -- -- -- (105)
----- ------- -------- -------- ------- ---- ------- --------
Balance at December 31,
1992..................... 66 32,956 306,989 49,182 (6,518) (19) (1,125) 381,531
Issuance of common
stock.................. -- 562 17,143 -- -- -- -- 17,705
Conversion of preferred
stock.................. (66) 1,009 (991) -- -- -- -- (48)
Exercise of stock
options................ -- 419 3,321 -- -- 13 -- 3,753
Exercise of stock
warrants............... -- 45 467 -- -- -- -- 512
Tax benefits related to
exercise of stock
options................ -- -- 4,536 -- -- -- -- 4,536
Restricted stock awards,
net.................... -- 48 1,235 -- -- (6) (1,277) --
Amortization of employee
stock awards........... -- -- -- -- -- -- 731 731
Net income............... -- -- -- 88,547 -- -- -- 88,547
Preferred stock cash
dividends.............. -- -- -- (880) -- -- -- (880)
Translation
adjustments............ -- -- -- -- (974) -- -- (974)
----- ------- -------- -------- ------- ---- ------- --------
Balance at December 31,
1993..................... $-- $35,039 $332,700 $136,849 $(7,492) $(12) $(1,671) $495,413
===== ======= ======== ======== ======= ==== ======= ========
</TABLE>
See accompanying notes.
F-6
<PAGE> 97
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1993, 1992, AND 1991
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation
The supplemental consolidated financial statements include the accounts of
the company and its consolidated subsidiaries. The company's investments in its
affiliated companies which are not majority-owned are accounted for using the
equity method. All significant intercompany transactions are eliminated.
Basis of Presentation
Certain prior year amounts have been reclassified to conform to the current
year's presentation.
Inventories
Inventories are stated at the lower of cost or market. Cost is determined
on the first-in, first-out (FIFO) method.
Property and Depreciation
Depreciation is computed on the straight-line method for financial
reporting purposes and on accelerated methods for tax reporting purposes.
Leasehold improvements are amortized over the shorter of the term of the related
lease or the life of the improvement.
Cost in Excess of Net Assets of Companies Acquired
The cost in excess of net assets of companies acquired is being amortized
on a straight-line basis, principally over 40 years.
Foreign Currency
The assets and liabilities of foreign operations are translated at the
exchange rates in effect at the balance sheet date, with the related translation
gains or losses reported as a separate component of shareholders' equity. The
results of foreign operations are translated at the weighted average exchange
rates for the year. Gains or losses resulting from foreign currency
transactions, other than transactions used to hedge the value of foreign
investments, are included in the statement of operations.
Income Taxes
Effective January 1, 1991, the company adopted Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes" ("SFAS 109"), which
requires that the accounting for income taxes be on the liability method.
Deferred taxes reflect the tax consequences on future years of differences
between the tax bases of assets and liabilities and their financial reporting
amounts.
Net Income Per Common Share
Net income per common share is computed after deducting preferred stock
dividends and is based upon the weighted average number of shares of common
stock and common stock equivalents outstanding. The average number of common
stock equivalents was 692,418, 983,509, and 577,610 for 1993, 1992, and 1991,
respectively.
F-7
<PAGE> 98
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Net income per common share on a fully diluted basis assumes that the
convertible exchangeable preferred shares and the convertible subordinated
debentures were converted to common stock at either the beginning of each period
or the date of issuance. The dividends related to the convertible exchangeable
preferred stock and the interest expense on the 5 3/4% convertible subordinated
debentures, net of taxes, are eliminated. The 9% convertible subordinated
debentures are not assumed to be converted into common stock in 1992 as they
would have been antidilutive. For 1991, the aforementioned adjustments were not
required as they would have been antidilutive.
Cash and Short-term Investments
Short-term investments which have a maturity of ninety days or less at time
of purchase are considered cash equivalents in the statement of cash flows. The
carrying amount reported in the balance sheet for cash and short-term
investments approximates its fair value.
2. ACQUISITIONS OF ELECTRONICS DISTRIBUTION BUSINESSES
On August 29, 1994, the company completed the acquisition of Gates/FA
Distributing, Inc. ("Gates") through the exchange of approximately 3,700,000
shares of newly issued company stock. This acquisition was accounted for as a
pooling-of-interests and, accordingly, the company's supplemental consolidated
financial statements have been restated to include the operations of Gates for
all periods presented. Gates' year end and reported financial results have been
adjusted to conform to the financial presentation of the company. Revenues and
net income combined are as follows (in thousands):
<TABLE>
<CAPTION>
1993 1992 1991
---------- ---------- ----------
<S> <C> <C> <C>
Revenues:
Arrow.................................... $2,535,584 $1,621,535 $1,043,654
Gates.................................... 362,079 263,136 194,875
---------- ---------- ----------
Combined.............................. $2,897,663 $1,884,671 $1,238,529
========== ========== ==========
Net income:
Arrow.................................... $ 81,559 $ 44,820 $ 8,685
Gates.................................... 6,988 4,207 1,899
---------- ---------- ----------
Combined.............................. $ 88,547 $ 49,027 $ 10,584
========== ========== ==========
</TABLE>
The combined financial data does not reflect the cost savings expected to
be achieved from the combination of Gates with the company's business or sales
attrition which may result. The cost savings will result principally from
reductions in personnel performing duplicative functions and the elimination of
duplicative administrative facilities, selling and stocking locations, and
computer and telecommunications equipment.
The combined financial data excludes approximately $21,000,000 ($.37 per
share) of estimated costs associated with the integration of the businesses and
related transaction fees. Such estimated integration costs included real estate
termination costs and severance and other expenses related to personnel
performing duplicative functions.
In January 1993, the company acquired an additional 15% share, for
approximately $25,145,000, in Spoerle Electronic Handelsgessellschaft mbH and
Co. and its general partner, Spoerle GmbH (collectively, "Spoerle") the largest
distributor of electronic components in Germany, increasing its holdings to a
55% majority interest. In May 1993, the company acquired the high-reliability
electronic component distribution and value-added service businesses of Zeus
F-8
<PAGE> 99
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Components, Inc. ("Zeus"). In June 1993, the company acquired Microprocessor &
Memory Distribution Limited ("MMD"), a U.K.-based electronics distributor which
focuses on the distribution of high-technology semiconductor products. In August
1993, the company acquired Components Agent Limited, one of the largest
electronics distributors in Hong Kong. During the third quarter of 1993 the
company acquired a majority interest in Amitron S.A. and the ATD Group,
electronics distributors serving the Spanish and Portuguese markets. In November
1993, the company augmented its French operations by acquiring CCI Electronique.
The aggregate cost of the acquisitions was $87,875,000, including $4,757,000 for
non-competition agreements. Each acquisition was accounted for as a purchase
transaction beginning in the month of acquisition.
The following summarizes the allocation of the aggregate consideration paid
for the aforementioned acquisitions, except Spoerle, to the fair market value of
the assets acquired and liabilities assumed by the company (in thousands):
<TABLE>
<S> <C> <C>
Current assets:
Accounts receivable........................................ $ 48,010
Inventories................................................ 31,726
Other...................................................... 2,972 $ 82,708
--------
Property, plant and equipment................................ 3,876
Cost in excess of net assets of acquired businesses.......... 50,797
Other assets................................................. 9,113
--------
146,494
Current liabilities:
Accounts payable........................................... $(30,412)
Accrued expenses........................................... (35,374)
Other...................................................... (16,789) (82,575)
-------- --------
Net consideration paid....................................... $ 63,919
========
</TABLE>
In February 1992, the company acquired the electronics distribution
businesses of Lex Service PLC ("Lex") in the U.K. and France, and Spoerle
acquired the electronics distribution business of Lex in Germany. The aggregate
cost of the acquisitions was $51,983,000, of which $31,983,000 was paid in cash
and $20,000,000 was paid in the form of a 12% senior subordinated note due June
1997. The company financed the cash portion of the purchase price through the
sale of 66,196 shares of newly-created series B preferred stock and bank
borrowings in the U.K. The German business of Lex was purchased by Spoerle for
cash of $14,800,000. The acquisitions of the European businesses of Lex are
being accounted for as purchase transactions effective February 28, 1992.
F-9
<PAGE> 100
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following summarizes the allocation of the consideration paid for the
electronics distribution businesses in the U.K. and France to the fair market
value of the assets acquired and liabilities assumed by the company (in
thousands):
<TABLE>
<S> <C> <C>
Current assets:
Accounts receivable........................................ $ 27,479
Inventories................................................ 17,947
Other...................................................... 1,662 $ 47,088
--------
Property, plant and equipment................................ 2,975
Cost in excess of net assets of acquired businesses.......... 21,065
Other assets............................................... 3,150
--------
74,278
Current liabilities:
Accounts payable........................................... $(10,397)
Accrued expenses........................................... (26,698) (37,095)
-------- --------
Net consideration paid..................................... $ 37,183
========
</TABLE>
In September 1991, the company acquired the North American electronics
distribution businesses of Lex, consisting of Lex Electronics Inc. and Almac
Electronics Corporation (collectively the "North American businesses"). The
aggregate cost of the acquisition was $173,257,000, including $7,292,000 for a
five-year non-competition agreement, and payment consisted of $111,706,000 of
cash and 6,839,000 shares of the company's common stock valued at $61,551,000.
The cash portion of the purchase price was financed under the company's U.S.
credit agreement. The acquisition of the North American businesses has been
accounted for as a purchase transaction effective September 27, 1991.
In October 1991, the company acquired a 50% interest in Silverstar Ltd.
S.p.A. ("Silverstar") in exchange for 926,000 shares of common stock valued at
$8,330,000.
Set forth below is the unaudited pro forma combined summary of operations
for the years ended December 31, 1993 and 1992 as though each of the
acquisitions had been made on January 1, 1992.
<TABLE>
<CAPTION>
1993 1992
---------- ----------
(IN THOUSANDS EXCEPT
PER SHARE DATA)
<S> <C> <C>
Sales................................................... $3,020,000 $2,445,000
Operating income........................................ 199,000 148,000
Earnings before extraordinary charges................... 90,000 55,000
Net income.............................................. 90,000 49,000
Per common share:
Primary:
Earnings before extraordinary charges.............. 2.56 1.73
Net income......................................... 2.56 1.53
Fully diluted:
Earnings before extraordinary charges.............. 2.39 1.65
Net income......................................... 2.39 1.47
Average number of common shares and common share
equivalents outstanding:
Primary............................................... 34,756 29,386
Fully diluted......................................... 39,304 33,327
</TABLE>
F-10
<PAGE> 101
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The unaudited pro forma combined summary of operations has been prepared
utilizing the supplemental consolidated financial statements of Arrow and the
acquired businesses. The unaudited pro forma combined summary of operations does
not reflect all sales attrition which may result from the combination of Zeus,
Gates, and MMD with Arrow's businesses or the sales attrition which may have
resulted from the combination of the European businesses. It also does not
reflect the full cost savings the company expects to achieve from the
combination of the Zeus, Gates, and MMD businesses with its own.
The 1992 unaudited pro forma combined summary of operations does not
reflect the cost savings achieved from the combination of the U.K. business of
Lex with its own or any sales attrition which may have resulted from the
combination.
The cost savings achieved result principally from reductions in personnel
performing duplicative functions and the elimination of duplicative
administrative facilities, selling and stocking locations, and computer and
telecommunications equipment. The unaudited pro forma combined summary of
operations does not purport to be indicative of the results which actually would
have been obtained if the acquisitions had been made at the beginning of 1992.
The unaudited pro forma combined summary of operations includes the effects
of the purchase price allocation adjustments, the additional interest expense on
debt incurred in connection with the acquisitions as if the debt had been
outstanding from the beginning of the periods presented, and the issuance of
additional shares of the company's preferred stock. The purchase price
allocation adjustments include the adjustment of the net assets acquired to fair
market value and the estimated costs associated with the integration of the
businesses. Such estimated costs include professional fees as well as real
estate lease termination costs, costs associated with the elimination of certain
redundant franchised lines, and severance and other expenses related to
personnel performing duplicative functions, all of which are associated with
facilities and personnel of the acquired businesses.
Early in 1994, the company acquired an additional 15% interest in Spoerle,
bringing its holdings to 70%, and increased its holdings in Silverstar to a
majority share. Silverstar will be consolidated into the company's results in
1994. Additionally, the company acquired the electronic component distribution
business of Field Oy, the largest distributor of electronic components in
Finland, TH:s Elektronik, a leading distributor in Sweden and Norway, and Exatec
A/S, one of the largest distributors in Denmark. The company also expanded its
role in the Pacific Rim by acquiring Texny (Holdings) Limited, one of Hong
Kong's leading distributors.
On September 21, 1994 the company announced that it had entered into a
definitive agreement to acquire Anthem Electronics, Inc., a leading distributor
of semiconductors and computer products throughout the United States. In the
merger, to be accounted for as a pooling-of-interests, the shareholders of
Anthem will receive .875 of a share of Arrow common stock, subject to
adjustment, for each share of Anthem. The merger is subject to customary closing
conditions, including the approval of shareholders of both Arrow and Anthem and
regulatory filings.
3. INVESTMENTS IN AFFILIATED COMPANIES
At December 31, 1993, the company had a 50% interest in Silverstar, the
largest distributor of electronic components in Italy. Prior to 1993 when it
increased its holdings to a 55% majority interest, the company had a 40%
interest in Spoerle. The investment in Silverstar is accounted for using the
equity method as was the investment in Spoerle prior to 1993. For the year ended
December 31, 1993, Silverstar recorded net sales of $158,546,000, gross profit
of $46,111,000, income before taxes of $8,959,000 and net income of $4,000,000.
For the year ended December 31,
F-11
<PAGE> 102
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
1992, Spoerle and Silverstar recorded net sales of $487,179,000, gross profit of
$135,200,000, income before income taxes of $32,185,000, and net income of
$26,082,000. For the year ended December 31, 1991, Spoerle recorded net sales of
$226,890,000, gross profit of $66,038,000, income before income taxes of
$26,748,000, and net income of $20,466,000. Such results are exclusive of
interest expense associated with financing the investment and purchase
accounting adjustments (including amortization of costs assigned to identifiable
assets, principally franchise agreements which are being amortized over 30
years, amortization over 40 years of costs in excess of the company's interest
in net assets acquired, and related income taxes). A summary of Silverstar's
balance sheet at December 31, 1993 and both affiliates' balance sheets at
December 31, 1992, exclusive of the aforementioned adjustments, follows:
<TABLE>
<CAPTION>
1993 1992
------- --------
(IN THOUSANDS)
<S> <C> <C>
Current assets................................................ $94,624 $194,232
Noncurrent assets............................................. 4,854 25,946
------- --------
Total assets............................................. $99,478 $220,178
======= ========
Current liabilities........................................... $78,836 $106,912
Noncurrent liabilities........................................ 7,822 17,603
Equity........................................................ 12,820 95,663
------- --------
Total liabilities and equity............................. $99,478 $220,178
======= ========
</TABLE>
The above amounts have been translated from deutsche marks and lira into
U.S. dollars based on exchange rates in effect at the end of the respective year
or during such year.
4. LONG-TERM DEBT AND SUBORDINATED DEBENTURES
Long-term debt at December 31, 1993 and 1992 consisted of the following:
<TABLE>
<CAPTION>
1993 1992
-------- --------
(IN THOUSANDS)
<S> <C> <C>
8.29% Senior notes due 2000.................................. $ 75,000 $ 75,000
U.S. loan agreement due 1995................................. 35,151 15,271
U.S. credit agreement due 1998............................... 35,000 --
Deutsche mark term loan due 2000............................. 28,794 15,442
Pound sterling term loan due 1998............................ 18,596 7,573
Other obligations with various interest rates................ 2,624 4,231
-------- --------
195,165 117,517
Less installments due within one year........................ 5,306 713
-------- --------
$189,859 $116,804
======== ========
</TABLE>
The senior notes are payable in three equal annual installments commencing
in 1998. The senior notes restrict the payment of cash dividends, limit
long-term debt and short-term borrowings, and require net worth and the ratio of
operating cash flow to interest expense be maintained at certain designated
levels.
The company's credit agreement with a group of banks (the "U.S. credit
agreement") was amended in January 1994 to release all collateral, to increase
to $175,000,000 the amount of loans available, to reduce the borrowing rate, and
to extend the maturity date to January 1998. At
F-12
<PAGE> 103
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
September 23, 1994, the company had outstanding borrowings of $35,000,000 under
the U.S. credit agreement and unused borrowing capacity of $140,000,000.
At the company's option, the interest rate for loans under the U.S. credit
agreement is at the agent bank's prevailing prime rate (6% at December 31, 1993)
or the U.S. dollar London Interbank Offered Rate ("LIBOR") (3.25% at December
31, 1993) plus .5625%. The company pays the banks a commitment fee of .225% per
annum on the aggregate unused portion of the U.S. credit agreement.
The U.S. credit agreement restricts the payment of cash dividends, limits
long-term debt and short-term borrowings, and requires that working capital, net
worth, and the ratio of earnings to interest expense be maintained at certain
designated levels.
The company's loan agreement (the "U.S. loan agreement") was amended in
August 1994 in conjunction with the acquisition of Gates. The interest rate was
fixed at 7.38% and the new maturity date is October 27, 1995.
The U.S. loan agreement is secured by the company's U.S. receivables and
inventory and requires that working capital, tangible net worth, and the ratio
of earnings to interest expense be maintained at certain designated levels.
The company's wholly-owned German subsidiary has a 50,000,000 deutsche mark
term loan from a group of German banks. The loan is payable in installments and
bears interest at deutsche mark LIBOR (5.9375% at December 31, 1993) plus .75%.
The loan is secured by an assignment of the subsidiary's interest in profit
distributions from Spoerle and is guaranteed by the company. The obligations of
the company under the guarantee are subordinated to the company's obligations
under the U.S. credit agreement and the senior notes.
In January 1994, in connection with the acquisition of an additional 15%
interest in Spoerle, the company borrowed 25,000,000 deutsche marks from the
German banks thereby increasing the loan balance to 75,000,000 deutsche marks.
The company's wholly-owned U.K. subsidiary has a loan agreement with a
British bank which, as amended in June 1993, includes a L8,000,000 term loan,
payable in semi-annual installments from 1994 through 1998, and a revolving
credit facility which provides for loans of up to L5,000,000. Borrowings under
the loan agreement bear interest at sterling LIBOR (5.5% at December 31, 1993)
plus 1.5% and are secured by the assets and common stock of the subsidiary. The
loan agreement also requires that operating cash flow, as defined, and the ratio
of earnings to interest expense be maintained by the subsidiary at certain
designated levels.
In April 1992, the company used the net proceeds of its common stock
offering to redeem $46,000,000 of its 13 3/4% subordinated debentures and to
repay approximately $13,000,000 of the company's 12% senior subordinated note
issued to Lex in connection with the acquisition of the European businesses. The
redemption of the subordinated debentures resulted in an extraordinary charge of
$4,039,000 ($2,424,000 after taxes), reflecting the net unamortized discount and
issuance expenses of the subordinated debentures.
In November 1992, the company issued $125,000,000 of 5 3/4% convertible
subordinated debentures due in 2002. The debentures are convertible at any time
prior to maturity, unless previously redeemed, into shares of the company's
common stock, at a conversion price of $33.125. The debentures are not
redeemable at the option of the company prior to October 1995. The net proceeds
from the issuance of the debentures together with the proceeds from the private
placement of the senior notes were used to redeem the balance of the 13 3/4%
subordinated debentures, the 12% subordinated debentures, and the 9% convertible
subordinated debentures, to
F-13
<PAGE> 104
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
repay the balance of the 12% senior subordinated note issued to Lex, to repay
the then existing term loan under the U.S. credit agreement, and to provide the
company with general working capital. The redemption of the subordinated
debentures and repayment of the term loan resulted in an extraordinary charge of
$4,925,000 ($3,000,000 after taxes). The charge resulted from the amortization
of the net unamortized discount and issuance expenses.
The aggregate annual maturities of long-term debt and subordinated
debentures, after giving effect to the amendment of the U.S. loan agreement, for
each of the five years in the period ending December 31, 1998 are:
1994 -- $5,306,000; 1995 -- $40,314,000; 1996 -- $5,166,000; 1997 -- $7,053,000;
and 1998 -- $74,261,000.
During 1994 the company obtained various other lines of credit with banks
under which up to $70,000,000 may be borrowed on such terms as to which the
company and the banks may mutually agree. There are no fees or compensating
balances associated with these lines. On September 23, 1994, the company had
outstanding borrowings of $50,000,000 and unused borrowing capacity of
$20,000,000.
The carrying amounts of the company's U.S. credit agreement and foreign
borrowings approximate their fair value. At December 31, 1993, the closing price
of the 5 3/4% convertible subordinated debentures on the New York Stock Exchange
was 140% of par. At December 31, 1993, an estimated fair market value of the
8.29% senior notes and the U.S. loan agreement was 106% and 98% of par,
respectively.
5. INCOME TAXES
The provision for income taxes for 1993, 1992, and 1991 consisted of the
following:
<TABLE>
<CAPTION>
1993 1992 1991
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Current
Federal........................................... $43,702 $16,357 $ 6,377
State............................................. 10,313 4,138 1,190
Foreign........................................... 9,376 -- --
------- ------- -------
63,391 20,495 7,567
Deferred
Federal........................................... 2,144 9,869 (3,974)
State............................................. 400 2,333 --
Foreign........................................... 3,222 -- --
------- ------- -------
5,766 12,202 (3,974)
------- ------- -------
$69,157 $32,697 $ 3,593
======= ======= =======
</TABLE>
F-14
<PAGE> 105
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The principal causes of the difference between the U.S. statutory and
effective income tax rates for 1993, 1992, and 1991 are as follows:
<TABLE>
<CAPTION>
1993 1992 1991
------- ------- -------
(IN THOUSANDS)
<S> <C> <C> <C>
Provision at statutory rate......................... $59,474 $29,631 $ 4,820
State taxes, net of federal benefit................. 6,995 4,333 796
Minority interest................................... (4,277) -- --
Foreign tax rate differential....................... 3,448 -- --
Effect of equity income and foreign loss............ (385) (1,199) (716)
Amortization of goodwill............................ 1,234 921 669
Other differences................................... 2,960 40 208
Tax benefit of loss and credit carryforwards........ (292) (1,029) (2,184)
------- ------- -------
Income tax provision................................ $69,157 $32,697 $ 3,593
======= ======= =======
</TABLE>
For financial reporting purposes in 1993, income before income taxes
attributable to the United States and foreign operations was $131,809,000 and
$38,116,000, respectively.
The significant components of the company's deferred tax assets are as
follows:
<TABLE>
<CAPTION>
1993 1992
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Inventory reserves........................................... $ 5,364 $ 8,082
Acquired net operating loss carryforwards.................... 2,931 3,662
Other........................................................ 2,405 1,592
------- -------
$10,700 $13,336
======= =======
</TABLE>
At December 31, 1993, the company had approximately $7,000,000 of acquired
U.S. net operating loss carryforwards available for tax return purposes which
expire in the years 2001 through 2006. Such carryforwards are subject to certain
annual restrictions on the amount that can be utilized for tax return purposes.
In France, the company had approximately $9,500,000 of net operating loss
carryforwards, of which approximately $8,900,000 was acquired, which expire
through 1997. In accordance with SFAS 109, the cost in excess of net assets of
companies acquired has been adjusted by $24,600,000 in conjunction with various
acquisitions to reflect the tax benefits of these net operating loss
carryforwards and other differences in the tax and book bases of the assets and
liabilities acquired. Included in other liabilities are deferred tax liabilities
of $11,954,000 and $11,436,000 at December 31, 1993 and 1992, respectively. The
deferred tax liabilities are principally the result of the differences in the
bases of the German assets and liabilities for tax and financial reporting
purposes.
6. SHAREHOLDERS' EQUITY
The company has 2,000,000 authorized shares of serial preferred stock with
a par value of $1. In February 1992, the company issued 66,196 shares of
newly-created series B $19.375 convertible exchangeable preferred stock (the
"series B preferred stock") for approximately $15,721,000 to provide partial
funding for the acquisition of the European electronics distribution businesses
of Lex.
In September 1993, the company completed the conversion of all of its
outstanding series B preferred stock into 1,009,086 shares of its common stock.
This conversion eliminated $1.3 million of annual dividends.
F-15
<PAGE> 106
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In 1988, the company paid a dividend of one preferred share purchase right
on each outstanding share of common stock. Each right, as amended, entitles a
shareholder to purchase one one-hundredth of a share of a new series of
preferred stock at an exercise price of $50 (the "exercise price"). The rights
are exercisable only if a person or group acquired 20% or more of the company's
common stock or announces a tender or exchange offer that will result in such
person or group acquiring 30% or more of the company's common stock. Rights
owned by the person acquiring such stock or transferees thereof will
automatically be void. Each other right will become a right to buy, at the
exercise price, that number of shares of common stock having a market value of
twice the exercise price. The rights, which do not have voting rights, expire on
March 2, 1998 and may be redeemed by the company at a price of $.01 per right at
any time until ten days after a 20% ownership position has been acquired. In the
event that the company merges with, or transfers 50% or more of its consolidated
assets or earning power to, any person or group after the rights become
exercisable, holders of the rights may purchase, at the exercise price, a number
of shares of common stock of the acquiring entity having a market value equal to
twice the exercise price.
7. EMPLOYEE STOCK PLANS
Restricted Stock Plan
Under the terms of the Arrow Electronics, Inc. Restricted Stock Plan (the
"Plan"), a maximum of 1,330,000 shares of common stock may be awarded at the
discretion of the Board of Directors to key employees of the company. The
company believes that as many as 50 employees may be considered for awards under
the Plan.
Shares awarded under the Plan may not be sold, assigned, transferred,
pledged, hypothecated, or otherwise disposed of, except as provided in the Plan.
Shares awarded become free of such restrictions over a four-year period. The
company awarded 40,000 shares of common stock in early 1994 to 35 key employees
in respect of 1993, 49,250 shares of common stock to 35 key employees during
1993 (including 39,750 shares of common stock in early 1993 to 31 key employees
in respect of 1992), 84,000 shares of common stock to 32 key employees during
1992 (including 63,000 shares awarded in early 1992 to 30 key employees in
respect of 1991), and 11,000 shares of common stock to five key employees during
1991. Forfeitures of shares awarded under the Plan were 7,625, 11,875, and 2,875
during 1993, 1992, and 1991, respectively. The aggregate market value of
outstanding awards under the Plan at the respective dates of award is being
amortized over a four-year period and the unamortized balance is included in
shareholders' equity as unamortized employee stock awards.
Stock Option Plan
Under the terms of the Arrow Electronics, Inc. Stock Option Plan (the
"Option Plan"), both nonqualified and incentive stock options were authorized
for grant to key employees at prices determined by the Board of Directors in its
discretion or, in the case of incentive stock options, prices equal to the fair
market value of the shares at the dates of grant. Options currently outstanding
have terms of ten years and become exercisable in equal annual installments over
two or three-year periods from date of grant. In 1993, the shareholders of the
company approved an increase in the number of shares of common stock authorized
for stock options to an aggregate of 4,500,000 shares.
F-16
<PAGE> 107
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The following information relates to the Option Plan:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------------------------
1993 1992 1991
------------ ------------ ------------
<S> <C> <C> <C>
Options outstanding at beginning of
year............................... 1,104,555 1,746,152 1,584,315
Granted.............................. 443,103 526,139 404,638
Exercised............................ (428,732) (1,114,448) (202,225)
Forfeited............................ (51,483) (53,288) (40,576)
------------- ------------- -------------
Options outstanding at end of year... 1,067,443 1,104,555 1,746,152
============= ============= =============
Prices per share of options
outstanding........................ $2.53 - 39.75 $2.53 - 28.25 $2.53 - 14.63
Average price per share of options
exercised.......................... $ 8.75 $ 5.71 $ 5.29
Average price per share of options
outstanding........................ $ 16.71 $ 9.55 $ 6.02
Exercisable options.................. 786,213 717,935 1,287,181
Options available for future grant:
Beginning of year.................. 831,550 1,304,401 244,386
End of year........................ 2,141,414 831,550 1,304,401
</TABLE>
STOCK OWNERSHIP PLAN
The company maintains a noncontributory employee stock ownership plan which
enables most North American employees to acquire shares of the company's common
stock. Contributions, which are determined by the Board of Directors, are in the
form of company common stock or cash which is used to purchase the company's
common stock for the benefit of participating employees. Contributions to the
plan for 1993, 1992, and 1991 aggregated $2,525,000, $2,360,000, and $1,550,000,
respectively.
8. RETIREMENT PLAN
The company has a defined contribution plan for eligible employees, which
qualifies under Section 401(k) of the Internal Revenue Code. The company's
contribution to the plan, which is based on a specified percentage of employee
contributions, amounted to $2,342,000, $2,164,000, and $1,326,000 in 1993, 1992,
and 1991, respectively.
9. LEASE COMMITMENTS
The company leases certain office, warehouse, and other property under
noncancellable operating leases expiring at various dates through 2016. Rental
expenses of noncancellable operating leases amounted to $17,018,000 in 1993,
$13,727,000 in 1992, and $12,252,000 in 1991. Aggregate minimum rental
commitments under all noncancellable operating leases approximate $71,411,000,
exclusive of real estate taxes, insurance, and leases related to facilities
closed in connection with the integration of the acquired businesses. Such
commitments on an annual basis are: 1994 -- $15,362,000; 1995 -- $12,487,000;
1996 -- $10,176,000; 1997 -- $7,120,000; 1998 -- $5,757,000 and $20,509,000
thereafter. The company's obligations under capitalized leases are reflected as
a component of deferred income taxes and other liabilities.
F-17
<PAGE> 108
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
10. SEGMENT AND GEOGRAPHIC INFORMATION
The company is engaged in one business segment, the distribution of
electronic components, systems, and related products. The geographic
distribution of consolidated sales, operating income, and identifiable assets
for 1993 and 1992 are as follows (in thousands):
<TABLE>
<CAPTION>
SALES TO IDENTIFIABLE
UNAFFILIATED OPERATING ASSETS AT
CUSTOMERS INCOME (LOSS) DECEMBER 31,
------------ ------------- -------------
<S> <C> <C> <C>
1993
North America............................ $2,252,694 $169,827 $ 844,229
Europe................................... 600,935 40,153 367,102
Pacific Rim.............................. 44,034 1,706 57,416
Eliminations and Corporate............... -- (16,331) 35,849
---------- -------- ----------
$2,897,663 $195,355 1,304,596
========== ========
Investment in affiliated company......... 13,371
----------
Total assets at December 31, 1993........ $1,317,967
==========
</TABLE>
<TABLE>
<CAPTION>
SALES TO IDENTIFIABLE
UNAFFILIATED OPERATING ASSETS AT
CUSTOMERS INCOME (LOSS) DECEMBER 31,
------------ ------------- -------------
<S> <C> <C> <C>
1992
North America............................ $1,768,094 $124,698 $681,621
Europe................................... 116,577 1,420 94,145
Pacific Rim.............................. -- -- --
Eliminations and Corporate............... -- (13,646) 23,838
---------- -------- --------
$1,884,671 $112,472 799,604
========== ========
Investments in affiliated companies...... 64,893
--------
Total assets at December 31, 1992........ $864,497
========
</TABLE>
11. QUARTERLY FINANCIAL DATA (UNAUDITED)
A summary of the company's quarterly results of operations for 1993 and
1992 follows:
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
1993:
Sales................................... $633,270 $671,138 $790,941 $802,314
Gross profit............................ 127,626 128,852 145,244 144,491
Net income.............................. 19,636 21,055 23,516 24,340
Per common share:
Primary.............................. .57 .61 .67 .68
Fully diluted........................ .54 .57 .63 .65
</TABLE>
F-18
<PAGE> 109
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
-------- -------- -------- --------
(IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
1992:
Sales................................... $442,329 $443,127 $474,281 $524,934
Gross profit............................ 85,148 88,598 93,268 99,936
Earnings before extraordinary
charges.............................. 10,081 12,340 14,635 17,395
Net income.............................. 10,081 9,916 14,635 14,395
Per common share:
Earnings before extraordinary
charges............................ .37 .40 .46 .51
Extraordinary charges................ -- (.09) -- (.09)
Net income.............................. .37 .31 .46 .42
</TABLE>
F-19
<PAGE> 110
ARROW ELECTRONICS, INC.
SUPPLEMENTAL CONSOLIDATED BALANCE SHEET
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1994 1993
----------- ------------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and short-term investments................................ $ 45,932 $ 60,730
Accounts receivable, less allowance for doubtful accounts
($25,808 in 1994 and $18,597 in 1993)....................... 556,499 411,436
Inventories.................................................... 551,880 497,661
Prepaid expenses and other assets.............................. 17,391 11,878
---------- ----------
Total current assets............................................. 1,171,702 981,705
---------- ----------
Property, plant and equipment at cost:
Land........................................................... 6,030 6,030
Buildings and improvements..................................... 38,947 35,188
Machinery and equipment........................................ 67,610 59,636
---------- ----------
112,587 100,854
Less accumulated depreciation and amortization................. 46,812 40,900
---------- ----------
65,775 59,954
Investment in affiliated company................................. -- 13,371
Investments in net assets of acquired businesses................. 44,842 --
Cost in excess of net assets of companies acquired, less
accumulated amortization ($18,796 in 1994 and
$15,179 in 1993)............................................... 248,112 209,515
Other assets..................................................... 42,557 53,422
---------- ----------
$1,572,988 $1,317,967
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable............................................... $ 313,408 $ 237,241
Accrued expenses............................................... 125,652 108,996
Accrued interest............................................... 6,353 5,421
Short-term borrowings, including current maturities
of long-term debt........................................... 93,736 41,075
---------- ----------
Total current liabilities........................................ 539,149 392,733
---------- ----------
Long-term debt................................................... 213,804 189,859
Deferred income taxes and other liabilities...................... 49,106 43,503
Subordinated debentures.......................................... 125,000 125,000
Minority interest................................................ 84,244 71,459
Shareholders' equity:
Common stock, par value $1:
Authorized -- 60,000,000 shares
Issued -- 35,252,170 shares in 1994 and 35,038,946 shares
in 1993................................................... 35,252 35,039
Capital in excess of par value................................. 338,585 332,700
Retained earnings.............................................. 192,340 136,849
Foreign currency translation adjustment........................ (1,596) (7,492)
---------- ----------
564,581 497,096
Less: Treasury shares (11,247 in 1994 and 10,872 in 1993) at
cost................................................... 13 12
Unamortized employee stock awards........................ 2,883 1,671
---------- ----------
Total shareholders' equity....................................... 561,685 495,413
---------- ----------
$1,572,988 $1,317,967
========== ==========
</TABLE>
See accompanying notes.
F-20
<PAGE> 111
ARROW ELECTRONICS, INC.
SUPPLEMENTAL CONSOLIDATED STATEMENT OF OPERATIONS
(IN THOUSANDS EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
-------------------------
1994 1993
---------- ----------
<S> <C> <C>
Sales............................................................. $1,890,026 $1,304,408
---------- ----------
Costs and expenses:
Cost of products sold........................................... 1,544,005 1,047,930
Selling, general and administrative expenses.................... 208,121 157,163
Depreciation and amortization................................... 11,382 7,383
---------- ----------
1,763,508 1,212,476
---------- ----------
Operating income.................................................. 126,518 91,932
Equity in earnings of affiliated company.......................... -- 613
Interest expense.................................................. 19,866 14,284
---------- ----------
Earnings before income taxes and minority interest................ 106,652 78,261
Provision for income taxes........................................ 42,819 31,002
---------- ----------
Earnings before minority interest................................. 63,833 47,259
Minority interest................................................. 8,342 6,568
---------- ----------
Net income........................................................ $ 55,491 $ 40,691
========== ==========
Net income used in per common share calculation (reflecting
deduction of preferred stock dividends)......................... $ 55,491 $ 40,049
========== ==========
Net income per common share:
Primary......................................................... $ 1.55 $ 1.18
========== ==========
Fully diluted................................................... $ 1.46 $ 1.11
========== ==========
Average number of common shares and common share equivalents
outstanding:
Primary...................................................... 35,719 33,943
========== ==========
Fully diluted................................................ 39,495 38,771
========== ==========
</TABLE>
See accompanying notes.
F-21
<PAGE> 112
ARROW ELECTRONICS, INC.
SUPPLEMENTAL CONSOLIDATED STATEMENT OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE
30,
---------------------
1994 1993
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net income......................................................... $ 55,491 $ 40,691
Adjustments to reconcile net income to net cash provided by
(used for) operations:
Minority interest in earnings................................... 8,342 6,568
Depreciation and amortization................................... 12,521 8,383
Equity in undistributed earnings of affiliated company.......... -- (613)
Deferred taxes.................................................. 3,637 7,512
Change in assets and liabilities, net of effects of acquired
businesses:
Accounts receivable........................................ (67,489) (65,460)
Inventories................................................ (20,723) (20,060)
Prepaid expenses and other assets.......................... 547 2,822
Accounts payable........................................... 49,611 18,890
Accrued expenses........................................... (4,425) 14,721
Accrued interest........................................... 771 3,959
Other...................................................... (3,305) (2,844)
-------- --------
Net cash provided by operating activities.......................... 34,978 14,569
-------- --------
Cash flows from investing activities:
Acquisitions of property, plant and equipment, net................. (6,887) (5,884)
Cash consideration paid for acquired businesses.................... (80,623) (57,715)
Repayment by/(loan to) affiliate................................... 7,730 (7,000)
-------- --------
Net cash (used for) investing activities........................... (79,780) (70,599)
-------- --------
Cash flows from financing activities:
Change in notes payable to banks................................... 12,330 2,784
Repayment of long-term debt........................................ (2,518) 9,194
Proceeds from common stock offering................................ -- 17,746
Proceeds from exercise of stock options............................ 2,625 2,034
Proceeds from long-term debt....................................... 24,351 38,652
Distribution to partners........................................... (7,696) (904)
Dividends paid..................................................... -- (642)
Financing fees paid................................................ (200) (1,032)
-------- --------
Net cash provided by financing activities.......................... 28,892 67,832
-------- --------
Net increase (decrease) in cash and short-term investments........... (15,910) 11,802
Cash and short-term investments at beginning of period............... 60,730 30,457
Cash and short-term investments from affiliate at beginning of
period............................................................. 1,112 --
-------- --------
Cash and short-term investments at end of period..................... $ 45,932 $ 42,259
======== ========
Supplemental disclosures of cash flow information
Cash paid during the period:
Income taxes.................................................... $ 24,654 $ 9,771
Interest........................................................ $ 22,058 $ 8,332
</TABLE>
See accompanying notes.
F-22
<PAGE> 113
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 1994
(UNAUDITED)
NOTE A -- BASIS OF PRESENTATION
The accompanying supplemental consolidated financial statements reflect all
adjustments, consisting only of normal recurring accruals, which are, in the
opinion of management, necessary for a fair presentation of the supplemental
consolidated financial position and results of operations at and for the periods
presented. Such supplemental consolidated financial statements do not include
all the information or footnotes necessary for a complete presentation and,
accordingly, should be read in conjunction with the company's supplemental
consolidated financial statements for the year ended December 31, 1993 and the
notes thereto. The results of operations for the interim period is not
necessarily indicative of results for the full year.
NOTE B -- NET INCOME PER COMMON SHARE
Net income per common share for 1994 is based upon the weighted average
number of shares of common stock and common stock equivalents outstanding. For
the six months ended June 30, 1994 and 1993, the average number of common stock
equivalents was 534,103 and 693,177, respectively.
Net income per common share on a fully diluted basis for 1994 assumes that
the 5 3/4% convertible subordinated debentures (the "convertible subordinated
debentures") were converted to common stock at the beginning of the period and
the related interest expense, net of taxes, was eliminated.
Net income per common share for 1993 is based upon the weighted average
number of common stock and common stock equivalents outstanding after deducting
preferred stock dividends related to the series B $19.375 convertible
exchangeable preferred stock (the "convertible exchangeable preferred stock"),
which was converted into common stock in September 1993. Net income per common
share on a fully diluted basis for 1993 assumes that the convertible
exchangeable preferred stock and the convertible subordinated debentures were
converted to common stock at the beginning of the period. The dividends related
to the convertible exchangeable preferred stock and the interest expense on the
convertible subordinated debentures, net of taxes, were eliminated.
F-23
<PAGE> 114
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
JUNE 30, 1994
(UNAUDITED)
NOTE C -- ACQUISITION OF ELECTRONICS DISTRIBUTION BUSINESSES
On August 29, 1994, the company completed the acquisition of Gates in an
acquisition accounted for as a pooling-of-interests. Accordingly, Arrow's
supplemental consolidated financial statements have been restated to include the
operations of Gates for all periods presented. Revenues and net income combined
are as follows (in thousands):
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30,
-------------------------
1994 1993
---------- ----------
<S> <C> <C>
Revenue:
Arrow................................................... $1,656,430 $1,135,460
Gates................................................... 233,596 168,948
---------- ----------
Combined........................................ $1,890,026 $1,304,408
========== ==========
Net income:
Arrow................................................... $ 51,824 $ 37,096
Gates................................................... 4,199 3,595
---------- ----------
Combined........................................ $ 56,023 $ 40,691
========== ==========
</TABLE>
The combined data does not reflect the cost savings expected to be achieved
from the combination of Gates with the company's business or sales attrition
which may result. The cost savings will result principally from reductions in
personnel performing duplicative functions and the elimination of duplicative
administrative facilities, selling and stocking locations, and computer and
telecommunications equipment.
The combined financial statements exclude approximately $21,000,000 ($.37
per share) of estimated costs associated with the integration of the businesses
and related transaction fees. Such estimated integration costs included real
estate termination costs and severance and other expenses related to personnel
performing duplicative functions.
In January 1994, the company acquired an additional 15% share, for
approximately $23,400,000, in Spoerle Handelsgesellschaft mbH and Co. and its
general partner, Spoerle GmbH (collectively, "Spoerle"), the largest distributor
of electronic components in Germany, increasing its holdings to a 70% majority
interest. During the first quarter of 1994, the company acquired an additional
11% share in Silverstar Ltd. S.p.A. ("Silverstar"), the largest distributor of
electronic components in Italy, increasing its holdings to a 61% majority
interest. The acquisitions are being accounted for as purchase transactions, and
Silverstar is consolidated with the company, effective January 1, 1994. Prior to
1994 the company's investment in Silverstar was accounted for under the equity
method.
In addition, in January 1994 the company acquired the electronic component
distribution business of Field Oy, the largest distributor of electronic
components in Finland, and in March 1994 the company acquired TH:s Elektronik AB
and its subsidiaries, a group of electronic distribution companies serving
Norway, Sweden, and Finland. In April 1994, the company acquired Exatec A/S, one
of the largest distributors of semiconductors in Denmark. In May 1994, the
company acquired Texny (Holdings) Limited, one of Hong Kong's leading
distributors of electronic components. The acquisitions are being accounted for
as purchase transactions beginning in their respective month of acquisition.
F-24
<PAGE> 115
ARROW ELECTRONICS, INC.
NOTES TO SUPPLEMENTAL CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
JUNE 30, 1994
(UNAUDITED)
In January 1993, the company acquired an additional 15% share in Spoerle,
increasing its holdings to a then 55% majority interest. In May 1993, the
company acquired the high-reliability electronic component distribution and
value-added service businesses of Zeus Components, Inc. ("Zeus"). In June 1993,
the company acquired Microprocessor & Memory Distribution Limited ("MMD"), a
U.K.-based electronics distributor which focuses on the distribution of
high-technology semiconductor products. In August 1993, the company acquired
Components Agent Limited ("CAL"), one of the largest electronics distributors in
Hong Kong. During the third quarter of 1993 the company acquired a majority
interest in Amitron S.A. and the ATD Group, electronics distributors serving the
Spanish and Portuguese markets. In November 1993, the company augmented its
French operations by acquiring CCI Electronique.
Set forth below for comparative purposes is the pro forma combined summary
of operations for the six months ended June 30, 1993 as though each of the 1993
acquisitions had occurred on January 1, 1993.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, 1993
--------------------
(IN THOUSANDS EXCEPT
PER SHARE DATA)
<S> <C>
Sales............................................................ $1,418,943
Operating income................................................. 94,926
Net income....................................................... 41,615
Net income per common share:
Primary........................................................ 1.19
Fully diluted.................................................. 1.12
Average number of common shares and common share equivalents
outstanding:
Primary..................................................... 34,418
Fully diluted............................................... 39,276
</TABLE>
The unaudited pro forma combined summary of operations has been prepared
utilizing the supplemental financial statements of Arrow and the acquired
businesses. The unaudited pro forma combined summary of operations includes the
effect of the purchase price allocation adjustments and the additional interest
expense on debt incurred in connection with the acquisitions as if the debt had
been outstanding from the beginning of the period. The purchase price allocation
adjustments include the adjustment of the net assets acquired to fair market
value and the estimated costs associated with the integration of the businesses.
Such estimated costs include professional fees as well as real estate lease
termination costs, costs associated with the elimination of certain redundant
franchised lines, and severance and other expenses related to personnel
performing duplicative functions, all of which are associated with facilities
and personnel of the acquired businesses. The unaudited pro forma combined
summary of operations does not purport to be indicative of the results which
actually would have been obtained if the acquisitions had been made at the
beginning of 1993.
The unaudited pro forma combined summary of operations does not reflect
sales attrition which may result from the combination of Zeus, Gates, and MMD
with Arrow's businesses. It also does not reflect the cost savings the company
achieved from the combination of the Zeus businesses with its own and it expects
to achieve when Gates and MMD are combined with the company's businesses.
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EXHIBIT A
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ARROW ELECTRONICS, INC.
MTA ACQUISITION COMPANY
AND
ANTHEM ELECTRONICS, INC.
DATED AS OF SEPTEMBER 21, 1994
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TABLE OF CONTENTS
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ARTICLE 1
THE MERGER
1.1 Effective Time of the Merger................................................... A-6
1.2 Closing........................................................................ A-6
1.3 Effects of the Merger.......................................................... A-6
ARTICLE 2
CONVERSION OF SECURITIES
2.1 Conversion of Capital Stock.................................................... A-7
(a) Capital Stock of Sub..................................................... A-7
(b) Cancellation of Treasury Stock and Parent-Owned Stock.................... A-7
(c) Conversion Ratio for the Company Common Stock............................ A-7
2.2 Exchange of Certificates....................................................... A-8
(a) Exchange Agent........................................................... A-8
(b) Exchange Procedures...................................................... A-8
(c) Distribution with Respect to Unexchanged Shares.......................... A-9
(d) No Further Ownership Rights in the Company Common Stock.................. A-9
(e) No Fractional Shares..................................................... A-9
(f) Termination of Exchange Fund............................................. A-10
(g) No Liability............................................................. A-10
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.1 Corporate Organization and Authority of the Company............................ A-10
3.2 Subsidiaries and Equity Investments............................................ A-11
3.3 Capitalization................................................................. A-11
3.4 No Violation; Consents and Approvals........................................... A-11
3.5 SEC Reports and Financial Statements of the Company............................ A-12
3.6 Absence of Undisclosed Liabilities............................................. A-13
3.7 Inventory...................................................................... A-13
3.8 Accounts Receivable............................................................ A-13
3.9 Title to Property.............................................................. A-13
3.10 Intellectual Property.......................................................... A-14
3.11 Tax Matters.................................................................... A-14
3.12 Employee Matters............................................................... A-15
3.13 No Material Change............................................................. A-16
3.14 Absence of Change or Event..................................................... A-16
3.15 Litigation..................................................................... A-17
3.16 Compliance With Law and Other Instruments...................................... A-17
3.17 Insurance...................................................................... A-20
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3.18 Affiliate Interests............................................................ A-20
3.19 Customers and Suppliers........................................................ A-21
3.20 Absence of Questionable Payments............................................... A-21
3.21 Information Supplied........................................................... A-21
3.22 Opinion of Financial Advisor................................................... A-22
3.23 Vote Required.................................................................. A-22
3.24 Accounting Matters............................................................. A-22
3.25 Company Not an Interested Shareholder or a 30% Shareholder..................... A-22
3.26 Section 203 of the DGCL Not Applicable......................................... A-22
3.27 Disclosure..................................................................... A-22
3.28 The Company's Best Knowledge................................................... A-22
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
4.1 Organization................................................................... A-22
4.2 Corporate Authority............................................................ A-22
4.3 No Violation; Consents and Approvals........................................... A-23
4.4 Capitalization................................................................. A-23
4.5 SEC Reports and Financial Statements of Parent................................. A-24
4.6 No Material Change............................................................. A-24
4.7 Litigation..................................................................... A-24
4.8 Absence of Questionable Payments............................................... A-25
4.9 Information Supplied........................................................... A-25
4.10 Opinion of Financial Advisor................................................... A-25
4.11 Vote Required.................................................................. A-25
4.12 Accounting Matters............................................................. A-25
4.13 Disclosure..................................................................... A-25
4.14 Parent's Best Knowledge........................................................ A-25
ARTICLE 5
CERTAIN COVENANTS AND AGREEMENTS
OF THE COMPANY AND PARENT
5.1 Conduct of the Company's Business Prior to the Closing Date.................... A-26
5.2 Conduct of Parent's Business Prior to the Closing Date......................... A-26
5.3 Preparation of S-4 and the Proxy Statement..................................... A-27
5.4 Letter of the Company's and Parent's Accountants............................... A-27
5.5 Legal Conditions to Merger..................................................... A-27
5.6 Affiliates..................................................................... A-27
5.7 Stock Exchange Listing......................................................... A-27
5.8 Stockholders' Meetings......................................................... A-28
5.9 Fees and Expenses.............................................................. A-28
5.10 Broker's and Finder's Fees..................................................... A-29
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5.11 Access to Information and Confidentiality...................................... A-29
5.12 Indemnification................................................................ A-30
5.13 Additional Agreements; Best Efforts............................................ A-31
5.14 No Solicitation................................................................ A-31
5.15 Advice of Changes; SEC Filings................................................. A-31
5.16 Press Releases................................................................. A-32
5.17 Company Option Plans........................................................... A-32
5.18 Employment Agreements.......................................................... A-32
5.19 Parent Director Designation.................................................... A-32
ARTICLE 6
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation to Effect the Merger..................... A-33
(a) Stockholder Approval..................................................... A-33
(b) NYSE Listing............................................................. A-33
(c) Other Approvals.......................................................... A-33
(d) S-4...................................................................... A-33
(e) No Injunctions or Restraints............................................. A-33
(f) No Governmental Actions.................................................. A-33
(g) Pooling Letter........................................................... A-33
6.2 Conditions to Obligations of Parent and Sub.................................... A-33
(a) Representations and Warranties; Performance of Obligations............... A-33
(b) Tax Opinion.............................................................. A-34
(c) No Actions............................................................... A-34
(d) Consents Under Agreements................................................ A-34
(e) Letter from Company Affiliates........................................... A-34
(f) Material Adverse Change.................................................. A-34
(g) No Amendments to Resolutions............................................. A-34
6.3 Conditions to Obligations of the Company....................................... A-34
(a) Representations and Warranties; Performance of Obligations............... A-34
(b) Tax Opinion.............................................................. A-34
(c) Consents Under Agreements................................................ A-35
(d) Material Adverse Change.................................................. A-35
(e) No Amendments to Resolutions............................................. A-35
ARTICLE 7
TERMINATION AND AMENDMENT
7.1 Termination.................................................................... A-35
7.2 Effect of Termination.......................................................... A-36
7.3 Extension; Waiver.............................................................. A-36
7.4 Amendment and Modification..................................................... A-36
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ARTICLE 8
GENERAL PROVISIONS
8.1 Nonsurvival of Representations, Warranties and Agreements...................... A-36
8.2 Notices........................................................................ A-37
8.3 Governing Law.................................................................. A-37
8.4 Interpretation................................................................. A-37
8.5 Counterparts................................................................... A-37
8.6 Entire Agreement; No Third Party Beneficiaries; Rights of Ownership............ A-38
8.7 No Remedy in Certain Circumstances............................................. A-38
8.8 Severability................................................................... A-38
8.9 Assignment..................................................................... A-38
Exhibit 5.6 Affiliate Agreement
Schedule A Proxies
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 21, 1994, by and among
Arrow Electronics, Inc., a New York corporation ("Parent" ), MTA Acquisition
Company, a Delaware corporation and a wholly owned subsidiary of Parent
("Sub" ), and Anthem Electronics, Inc., a Delaware corporation (the "Company" ).
WHEREAS, the respective Boards of Directors of Parent, Sub and the Company
deem it advisable and in the best interests of their respective stockholders to
consummate, and have approved, the business combination transaction provided for
herein in which Sub would merge with and into the Company and the Company would
become a wholly owned subsidiary of Parent (the "Merger" );
WHEREAS, for Federal income tax purposes, it is intended that the Merger
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code" );
WHEREAS, for accounting purposes, it is intended that the Merger shall be
accounted for as a pooling of interests;
WHEREAS, concurrently with the execution of this Agreement and as an
inducement to Parent and Sub to enter into this Agreement, (i) the Company and
Parent have entered into a stock option agreement dated the date hereof (the
"Option Agreement" ) providing for the purchase by Parent of newly-issued shares
of the Company's Common Stock, (ii) each of the directors and officers of the
Company named on Schedule A hereto has on the date hereof granted to Parent an
irrevocable proxy to vote the shares of the Company's Common Stock owned by such
person to approve the Merger; and
WHEREAS, Parent, Sub and the Company desire to make certain
representations, warranties and agreements in connection with the Merger and
also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, the
parties hereto agree as follows:
ARTICLE 1
THE MERGER
1.1 Effective Time of the Merger. Subject to the provisions of this
Agreement, a certificate of merger (the "Certificate of Merger" ) shall be duly
prepared, executed and acknowledged by the Surviving Corporation (as defined in
Section 1.3) and thereafter delivered to the office of the Secretary of State of
the State of Delaware, for filing and thereafter recorded, as provided in the
Delaware General Corporation Law (the "DGCL" ), as soon as practicable on or
after the Closing Date (as defined in Section 1.2). The Merger shall become
effective upon the filing of the Certificate of Merger with the office of the
Secretary of State of the State of Delaware or at such time thereafter as is
provided in the Certificate of Merger (the "Effective Time" ).
1.2 Closing. The closing of the Merger (the "Closing" ) will take place at
the offices of Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza, New
York, New York, at 10:00 A.M. (local time) on a date to be specified by Parent
and the Company, which shall be no later than the third business day after
satisfaction or waiver of the latest to occur of the conditions set forth in
Article 6 (other than Sections 6.2(a)(i) and 6.3(a)(i) and the delivery of the
officer's certificates referred to in Sections 6.2(a) and 6.3(a)) (the "Closing
Date" ) or at such other place, time and date as may be agreed upon in writing
by Parent and the Company.
1.3 Effects of the Merger. (a) At the Effective Time (i) the separate
existence of Sub shall cease and Sub shall be merged with and into the Company
(Sub and the Company are sometimes
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referred to herein as the "Constituent Corporations" and the Company is
sometimes referred to herein as the "Surviving Corporation" ), (ii) the
Certificate of Incorporation of Sub as in effect immediately prior to the
Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation, except that the name of the Surviving Corporation as provided in
such Certificate of Incorporation shall be "Anthem Electronics, Inc." and (iii)
the By-laws of Sub as in effect immediately prior to the Effective Time shall be
the By-laws of the Surviving Corporation.
(b) The Merger shall have the effects set forth in this Agreement, the
Certificate of Merger and the applicable provisions of the DGCL. Without
limiting the generality of the foregoing, at and after the Effective Time, the
Surviving Corporation shall possess all the rights, privileges, powers,
immunities and franchises, of a public as well as of a private nature, and be
subject to all the restrictions, disabilities and duties of each of the
Constituent Corporations; and all and singular rights, privileges, powers,
immunities and franchises of each of the Constituent Corporations, and all
property, real, personal and mixed, and all debts due to either of the
Constituent Corporations on whatever account, including subscriptions to shares
and all other choses in action, and all and every other interest of or belonging
to or due to each of the Constituent Corporations, shall be taken and deemed to
be transferred to and vested in the Surviving Corporation, and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter as effectually the property of the Surviving Corporation as
they were of the Constituent Corporations, and the title to any real estate
vested by deed or otherwise, in either of the Constituent Corporations, shall
not revert or be in any way impaired; but all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to the Surviving Corporation, and may be
enforced against it to the same extent as if said debts and liabilities had been
incurred by it.
ARTICLE 2
CONVERSION OF SECURITIES
2.1 Conversion of Capital Stock. As of the Effective Time, by virtue of
the Merger and without any further action on the part of the holder of any
shares of Common Stock, par value $.125 per share, of the Company (the "Company
Common Stock" ) or capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of the capital
stock of Sub shall be converted into and become one fully paid and nonassessable
share of Common Stock, par value $.125 per share, of the Surviving Corporation.
(b) Cancellation of Treasury Stock and Parent-Owned Stock. All shares of
the Company Common Stock that are owned by the Company as treasury stock and any
shares of the Company Common Stock owned by Parent, Sub or any wholly owned
Subsidiary of the Company or Parent shall be canceled and retired and shall
cease to exist and no stock of Parent or other consideration shall be delivered
in exchange therefor. All shares of Common Stock, par value $1.00 per share, of
Parent (the "Parent Common Stock" ), if any, owned by the Company shall remain
unaffected by the Merger. As used in this Agreement, the word "Subsidiary"
means, with respect to any party, any corporation or other organization, whether
incorporated or unincorporated, of which (i) such party or any other Subsidiary
of such party is a general partner (excluding partnerships, the general
partnership interests of which held by such party or any Subsidiary of such
party do not have a majority of the voting interest in such partnership) or (ii)
at least a majority of the securities or other interests having by their terms
ordinary voting power to elect a majority of the Board of Directors or others
performing similar functions with respect to such corporation or other
organization is directly or indirectly owned or controlled by such party or by
any one or more of its Subsidiaries, or by such party and one or more of its
Subsidiaries.
(c) Conversion Ratio for the Company Common Stock. Subject to Section
2.2(e), each issued and outstanding share of the Company Common Stock (other
than shares to be canceled in
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accordance with Section 2.1(b)) shall be converted into the right to receive
.875 (the "Conversion Ratio" ) shares of Parent Common Stock; provided, however,
that (i) if the average closing price on the New York Stock Exchange, Inc. (the
"NYSE" ) of one share of Parent Common Stock over the twenty-day trading period
ending on (and including) the trading day immediately preceding the two trading
days before the Closing Date (the "Parent Stock Price" ) is not greater than
$41.625 and not less than $37.625, there shall be no adjustment to the
Conversion Ratio, (ii) if the Parent Stock Price is greater than $41.625, the
Conversion Ratio shall be adjusted to equal the product of (x) .875 and (y) a
fraction the numerator of which is equal to the sum of (1) $41.625 and (2) one-
half (1/2) of the difference between the Parent Stock Price and $41.625 and the
denominator of which is the Parent Stock Price and (iii) if the Parent Stock
Price is less than $37.625, the Conversion Ratio shall be adjusted to equal the
product of (x) .875 and (y) a fraction the numerator of which is equal to the
sum of (1) the Parent Stock Price and (2) one-half (1/2) of the difference
between $37.625 and the Parent Stock Price and the denominator of which is the
Parent Stock Price. Each share of the Parent Common Stock issued pursuant to the
Merger shall entitle the holder thereof to the corresponding number of rights
(the "Parent Rights" ) to purchase shares of Participating Preferred Stock of
Parent pursuant to the Rights Agreement dated as of March 2, 1988, as amended,
between Parent and Chemical Bank (formerly Manufacturers Hanover Trust Company),
as Rights Agent (the "Parent Rights Agreement" ). All references in this
Agreement to the Parent Common Stock to be received pursuant to the Merger shall
be deemed to include the Parent Rights. All such shares of the Company Common
Stock, when so converted, 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 shall cease to have any rights with
respect thereto, except the right to receive the shares of the Parent Common
Stock and any cash in lieu of fractional shares of the Parent Common Stock to be
issued or paid in consideration therefor upon the surrender of such certificate
in accordance with Section 2.2, without interest.
2.2 Exchange of Certificates.
(a) Exchange Agent. As of the Effective Time, Parent shall deposit with
Chemical Bank or such other bank or trust company designated by Parent (and
reasonably acceptable to the Company) (the "Exchange Agent" ), for the benefit
of the holders of shares of the Company Common Stock, for exchange in accordance
with this Article 2, through the Exchange Agent, certificates representing the
shares of the Parent Common Stock (such shares of the Parent Common Stock,
together with any dividends or distributions with respect thereto, being
hereinafter referred to as the "Exchange Fund" ) issuable pursuant to Section
2.1 in exchange for outstanding shares of the Company Common Stock.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, the Exchange Agent shall mail to each holder of record of a
certificate or certificates which immediately prior to the Effective Time
represented outstanding shares of the Company Common Stock (the "Certificates" )
whose shares where converted pursuant to Section 2.1 into the right to receive
shares of the Parent Common Stock (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 Exchange
Agent and shall be in such form and have such other provisions as Parent and the
Company may reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for certificates representing shares
of the Parent Common Stock. Upon surrender of a Certificate for cancellation to
the Exchange Agent or to such other agent or agents as may be appointed by
Parent and Sub, together with such letter of transmittal, duly executed, the
holder of such Certificate shall be entitled to receive in exchange therefor a
certificate representing that number of whole shares of the Parent Common Stock
which such holder has the right to receive pursuant to the provisions of this
Article 2 (and the dividends or distributions and cash in lieu of fractional
shares as contemplated by Sections 2.2(c) and 2.2(e), respectively), and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of the Company Common Stock which is not registered in the
transfer records of the Company, a
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certificate representing the proper number of shares of the Parent Common Stock
may be issued to a transferee if the Certificate representing the Company Common
Stock is presented to the Exchange Agent, accompanied by all documents required
to evidence and effect such transfer and by evidence that any applicable stock
transfer taxes have been paid. Until surrendered as contemplated by this Section
2.2, each Certificate shall be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender the certificate
representing shares of the Parent Common Stock and cash in lieu of any
fractional shares of the Parent Common Stock as contemplated by this Section
2.2.
(c) Distribution with Respect to Unexchanged Shares. No dividends or other
distributions declared or made after the Effective Time with respect to the
Parent Common Stock with a record date after the Effective Time shall be paid to
the holder of any unsurrendered Certificate with respect to the shares of the
Parent Common Stock represented thereby and no cash payment in lieu of
fractional shares shall be paid to any such holder pursuant to Section 2.2(e)
until the holder of record of such Certificate shall surrender such Certificate.
Subject to the effect of applicable laws, following surrender of any such
Certificate, there shall be paid to the record holder of the certificates
representing whole shares of the Parent Common Stock issued in exchange
therefor, without interest, (i) at the time of such surrender, the amount (to
the extent such amount has been determined in accordance with Section 2.2(e)) of
any cash payable in lieu of a fractional share of the Parent Common Stock to
which such holder is entitled pursuant to Section 2.2(e) and the amount of
dividends or other distributions with a record date after the Effective Time
theretofore paid with respect to such whole shares of the Parent Common Stock,
and (ii) at the appropriate payment date, the amount of dividends or other
distributions with a record date after the Effective Time but prior to surrender
and a payment date subsequent to surrender payable with respect to such whole
shares of the Parent Common Stock.
(d) No Further Ownership Rights in the Company Common Stock. All shares of
the Parent Common Stock issued upon the surrender for exchange of shares of the
Company Common Stock in accordance with the terms hereof (including any cash
paid pursuant to Section 2.2(c) or 2.2(e)) shall be deemed to have been issued
in full satisfaction of all rights pertaining to such shares of the Company
Common Stock, subject, however, to the Surviving Corporation's obligation to pay
any dividends or make any other distributions with a record date prior to the
Effective Time which may have been declared or made by the Company on such
shares of the Company Common Stock in accordance with the terms of this
Agreement or prior to the date hereof and which remain unpaid at the Effective
Time, and there shall be no further registration of transfers on the stock
transfer books of the Surviving Corporation of the shares of the Company Common
Stock which were outstanding immediately prior to the Effective Time. If, after
the Effective Time, Certificates are presented to the Surviving Corporation for
any reason, they shall be canceled and exchanged as provided in this Article 2.
(e) No Fractional Shares. No certificates or scrip representing fractional
shares of the Parent Common Stock shall be issued upon the surrender for
exchange of Certificates, and such fractional share interests will not entitle
the owner thereof to vote or to enjoy any other rights of a stockholder of
Parent. All fractional shares of the Parent Common Stock that a holder of the
Company Common Stock would otherwise be entitled to receive as a result of the
Merger shall be aggregated and if a fractional share results from such
aggregation, such holder shall be entitled to receive, in lieu thereof, an
amount in cash determined by multiplying the Parent Stock Price by the fraction
of a share of the Parent Common Stock to which such holder would otherwise have
been entitled. The Surviving Corporation shall timely make available to the
Exchange Agent any cash necessary to make payments in lieu of fractional shares
as aforesaid. Alternatively, Parent shall have the option of instructing the
Exchange Agent to aggregate all fractional shares of the Parent Common Stock,
sell such shares in the public market and distribute to holders of the Company
Common Stock a pro rata portion of the proceeds of such sale. No such cash in
lieu of fractional shares of the Parent Common
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Stock shall be paid to any holder of the Company Common Stock until Certificates
representing such Company Common Stock are surrendered and exchanged in
accordance with Section 2.2(b).
(f) Termination of Exchange Fund. Any portion of the Exchange Fund and any
cash in lieu of fractional shares of the Parent Common Stock made available to
the Exchange Agent which remains undistributed to the stockholders of the
Company for six months after the Effective Time shall be delivered to Parent,
upon demand, and any stockholders of the Company who have not theretofore
complied with this Article 2 shall thereafter look only to Parent for payment of
their claim for the Parent Common Stock, any cash in lieu of fractional shares
of the Parent Common Stock and any dividends or distributions with respect to
the Parent Common Stock.
(g) No Liability. Neither Parent nor the Company shall be liable to any
holder of shares of the Company Common Stock or the Parent Common Stock, as the
case may be, for such shares (or dividends or distributions with respect
thereto) or cash in lieu of fractional shares of the Parent Common Stock
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Sub as follows:
3.1 Corporate Organization and Authority of the Company. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has full corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, and, except as disclosed in the Company's Disclosure Memorandum
furnished to Parent on the date hereof (the "Disclosure Memorandum" ) with
specific reference to this Section, is duly licensed or qualified and in good
standing as a foreign corporation in each jurisdiction in which the nature of
the activities conducted by it or the character of the properties owned, leased
or operated by it requires it to be so licensed or so qualified, except where
the failure to be so licensed or so qualified would not have a Material Adverse
Effect on the Company. As used in this Agreement, the term "Material Adverse
Effect" means, with respect to any party, a material adverse effect on the
financial condition, assets, liabilities (contingent or otherwise), results of
operation, business or business prospects of such party and its Subsidiaries, if
any, taken as a whole. For purposes of this Agreement, (a) with respect to the
Company, a Material Adverse Effect shall not include a material adverse effect
on the financial condition, assets, liabilities (contingent or otherwise),
results of operation, business or business prospects of the Company (i) as a
result of the proposed merger of the Company with Sub and the impact thereof on
the operating performance of the Company pursuant to the terms of this Agreement
or (ii) that is disclosed in the Company SEC Documents (as defined in Section
3.5) or in the Disclosure Memorandum and (b) with respect to Parent, a Material
Adverse Effect shall not include a material adverse effect on the financial
condition, assets, liabilities (contingent or otherwise), results of operation,
business or business prospects of Parent (i) as a result of the proposed merger
of the Company with Sub and the impact thereof on the operating performance of
Parent pursuant to the terms of this Agreement or (ii) that is disclosed in the
Parent SEC Documents (as defined in Section 4.5) or in the Parent Disclosure
Memorandum (as defined in Section 4.1). The Company has heretofore delivered to
Parent complete and correct copies of its Certificate of Incorporation and
Bylaws, as currently in effect. The Company has full corporate power and
authority to enter into this Agreement and, subject to approval of this
Agreement by the stockholders of the Company in accordance with the applicable
provisions of the DGCL, to consummate the transactions contemplated hereby. The
execution, delivery and performance by the Company of this Agreement have been
duly authorized by all requisite corporate action on the part of the Company,
subject to such approval of this Agreement by the stockholders of the Company in
accordance with the applicable provisions of the DGCL. This Agreement has been
duly executed and delivered by the Company, and (assuming due
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execution and delivery by Parent and Sub) this Agreement constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights generally, and except that
the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding therefor may
be brought, and except as indemnification may be limited by public policy.
3.2 Subsidiaries and Equity Investments. The Company has no direct or
indirect Subsidiary. Except as disclosed in the Disclosure Memorandum with
specific reference to this Section, the Company does not own, directly or
indirectly, any capital stock or other equity securities of any corporation or
have any direct or indirect equity or ownership interest, including interests in
partnerships and joint ventures, in any business or entity where such capital
stock, equity securities or any direct or indirect equity or ownership interests
has a fair market value on the date hereof of $10,000 individually or $250,000
in the aggregate.
3.3 Capitalization. As of the date hereof, the authorized capital stock of
the Company consists of 30,000,000 shares of the Company Common Stock and
500,000 shares of Preferred Stock, par value $.125 per share. As of the date
hereof, 12,318,727 shares of the Company Common Stock are issued and
outstanding, and 714,533 shares of the Company Common Stock are reserved for
issuance in the aggregate pursuant to the Company's Incentive Stock Option Plan
and the Company's Non-Qualified Stock Option Plan (collectively, the "Company
Option Plans" ) and 14,656 shares of the Company Common Stock are reserved for
issuance under the Company's Non-employee Director Stock Bonus Plan (the "Stock
Bonus Plan" ). All such issued and outstanding shares of the Company Common
Stock have been, and any shares of the Company Common Stock which may be issued
pursuant to the Company Option Plans and the Stock Bonus Plan will be, validly
issued, fully paid and nonassessable and not subject to preemptive rights.
Except as disclosed in the Disclosure Memorandum with specific reference to this
Section, and except for (a) the rights created pursuant to this Agreement and
the Option Agreement, (b) the rights outstanding on the date hereof created
pursuant to the Company Option Plans and the Stock Bonus Plan to purchase or
receive, or to obtain the benefit of any increase in value with respect to, in
the aggregate 748,689 shares of the Company Common Stock and (c) the issued and
outstanding shares of the Company Common Stock set forth herein, as of the date
hereof, there are no (i) outstanding shares of capital stock, or any notes,
bonds, debentures or other indebtedness having the right to vote (or convertible
into or exchangeable for securities having the right to vote) ("Voting Debt" ),
of the Company, (ii) outstanding options, warrants, calls, subscriptions or
other rights of any kind to acquire, or agreements or commitments in effect to
which the Company is a party or by which the Company is bound obligating the
Company to issue or sell, or cause to be issued or sold, any additional shares
of capital stock or any Voting Debt of the Company, or granting any rights to
obtain any benefit measured by the value of the Company's capital stock
(including without limitation, stock appreciation rights granted under the
Company Option Plans) or (iii) outstanding securities convertible into or
exchangeable for, or which otherwise confer on the holder thereof any right to
acquire, any such additional shares or Voting Debt. The Company is not committed
to issue any such option, warrant, call, subscription, right or security, and
after the Effective Time, there will be no such option, warrant, call,
subscription, right, agreement, commitment or security. There are no contracts,
commitments or agreements relating to voting, purchase or sale of the Company's
capital stock or Voting Debt (including, without limitation, any redemption by
the Company thereof) (i) between or among the Company and any of its
stockholders and (ii) to the best of the Company's knowledge, between or among
any of the Company's stockholders, except for the proxies set forth on Schedule
A.
3.4 No Violation; Consents and Approvals. Except as disclosed in the
Disclosure Memorandum with specific reference to this Section, neither the
Company nor any of its properties or assets is subject to or bound by any
provision of:
(a) any law, statute, rule, regulation, ordinance or judicial or
administrative decision;
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(b) any articles or certificate of incorporation, bylaws, or similar
organizational document;
(c) any (i) credit or loan agreement, mortgage, deed of trust, note,
bond, indenture, license, concession, franchise, permit, trust,
custodianship, other restriction, (ii) instrument, lease, obligation,
contract or agreement (including, without limitation, any plan, fund or
arrangement contemplated by Section 3.12(a)) other than those contemplated
by clause (i), which, in the case of this clause (ii), individually
involves the payment or receipt by the Company on an annual basis of in
excess of $50,000 or (iii) instruments, obligations, contracts or
agreements (including, without limitation, plans, funds or arrangements
contemplated by Section 3.12(a)), other than those contemplated by clause
(i), which, in the case of this clause (iii), collectively involve the
payment or receipt by the Company of in excess of $500,000; or
(d) any judgment, order, writ, injunction or decree;
that would impair, prohibit or prevent, or would be violated or breached by, or
would result in the creation of any Encumbrance as a result of, or under which
there would be a material default (with or without notice or lapse of time, or
both) or right of termination, cancellation or acceleration of any material
obligation or the loss of a material benefit as a result of, the execution,
delivery and performance by the Company of this Agreement and the consummation
of the transactions contemplated hereby, except in the case of any municipal,
county or township law, statute, rule, regulation, ordinance, administrative
decision, license or permit ("Local Law or Permit" ), where such event or
occurrence is not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect on the Company. Except as disclosed in the Disclosure
Memorandum with specific reference to this Section and other than (i) the filing
of the Certificate of Merger as provided in Section 1.1, (ii) the filing with
the Securities and Exchange Commission (the "SEC" ) and the NYSE of the Proxy
Statement and the S-4 (each as defined in Section 3.21), (iii) such consents,
orders, approvals, authorizations, registrations, declarations and filings as
may be required under applicable state securities laws and the securities laws
of any foreign country, (iv) such filings as may be required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act" ) and (v) such local consents, orders, approvals, authorizations,
registrations, declarations and filings which, if not obtained or made, would
not, individually or in the aggregate, reasonably be likely to have a Material
Adverse Effect on the Company and that would not impair, prohibit or prevent the
consummation of the transactions contemplated hereby, no consent, order,
approval or authorization of, or declaration, notice, registration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality (each a "Governmental Entity" ), individual,
corporation, partnership, trust or unincorporated organization (together with
Governmental Entities, each a "Person" ) is required by or with respect to the
Company in connection with the execution, delivery and performance by the
Company of this Agreement and the consummation of the transactions contemplated
hereby.
3.5 SEC Reports and Financial Statements of the Company. The Company has
filed with the SEC, and has heretofore provided to Parent true and complete
copies of, all forms, reports, schedules, statements and other documents
required to be filed by it since January 1, 1989 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act" ) or the Securities Act of 1933, as
amended (the "Securities Act" ) (as such documents have been amended since the
time of their filing, collectively, the "Company SEC Documents" ). Except as
disclosed in the Disclosure Memorandum with specific reference to this Section,
the Company SEC Documents, including without limitation any financial statements
and schedules included therein, at the time filed or, if subsequently amended,
as so amended, (i) 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 (ii) complied in all material respects with
the applicable requirements of the Exchange Act and the Securities Act, as the
case may be, and the applicable rules and regulations of the SEC thereunder.
Except as disclosed in the Disclosure Memorandum with specific reference to this
Section, the
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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
("GAAP" ) 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 customary year-end audit
adjustments) the financial position of the Company as at the dates thereof and
the results of its operations and cash flows.
3.6 Absence of Undisclosed Liabilities. Except as and to the extent set
forth in the Company's Annual Report on Form 10-K for the year ended December
31, 1993, or as disclosed in the Form 10-Q for the six month period ended June
30, 1994, or as disclosed in the Disclosure Memorandum with specific reference
to this Section, as of June 30, 1994, the Company had no liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, that
would be required by GAAP to be reflected on the balance sheet of the Company
(including the notes thereto) as of such date. Since June 30, 1994, the Company
has not incurred any liabilities or obligations of any nature, whether or not
accrued, contingent or otherwise, not in the ordinary course of business or
which would have, individually or in the aggregate, a Material Adverse Effect on
the Company.
3.7 Inventory. The inventories of the Company disclosed in the Company SEC
Documents as of June 30, 1994 and in any subsequently filed Company SEC
Documents are stated consistently with the audited financial statements of the
Company, such presentation appropriately reflects current industry practice
which is supported historically by cost reductions received from vendors and is
appropriate based upon the relationship with the Company's vendors, and due
provision was made to provide for all slow-moving, obsolete, or unusable
inventories to their estimated useful or scrap values and such inventory
reserves are adequate to provide for such slow-moving, obsolete or unusable
inventory and inventory shrinkage. Since June 30, 1994, due provision was made
on the books of the Company in the ordinary course of business consistent with
past practices to provide for all slow-moving, obsolete, or unusable inventories
to their estimated useful or scrap values and such inventory reserves are
adequate to provide for such slow-moving, obsolete or unusable inventory and
inventory shrinkage.
3.8 Accounts Receivable. The accounts receivable disclosed in the Company
SEC Documents as of June 30, 1994, and, with respect to accounts receivable
created since such date, disclosed in any subsequently filed Company SEC
Documents, or as accrued on the books of the Company in the ordinary course of
business consistent with past practices in accordance with GAAP since the last
filed Company SEC Documents, represent and will represent bona fide claims
against debtors for sales and other charges, are not subject to discount except
for normal cash and immaterial trade discounts, and the amount carried for
doubtful accounts and allowances disclosed in each of such Company SEC Documents
or accrued on such books is sufficient to provide for any losses which may be
sustained on realization of the receivables.
3.9 Title to Property.
(a) The Company has good and valid title to all of its properties, assets
and other rights that do not constitute real property, free and clear of all
Encumbrances, except for such Encumbrances securing indebtedness that is not, in
the aggregate, greater than $500,000. Except as disclosed in the Disclosure
Memorandum with specific reference to this Section, the Company owns, has valid
leasehold interests in or valid contractual rights to use, all of the assets,
tangible and intangible, used by, or necessary for the conduct of the business
of, the Company.
(b) The machinery, tools, equipment and other tangible physical assets of
the Company (other than items of inventory) are in good working order, except
for normal wear and tear and except for such machinery, tools, equipment and
other tangible physical assets that do not, in the aggregate,
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have a fair market value greater than $500,000, and are in an operating
condition sufficient to conduct the business of the Company as now being
conducted.
(c) The Disclosure Memorandum sets forth with specific reference to this
Section each and every parcel of real property or interest in real estate owned,
held under a lease or used by, or necessary for the conduct of the business of,
the Company (the "Real Property" ).
(d) Except as disclosed in the Disclosure Memorandum with specific
reference to Section 3.9(c), the Company:
(i) owns and has good and marketable title in fee simple to the Real
Property designated as "owned property" in the Disclosure Memorandum free
and clear of all pledges, liens, charges, encumbrances, easements, defects,
security interests, claims, options and restrictions of every kind
("Encumbrances" ), except (A) minor imperfections of title, none of which,
individually or in the aggregate, materially detracts from the value of or
impairs the use of the affected property or impairs the operations of the
Company and (B) liens for current taxes not yet due and payable;
(ii) with respect to the Real Property designated as "leased property"
in the Disclosure Memorandum, is in peaceful and undisturbed possession of
the space and/or estate under each lease under which it is a tenant, and
there are no material defaults by it as tenant thereunder; and
(iii) has good and valid rights of ingress and egress to and from all
the Real Property from and to the public street systems for all usual
street, road and utility purposes.
(e) Except as disclosed in the Disclosure Memorandum with specific
reference to this Section, all of the buildings, structures, improvements and
fixtures used by or useful in the business of the Company, owned or leased by
the Company, are in a good state of repair, maintenance and operating condition
and, except as so disclosed and, except for normal wear and tear, there are no
defects with respect thereto which would materially impair the day-to-day use of
any such buildings, structures, improvements or fixtures or which would subject
the Company to material liability under applicable law.
3.10 Intellectual Property. Except as disclosed in the Disclosure
Memorandum with specific reference to this Section, the Company owns or has
valid rights to use all patents, patent rights, trademarks, trademark rights,
trade names, trade name rights, copyrights, service marks, trade secrets,
applications for trademarks and for service marks, know-how and other
proprietary rights and information used or held for use in connection with the
business of the Company as currently conducted or as contemplated to be
conducted, and to the best knowledge of the Company, there is no assertion or
claim challenging the validity of any of the foregoing which, individually or in
the aggregate, could have a Material Adverse Effect on the Company. Except as
disclosed in the Disclosure Memorandum with specific reference to this Section,
the conduct of the business of the Company as currently conducted does not
conflict in any way with any patent, patent right, license, trademark, trademark
right, trade name, trade name right, service mark or copyright of any third
party that, individually or in the aggregate, could have a Material Adverse
Effect on the Company. Except as disclosed in the Disclosure Memorandum with
specific reference to this Section, to the best knowledge of the Company, there
are no infringements of any proprietary rights owned by the Company which,
individually or in the aggregate, could have a Material Adverse Effect on the
Company.
3.11 Tax Matters. The Company (or any predecessor) and any consolidated,
combined, unitary, affiliated or aggregate group for Tax purposes of which the
Company (or any predecessor) is or has been a member (a "Consolidated Group" )
has, to the best of the Company's knowledge, timely filed all Tax Returns
required to be filed by it, has paid all Taxes shown on any Tax Return to be due
and has provided adequate reserves in its financial statements for any Taxes
that have not been paid, whether or not shown as being due on any Tax Returns.
Except as disclosed in the
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Disclosure Memorandum (or promptly disclosed to Parent in the event of changes
in circumstances between the date hereof and the Closing Date which have
occurred in the ordinary course of business and, individually or in the
aggregate, do not have a Material Adverse Effect on the Company) with specific
reference to this Section and to the Company's best knowledge, (i) no material
claim for unpaid Taxes that are due and payable has become a lien against the
property of the Company or is being asserted against the Company, (ii) no audit
of any Tax Return of the Company is being conducted by a Tax authority, and
(iii) no extension of the statute of limitations on the assessment of any Taxes
has been granted by the Company and is currently in effect. As used herein,
"Taxes" shall mean all taxes of any kind, including, without limitation, those
on or measured by or referred to as income, gross receipts, sales, use, ad
valorem, franchise, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, value added, property or windfall profits
taxes, customs, duties or similar fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any governmental authority, domestic or foreign.
As used herein, "Tax Return" shall mean any return, report or statement required
to be filed with any governmental authority with respect to Taxes.
3.12 Employee Matters. (a) With respect to each employee benefit plan
(including, without limitation, any "employee benefit plan" as defined in
Section. 3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA" )), and any material bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase, stock
option, phantom stock, retirement, vacation, severance, disability, death
benefit, hospitalization, employee-related insurance or other plan, arrangement
or understanding (whether or not legally binding) (all the foregoing being
herein called the "Benefit Plans" ), maintained or contributed to by the
Company, the Company has made available to Parent a true and correct copy of (i)
the most recent annual report (Form 5500) filed with the Internal Revenue
Service, (ii) such Benefit Plan, (iii) each trust agreement and group annuity
contract, if any, relating to such Benefit Plan and (iv) the most recent
actuarial report or valuation relating to a Benefit Plan subject to Title IV of
ERISA, if any.
(b) With respect to the Benefit Plans, individually and in the aggregate,
no event has occurred, and to the Company's best knowledge, there exists no
condition or set of circumstances, other than as disclosed in the Disclosure
Memorandum with specific reference to this Section, in connection with which the
Company could be subject to any liability that is reasonably likely to have a
Material Adverse Effect on the Company (except liability for benefits claims and
funding obligations payable in the ordinary course), under ERISA, the Code or
any other applicable law.
(c) Except as set forth in the Disclosure Memorandum with specific
reference to this Section, with respect to the Benefit Plans, individually and
in the aggregate, there are no funded benefit obligations for which
contributions have not been made or properly accrued and there are no unfunded
benefit obligations which have not been accounted for by reserves, or otherwise
properly footnoted in accordance with GAAP, on the financial statements of the
Company, which obligations could have a Material Adverse Effect on the Company.
(d) Except as set forth in the Disclosure Memorandum with specific
reference to this Section, and except as described in Section 5.17 or 5.18
hereof, the Company is not a party to any oral or written (i) consulting
agreement not terminable on 60 days or less notice or union or collective
bargaining agreement, (ii) agreement with any director, executive officer or key
employee of the Company the benefits of which are contingent, or the terms of
which are materially altered, upon the occurrence of a transaction involving the
Company of the nature contemplated by this Agreement, or agreement with respect
to any executive officer of the Company providing any term of employment or
compensation guarantee extending for a period longer than one year, or (iii)
agreement or plan, including any stock option plan, stock appreciation right
plan, restricted stock plan or stock purchase plan, any of the benefits of which
will be increased, or the vesting of the benefits of which will be accelerated,
by the occurrence of any of the transactions contemplated
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by this Agreement or the value of any of the benefits of which will be
calculated on the basis of any of the transactions contemplated by this
Agreement.
3.13 No Material Change. Since June 30, 1994, there have been no events,
changes or occurrences which have had, or are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on the Company.
3.14 Absence of Change or Event. Except as contemplated by this Agreement
or the Option Agreement or as disclosed in the Disclosure Memorandum with
specific reference to this Section, since June 30, 1994, the Company has
conducted its business only in the ordinary course and has not:
(a) incurred any obligation or liability, absolute, accrued,
contingent or otherwise, whether due or to become due, except liabilities
or obligations incurred in the ordinary course of business and consistent
with prior practice;
(b) mortgaged, pledged or subjected to lien, restriction or any other
Encumbrance any of its property, businesses or assets, tangible or
intangible, of the Company, except for liens arising in the ordinary course
of business and consistent with prior practice to secure debt incurred for
the purpose of financing all or part of the purchase price or the cost of
construction or improvement of the equipment or other property subject to
such liens, provided that (i) the principal amount of any debt secured by
such lien does not exceed 100% of such purchase price or cost, (ii) such
lien does not extend to or cover any other property other than such item of
property and any improvements on such item and (iii) the incurrence of such
debt was in the ordinary course of business and consistent with prior
practice;
(c) except in the ordinary course of business and consistent with
prior practice, sold, transferred, leased or loaned to others or otherwise
disposed of any of its assets (or committed to do any of the foregoing),
including the payment of any loans owed to any affiliate, except for
inventory sold to customers or returned to vendors in the ordinary course
of business and consistent with prior practice, or canceled, waived,
released or otherwise compromised any debt or claim, or any right of
significant value;
(d) suffered any damage, destruction or loss (whether or not covered
by insurance) which has had or is reasonably likely to have a Material
Adverse Effect on the Company;
(e) made or committed to make any capital expenditures or capital
additions or betterments in excess of an aggregate of $350,000;
(f) encountered any labor union organizing activity, had any actual or
threatened employee strikes, or any work stoppages, slow-downs or lock-outs
related to any labor union organizing activity or any actual or threatened
employee strikes;
(g) instituted any litigation, action or proceeding before any court,
governmental body or arbitration tribunal relating to it or its property,
except for litigation, actions or proceedings instituted in the ordinary
course of business and consistent with prior practice;
(h) split, combined or reclassified any of its capital stock, or
declared or paid any dividend or made any other payment or distribution in
respect of its capital stock, or directly or indirectly redeemed, purchased
or otherwise acquired any of its capital stock;
(i) acquired, or agreed to acquire, by merging or consolidating with,
or by purchasing a substantial equity interest in or a substantial portion
of the assets of, or by any other manner, any business or any corporation,
partnership, association or other business organization or division
thereof, or otherwise acquired, or agreed to acquire, any assets which are
material, individually or in the aggregate, to the Company, except for
purchases of inventory in the ordinary course of business and consistent
with prior practice;
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(j) increased, or agreed or promised to increase, the compensation of
any officer, employee or agent of the Company, directly or indirectly,
including by means of any bonus, pension plan, profit sharing, deferred
compensation, savings, insurance, retirement, or any other employee benefit
plan, except in the ordinary course of business and consistent with prior
practice;
(k) except in the ordinary course of business and consistent with
prior practice, increased promotional or advertising expenditures or
otherwise changed its policies or practices with respect thereto;
(l) made or changed any election concerning Taxes or Tax Returns,
changed an annual accounting period or adopted or changed any accounting
method; or
(m) except in the ordinary course of business and consistent with
prior practice, filed any amended Tax Return or extended the applicable
statute of limitations for any taxable period, received notification of an
examination, audit or pending assessment with respect to Taxes, entered
into any closing agreement with respect to Taxes, settled or compromised
any Tax claim or assessment or surrendered any right to claim a refund of
Taxes or obtained or entered into any Tax ruling, agreement, contract,
understanding, arrangement or plan.
3.15 Litigation. Except as specifically disclosed in the Company SEC
Documents filed prior to the date hereof, there is no (i) outstanding consent,
order, judgment, writ, injunction, award or decree of any Governmental Entity or
arbitration tribunal against or involving the Company or any of its properties
or assets, (ii) action, suit, claim, counterclaim, litigation, arbitration,
dispute or proceeding pending or, to the Company's best knowledge, threatened
against or involving the Company or any of its properties or assets or (iii) to
the Company's best knowledge, investigation or audit pending or threatened
against or relating to the Company or any of its properties or assets or any of
its officers or directors (in their capacities as such) (collectively,
"Proceedings" ) which is, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect on the Company, or would impair, prohibit or
prevent the consummation of the transactions contemplated hereby. To the
Company's best knowledge, there are no existing facts or circumstances which
could form a basis for any Proceeding which, if commenced, would be reasonably
likely to have, individually or in the aggregate, a Material Adverse Effect on
the Company, or would impair, prohibit or prevent the consummation of the
transactions contemplated hereby.
3.16 Compliance With Law and Other Instruments. (a) To the Company's best
knowledge, except as disclosed in the Disclosure Memorandum with specific
reference to this Section, the Company and its properties, assets, operations
and activities, have complied and are in compliance in all respects with all
applicable federal, state and local laws, rules, regulations, ordinances,
orders, judgments and decrees including, without limitation, health and safety
statutes and regulations and all Environmental Laws, including, without
limitation, all restrictions, conditions, standards, limitations, prohibitions,
requirements, obligations, schedules and timetables contained in the
Environmental Laws or contained in any regulation, code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered, promulgated or
approved thereunder, except, with respect to laws, rules, regulations,
ordinances, orders, judgments and decrees other than those relating to
Environmental Laws, the Foreign Corrupt Practices Act and applicable criminal
statutes, where the failure to have complied or be in compliance is not,
individually or in the aggregate, reasonably likely to have a Material Adverse
Effect on the Company, or that would impair, prohibit or prevent the
consummation of the transactions contemplated hereby. The Company is not in
violation of or in default under any terms or provisions of (i) its articles or
certificate of incorporation, bylaws or similar organizational document, (ii)
any credit or loan agreement, mortgage or security agreement, deed of trust,
note, bond or indenture, or (iii) any other instrument, obligation, contract or
agreement to which it is subject or by which it is bound, except, in the case of
clauses (ii) and (iii), for violations or defaults which are not, individually
or in the aggregate, reasonably likely to have a Material Adverse Effect on the
Company. Notwithstanding anything to the contrary contained in this
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Section 3.16, with respect to any representation and warranty given with respect
to Environmental Laws or related matters which is limited to events, occurrences
or circumstances which, individually or in the aggregate, are reasonably likely
to have a Material Adverse Effect on the Company (including, without limitation,
the representations and warranties contained in subsections (a) and (d) through
(j) hereof), such limitations (or words of similar import) shall be applicable
solely with respect to the period from the date hereof through the Closing Date.
(b) To the Company's best knowledge, except as disclosed in the Disclosure
Memorandum with specific reference to this Section, (i) the Company has obtained
all Permits that are (A) required under all federal, state and local laws,
rules, regulations, ordinances, orders, judgments and decrees, including,
without limitation, the Environmental Laws, for the ownership, use and operation
of each property, facility or location owned, operated or leased by the Company
(the "Property" ) or (B) otherwise necessary in the conduct of the business of
the Company, except for failures to obtain Permits (other than those that would
result in the imposition of criminal sanctions) which are not, individually or
in the aggregate, reasonably likely to have a Material Adverse Effect on the
Company and (ii) all such Permits are in effect, no appeal nor any other action
is pending to revoke any such Permit, and the Company is in full compliance with
all terms and conditions of all such Permits, except for failures to be in
compliance which are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect on the Company.
(c) To the Company's best knowledge, the Company has heretofore delivered
to Parent true and complete copies of all environmental studies in the Company's
possession relating to the Property or any other property or facility previously
owned, operated or leased by the Company.
(d) Except as disclosed in the Disclosure Memorandum with specific
reference to this Section, there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, or to the Company's best
knowledge, investigation, proceeding, notice or demand letter pending relating
to the Company or the Property (or any other property or facility formerly
owned, operated or leased by the Company) or, to the Company's best knowledge,
threatened relating to the Company or the Property (or any other such property
of facility) and relating in any way to the Environmental Laws or any
regulation, code, plan, order, decree, judgment, injunction, notice or demand
letter issued, entered, promulgated or approved thereunder, except for such
actions, suits, demands, claims, hearings, notices of violation, proceedings,
notices or demand letters which are not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect on the Company.
(e) Neither the Company nor, to the Company's best knowledge, any other
Person has, Released, placed, stored, buried or dumped any Hazardous Substances,
Oils, Pollutants or Contaminants or any other wastes produced by, or resulting
from, any business, commercial, or industrial activities, operations, or
processes, on, beneath, or adjacent to the Property (or any other property or
facility formerly owned, operated or leased by the Company) except for
inventories of such substances to be used, and wastes generated therefrom, in
the ordinary course of business of the Company (which inventories and wastes, if
any, were and are stored or disposed of in accordance with applicable laws and
regulations and in a manner such that there has been no Release of any such
substances into the environment), except where such Releases, placement,
storage, burial or dumping of Hazardous Substances, Oils, Pollutants or
Contaminants are not, individually or in the aggregate, reasonably likely to
have a Material Adverse Effect on the Company.
(f) To the Company's best knowledge, except as disclosed in the Disclosure
Memorandum with specific reference to this Section, no Release or Cleanup
occurred at the Property (or any other property or facility formerly owned,
operated or leased by the Company) which could result in the assertion or
creation of a lien on the Property by any Governmental Entity with respect
thereto, nor has any such assertion of a lien been made by any Governmental
Entity with respect thereto, except for such Releases, Cleanups or assertions of
liens which are not, individually or in the aggregate, reasonably likely to have
a Material Adverse Effect on the Company.
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(g) To the Company's best knowledge, except as disclosed in the Disclosure
Memorandum with specific reference to this Section, no employee of the Company
in the course of his or her employment with the Company has been exposed to any
Hazardous Substances, Oils, Pollutants or Contaminants or any other substance,
generated, produced or used by the Company which could give rise to any claim
against the Company, except for such claims which are not, individually or in
the aggregate, reasonably likely to have a Material Adverse Effect on the
Company.
(h) Except as disclosed in the Disclosure Memorandum with specific
reference to this Section, the Company has not received any notice or order from
any Governmental Entity or private or public entity advising it that the Company
is responsible for or potentially responsible for Cleanup or paying for the cost
of Cleanup of any Hazardous Substances, Oils, Pollutants or Contaminants or any
other waste or substance, and the Company has not entered into any agreements
concerning such Cleanup, nor is the Company aware of any facts which might
reasonably give rise to such notice, order or agreement, except for such
notices, orders or agreements which are not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect on the Company.
(i) To the Company's best knowledge, except as disclosed in the Disclosure
Memorandum with specific reference to this Section, and except for such items
which are not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect on the Company, the Property does not contain any: (i)
underground storage tanks; (ii) asbestos; (iii) equipment using PCBs; (iv)
underground injection wells; or (v) septic tanks in which process wastewater or
any Hazardous Substances, Oils, Pollutants or Contaminants have been disposed.
(j) To the Company's best knowledge, except as disclosed in the Disclosure
Memorandum with specific reference to this Section, with regard to the Company
and the Property (or any other property or facility formerly owned, operated or
leased by the Company), and except where the following are not, individually or
in the aggregate, reasonably likely to have a Material Adverse Effect on the
Company, there are no past, present or future events, conditions, circumstances,
activities, practices, incidents, actions or plans which may interfere with or
prevent compliance or continued compliance with the Environmental Laws as in
effect on the date hereof or with any regulation, code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered, promulgated or
approved thereunder, or which may give rise to any common law or legal liability
under the Environmental Laws, or otherwise form the basis of any claim, action,
demand, suit, proceeding, hearing, notice of violation, study or investigation,
based on or related to the manufacture, generation, processing, distribution,
use, treatment, storage, place of disposal, transport or handling, or the
Release or threatened Release into the indoor or outdoor environment by the
Company or a present or former facility of the Company, of any Hazardous
Substances, Oils, Pollutants or Contaminants.
(k) The Company has not entered into any agreement that may require it to
pay to, reimburse, guaranty, pledge, defend, indemnify or hold harmless any
person for or against Environmental Liabilities and Costs.
(l) The following terms shall be defined as follows:
"Cleanup" means all actions required to: (1) cleanup, remove, treat or
remediate Hazardous Substances, Oils, Pollutants or Contaminants in the
indoor or outdoor environment; (2) prevent the Release of Hazardous
Substances, Oils, Pollutants or Contaminants so that they do not
migrate, endanger or threaten to endanger public health or welfare or
the indoor or outdoor environment; (3) perform pre-remedial studies and
investigations and post-remedial monitoring and care; or (4) respond to
any government requests for information or documents in any way relating
to cleanup, removal, treatment or remediation or potential cleanup,
removal, treatment or remediation of Hazardous Substances, Oils,
Pollutants or Contaminants in the indoor or outdoor environment.
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"Environmental Laws" means all foreign, federal, state and local laws,
regulations, rules and ordinances relating to pollution or protection of
the environment, including, without limitation, laws relating to
Releases or threatened Releases of Hazardous Substances, Oils,
Pollutants or Contaminants into the indoor or outdoor environment
(including, without limitation, ambient air, surface water, groundwater,
land, surface and subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, Release,
transport or handling of Hazardous Substances, Oils, Pollutants or
Contaminants, and all laws and regulations with regard to recordkeeping,
notification, disclosure and reporting requirements respecting Hazardous
Substances, Oils, Pollutants or Contaminants.
"Environmental Liabilities and Costs" means all liabilities,
obligations, responsibilities, obligations to conduct Cleanup, losses,
damages, deficiencies, punitive damages, consequential damages, treble
damages, costs and expenses (including, without limitation, all fees,
disbursements and expenses of counsel, expert and consulting fees and
costs of investigations and feasibility studies and responding to
government requests for information or documents), fines, penalties,
restitution and monetary sanctions, interest, direct or indirect, known
or unknown, absolute or contingent, past, present or future, resulting
from any claim or demand, by any Person, whether based in contract,
tort, implied or express warranty, strict liability, joint and several
liability, criminal or civil statute, including any Environmental Law,
or arising from environmental, health or safety conditions, involving
the Release or threatened Release of Hazardous Substances, Oils,
Pollutants or Contaminants into the environment, as a result of past or
present ownership, leasing or operation of any properties, owned, leased
or operated by the Company or the Company's Subsidiary, including,
without limitation, any of the foregoing incurred in connection with the
conduct of any Cleanup.
"Hazardous Substances, Oils, Pollutants or Contaminants" means all
substances defined as such in the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. sec. 300.5, or defined as such by,
or regulated as such under, any Environmental Law.
"Release" means, when used as a noun, any release, spill, emission,
discharge, leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor environment
(including, without limitation, ambient air, surface water, groundwater,
and surface or subsurface strata) or into or out of any property,
including the movement of Hazardous Substances, Oils, Pollutants or
Contaminants through or in the air, soil, surface water, groundwater or
property, and when used as a verb, the occurrence of any Release.
3.17 Insurance. Except as disclosed in the Disclosure Memorandum with
specific reference to this Section, the insurance policies in force with respect
to the business and properties of the Company are in full force and effect, all
premiums with respect thereto covering all periods up to and including the
Closing Date have been paid, and no notice of cancellation or termination has
been received with respect to any such policy. Such policies are sufficient for
material compliance with all requirements of law and all agreements to which the
Company is a party; are valid, outstanding and enforceable policies; and provide
adequate insurance coverage for the assets and operations of the Company.
3.18 Affiliate Interests. (a) Except as disclosed by the Company SEC
Documents and except for services provided by the Company's directors and
executive officers in their capacities as such and the compensation paid
therefor, the Disclosure Memorandum sets forth all amounts paid (or deemed for
accounting purposes to have been paid) and services provided by the Company to,
or received by the Company from, any affiliate of the Company since December 31,
1991 and all such amounts currently owed by the Company to, or to the Company
by, any affiliate of the Company. For
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purposes of this Agreement, the term "affiliate" shall have the meaning ascribed
thereto in Rule 405 of the Securities Act.
(b) Each contract, agreement, plan or arrangement between the Company on
the one hand, and any affiliate of the Company or affiliate thereof, on the
other hand ("Affiliate Agreements" ) is disclosed in the Disclosure Memorandum
with specific reference to this Section or Section 3.18(a). Except as disclosed
in the Disclosure Memorandum with specific reference to this Section or Section
3.18(a), each of the transactions described in Section 3.18(a) and each of the
Affiliate Agreements was entered into in the ordinary course of business and on
commercially reasonable terms and conditions.
3.19 Customers and Suppliers. Except as set forth in the Disclosure
Memorandum with specific reference to this Section, as of the date hereof, no
customer which individually accounted for more than 1% of the Company's gross
revenues during the 12 month period preceding the date hereof, and no supplier
of the Company, has canceled or otherwise terminated, or made any written threat
to the Company to cancel or otherwise terminate, its relationship with the
Company, or has at any time on or after June 30, 1994 decreased materially its
services or supplies to the Company in the case of any such supplier, or its
usage of the services or products of the Company in the case of any such
customer, and to the Company's best knowledge, no such supplier or customer
intends to cancel or otherwise terminate its relationship with the Company or to
decrease materially its services or supplies to the Company or its usage of the
services or products of the Company, as the case may be. From and after the date
hereof, no customer which individually accounted for more than 5% of the
Company's gross revenues during the 12 month period preceding the Closing Date,
has canceled or otherwise terminated, or made any written threat to the Company
to cancel or otherwise terminate, for any reason, including without limitation
the consummation of the transactions contemplated hereby, its relationship with
the Company, and to the Company's best knowledge, no such customer intends to
cancel or otherwise terminate its relationship with the Company or to decrease
materially its usage of the services or products of the Company. The Company has
not knowingly breached, so as to provide a benefit to the Company that was not
intended by the parties, any agreement with, or engaged in any fraudulent
conduct with respect to, any customer or supplier of the Company.
3.20 Absence of Questionable Payments. Neither the Company nor any
director, officer, agent, employee or other Person acting on behalf of the
Company has used, or authorized the use of, any corporate or other funds for
unlawful contributions, payments, gifts, or entertainment, or made any unlawful
expenditures relating to political activity to government officials or others or
established or maintained any unlawful or unrecorded funds in violation of
Section 30A of the Exchange Act. Neither the Company nor any current director,
officer, agent, employee or other Person acting on behalf of the Company, has
accepted or received any unlawful contributions, payments, gifts, or
expenditures.
3.21 Information Supplied. None of the information supplied or to be
supplied by the Company for inclusion or incorporation by reference in (i) the
registration statement on Form S-4 to be filed with the SEC by Parent in
connection with the issuance of shares of the Parent Common Stock in the Merger
(the "S-4" ) will, at the time the S-4 becomes effective under the Securities
Act or at the Effective Time, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, (ii) the joint proxy statement in
definitive form relating to the meetings of the Company's and Parent's
respective stockholders to be held in connection with the Merger (the "Proxy
Statement" ) will, at the date first mailed to stockholders, contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of circumstances under which they are
made, not misleading and (iii) the Proxy Statement or any amendment thereof or
supplement thereto will, at the time of the meetings of the Company's and
Parent's respective stockholders to be held in connection with the Merger,
contain any untrue statement of a material fact, or omit to state any material
fact necessary to correct any statement in any earlier communica-
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tion with respect to the solicitation of any proxy for such meetings of
stockholders. The Proxy Statement will comply as to form in all material
respects with the provisions of the Exchange Act and the rules and regulations
thereunder.
3.22 Opinion of Financial Advisor. The Company has received the opinion of
Lehman Brothers, dated the date hereof, to the effect that, as of such date,
from a financial point of view, the Conversion Ratio to be offered to the
stockholders of the Company in the proposed Merger is fair to such stockholders,
a copy of which opinion has been delivered to Parent.
3.23 Vote Required. The affirmative vote of the holders of a majority of
the outstanding shares of the Company Common Stock is the only vote of the
holders of any class or series of the Company's capital stock necessary to
approve this Agreement and the transactions contemplated hereby.
3.24 Accounting Matters. Neither the Company nor any of its affiliates has
through the date of this Agreement taken or agreed to take any action that
(without giving effect to any action taken or agreed to be taken by Parent or
any of its affiliates) would prevent Parent from accounting for the business
combination to be effected by the Merger as a pooling of interests.
3.25 Company Not an Interested Shareholder or a 30% Shareholder. As of the
date hereof, neither the Company nor any of its affiliates is an "interested
shareholder" of Parent as such term is defined in Section 912 of the New York
Business Corporation Law or a "30% Shareholder" of Parent as such term is
defined in Article TENTH of Parents' Restated Certificate of Incorporation.
3.26 Section 203 of the DGCL Not Applicable. The provisions of Section 203
of the DGCL will not, prior to the termination of this Agreement, apply to this
Agreement, the Option Agreement, the Merger or the other transactions
contemplated hereby.
3.27 Disclosure. No representation or warranty by the Company in this
Agreement, including the Disclosure Memorandum, contains or will contain any
untrue statement of a material fact or omits or will omit to state any material
fact necessary, in light of the circumstances under which it was made, to make
the statements herein or therein not misleading. There is no fact known to the
Company which could have a Material Adverse Effect on the Company, which has not
been set forth in the Company SEC Documents or in this Agreement, including the
Disclosure Memorandum.
3.28 The Company's Best Knowledge. The term "the Company's best knowledge"
or words of similar import shall mean the best knowledge of any of the Company's
Chief Executive Officer, Chief Financial Officer, Distribution Business Unit
President, Vice President and Controller and Senior Vice President of Sales.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Parent and Sub represent and warrant to the Company as follows:
4.1 Organization. Each of Parent and Sub is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has full corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted, and, except as disclosed in Parent's Disclosure Memorandum furnished
to the Company on the date hereof (the "Parent Disclosure Memorandum" ) with
specific reference to this Section, is duly licensed or qualified and in good
standing as a foreign corporation in each jurisdiction in which the nature of
the activities conducted by it or the character of the properties owned, leased
or operated by it requires it to be so licensed or so qualified, except where
the failure to be so licensed or so qualified would not have a Material Adverse
Effect on Parent.
4.2 Corporate Authority. Each of Parent and Sub has full corporate power
and authority to enter into this Agreement and, subject to approval of this
Agreement and the issuance of the Parent
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Common Stock pursuant to the Merger (collectively, the "Parent Vote Matter" ) by
the stockholders of Parent in accordance with NYSE listing requirements, to
consummate the transactions contemplated hereby. The execution, delivery and
performance by each of Parent and Sub of this Agreement have been duly
authorized by all requisite corporate action on the part of Parent and Sub,
respectively, subject to approval of the Parent Vote Matter by the stockholders
of Parent in accordance with NYSE listing requirements. This Agreement has been
duly executed and delivered by each of Parent and Sub, and (assuming due
execution and delivery by the Company) this Agreement constitutes a valid and
binding obligation of Parent and Sub, enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency or other similar
laws affecting the enforcement of creditors' rights generally, and except that
the availability of equitable remedies, including specific performance, is
subject to the discretion of the court before which any proceeding therefor may
be brought, and except as indemnification may be limited by public policy.
4.3 No Violation; Consents and Approvals. Except as disclosed in the
Parent Disclosure Memorandum with specific reference to this Section, neither
Parent, Sub nor any of their respective properties or assets, is subject to or
bound by any provision of:
(a) any law, statute, rule, regulation, ordinance or judicial or
administrative decision;
(b) any articles or certificate of incorporation or by-laws;
(c) any (i) credit or loan agreement, mortgage, deed of trust, note,
bond, indenture, license, concession, franchise, permit, trust,
custodianship, other restriction, (ii) instrument, lease, obligation,
contract or agreement, other than those contemplated by clause (i), which,
in the case of this clause (ii), individually involves the payment or
receipt by Parent of in excess of $50,000 or (iii) instruments,
obligations, contracts or agreements (including, without limitation,
leases) other than those contemplated by clause (i), which in the case of
this clause (iii), collectively involve the payment or receipt by Parent of
in excess of $500,000; or
(d) any judgment, order, writ, injunction or decree; that would
impair, prohibit or prevent, or would be violated or breached by, or under
which there would be a material default (with or without notice or lapse of
time, or both) as a result of, the execution, delivery and performance by
each of Parent and Sub of this Agreement and the consummation of the
transactions contemplated hereby, except in the case of any Local Law or
Permit, where such event or occurrence is not, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect on Parent.
Except as disclosed in the Parent Disclosure Memorandum with specific
reference to this Section and other than (i) the filing of the Certificate
of Merger as provided in Section 1.1, (ii) the filing with the SEC and the
NYSE of the Proxy Statement and the S-4, (iii) such consents, orders,
approvals, authorizations, registrations, declarations and filings as may
be required under applicable state securities laws and the securities laws
of any foreign country, (iv) such filings as may be required under the HSR
Act and (v) such local consents, orders, approvals, authorizations,
registrations, declarations and filings which, if not obtained or made,
would not, individually or in the aggregate, reasonably be likely to have a
Material Adverse Effect on Parent and that would not impair, prohibit or
prevent the consummation of the transactions contemplated hereby, no
consent, order, approval or authorization of, or declaration, notice,
registration or filing with, any Person is required by or with respect to
the execution, delivery and performance by Parent and Sub of this Agreement
and the consummation of the transactions contemplated hereby.
4.4 Capitalization. As of the date hereof, the authorized capital stock of
Parent consists of 60,000,000 shares of the Parent Common Stock and 2,000,000
shares of Preferred Stock, par value $1.00 per share (the "Parent Preferred
Stock" ). At the close of business on September 16, 1994, (i) 35,266,176 shares
of the Parent Common Stock were issued and outstanding, 1,420,404 shares of the
Parent Common Stock were reserved for issuance pursuant to Parent's Stock Option
Plan (the "Parent Option Plan" ), and 3,773,625 shares of the Parent Common
Stock were reserved for issuance pursuant to Parent's Convertible Subordinated
Debentures (the "Convertible Deben-
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tures" ), (ii) 11,247 shares of the Parent Common Stock were reflected on the
books and records of Parent as treasury shares, (iii) no shares of the Parent
Preferred Stock were issued or outstanding and (iv) other than the Convertible
Debentures, no Voting Debt of Parent was issued or outstanding. All such issued
and outstanding shares of the Parent Common Stock have been, and any shares of
the Parent Common Stock which may be issued pursuant to the Parent Option Plan
or the Convertible Debentures will be, validly issued, fully paid and
nonassessable and not subject to preemptive rights. All shares of the Parent
Common Stock which are to be issued pursuant to the Merger will be, when issued
in accordance with the terms hereof, validly issued, fully paid and
nonassessable. Except for (a) the rights created pursuant to this Agreement, (b)
the rights created pursuant to the Parent Option Plan to purchase 1,420,404
shares of the Parent Common Stock, the rights created pursuant to the
Convertible Debentures to purchase 3,773,625 shares of the Parent Common Stock
and the Parent Rights created pursuant to the Parent Rights Agreement to
purchase 352,661.76 shares of the Parent Preferred Stock and (c) the issued and
outstanding shares of the Parent Common Stock and the Convertible Debentures set
forth herein (except for changes since September 16, 1994 resulting from the
exercise of the rights created pursuant to the Parent Option Plan and the
Convertible Debentures), as of the date hereof, there are no (i) outstanding
shares of capital stock or Voting Debt of Parent, (ii) outstanding options,
warrants, calls, subscriptions or other rights of any kind to acquire, or
agreements or commitments in effect to which Parent is a party or by which
Parent is bound obligating Parent to issue or sell, or cause to be issued or
sold, any additional shares of capital stock or any Voting Debt of Parent or
(iii) outstanding securities convertible or exchangeable for, or which otherwise
confer on the holder thereof any right to acquire, any such additional shares or
Voting Debt. Except as contemplated by this Agreement, as of the date hereof,
Parent is not committed to issue any such option, warrant, call, subscription,
right or security.
4.5 SEC Reports and Financial Statements of Parent. Parent has filed with
the SEC, and has heretofore provided to the Company true and complete copies of,
all forms, reports, schedules, statements and other documents required to be
filed by it since January 1, 1989 under the Exchange Act or the Securities Act
(as such documents have been amended since the time of their filing,
collectively, the "Parent SEC Documents" ). The Parent SEC Documents, including
without limitation any financial statements and schedules included therein, at
the time filed or, if subsequently amended, as so amended, (i) 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 (ii) complied in all material respects with the applicable
requirements of the Exchange Act and the Securities Act, as the case may be, and
the applicable rules and regulations of the SEC thereunder. The financial
statements of Parent included in the Parent 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 GAAP 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 customary
year-end 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.
4.6 No Material Change. Since June 30, 1994, there have been no events,
changes or occurrences which have had, or are reasonably likely to have,
individually or in the aggregate, a Material Adverse Effect on Parent.
4.7 Litigation. Except as specifically disclosed in the Parent SEC
Documents filed prior to the date hereof, there is no (i) outstanding consent,
order, judgment, writ, injunction, award or decree of any Governmental Entity or
arbitration tribunal against or involving Parent, Parent's Subsidiaries or any
of their respective properties or assets, (ii) action, suit, claim,
counterclaim, litigation, arbitration, dispute or proceeding pending or, to
Parent's best knowledge, threatened against or
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involving Parent, Parent's Subsidiaries or any of their respective properties or
assets or (iii) to Parent's best knowledge, investigation or audit pending or
threatened against or relating to Parent, Parent's Subsidiaries or any of their
respective properties or assets or any of their respective officers or directors
(in their capacities as such) (collectively, "Parent Proceedings" ) which is,
individually or in the aggregate, reasonably likely to have a Material Adverse
Effect on Parent, or would impair, prohibit or prevent the consummation of the
transactions contemplated hereby. To Parent's best knowledge, there are no
existing facts or circumstances which could form a basis for any Parent
Proceeding which, if commenced, would be reasonably likely to have, individually
or in the aggregate, a Material Adverse Effect on Parent, or would impair,
prohibit or prevent the consummation of the transactions contemplated hereby.
4.8 Absence of Questionable Payments. Neither Parent or Parent's
Subsidiaries nor any director, officer, agent, employee or other Person acting
on behalf of Parent or Parent's Subsidiaries, has used, or authorized the use
of, any corporate or other funds for unlawful contributions, payments, gifts, or
entertainment, or made any unlawful expenditures relating to political activity
to government officials or others or established or maintained any unlawful or
unrecorded funds in violation of Section 30A of the Exchange Act. Neither Parent
or Parent's Subsidiaries nor any current director, officer, agent, employee or
other Person acting on behalf of Parent or Parent's Subsidiaries, has accepted
or received any unlawful contributions, payments, gifts, or expenditures.
4.9 Information Supplied. None of the information supplied or to be
supplied by Parent for inclusion or incorporation by reference in the S-4 will,
at the time the S-4 becomes effective under the Securities Act, at the time of
the meeting of the Company stockholders to be held in connection with the Merger
or at the Effective Time, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
4.10 Opinion of Financial Advisor. Parent has received the opinion of
Morgan Stanley & Co. Incorporated, dated the date hereof, to the effect that, as
of such date, the Conversion Ratio is fair, from a financial point of view, to
Parent and to the holders of the Parent Common Stock, a copy of which opinion
has been delivered to the Company.
4.11 Vote Required. The affirmative vote of the holders of a majority of
the votes cast by holders of the outstanding shares of Parent Common Stock is
the only vote of the holders of any class or series of Parent's capital stock
necessary to approve the Parent Vote Matter, provided that the total votes cast
thereon by such holders represent a majority of all votes entitled to be cast
with respect thereto.
4.12 Accounting Matters. Neither Parent nor any of its affiliates has
through the date of this Agreement taken or agreed to take any action that
(without giving effect to any action taken or agreed to be taken by the Company
or any of its affiliates) would prevent Parent from accounting for the business
combination to be effected by the Merger as a pooling of interests.
4.13 Disclosure. No representation or warranty by Parent in this
Agreement, including the Parent Disclosure Memorandum, contains or will contain
any untrue statement of a material fact or omits or will omit to state any
material fact necessary, in light of the circumstances under which it was made,
to make the statements herein or therein not misleading. There is no fact known
to Parent which could have a Material Adverse Effect on Parent, which has not
been set forth in the Parent SEC Documents or in this Agreement, including the
Parent Disclosure Memorandum.
4.14 Parent's Best Knowledge. The term "Parent's best knowledge" or words
of similar import shall mean the best knowledge of any of Parent's Chief
Executive Officer, Chief Financial Officer, Assistant General Counsel,
Controller and the President of the Arrow/Schweber Electronics Group.
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ARTICLE 5
CERTAIN COVENANTS AND AGREEMENTS
OF THE COMPANY AND PARENT
5.1 Conduct of the Company's Business Prior to the Closing Date. The
Company agrees that, between the date hereof and the Closing Date:
(a) Except as contemplated by this Agreement, as disclosed in the
Disclosure Memorandum with specific reference to this Section or as permitted by
the prior written consent of Parent, the Company shall operate its business only
in the usual, regular and ordinary course consistent with prior practice and
not:
(i) take any action of the nature referred to in Section 3.14, except
as permitted therein;
(ii) issue, deliver or sell, or authorize or propose the issuance,
delivery or sale of, any shares of its capital stock (except pursuant to,
and in accordance with the terms of, the rights outstanding on the date
hereof created pursuant to the Company Option Plans) or any Voting Debt, or
any securities convertible into or exchangeable for, or any rights,
warrants, calls, subscriptions or options to acquire, any shares of its
capital stock or any Voting Debt;
(iii) change the Company's banking or safe deposit arrangements
without ten days prior written notice thereof to Parent;
(iv) modify or amend, or authorize or propose to modify or amend, the
Company's certificate or articles of incorporation, bylaws or similar
organizational documents; or
(v) take or permit any affiliate thereof to take any action that would
or is reasonably likely to result in any of the Company's representations
and warranties set forth in this Agreement not to be true as of the date
made (to the extent so limited) or in any of the conditions to the Merger
set forth in Article 6 not being satisfied.
(b) The Company shall preserve the business organization of the Company
intact and shall use its best efforts to keep available to Parent the services
of the present officers and employees of the Company and to preserve for Parent
the good will of the Company's suppliers, customers, and others having business
relations with the Company. Except with the prior written consent of Parent (not
to be unreasonably withheld), the Company shall not terminate or cause to be
terminated any distribution agreement to which it is a party.
(c) The Company shall to maintain in force the insurance policies referred
to in Section 3.17 or insurance policies providing the same or substantially
similar coverage; provided, however, that the Company will notify Parent prior
to the expiration of any of such insurance policies.
(d) The Company shall diligently pursue its rights with respect to the
matters listed in the Disclosure Memorandum with respect to Section 3.14(g) and
the Proceedings contemplated by Section 3.15.
(e) Except as contemplated by this Agreement or permitted by the prior
written consent of Parent, no plan, fund, or arrangement referred to in Section
3.12 has been or will be:
(i) terminated by the Company;
(ii) amended (except as expressly required by law) in any manner which
would directly or indirectly increase the benefits accrued, or which may be
accrued, by any participant thereunder; or
(iii) amended in any manner which would materially increase the cost
to Parent of maintaining such plan, fund, or arrangement.
5.2 Conduct of Parent's Business Prior to the Closing Date. Parent agrees
that, between the date hereof and the Closing Date, except as contemplated by
this Agreement or permitted by the
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prior written consent of the Company, Parent shall (a) conduct its business and
the business of its Subsidiaries on a consolidated basis in a manner designed in
its reasonable judgment to enhance the long-term value of the Parent Common
Stock and to the extent consistent therewith, use its best efforts to preserve
the goodwill of Parents' and its Subsidiaries' suppliers, customers and others
having business relations with Parent and its Subsidiaries and (b) not take any
action that would or is reasonably likely to result in any of Parent's or Sub's
representations and warranties set forth in this Agreement not to be true as of
the date made (to the extent so limited) or in any of the conditions of the
Merger set forth in Article 6 not being satisfied.
5.3 Preparation of S-4 and the Proxy Statement. Each of the Company and
Parent shall promptly prepare and file with the SEC the Proxy Statement and
Parent shall promptly prepare and file with the SEC the S-4, in which the Proxy
Statement will be included as a prospectus. Parent and the Company shall use
their respective best efforts to (i) have the S-4 declared effective under the
Securities Act as promptly as practicable after such filing and (ii) cause the
Proxy Statement to be mailed to the respective stockholders of Parent and the
Company at the earliest practicable date. Parent shall also take any action
required to be taken under any applicable state securities laws in connection
with the issuance of the Parent Common Stock in the Merger and the Company shall
furnish all information concerning the Company and the holders of the Company
Common Stock as may be reasonably requested in connection with any such action.
5.4 Letter of the Company's and Parent's Accountants. (a) The Company
shall use its best efforts to cause to be delivered to the Company and to Parent
a letter of Price Waterhouse LLP, the Company's independent accountants, dated a
date within two business days before the date on which the S-4 shall become
effective and addressed to the Company and to Parent, in form and substance
reasonably satisfactory to the Company and to Parent and customary in scope and
substance for letters delivered by independent public accountants in connection
with registration statements similar to the S-4.
(b) Parent shall use its best efforts to cause to be delivered to Parent
and the Company a letter of Ernst & Young LLP, Parent's independent accountants,
dated a date within two business days before the date on which the S-4 shall
become effective and addressed to Parent and the Company, in form and substance
reasonably satisfactory to Parent and the Company and customary in scope and
substance for letters delivered by independent public accountants in connection
with registration statements similar to the S-4.
5.5 Legal Conditions to Merger. Each of the Company, Parent and Sub will
take all reasonable actions necessary to comply promptly with all legal
requirements which may be imposed on itself with respect to the Merger (which
actions shall include, without limitation, furnishing all information required
in connection with approvals of or filing with any Governmental Entity) and will
promptly cooperate with each other 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 Merger. Each of the Company, Parent and Sub
will, and will cause its Subsidiaries 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 Parent, the Company or any of their respective Subsidiaries in connection
with the Merger or the taking of any action contemplated thereby or by this
Agreement.
5.6 Affiliates. Prior to the Closing Date the Company shall deliver to
Parent a letter identifying all Persons who are, at the time this Agreement is
submitted for approval to the stockholders of the Company, "affiliates" of the
Company for purposes of Rule 145 under the Securities Act. The Company shall use
its best efforts to cause each such Person to deliver to Parent on or prior to
the Closing Date a written agreement, substantially in the form attached as
Exhibit 5.6 hereto.
5.7 Stock Exchange Listing. Parent shall use its best efforts to cause the
shares of Parent Common Stock to be issued in the Merger, and such other shares
of Parent Common Stock to be
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issued pursuant to the Parent Options (as defined in Section 5.17), to be
approved for listing on the NYSE and any other national securities exchange on
which shares of Parent Common Stock may at such time be listed, subject to
official notice of issuance, prior to the Closing Date.
5.8 Stockholders' Meetings. Each of the Company and Parent shall call a
meeting of its stockholders to be held as promptly as practicable for the
purpose of voting upon the adoption of this Agreement, the Parent Vote Matter
and related matters, as the case may be. The Company and Parent will, through
their respective Boards of Directors, unanimously recommend to their respective
stockholders approval of such matters and will coordinate and cooperate with
each other with respect to the timing of such meetings and shall use their
respective best efforts to hold such meetings on the same day and as soon as
practicable after the S-4 is declared effective and to solicit proxies in favor
of the adoption of this Agreement, the Parent Vote Matter and related matters,
as the case may be, and shall take all other action necessary or advisable to
secure the vote or consent of stockholders required to effect the Merger;
provided, however, that neither Board of Directors shall be obligated to
recommend approval of this Agreement, the Parent Vote Matter or related matters,
as the case may be, to its stockholders if such Board of Directors, acting with
the advice of its counsel and financial advisors, determines that such
recommendation would not be consistent with the fiduciary obligations of such
Board of Directors, to the extent necessary in the written opinion of legal
counsel to such Board of Directors.
5.9 Fees and Expenses. (a) Except as set forth in Section 5.9(b), whether
or not the Merger is consummated, all costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense, and, in connection therewith, each of Parent
and the Company shall pay, with its own funds and not with funds provided by the
other party, any and all property or transfer taxes imposed on such party
resulting from the Merger, except that expenses incurred in connection with
printing the Proxy Statement and the S-4, registration and filing fees incurred
in connection with the S-4 and the Proxy Statement, and fees, costs and expenses
associated with compliance with applicable state securities laws in connection
with the Merger shall be shared equally by Parent and the Company.
(b) In the event that (i) either Parent or the Company shall terminate this
Agreement pursuant to Section 7.1(e), (ii) either Parent or the Company shall
terminate this Agreement pursuant to Section 7.1(f)(ii) following a failure of
the stockholders of the Company to approve this Agreement and, prior to the time
of the meeting of the Company's stockholders, there shall have been (A) a
Trigger Event with respect to the Company or (B) a Takeover Proposal (as defined
in Section 5.14) with respect to the Company which at the time of the meeting of
the Company's stockholders shall not have been (x) rejected by the Company and
(y) withdrawn by the third party, or (iii) Parent shall terminate this Agreement
pursuant to Section 7.1(c), due in whole or in part to any failure by the
Company to use its best efforts to perform and comply with all agreements and
conditions required by this Agreement to be performed or complied with by the
Company prior to or on the Closing Date or any failure by the Company's
affiliates to take any actions required to be taken hereby, and prior thereto
there shall have been (A) a Trigger Event with respect to the Company or (B) a
Takeover Proposal with respect to the Company which shall not have been (x)
rejected by the Company and (y) withdrawn by the third party, then the Company
shall reimburse Parent for all of the out-of-pocket costs and expenses incurred
by Parent in connection with this Agreement and the transactions contemplated
hereby (including, without limitation, the fees and expenses of its advisors,
accountants and legal counsel) up to a maximum amount of $2,500,000, and, in
addition, the Company shall promptly pay to Parent the sum of $9,000,000;
provided, however, that with respect to Section 5.9(b)(ii)(A) and Section
5.9(b)(iii)(A), a Trigger Event shall not be deemed to include the acquisition
by any Person of securities representing 10% or more of the Company if such
Person has acquired such securities not with the purpose nor with the effect of
changing or influencing the control of the Company, nor in connection with or as
a participant in any transaction having such purpose or effect, including
without limitation not in connection with such Person (i) making any public
announcement with respect to the voting of such shares at any meeting to
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consider any merger, consolidation, sale of substantial assets or other business
combination or extraordinary transaction involving the Company, (ii) making, or
in any way participating in, any "solicitation" of "proxies" (as such terms are
defined or used in Regulation 14A under the Exchange Act) to vote any voting
securities of the Company (including, without limitation, any such solicitation
subject to Rule 14a-11 under the Exchange Act) or seeking to advise or influence
any Person with respect to the voting of any voting securities of the Company,
(iii) forming, joining or in any way participating in any "group" within the
meaning of Section 13(d)(3) of the Exchange Act with respect to any voting
securities of the Company or (iv) otherwise acting, alone or in concert with
others, to seek control of the Company or to seek to control or influence the
management or policies of the Company. The Company's obligation to make the
$9,000,000 payment pursuant to this Section 5.9(b) is in lieu of damages or any
other payment that the Company might otherwise be obligated to pay Parent as a
result of any termination for which payment is due under this Section. The
Company and Parent agree that, in view of the nature of the issues likely to
arise in the event of such a termination, it would be impracticable or extremely
difficult to fix the actual damages resulting from such termination and proving
actual damages, causation and foreseeability in the case of such termination
would be costly, inconvenient and difficult. In requiring the Company to make
the payment as set forth herein, it is the intent of the parties to provide, as
of the date of this Agreement, for a liquidated amount of damages to be paid by
the Company to the Parent. Such liquidated amount shall be deemed full and
adequate damages for such termination and is not intended by either party to be
a penalty. As used herein, a "Trigger Event" shall occur if any Person acquires
securities representing 10% or more, or commences a tender or exchange offer
following the successful consummation of which the offeror and its affiliates
would beneficially own securities representing 25% or more, of the voting power
of the Company.
5.10 Broker's and Finder's Fees. Each of Parent, Sub and the Company
represents, as to itself, its Subsidiaries, and its affiliates, that no agent,
broker, investment banker, financial advisor or other firm or person is or will
be entitled to any broker's or finder's fee or any other commission or similar
fee in connection with any of the transactions contemplated by this Agreement,
except (i) Lehman Brothers, whose fees and expenses will be paid by the Company
in accordance with the Company's agreement with such firm (copies of which have
been delivered by the Company to Parent prior to the date of this Agreement) and
(ii) Morgan Stanley & Co., whose fees and expenses will be paid by Parent in
accordance with Parent's agreement with such firm (copies of which have been
delivered by Parent to the Company prior to the date of this Agreement), and
each of Parent and the Company respectively agrees to indemnify and hold the
other harmless from and against any and all claims, liabilities or obligations
with respect to any other fees, commissions or expenses asserted by any person
on the basis of any act or statement alleged to have been made by such party or
its affiliate.
5.11 Access to Information and Confidentiality. The Company agrees that
Parent and Sub may conduct such reasonable investigation with respect to the
business, business prospects, assets, liabilities (contingent or otherwise),
results of operations, employees and financial condition of the Company as will
permit Parent and Sub to evaluate their interest in the transactions
contemplated by this Agreement. Parent and Sub agree that the Company may
conduct such reasonable investigation with respect to the business, business
prospects, assets, liabilities (contingent or otherwise), results of operations,
employees and financial condition of Parent and Sub as will permit the Company
to evaluate its interest in the transactions contemplated by this Agreement.
Each of the Company, Parent and Sub will hold and will cause their respective
representatives to hold in strict confidence, unless compelled to disclose by
judicial or administrative process, or, in the opinion of its counsel, by other
requirements of law, all documents and information concerning the Company
furnished to Parent and Sub and all documents and information concerning Parent
and Sub furnished to the Company in connection with the transactions
contemplated by this Agreement (except to the extent that such information can
be shown to have been (a) previously known by Parent or Sub prior to its
disclosure to Parent or Sub by the Company, (b) previously known by the Company
prior to its disclosure to the Company by Parent and Sub, (c) in the public
domain
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through no fault of the Company or Parent or Sub or (d) later lawfully acquired
by the Company or Parent or Sub from other sources that are not under an
obligation of confidentiality) and will not release or disclose such information
to any other Person, except in connection with this Agreement to its lenders,
auditors, attorneys, financial advisors and other consultants and advisors.
5.12 Indemnification. (a) Each of the Constituent Corporations shall, and
from and after the Effective Time Parent and the Surviving Corporation shall,
indemnify, defend and hold harmless each person who is now, or has been at any
time prior to the date hereof or who becomes prior to the Effective Time, an
officer, director or employee of such Constituent Corporation (the "Indemnified
Parties" ) against (i) all losses, claims, damages, costs, expenses, liabilities
or judgments or amounts that are paid in settlement with the approval of the
indemnifying party (which approval shall not be unreasonably withheld) of or in
connection with any claim, action, suit, proceeding or investigation based in
whole or in part on or arising in whole or in part out of the fact that such
person is or was a director, officer or employee of such Constituent
Corporation, whether pertaining to any matter existing or occurring at or prior
to the Effective Time and whether reasserted or claimed prior to, or at or
after, the Effective Time ("Indemnified Liabilities" ) and (ii) all Indemnified
Liabilities based in whole or in part on, or arising in whole or in part out of,
or pertaining to this Agreement, the Option Agreement or the transactions
contemplated hereby, in each case to the full extent such corporation is
permitted under the DGCL, the Certificate of Incorporation or Bylaws of the
Company or any indemnification agreement to which the Company is a party, in
each case as in effect on the date hereof, to indemnify its own directors,
officers and employees, as the case may be (and each of the Constituent
Corporations, Parent and the Surviving Corporation, as the case may be, will pay
expenses in advance of the final disposition of any such action or proceeding to
each Indemnified Party to the full extent permitted by law). Without limiting
the foregoing, in the event any such claim, action, suit, proceeding or
investigation is brought against any Indemnified Party (whether arising before
or after the Effective Time), (i) the Indemnified Parties may retain counsel
satisfactory to them and such Constituent Corporation (or them, Parent and the
Surviving Corporation after the Effective Time); (ii) such Constituent
Corporation (or after the Effective Time, Parent and the Surviving Corporation)
shall pay all reasonable fees and expenses of such counsel for the Indemnified
Parties promptly as statements therefor are received; and (iii) such Constituent
Corporation (or after the Effective Time, Parent and the Surviving Corporation)
will use all reasonable efforts to assist in the vigorous defense of any such
matter, provided that neither such Constituent Corporation nor Parent or the
Surviving Corporation shall be liable for any settlement of any claim effected
without its written consent, which consent, however, shall not be unreasonably
withheld. Any Indemnified Party wishing to claim indemnification under this
Section 5.12, upon learning of any such claim, action, suit, proceeding or
investigation, shall notify the Constituent Corporation (or after the Effective
Time, Parent or the Surviving Corporation) (but the failure so to notify a party
shall not relieve such party from any liability which it may have under this
Section 5.12 except to the extent such failure prejudices such party). The
Indemnified Parties as a group may retain only one law firm to represent them
with respect to each such matter unless there is, under applicable standards of
professional conduct, a conflict on any significant issue between the positions
of any two or more Indemnified Parties, in which case they may retain such
number of law firms as is necessary to address such conflict. Parent and the
Surviving Corporation shall use their best efforts to cause to be maintained in
effect for at least two years from the Effective Time, for the benefit of the
Indemnified Parties, the current policies of directors' and officers' liability
insurance maintained by the Company (provided that Parent and the Surviving
Corporation may substitute therefor policies containing terms and conditions no
less advantageous than the policies then maintained by Parent with respect to
its directors and officers, so long as no lapse in coverage occurs as a result
of such substitution) with respect to all matters occurring prior to and
including the Effective Time, including, without limitation, the transactions
contemplated hereby. Parent and the Surviving Corporation shall, as of the
Effective Time, assume all obligations of the Company to its officers, directors
or employees under any indemnification agreement in effect on the date hereof to
which the Company is a party.
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(b) The provisions of this Section 5.12 are intended to be for the benefit
of, and shall be enforceable by, each Indemnified Party, his heirs and his
representatives.
(c) If Parent shall consolidate with or merge into any other Person and
shall not be the continuing or surviving Person of such consolidation or merger
or shall transfer all or substantially all of its assets to any Person then, and
in each case, proper provision shall be made so that successors and assigns of
Parent shall assume the obligations of Parent set forth in this Section 5.12.
5.13 Additional Agreements; Best Efforts. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use best
efforts to take, or cause to be taken, all action and, to do or cause to be done
all things necessary, proper or advisable under applicable laws and regulations
to consummate and make effective the transactions contemplated by this Agreement
and the Option Agreement, subject to the appropriate votes of the respective
stockholders of the Company and Parent described in Section 5.8, including
cooperation fully with the other party, including by provision of information
and making all necessary filings in connection with, among other things, any
approvals required from Governmental Entities. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and directors of each party to
this Agreement shall take all such necessary action.
5.14 No Solicitation. The Company shall not, and shall not authorize or
permit any of its officers, directors or employees or any investment banker,
financial advisor, attorney, accountant or other representative retained by it
to, (a) solicit, initiate or encourage (including by way of furnishing
information), or take any other action to facilitate, any inquiries or the
making of any proposal which constitutes, or may reasonably be expected to lead
to, any Takeover Proposal (as hereinafter defined), or (b) agree to or endorse
any Takeover Proposal. Notwithstanding the immediately preceding sentence, if
the Company shall not have breached the covenant provided by clause (a) of the
immediately preceding sentence and a Takeover Proposal, or a written expression
of interest that can reasonably be expected to lead to a Takeover Proposal,
shall occur, then, to the extent necessary in the written opinion of legal
counsel to the Company or its Board of Directors consistent with the fiduciary
obligations of the Company's Board of Directors, the Company and its officers,
directors, employees, investment bankers, financial advisors, attorneys,
accountants and other representatives retained by it may furnish in connection
therewith information and take such other actions as are consistent with the
fiduciary obligations of the Company's Board of Directors, and such actions
shall not be considered a breach of this Section 5.14 or any other provision of
this Agreement; provided, however, that the Company shall not, and shall not
permit any of its officers, directors, employees or other representatives to,
agree to or endorse any Takeover Proposal unless the Company shall have
terminated this Agreement pursuant to Section 7.1(e) and paid to Parent all
amounts payable to Parent pursuant to Section 5.9. The Company shall promptly
advise Parent orally and in writing of any inquiries or Takeover Proposals. As
used in this Agreement, "Takeover Proposal" shall mean any tender or exchange
offer, proposal for a merger, consolidation or other business combination
involving the Company and made by a Person other than Parent or any proposal or
offer to acquire in any manner a substantial equity interest in, or a
substantial portion of the assets of, the Company other than the transactions
contemplated by this Agreement or the Option Agreement.
5.15 Advice of Changes; SEC Filings. Each party shall confer on a regular
and frequent basis with the other, report on operational matters and promptly
advise the other of any change or event having, or which, insofar as can
reasonably be foreseen, could have, a Material Adverse Effect on such party.
Each party shall promptly provide the other (or its counsel) copies of all
filings made by such party with any state or Federal Governmental Entity in
connection with this Agreement, the Option Agreement and the transactions
contemplated hereby and thereby.
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5.16 Press Releases. Prior to the Effective Time, the Company and Parent
shall consult with each other as to the form and substance of any press release
or other public disclosure related to this Agreement or any of the transactions
contemplated hereby; provided, however, that nothing in this Section 5.16 or any
other provision of this Agreement shall be deemed to prohibit any party from
making any disclosure which its legal counsel deems necessary or advisable in
order to satisfy such disclosure obligations under applicable laws or
regulations.
5.17 Company Option Plans.
(a) At the Effective Time, each unexpired and unexercised option to
purchase shares of Company Common Stock (each a "Company Option" ) under the
Company Option Plans shall be deemed to be automatically converted into an
option (a "Parent Option" ) to purchase the number of shares of Parent Common
Stock equal to the number of shares of Company Common Stock that could have been
purchased under such Company Option multiplied by the Conversion Ratio (with the
resulting number of shares rounded down to the nearest whole share), at a price
per share of Parent Common Stock equal to the exercise price of such Company
Option divided by the Conversion Ratio and the result thereof rounded up to the
nearest whole cent; provided, however, that, in case any Company Option intended
to qualify as an incentive stock option under Section 422 of the Code (or a
predecessor thereto) is deemed converted into a Parent Option as provided above,
the option price, the number of shares of Parent Common Stock purchasable
pursuant to such Parent Option and the terms and conditions of such Parent
Option shall be determined in order to comply with Section 424(a) of the Code.
Such Parent Option shall otherwise be subject to the same terms and conditions
as the Company Option. The date of grant of the substituted Parent Option shall
be the date on which the corresponding Company Option was granted. The Board of
Directors of the Company shall take such actions as are necessary or advisable
to effect the transactions contemplated by this Section 5.17.
(b) At the Effective Time, Parent shall (i) assume all of the Company's
obligations with respect to Company Options as contemplated by Section 5.17(a)
above, (ii) reserve for issuance the number of shares of Parent Common Stock
that will become subject to Parent Options pursuant to this Section 5.17, (iii)
from and after the Effective Time, upon exercise of the Parent Options in
accordance with the terms thereof, make available for issuance all shares of
Parent Common Stock covered thereby, and (iv) as soon as practicable after the
Effective Time, issue to each holder of an outstanding Company Option a document
evidencing the foregoing assumption by Parent.
(c) The Stock Bonus Plan shall be terminated effective as of the Effective
Time; and the Company's outstanding repurchase rights with respect to the shares
of Company Common Stock purchased or purchasable under Company Options granted
under the automatic grant program for non-employee directors shall terminate as
of the Effective Time.
(d) As promptly as practicable after the Effective Time, Parent shall file
a registration statement covering the shares of Parent Common Stock issuable
upon the exercise of Company Options (converted to Parent Options pursuant to
this Section 5.17) and shall use its best efforts to cause the offer and sale of
such shares to be registered under the Securities Act, and to maintain such
registration in effect until the exercise or termination of the Company Options.
Parent shall also use its best efforts to cause such shares of Parent Common
Stock to be authorized for listing on the NYSE and shall make all necessary blue
sky law filings in connection therewith.
5.18 Employment Agreements. Parent shall, as of or prior to the Effective
Time, enter into employment agreements with such persons as may be designated by
Parent, on such terms and conditions as are mutually agreeable to Parent, the
Company and the employees party thereto, which employment agreements will be in
full force and effect as of the Closing Date.
5.19 Parent Director Designation. Parent shall take such actions as are
necessary or appropriate to cause Robert S. Throop to be nominated for election
as a director of Parent at the first meeting of Parent's Board of Directors
following the Effective Time.
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ARTICLE 6
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation to Effect the Merger. The
obligation of each party to effect the Merger shall be subject to the
satisfaction prior to the Closing Date of the following conditions:
(a) Stockholder Approval. This Agreement shall have been adopted by the
affirmative vote of the holders of a majority of the outstanding shares of the
Company Common Stock entitled to vote on the Merger. The Parent Vote Matter
shall have been adopted by the affirmative vote of the holders of a majority of
the votes cast by holders of the outstanding shares of Parent Common Stock,
provided that the total votes cast thereon by such holders represent a majority
of all votes entitled to be cast with respect thereto.
(b) NYSE Listing. The shares of the Parent Common Stock issuable to the
Company's stockholders pursuant to this Agreement and such other shares required
to be reserved for issuance in connection with the Merger shall have been
authorized for listing on the NYSE upon official notice of issuance.
(c) Other Approvals. All authorizations, consents, orders or approvals of,
or declarations or filings with, or expirations or terminations of waiting
periods imposed by, any Governmental Entity the failure to obtain which would
have a Material Adverse Effect on the Surviving Corporation, including, without
limitation, such approvals, waivers and consents as may be required under the
Securities Act and the HSR Act, shall have been filed, occurred or been
obtained. Parent shall have received all state securities or "Blue Sky" permits
and other authorizations necessary to issue the Parent Common Stock in exchange
for the Company Common Stock and to consummate the Merger.
(d) S-4. The S-4 shall have become effective under the Securities Act and
shall not be the subject of any stop order or proceedings seeking a stop order.
(e) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition (an
"Injunction" ) preventing the consummation of the Merger shall be in effect.
(f) No Governmental Actions. No investigation by any Governmental Entity
shall have been commenced, and no action, suit or proceeding by any Governmental
Entity shall have been threatened, against Parent, Sub, the Company or any
Subsidiary thereof or any of the principals, officers or directors of any of
them, seeking to restrain, prevent or change the transactions contemplated
hereby or questioning the legality or validity of any such transactions or
seeking damages in connection with any such transactions.
(g) Pooling Letter. Parent and the Company shall have received a letter
from each of Price Waterhouse LLP and Ernst & Young LLP, dated the date of the
Proxy Statement and confirmed in writing at the Effective Time and addressed to
Parent and the Company, stating that the Merger will qualify as a pooling of
interests transaction under Opinion 16 of the Accounting Principles Board.
6.2 Conditions to Obligations of Parent and Sub. The obligations of Parent
and Sub to effect the Merger are subject to the satisfaction of the following
conditions, unless waived by Parent and Sub:
(a) Representations and Warranties; Performance of Obligations. Except as
otherwise contemplated or permitted by this Agreement, (i) the representations
and warranties of the Company contained in this Agreement or in any certificate
or document delivered to Parent pursuant hereto shall be deemed to have been
made again at and as of the Closing Date and shall then be true in all respects
and (ii) the Company shall have performed and complied with all agreements and
conditions required by this Agreement to be performed or complied with by the
Company prior to or
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on the Closing Date, and Parent shall have been furnished with a certificate of
an appropriate officer of the Company, dated the Closing Date, certifying to the
effect of clauses (i) and (ii) hereof.
(b) Tax Opinion. The opinion of Winthrop, Stimson, Putnam & Roberts,
counsel to Parent, based on appropriate representations of the Company and
Parent, in form and substance satisfactory to such counsel, to the effect that
the Merger will be treated for Federal income tax purposes as a reorganization
within the meaning of Section 368(a) of the Code, and that Parent, Sub and the
Company will each be a party to that reorganization within the meaning of
Section 368(b) of the Code, dated on or about the date of and referred to in the
Proxy Statement as first mailed to stockholders of the Company, shall not have
been withdrawn or modified in any material respect.
(c) No Actions. No action, suit or proceeding before any court or
governmental or regulatory authority shall be pending (other than those referred
to in Section 6.1(f)), against Parent, Sub, the Company, any Subsidiary thereof
or any of the principals, officers or directors of any of them, seeking to
restrain, prevent or change the transactions contemplated hereby or questioning
the legality or validity of any such transactions or seeking damages in
connection with any such transactions.
(d) Consents Under Agreements. The Company shall have obtained the consent
or approval of each Person (other than the Governmental Entities referred to in
Section 6.1(c)) whose consent or approval shall be required in order to permit
the succession by the Surviving Corporation pursuant to the Merger to any
obligation, right or interest of the Company or the Company's Subsidiary under
any loan or credit agreement, note, mortgage, indenture, lease or other
agreement or instrument, except those for which failure to obtain such consents
and approvals would not, individually or in the aggregate, have a Material
Adverse Effect on the Company or impair, prohibit or prevent the consummation of
the transactions contemplated hereby.
(e) Letter from Company Affiliates. Parent shall have received from each
Person named in the letter referred to in Section 5.6, an executed copy of an
agreement substantially in a form of Exhibit 5.6 hereto.
(f) Material Adverse Change. Since the date hereof, there shall not have
been any events, changes or occurrences which have had, or are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on the
Company.
(g) No Amendments to Resolutions. Neither the Board of Directors of the
Company nor any committee thereof shall have amended, modified, rescinded or
repealed the resolutions adopted by the Board of Directors on September 20, 1994
(accurate and complete copies of which have been provided to Parent) and shall
not have adopted any other resolutions in connection with this Agreement and the
transactions contemplated hereby inconsistent with such resolutions.
6.3 Conditions to Obligations of the Company. The obligation of the
Company to effect the Merger is subject to satisfaction of the following
conditions, unless waived by the Company:
(a) Representations and Warranties; Performance of Obligations. Except as
otherwise contemplated or permitted by this Agreement, (i) the representations
and warranties of Parent and Sub contained in this Agreement or in any
certificate or document delivered to the Company pursuant hereto shall be deemed
to have been made again at and as of the Closing Date and shall then be true in
all respects and (ii) Parent and Sub shall have performed and complied with all
agreements and conditions required by this Agreement to be performed or complied
with by them prior to or on the Closing Date, and the Company shall have been
furnished a certificate of an appropriate officer of Parent, dated the Closing
Date, certifying to the effect of clauses (i) and (ii) hereof.
(b) Tax Opinion. The opinion of Brobeck, Phleger & Harrison, counsel to
the Company, based on appropriate representations of the Company and Parent, in
form and substance satisfactory to such counsel, to the effect that the Merger
will be treated for Federal income tax purposes as a reorganization within the
meaning of Section 368(a) of the Code, and that Parent, Sub and the
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Company will each be a party to that reorganization within the meaning of
Section 368(b) of the Code, dated on or about the date of and referred to in the
Proxy Statement as first mailed to stockholders of the Company, shall not have
been withdrawn or modified in any material respect.
(c) Consents Under Agreements. Parent shall have obtained the consent or
approval of each Person (other than the Governmental Entities referred to in
Section 6.1(c)) whose consent or approval shall be required in connection with
the transactions contemplated hereby under any loan or credit agreement, note,
mortgage, indenture, lease or other agreement or instrument, except those for
which failure to obtain such consents and approvals would not, individually or
in the aggregate, have a Material Adverse Effect on Parent and its Subsidiaries
taken as a whole or impair, prohibit or prevent the consummation of the
transactions contemplated hereby.
(d) Material Adverse Change. Since the date hereof, there shall not have
been any events, changes or occurrences which have had, or are reasonably likely
to have, individually or in the aggregate, a Material Adverse Effect on Parent.
(e) No Amendments to Resolutions. Neither the Board of Directors of Parent
nor any committee thereof shall have amended, modified, rescinded or repealed
the resolutions adopted by the Board of Directors on September 20, 1994
(accurate and complete copies of which have been provided to the Company) and
shall not have adopted any other resolutions in connection with this Agreement
and the transactions contemplated hereby inconsistent with such resolutions.
ARTICLE 7
TERMINATION AND AMENDMENT
7.1 Termination. At any time prior to the Effective Time, whether before
or after approval of the matters presented in connection with the Merger by the
stockholders of the Company or Sub, this Agreement may be terminated:
(a) by mutual consent of Parent and the Company;
(b) by either Parent or the Company, if, without fault of the
terminating party, the Closing shall not have occurred on or before
February 15, 1995 (or such later date as may be agreed upon in writing by
the parties hereto);
(c) by Parent, if the Company shall breach any of its representations,
warranties or obligations hereunder and such breach shall not have been
cured or waived and the Company shall not have provided reasonable
assurance that such breach will be cured on or before the Closing Date;
(d) by the Company, if Parent or Sub shall breach any of their
respective representations, warranties or obligations hereunder and such
breach shall not have been cured or waived and Parent shall not have
provided reasonable assurance that such breach will be cured on or before
the Closing Date;
(e) by either Parent or the Company if a Trigger Event or Takeover
Proposal shall have occurred and the Board of Directors of the Company in
connection therewith, after consultation with its legal counsel, withdraws
or modifies its approval and recommendation of this Agreement and the
transactions contemplated hereby after determining that to cause the
Company to proceed with the transactions contemplated hereby would not be
consistent with the Board of Directors' fiduciary duty to the stockholders
of the Company;
(f) by either Parent or the Company if (i) any permanent Injunction or
other order of a court or other competent authority preventing the
consummation of the Merger shall have became final and nonappealable or
(ii) if any required approval of the stockholders of the Company or Parent
shall not have been obtained by reason of the failure to obtain the
required vote upon a vote held at a duly held meeting of stockholders or at
any adjournment thereof;
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(g) by the Company, in the event (i) of the acquisition, by any person
or group of persons (other than persons or groups of persons who (A)
acquired shares of Parent Common Stock pursuant to any merger of Parent in
which Parent was the surviving corporation or any acquisition by Parent of
all or substantially all of the capital stock or assets of another person
or (B) disclose their beneficial ownership of shares of Parent Common Stock
on Schedule 13G under the Exchange Act), of beneficial ownership of 30% or
more of the outstanding shares of Parent Common Stock (the terms "person,"
"group" and "beneficial ownership" having the meanings ascribed thereto in
Section 13(d) of the Exchange Act and the regulations promulgated
thereunder), or (ii) the Board of Directors of Parent accepts or publicly
recommends acceptance of an offer from a third party to acquire 50% or more
of the outstanding shares of Parent Common Stock or of Parent's
consolidated assets;
(h) by Parent, if the Parent Stock Price shall be less than $32.00; or
(i) by the Company, if the Parent Stock Price shall be less than
$32.00.
In the event of any change in the outstanding number of shares of Parent
Common Stock by reason of stock dividends, stock splits, recapitalizations or
combinations of shares into a smaller number of shares, the prices of the Parent
Common Stock set forth in clauses (h) and (i) of this Section 7.1 shall be
adjusted appropriately.
7.2 Effect of Termination. In the event of termination of this Agreement
by either Parent or the Company as provided in Section 7.1, 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
(i) with respect to Section 5.9, 5.10, 5.11 and 5.12, (ii) to the extent that
such termination results from the willful breach by a party hereto of any of its
representations, warranties, covenants or agreements set forth in this Agreement
except as provided in Section 8.7 and (iii) this Section 7.2 shall survive such
termination.
7.3 Extension; Waiver. At any time prior to the Effective Time, the
parties hereto, by action duly taken, may, to the extent legally allowed, (i)
extend the time for the performance of any of the obligations or other acts of
the other parties hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and
(iii) 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.
7.4 Amendment and Modification. 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 adoption of the Agreement by the
stockholders of Parent or the Company, but after any such adoption, no amendment
shall be made which by law requires further approval by such stockholders
without such further approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
ARTICLE 8
GENERAL PROVISIONS
8.1 Nonsurvival of Representations, Warranties and Agreements. None of the
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall survive the Effective
Time, except for the agreements contained in Section 2.1, 2.2, 5.12, 5.17 and
the last sentence of Section 7.4 and Article 8, and the agreements of the
"affiliates" of the Company delivered pursuant to Section 5.6.
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8.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given upon receipt of: hand
delivery, overnight courier, certified or registered mail, return receipt
requested, or telecopy transmission with confirmation of receipt:
(i) If to the Company, to:
Anthem Electronics, Inc.
1160 Ridder Park Drive
San Jose, California 95131
Telecopier: (408) 441-4506
Telephone: (408) 452-2249
Attention: Robert S. Throop
(with a copy to)
Brobeck, Phleger & Harrison
Two Embarcadero Place
2200 Geng Road
Palo Alto, California 94303
Telecopier: (415) 496-2885
Telephone: (415) 424-0160
Attention: Edward M. Leonard, Esq.
(ii) If to Parent, to:
Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
Telecopier: (516) 391-1683
Telephone: (516) 391-1830
Attention: Robert E. Klatell
(with a copy to)
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Telecopier: (212) 858-1500
Telephone: (212) 858-1000
Attention: Howard S. Kelberg, Esq.
Such names and addresses may be changed by written notice to each person listed
above.
8.3 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 provisions relating to conflicts of laws.
8.4 Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to 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. The
phrases "the date of this Agreement", "the date hereof ", and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to
September 21, 1994.
8.5 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
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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.
8.6 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership. This Agreement (including the documents and the instruments referred
to herein, including the Option Agreement) (a) constitutes the entire agreement
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof and (b) except as
otherwise contemplated by Sections 2.1, 2.2 and 5.12 (which covenants shall be
enforceable by the persons affected thereby following the Effective Time), is
not intended to confer upon any person other than the parties hereto any rights
or remedies hereunder. The parties hereby acknowledge that, except as otherwise
specifically provided in the Option Agreement or as hereafter agreed to in
writing, no party shall have the right to acquire or shall be deemed to have
acquired shares of common stock of the other party pursuant to the Merger until
consummation thereof.
8.7 No Remedy in Certain Circumstances. Each party agrees that, should any
court or other competent authority hold any provision of this Agreement or the
Option Agreement or part hereof or thereof to be null, void or unenforceable, or
order any party to take any action inconsistent herewith or not to take any
action required herein, the other party shall not be entitled to specific
performance of such provision or part hereof or thereof or to any other remedy,
including but not limited to money damages, for breach hereof or thereof or of
any other provision of this Agreement or the Option Agreement or part hereof or
thereof as a result of such holding or order.
8.8 Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so be broad as is enforceable.
8.9 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.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
ARROW ELECTRONICS, INC.
By: /s/ ROBERT E. KLATELL
------------------------------------
Robert E. Klatell
Senior Vice President and Chief
Financial Officer
MTA ACQUISITION COMPANY
By: /s/ ROBERT E. KLATELL
------------------------------------
Robert E. Klatell
Senior Vice President, Treasurer
and Secretary
ANTHEM ELECTRONICS, INC.
By: /s/ ROBERT S. THROOP
------------------------------------
Robert S. Throop
Chairman and Chief Executive Officer
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<PAGE> 155
EXHIBIT 5.6
Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
Gentlemen:
The undersigned, a holder of shares of Common Stock, par value $.125 per
share (the "Company Common Stock"), of Anthem Electronics, Inc., a Delaware
corporation (the "Company"), is entitled to receive in connection with the
merger (the "Merger") of the Company with MTA Acquisition Company, a Delaware
corporation ("Sub"), shares of Common Stock, par value $1 per share (the "Parent
Common Stock"), of Arrow Electronics, Inc., a New York corporation ("Parent").
The undersigned acknowledges that the undersigned may be deemed to be an
"affiliate" of the Company for purposes of Rule 145 ("Rule 145") promulgated
under the Securities Act of 1933, as amended (the "Act"), and for purposes of
"pooling-of-interests" accounting treatment, although nothing contained herein
should be construed as an admission of such fact.
If in fact the undersigned were an affiliate of the Company under the Act,
the undersigned's ability to sell, assign or transfer the Parent Common Stock
received by it in exchange for shares of Company Common Stock pursuant to the
Merger may be restricted unless such transaction is registered under the Act or
an exemption from such registration is available. The undersigned understands
that such exemptions are limited and the undersigned has obtained advice of
counsel as to the nature and conditions of such exemptions, including
information with respect to the applicability to the sale of the Parent Common
Stock of Rules 144 and 145(d) promulgated under the Act.
The undersigned hereby represents to and covenants with Parent that it will
not sell, assign or transfer any of the shares of Parent Common Stock received
by it in exchange for shares of Company Common Stock pursuant to the Merger
except (i) pursuant to an effective Registration Statement under the Act, or
(ii) in a transaction which, in the opinion of independent counsel reasonably
satisfactory to Parent (the reasonable fees of which counsel will be paid by
Parent) or as described in a "no-action" or interpretive letter from the Staff
of the Securities and Exchange Commission (the "Commission"), is not required to
be registered under the Act.
The undersigned further represents to and covenants with Parent that,
within the 30 days immediately preceding the closing of the Merger, it has not
sold, transferred or otherwise disposed of, and will not sell, transfer or
otherwise dispose of, any shares of Company Common Stock held by it and that it
will not sell, transfer or otherwise dispose of any shares of Parent Common
Stock received by it in the Merger until after such time as results covering at
least 30 days of post-merger combined operations of Parent and the Company have
been published by Parent, in the form of a quarterly earnings report, an
effective registration statement filed with the Commission, a report to the
Commission on Form 10-K, 10-Q, or 8-K, or any other public filing or
announcement which includes such combined results of operations.
In the event of a sale or other disposition pursuant to Rule 145, the
undersigned will supply Parent with evidence of compliance with such Rule, in
the form of a letter in the form of Exhibit A hereto and, if applicable, the
opinion of counsel referred to above. The undersigned understands that Parent
may instruct its transfer agent to withhold the transfer of any securities
disposed of by it, but that upon receipt of such letter the transfer agent shall
effectuate the transfer of the shares indicated as sold in the letter.
The undersigned acknowledges and agrees that appropriate legends will be
placed on certificates representing the Parent Common Stock received by the
undersigned in the Merger or held by a transferee thereof, which legends will be
removed by delivery of substitute certificates upon the registration of such
Parent Common Stock under the Act or the receipt of an opinion in form and
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<PAGE> 156
substance reasonably satisfactory to Parent from independent counsel reasonably
satisfactory to Parent (the reasonable fees of which counsel will be paid by
Parent) to the extent that such legends are no longer required for purposes of
the Act.
The undersigned acknowledges that (i) it has carefully read this letter and
understands the requirements hereof and the limitations imposed upon the
distribution, sale, transfer or other disposition of shares of Parent Common
Stock and (ii) the receipt by Parent of this letter is an inducement and a
condition to Parent's obligations to consummate the Merger.
Very truly yours,
--------------------------------------
Name:
Date:
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<PAGE> 157
EXHIBIT A
TO EXHIBIT 5.6
[Name]
[Address]
Gentlemen:
On , I sold shares of capital stock ("Capital Stock")
of Arrow Electronics, Inc. (the "Company") received by me in connection with the
merger of MTA Acquisition Company, a subsidiary of the Company, with and into
Anthem Electronics, Inc.
Based upon the most recent report or statement filed by the Company with
the Securities and Exchange Commission, the shares of Capital Stock sold by me
were within the prescribed limitations set forth in paragraph (e) of Rule 144
promulgated under the Securities Act of 1933, as amended (the "Act").
I hereby represent that the above-described shares of Capital Stock were
sold in "brokers' transactions" within the meaning of Section 4(4) of the Act or
in transactions directly with a "market maker" as that term is defined in
Section (3)(a)(38) of the Securities Exchange Act of 1934, as amended. I further
represent that I have not solicited or arranged for the solicitation of orders
to buy the above-described shares of Capital Stock, and that I have not made any
payment in connection with the offer or sale of such shares to any person other
than to the broker who executed the order in respect of such sale.
Very truly yours,
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<PAGE> 158
SCHEDULE A
PROXIES
Robert S. Throop
John J. Powers
Alan R. McMillan
Neil J. Hynes
Robert G. Teal
Peyton L. Gannaway
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<PAGE> 159
EXHIBIT B-1
MORGAN STANLEY
MORGAN STANLEY & CO.
INCORPORATED
1251 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10020
(212) 703-4000
October 24, 1994
Board of Directors
Arrow Electronics, Inc.
25 Hub Drive
Melville, NY 11747
Members of the Board:
We understand that Anthem Electronics, Inc. ("Anthem" or the "Company"), Arrow
Electronics, Inc. ("Arrow") and MTA Acquisition Company, a wholly owned
subsidiary of Arrow ("Merger Sub"), propose to enter into an Agreement and Plan
of Merger dated as of September 21, 1994 (the "Merger Agreement") which
provides, among other things, for the merger (the "Merger") of Merger Sub with
and into the Company. Pursuant to the Merger, Anthem will become a wholly owned
subsidiary of Arrow and each outstanding share of common stock, par value $0.125
per share, of Anthem (the "Anthem Common Stock"), other than shares held in
treasury or held by Arrow or any affiliate of Arrow, will be converted into the
right to receive 0.875 (the "Conversion Ratio") shares of common stock, par
value $1.00 per share, of Arrow (the "Arrow Common Stock"), subject to
adjustment in certain instances. The terms and conditions of the Merger are more
fully set forth in the Merger Agreement.
You have asked for our opinion as to whether the Conversion Ratio pursuant to
the Merger Agreement is fair from a financial point of view to Arrow and to the
holders of Arrow Common Stock.
For purposes of the opinion set forth herein, we have:
(i) analyzed certain publicly available financial statements and other
information of Anthem;
(ii) analyzed certain internal financial statements and other financial
and operating data concerning Anthem prepared by the management of
Anthem;
(iii) analyzed certain financial projections prepared by the management
of Anthem;
(iv) discussed the past and current operations and financial condition
and the prospects of Anthem with senior executives of Anthem;
(v) analyzed certain publicly available financial statements and other
information of Arrow;
(vi) analyzed certain internal financial statements and other financial
and operating data concerning Arrow prepared by the management of
Arrow;
(vii) analyzed certain financial projects prepared by the management of
Arrow;
(viii) discussed the past and current operations and financial condition
and the prospects of Arrow with senior executives of Arrow, and
analyzed the pro forma impact of the Merger on Arrow's earnings per
share, consolidated capitalization and financial ratios;
(ix) reviewed the reported prices and trading activity for the Anthem
Common Stock;
B-1-1
<PAGE> 160
MORGAN STANLEY
Arrow Electronics, Inc.
October 24, 1994
Page 2
(x) compared the financial performance of Anthem and the prices and
trading activity of the Anthem Common Stock with that of certain
other comparable publicly traded companies and their securities;
(xi) reviewed the reported prices and trading activity for the Arrow
Common Stock;
(xii) compared the financial performance of Arrow and the prices and
trading activity of the Arrow Common Stock with that of certain
other comparable publicly traded companies and their securities;
(xiii) reviewed the financial terms, to the extent publicly available, of
certain comparable acquisition transactions;
(xiv) reviewed and discussed with the senior management of Arrow the
strategic rationale for the Merger and the synergies and other
benefits of the Merger to Arrow;
(xv) participated in discussions and negotiations among representatives
of Anthem and Arrow and their financial and legal advisors;
(xvi) reviewed the Merger Agreement and certain related documents dated
September 21, 1994 between Anthem and Arrow; and
(xvii) performed such other analyses as we have deemed appropriate.
We have assumed and relied upon, without independent verification, the accuracy
and completeness of the information reviewed by us for the purposes of this
opinion. With respect to the financial projections, we have assumed that they
have been reasonably prepared on bases reflecting the best currently available
estimates and judgments of the future financial performance of Arrow and Anthem.
We have also relied upon, without independent verification, estimates by the
management of Arrow of the cost savings and other synergies arising from the
Merger. Our opinion is necessarily based on economic, market and other
conditions as in effect on, and the information made available to us as of, the
date hereof.
We have acted as financial advisor to the Board of Directors of Arrow in
connection with this transaction and will receive a fee for our services. In the
past, Morgan Stanley & Co. Incorporated and its affiliates have provided
financial advisory services for Arrow and have received fees for the rendering
of these services.
It is understood that this letter is for the information of the Board of
Directors of Arrow only and may not be used for any other purpose without our
prior written consent.
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<PAGE> 161
MORGAN STANLEY
Arrow Electronics, Inc.
October 24, 1994
Page 3
Based upon and subject to the foregoing, we are of the opinion on the date
hereof that the Conversion Ratio pursuant to the Merger Agreement is fair from a
financial point of view to Arrow and to the holders of Arrow Common Stock.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
By: /s/ DHIREN H. SHAH
------------------------------------
Dhiren H. Shah
Principal
B-1-3
<PAGE> 162
EXHIBIT B-2
LEHMAN BROTHERS
October 24, 1994
Board of Directors
Anthem Electronics, Inc.
1160 Ridder Park Drive
San Jose, CA 95131
Attention: Mr. Robert S. Throop
Chairman and Chief Executive Officer
Members of the Board:
We understand that Anthem Electronics, Inc. ("Anthem" or the "Company")
intends to merge with and into MTA Acquisition Company ("MTA"), a wholly owned
subsidiary of Arrow Electronics, Inc. ("Arrow" or the "Company"), whereby Anthem
would become a wholly owned subsidiary of Arrow (the "Proposed Merger"). In the
Proposed Merger, each outstanding share of Anthem common stock will be exchanged
for 0.875 shares of Arrow common stock provided, however, that (i) if the
average closing price on the New York Stock Exchange of Arrow common stock over
the twenty-day trading period ending on the trading day immediately preceding
the two trading days before the closing date (the "Arrow Stock Price") is not
greater than the Arrow stock price on the date of the signing of the Merger
Agreement (the "Market Price") plus $2.00 and not less than the Market Price
minus $2.00, there shall be no adjustment to the Conversion Ratio, (ii) if the
Arrow Stock Price is greater than the Market Price plus $2.00, the Conversion
Ratio shall be adjusted to equal the product of 0.875 multiplied by a fraction
the numerator of which is equal to the sum of (1) the Market Price plus $2.00
and (2) one-half of the difference between the Arrow Stock Price and the Market
Price plus $2.00 and the denominator of which is the Arrow Stock Price and (iii)
if the Arrow Stock Price is less than the Market Price less $2.00, the
Conversion Ratio shall be adjusted to equal the product of 0.875 multiplied by a
fraction the numerator of which is equal to the sum of (1) the Arrow Stock Price
and (2) one-half of the difference between the Market Price less $2.00 and the
Arrow Stock Price and the denominator of which is the Arrow Stock Price (the
"Conversion Ratio"). In addition, each outstanding option to purchase Anthem
common stock will be converted into an option to purchase shares of Arrow common
stock based upon the Conversion Ratio. The terms and conditions of the Proposed
Merger are set forth in more detail in the Agreement and Plan of Merger by and
among Arrow, MTA and Anthem dated as of September 21, 1994 (the "Merger
Agreement").
We have been requested by the Company to render our opinion with respect to
the fairness, from a financial point of view, to the Company's stockholders of
the Conversion Ratio to be offered in the Proposed Merger. We have not been
requested to opine as to, and our opinion does not in any manner address, the
Company's underlying business decision to proceed with or effect the Proposed
Merger.
In arriving at our opinion, we reviewed and analyzed: (1) the Merger
Agreement and the Registration Statement on Form S-4 relating to the Proposed
Merger, (2) such publicly available information concerning the Company and Arrow
which we believe to be relevant to our inquiry,
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<PAGE> 163
Anthem Electronics, Inc.
October 24, 1994
Page 2
(3) financial and operating information with respect to the business, operations
and prospects of the Company furnished to us by the Company, (4) financial and
operating information with respect to the business, operations and prospects of
Arrow furnished to us by Arrow, (5) a trading history of the Company's common
stock and a comparison of that trading history with those of other companies
which we deemed relevant, (6) a trading history of Arrow's common stock and a
comparison of that trading history with those of other companies which we deemed
relevant, (7) a comparison of the historical financial results and present
financial condition of the Company with those of other companies which we deemed
relevant, (8) a comparison of the historical financial results and present
financial condition of Arrow with those of other companies which we deemed
relevant, (9) a comparison of the financial terms of the Proposed Merger with
the financial terms of certain other recent transactions which we deemed
relevant, (10) the potential pro forma earnings per share impact of the Proposed
Merger on the Company's earnings and (11) the potential pro forma earnings per
share impact of the Proposed Merger on Arrow's earnings. In addition, we have
had discussions with the managements of the Company and Arrow concerning their
respective businesses, operations, assets, financial conditions and prospects
and the potential cost savings and other benefits resulting from a combination
of the businesses of the Company and Arrow and undertook such other studies,
analyses and investigations as we deemed appropriate.
We have assumed and relied upon the accuracy and completeness of the
financial and other information used by us in arriving at our opinion without
independent verification and have further relied upon the assurances of
management of the Company that they are not aware of any facts that would make
such information inaccurate or misleading. With respect to the financial
projections of the Company and Arrow, upon advice of the Company we have assumed
that such projections have been reasonably prepared on a basis reflecting the
best currently available estimates and judgments of the management of the
Company and Arrow, as the case may be, as to the future financial performance of
the Company and Arrow, respectively, and Lehman Brothers relied on such
projections in arriving at our opinion. In arriving at our opinion, we have not
conducted a physical inspection of the properties and facilities of the Company
or Arrow and have not made nor obtained any evaluations or appraisals of the
assets or liabilities of the Company or Arrow. In addition, you have not
authorized us to solicit, and we have not solicited, any indications of interest
from any third party with respect to the purchase of all or a part of the
Company's business. Upon advice of the Company and its legal and accounting
advisors, we have assumed that the Merger will qualify (i) for
pooling-of-interests accounting treatment and (ii) as a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended,
and therefore as a tax-free transaction to the stockholders of the Company. Our
opinion is necessarily based upon market, economic and other conditions as they
exist on, and can be evaluated as of, the date of this letter.
Based upon and subject to the foregoing, we are of the opinion as of the
date hereof that, from a financial point of view, the Conversion Ratio to be
offered to stockholders of the Company in the Proposed Merger is fair to such
stockholders.
We have acted as financial advisor to the Company in connection with the
Proposed Merger and will receive a fee for our services which is contingent upon
the consummation of the Proposed Merger. In addition, the Company has agreed to
indemnify us for certain liabilities which may arise out of the rendering of
this opinion. We also have performed various investment banking services for the
Company in the past and have received customary fees for such services. In the
ordinary course of our business, we actively trade in the equity securities of
the Company and Arrow for our own account and for the accounts of our customers
and, accordingly, may at any time hold a long or short position in such
securities.
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<PAGE> 164
Anthem Electronics, Inc.
October 24, 1994
Page 3
This opinion is solely for the use and benefit of the Board of Directors of
the Company and shall not be relied upon by any third party. This opinion is not
intended to be and does not constitute a recommendation to any stockholder of
the Company as to how such stockholder should vote with respect to the Proposed
Merger.
Very truly yours,
LEHMAN BROTHERS
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<PAGE> 165
EXHIBIT C
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of September 21, 1994,
by and between Arrow Electronics, Inc., a New York corporation ("Parent"), and
Anthem Electronics, Inc., a Delaware corporation (the "Company").
WHEREAS, concurrently with the execution and delivery of this Agreement,
the Company, Parent and MTA Acquisition Company, a Delaware corporation ("Sub"),
are entering into an Agreement and Plan of Merger, dated as of the date hereof
(the "Merger Agreement"), which provides that, among other things, upon the
terms and subject to the conditions thereof, Sub will be merged with and into
the Company (the "Merger"), with the Company continuing as the surviving
corporation; and
WHEREAS, as a condition and inducement to Parent's willingness to enter
into the Merger Agreement, Parent has required that the Company agree, and the
Company has so agreed, to grant to Parent an option with respect to certain
shares of the Company's common stock on the terms and subject to the conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. Grant of Option. The Company hereby grants Parent an irrevocable option
(the "Company Option") to purchase up to 2,451,427 shares (the "Company Shares")
of common stock, par value $.125 per share, of the Company (the "Company Common
Stock") in the manner set forth below at a price (the "Exercise Price") of
$34.67 per Company Share, payable in cash. Capitalized terms used herein but not
defined herein shall have the meanings set forth in the Merger Agreement.
2. Exercise of Option. The Company Option may be exercised by Parent, in
whole or in part, at any time or from time to time after the occurrence of any
of the events described in clauses (i), (ii) and (iii) of Section 5.9(b) of the
Merger Agreement. In the event Parent wishes to exercise the Company Option,
Parent shall deliver to the Company a written notice (an "Exercise Notice")
specifying the total number of Company Shares it wishes to purchase. Each
closing of a purchase of Company Shares (a "Closing") shall occur at a place, on
a date and at a time designated by Parent in an Exercise Notice delivered at
least two business days prior to the date of the Closing. The Company Option
shall terminate upon the earlier of: (i) the Effective Time; (ii) the
termination of the Merger Agreement pursuant to Section 7.1 thereof (other than
a termination in connection with which Parent is entitled to the payment
specified in Section 5.9(b) thereof); or (iii) 180 days following any
termination of the Merger Agreement in connection with which Parent is entitled
to the payment specified in Section 5.9(b) thereof (or if, at the expiration of
such 180 day period, the Company Option cannot be exercised by reason of any
applicable judgment, decree, order, law or regulation, ten business days after
such impediment to exercise shall have been removed or shall have become final
and not subject to appeal, but in no event under this clause (iii) later than
September 21, 1996). Notwithstanding the foregoing, the Company Option may not
be exercised if Parent is in material breach of any of its representations,
warranties, covenants or agreements contained in this Agreement or in the Merger
Agreement.
3. Conditions to Closing. The obligation of the Company to issue the
Company Shares to Parent hereunder is subject to the conditions that (i) all
waiting periods, if any, under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the rules and regulations promulgated thereunder ("HSR
Act"), applicable to the issuance of the Company Shares hereunder shall have
expired or have been terminated; (ii) all consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, any Federal,
state or local administrative agency or commission or other Federal state or
local governmental authority or instrumentality, if any, required in connection
with the issuance of the Company Shares hereunder shall have been
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obtained or made, as the case may be; and (iii) no preliminary or permanent
injunction or other order by any court of competent jurisdiction prohibiting or
otherwise restraining such issuance shall be in effect.
4. Closing. At any Closing, (a) the Company will deliver to Parent a
single certificate in definitive form representing the number of the Company
Shares designated by Parent in its Exercise Notice, such certificate to be
registered in the name of Parent and to bear the legend set forth in Section 13,
and (b) Parent will deliver to the Company the aggregate price for the Company
Shares so designated and being purchased by wire transfer of immediately
available funds or certified check or bank check. At any Closing at which Parent
is exercising the Company Option in part, Parent shall present and surrender
this Agreement to the Company, and the Company shall deliver to Parent an
executed new agreement with the same terms as this Agreement evidencing the
right to purchase the balance of the shares of Company Common Stock purchasable
hereunder.
5. Representations and Warranties of the Company. The Company represents
and warrants to Parent that (a) the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to enter into this Agreement and to
carry out its obligations hereunder, (b) the execution and delivery of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Company and no other corporate proceedings on the part of the
Company are necessary to authorize this Agreement or any of the transactions
contemplated hereby, (c) this Agreement has been duly executed and delivered by
the Company and constitutes a valid and binding obligation of the Company, and,
assuming this Agreement constitutes a valid and binding obligation of Parent, is
enforceable against the Company in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally, and except that the
availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding therefor may be
brought, and except as indemnification may be limited by public policy, (d) the
Company has taken all necessary corporate action to authorize and reserve for
issuance and to permit it to issue, upon exercise of the Company Option, and at
all times from the date hereof through the expiration of the Company Option will
have reserved, 2,451,427 unissued Company Shares, all of which, upon their
issuance and delivery in accordance with the terms of this Agreement, will be
validly issued, fully paid and nonassessable, (e) upon delivery of the Company
Shares to Parent upon the exercise of the Company Option, Parent will acquire
the Company Shares free and clear of all claims, liens, charges, encumbrances
and security interests of any nature whatsoever, (f) except as described in
Section 3.1 or 3.4 of the Merger Agreement, the execution and delivery of this
Agreement by the Company does not, and the performance of this Agreement by the
Company will not, conflict with, or result in any violation of, or material
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or the
loss of a material benefit under, or the creation of a lien, pledge, security
interest or other encumbrance on assets pursuant to (any such conflict,
violation, default, right of termination, cancellation or acceleration, loss or
creation, a "Violation"), (A) any provision of the Certificate of Incorporation
or By-laws of the Company or (B) any provisions of any loan or credit agreement,
note, mortgage, indenture, lease, benefit plan or other agreement, obligation,
instrument, permit, concession, franchise, license or (C) any judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to the Company or
its properties or assets, which Violation, in the case of each of clauses (B)
and (C), would have a Material Adverse Effect on the Company and (g) except as
described in Section 3.1 or 3.4 of the Merger Agreement, the execution and
delivery of this Agreement by the Company does not, and the performance of this
Agreement by the Company will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any governmental or regulatory
authority.
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6. Representations and Warranties of Parent. Parent represents and
warrants to the Company that (a) Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York and has
the corporate power and authority to enter into this Agreement and to carry out
its obligations hereunder, (b) the execution and delivery of this Agreement by
Parent and the consummation by Parent of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and no other corporate proceedings on the part of Parent are necessary to
authorize this Agreement or any of the transactions contemplated hereby, (c)
this Agreement has been duly executed and delivered by Parent and constitutes a
valid and binding obligation of Parent, and, assuming this Agreement constitutes
a valid and binding obligation of the Company, is enforceable against Parent in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency or other similar laws affecting the enforcement of creditors' rights
generally, and except that the availability of equitable remedies, including
specific performance, is subject to the discretion of the court before which any
proceeding therefor may be brought, and except as indemnification may be limited
by public policy, (d) except as described in Section 4.2 or 4.3 of the Merger
Agreement, the execution and delivery of this Agreement by Parent does not, and
the performance of this Agreement by Parent will not, result in any Violation
pursuant to, (A) any provision of the Certificate of Incorporation or By-laws of
Parent, (B) any provisions of any loan or credit agreement, note, mortgage,
indenture, lease, Benefit Plan or other agreement, obligation, instrument,
permit, concession, franchise, license or (C) any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Parent or its
properties or assets, which Violation, in the case of each of clauses (B) and
(C), would have a Material Adverse Effect on Parent, (e) except as described in
Section 4.2 or 4.3 of the Merger Agreement and Section 3(i) of this Agreement,
the execution and delivery of this Agreement by Parent does not, and the
performance of this Agreement by Parent will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority and (f) any Company Shares acquired upon exercise of the
Company Option will not be, and the Company Option is not being, acquired by
Parent with a view to the public distribution thereof.
7. Certain Repurchases.
(a) Put and Call. At any time during which the Company Option is
exercisable pursuant to Section 2 (the "Repurchase Period"), upon demand by
Parent, Parent shall have the right to sell to the Company (or any successor
entity thereof) and the Company (or such successor entity) shall be obligated to
repurchase from Parent (the "Put"), and upon demand by the Company, subject to
Section 7(c) hereof, the Company (or any successor entity thereof) shall have
the right to repurchase from Parent and Parent shall be obligated to sell to the
Company (or such successor entity) (the "Call"), all or any portion of the
Company Option, at the price set forth in subparagraph (i) below, or, at any
time prior to September 21, 1996, all or any portion of the Company Shares
purchased by Parent pursuant thereto, at a price set forth in subparagraph (ii)
below:
(i) the difference between the "Market/Tender Offer Price" for shares
of Company Common Stock as of the date (the "Notice Date") notice of
exercise of the Put or Call, as the case may be, is given to the other
party (defined as the higher of (A) the price per share offered as of the
Notice Date pursuant to any tender or exchange offer or other Takeover
Proposal which was made prior to the Notice Date and not terminated or
withdrawn as of the Notice Date (the "Tender Price") or (B) the average of
the closing prices of shares of the Company Common Stock on the NYSE for
the ten trading days immediately preceding the Notice Date, (the "Market
Price")), and the Exercise Price, multiplied by the number of Company
Shares purchasable pursuant to the Company Option (or portion thereof with
respect to which Parent or the Company is exercising its rights under this
Section 7), but only if the Market/Tender Offer Price is greater than the
Exercise Price;
(ii) the Exercise Price paid by Parent for the Company Shares acquired
pursuant to the Company Option plus the difference between the
Market/Tender Offer Price and the Exercise
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Price, but only if the Market/Tender Offer Price is greater than the
Exercise Price, multiplied by the number of Company Shares so purchased.
For purposes of this clause (ii), the Tender Price shall be the highest
price per share offered pursuant to a tender or exchange offer or other
Takeover Proposal during the Repurchase Period.
(b) Payment and Redelivery of Company Option or Shares. In the event
Parent or the Company exercises its rights under this Section 7, the Company
shall, within ten business days of the Notice Date, pay the required amount to
Parent in immediately available funds and Parent shall surrender to the Company
the Company Option or the certificates evidencing the Company Shares purchased
by Parent pursuant thereto, and Parent shall warrant that it owns such shares
and that such shares are then free and clear of all liens, claims, charges and
encumbrances of any kind or nature whatsoever.
(c) Limitation on Call. The Call shall not be exercisable by the Company
(or any successor entity thereof) unless substantially concurrently therewith
the Company has consummated the transaction contemplated by a Takeover Proposal
or the stockholders of the Company have transferred their shares of Company
Common Stock pursuant to a tender or exchange offer or other Takeover Proposal.
8. Voting of Shares. Following the date hereof and prior to the Expiration
Date (as defined in Section 9(b)), Parent shall vote any shares of Company
Common Stock acquired pursuant to this Agreement ("Restricted Shares") on each
matter submitted to a vote of stockholders of the Company for and against such
matter in the same proportion as the vote of all other stockholders of the
Company are voted (whether by proxy or otherwise) for and against such matter.
9. Restrictions on Certain Actions.
(a) Restrictions. Other than pursuant to the Merger Agreement, following
the date hereof and prior to the Expiration Date, without the prior written
consent of the Company, Parent shall not, nor shall Parent permit its affiliates
to, directly or indirectly, alone or in concert or conjunction with any other
Person or Group (as defined in Section 9(b)), (i) in any manner acquire, agree
to acquire or make any proposal to acquire, any securities of, equity interest
in, or any material property of, the Company (other than pursuant to this
Agreement or the Merger Agreement), (ii) except at the specific written request
of the Company, propose to enter into any merger or business combination
involving the Company or to purchase a material portion of the assets of the
Company, (iii) make or in any way participate in any "solicitation" of "proxies"
(as such terms are used in Regulation 14A promulgated under the Exchange Act) to
vote, or seek to advise or influence any Person with respect to the voting of,
any voting securities of the Company, (iv) form, join or in any way participate
in a Group with respect to any voting securities of the Company, (v) seek to
control or influence the management, Board of Directors or policies of the
Company, (vi) disclose any intention, plan or arrangement inconsistent with the
foregoing, (vii) advise, assist or encourage any other Person in connection with
the foregoing or (viii) request the Company (or its directors, officers,
employees or agents) to amend or waive any provisions of this Section 9, or take
any action which may require the Company to make a public announcement regarding
the possibility of a business combination or merger with such party. The Company
shall not adopt any Rights Agreement in any manner which would cause Parent, if
Parent has complied with its obligations under this Agreement, to become an
"Acquiring Person" under such Rights Agreement solely by reason of the
beneficial ownership of the shares purchasable hereunder.
(b) Certain Definitions. For purposes of this Agreement, (i) the term
"Person" shall mean any corporation, partnership, individual, trust,
unincorporated association or other entity or Group (within the meaning of
Section 13(d)(3) of the Exchange Act), (ii) the term "Expiration Date" with
respect to any obligation or restriction imposed on one party shall mean the
earlier to occur of (A) the third anniversary of the date hereof or (B) such
time as the other party shall have suffered a Change of Control and (iii) a
"Change of Control" with respect to one party shall be deemed to have occurred
whenever (A) there shall be consummated (1) any consolidation or merger of such
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party in which such party is not the continuing or surviving corporation, or
pursuant to which shares of such party's common stock would be converted in
whole or in part into cash, other securities or other property, other than a
merger of such person in which the holders of such party's common stock
immediately prior to the merger have substantially the same proportionate
ownership of common stock of the surviving corporation immediately after the
merger, or (2) any sale, lease, exchange or transfer (in one transaction or a
series of related transactions) of all or substantially all the assets of such
party, or (B) the stockholders of such party shall approve any plan or proposal
for the liquidation or dissolution of such party, or (C) any party, other than
such party or a subsidiary thereof or any employee benefit plan sponsored by
such party or a subsidiary thereof or a corporation owned, directly or
indirectly, by the stockholders of such party in substantially the same
proportions as their ownership of stock of such party, shall become the
beneficial owner of securities of such party representing 25% or more of the
combined voting power of then outstanding securities ordinarily (and apart from
rights accruing in special circumstances) having the right to vote in the
election of directors, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, or (D) at any time
during the period commencing on the date of this Agreement and ending on the
Expiration Date, individuals who at the date hereof constituted the Board of
Directors of such party shall cease for any reason to constitute at least a
majority thereof, unless the election or the nomination for election by such
party's stockholders of each new director during the period commencing on the
date of this Agreement and ending on the Expiration Date was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the date hereof, or (E) any other event shall occur with respect to such
party that would be required to be reported in response to Item 6(e) (or any
successor provision) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act.
10. Restrictions on Transfer.
(a) Restrictions on Transfer. Prior to the Expiration Date, Parent shall
not, directly or indirectly, by operation of law or otherwise, sell, assign,
pledge, or otherwise dispose of or transfer any Restricted Shares beneficially
owned by Parent, other than (i) pursuant to Section 7, or (ii) in accordance
with Section 10(b) or 11.
(b) Permitted Sales. Following the termination of the Merger Agreement,
Parent shall be permitted to sell any Restricted Shares beneficially owned by it
if such sale is made pursuant to a tender or exchange offer that has been
approved or recommended, or otherwise determined to be fair and in the best
interests of the stockholders of the Company, by a majority of the members of
the Board of Directors of the Company (which majority shall include a majority
of directors who were directors prior to the announcement of such tender or
exchange offer).
11. Registration Rights. (a) Following the termination of the Merger
Agreement, Parent may by written notice (the "Registration Notice") to the
Company request the Company to register under the Securities Act all or any part
of the Restricted Shares beneficially owned by Parent (the "Registrable
Securities") pursuant to a bona fide firm commitment underwritten public
offering in which Parent and the underwriters shall effect as wide a
distribution of such Registrable Securities as is reasonably practicable and
shall use their best efforts to prevent any Person (including any Group) and its
affiliates from purchasing through such offering Restricted Shares representing
more than 1% of the outstanding shares of Common Stock of the Company on a fully
diluted basis (a "Permitted Offering"). The Registration Notice shall include a
certificate executed by Parent and its proposed managing underwriter, which
underwriter shall be an investment banking firm of nationally recognized
standing (the "Manager"), stating that (i) they have a good faith intention to
commence promptly a Permitted Offering and (ii) the Manager in good faith
believes that, based on the then prevailing market conditions, it will be able
to sell the Registrable Securities at a per share price equal to at least 80% of
the Fair Market Value of such shares. For purposes of this Section 11, the term
"Fair Market Value" shall mean the per share average of the closing sale prices
of the Company's Common Stock on the NYSE for the ten trading days immediately
preceding the date of the Registration Notice. The Company (and/or any Person
designated by the Company) shall
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thereupon have the option exercisable by written notice delivered to Parent
within ten business days after the receipt of the Registration Notice,
irrevocably to agree to purchase all or any part of the Registrable Securities
for cash at a price (the "Option Price") equal to the product of (i) the number
of Registrable Securities and (ii) the Fair Market Value of such shares. Any
such purchase of Registrable Securities by the Company hereunder shall take
place at a closing to be held at the principal executive offices of the Company
or its counsel at any reasonable date and time designated by the Company and/or
such designee in such notice within 20 business days after delivery of such
notice. Any payment for the shares to be purchased shall be made by delivery at
the time of such closing of the Option Price in immediately available funds.
(b) If the Company does not elect to exercise its option to purchase
pursuant to Section 11(a) with respect to all Registrable Securities, it shall
use its best efforts to effect, as promptly as practicable, the registration
under the Securities Act of the unpurchased Registrable Securities; provided,
however, that (i) Parent shall not be entitled to more than an aggregate of two
effective registration statements hereunder and (ii) the Company will not be
required to file any such registration statement during any period of time (not
to exceed 40 days after such request in the case of clause (A) below or 90 days
in the case of clauses (B) and (C) below) when (A) the Company is in possession
of material non-public information which it reasonably believes would be
detrimental to be disclosed at such time and, in the written opinion of counsel
to the Company, such information would have to be disclosed if a registration
statement were filed at that time; (B) the Company is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) the Company determines, in its
reasonable judgment, that such registration would interfere with any financing,
acquisition or other material transaction involving the Company or any of its
affiliates. If consummation of the sale of any Registrable Securities pursuant
to a registration hereunder does not occur within 120 days after the filing with
the SEC of the initial registration statement, the provisions of this Section 11
shall again be applicable to any proposed registration; provided, however, that
Parent shall not be entitled to request more than two registrations pursuant to
this Section 11. The Company shall use its best efforts to cause any Registrable
Securities registered pursuant to this Section 11 to be qualified for sale under
the securities or Blue Sky laws of such jurisdictions as Parent may reasonably
request and shall continue such registration or qualification in effect in such
jurisdiction; provided, however, that the Company shall not be required to
qualify to do business in, or consent to general service of process in, any
jurisdiction by reason of this provision.
(c) The registration rights set forth in this Section 11 are subject to the
condition that Parent shall provide the Company with such information with
respect to Parent's Registrable Securities, the plans for the distribution
thereof, and such other information with respect to Parent as, in the reasonable
judgment of counsel for the Company, is necessary to enable the Company to
include in such registration statement all material facts required to be
disclosed with respect to a registration thereunder.
(d) If the Company's securities of the same type as the Registrable
Securities are then authorized for quotation or trading or listing on the New
York Stock Exchange, Nasdaq National Market System, or any other securities
exchange or automated quotations system, the Company, upon the request of
Parent, shall promptly file an application, if required, to authorize for
quotation, trading or listing the shares of Registrable Securities on such
exchange or system and will use its reasonable efforts to obtain approval, if
required, of such quotation, trading or listing as soon as practicable.
(e) A registration effected under this Section 11 shall be effected at the
Company's expense, except for underwriting discounts and commissions and the
fees and the expenses of counsel to Parent, and the Company shall provide to the
underwriters such documentation (including certificates, opinions of counsel and
"comfort" letters from auditors) as are customary in connection with
underwritten public offerings as such underwriters may reasonably require. In
connection with any
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such registration, the parties agree (i) to indemnify each other and the
underwriters in the customary manner and (ii) to enter into an underwriting
agreement in form and substance customary to transactions of this type with the
Manager and the other underwriters participating in such offering.
12. Adjustment Upon Changes in Capitalization. (a) In the event of any
change in Company Common Stock by reason of stock dividends, splitups, mergers
(other than the Merger), recapitalizations, combinations, exchange of shares or
the like, the type and number of shares or securities subject to the Company
Option, and the purchase price per share provided in Section 1, shall be
adjusted appropriately, and proper provision shall be made in the agreements
governing such transaction so that Parent shall receive, upon exercise of the
Company Option, the number and class of shares or other securities or property
that Parent would have received in respect of the Company Common Stock if the
Company Option had been exercised immediately prior to such event or the record
date therefor, as applicable.
(b) In the event that the Company shall enter in an agreement: (i) to
consolidate with or merge into any person, other than Parent or one of its
Subsidiaries, and shall not be the continuing or surviving corporation of such
consolidation or merger; (ii) to permit any person, other than Parent or one of
its Subsidiaries, to merge into the Company and the Company shall be the
continuing or surviving corporation, but, in connection with such merger, the
then-outstanding shares of Company Common Stock shall be changed into or
exchanged for stock or other securities of the Company or any other person or
cash or any other property or the outstanding shares of Company Common Stock
immediately prior to such merger shall after such merger represent less than 50%
of the outstanding shares and share equivalents of the merged company; or (iii)
to sell or otherwise transfer all or substantially all of its assets to any
person, other than Parent or one of its Subsidiaries, then, and in each such
case, the agreement governing such transaction shall make proper provisions so
that upon the consummation of any such transaction and upon the terms and
conditions set forth herein, Parent shall receive for each Company Share with
respect to which the Company Option has not been exercised an amount of
consideration in the form of and equal to the per share amount of consideration
that would be received by the holder of one share of Company Common Stock less
the Exercise Price (and, in the event of an election or similar arrangement with
respect to the type of consideration to be received by the holders of Company
Common Stock, subject to the foregoing, proper provision shall be made so that
the holder of the Company Option would have the same election or similar rights
as would the holder of the number of shares of Company Common Stock for which
the Company Option is then exercisable).
13. Restrictive Legends. Each certificate representing shares of Company
Common Stock issued to Parent hereunder shall include a legend in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH
REGISTRATION IS AVAILABLE. SUCH SECURITIES ARE ALSO SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCK OPTION AGREEMENT, DATED
AS OF SEPTEMBER 21, 1994, A COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER.
14. Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Except as expressly provided for in this Agreement,
neither this Agreement nor the rights or the obligations of either party hereto
are assignable, except by operation of law, or with the written consent of the
other party. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective permitted assigns any rights or remedies of any nature whatsoever by
reason of this Agreement. Any Restricted Shares sold by Parent in compliance
with the provisions of Section 11 shall, upon consummation of such sale, be free
of the restrictions imposed with respect to such shares by this Agreement,
unless and until Parent shall
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repurchase or otherwise become the beneficial owner of such shares, and any
transferee of such shares shall not be entitled to the rights of Parent.
Certificates representing shares sold in a registered public offering pursuant
to Section 11 shall not be required to bear the legend set forth in Section 13.
15. Specific Performance. The parties recognize and agree that if for any
reason any of the provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached, immediate and irreparable
harm or injury would be caused for which money damages would not be an adequate
remedy. Accordingly, each party agrees that, in addition to other remedies, the
other party shall be entitled to an injunction restraining any violation or
threatened violation of the provisions of this Agreement. In the event that any
action should be brought in equity to enforce the provisions of this Agreement,
neither party will allege, and each party hereby waives the defense, that there
is adequate remedy at law.
16. Entire Agreement. This Agreement and the Merger Agreement (including
the Disclosure Memorandum relating thereto) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
other prior agreements and understandings, both written and oral, among the
parties or any of them with respect to the subject matter hereof.
17. Further Assurances. Each party will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
18. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect. In
the event any court or other competent authority holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision. Each party agrees
that, should any court or other competent authority hold any provision of this
Agreement or part hereof to be null, void or unenforceable, or order any party
to take any action inconsistent herewith, or not take any action required
herein, the other party shall not be entitled to specific performance of such
provision or part hereof or to any other remedy, including but not limited to
money damages, for breach hereof or of any other provision of this Agreement or
part hereof as the result of such holding or order.
19. Notices. Any notice or communication required or permitted hereunder
shall be in writing and either delivered personally, telegraphed or telecopied
or sent by certified or registered mail, postage prepaid, and shall be deemed to
be given, dated and received when so delivered personally, telegraphed or
telecopied or, if mailed, five business days after the date of mailing to the
following address or telecopy number, or to such other address or addresses as
such person may subsequently designate by notice given hereunder.
(a) if to Parent, to:
Arrow Electronics, Inc.
25 Hub Drive
Melville, New York 11747
Attention: Robert E. Klatell
Telecopy: (516) 391-1683
Telephone: (516) 391-1830
C-8
<PAGE> 173
with a copy to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Attention: Howard S. Kelberg, Esq.
Telecopy: (212) 858-1500
Telephone: (212) 858-1000
and
(b) if to the Company, to:
Anthem Electronics, Inc.
1160 Ridder Park Drive
San Jose, California 95131
Attention: Robert S. Throop
Telecopy: (408) 441-4506
Telephone: (408) 452-2249
with a copy to:
Brobeck, Phleger & Harrison
Two Embarcadero Place
2200 Geng Road
Palo Alto, California 94303
Attention: Edward M. Leonard, Esq.
Telecopy: (415) 496-2885
Telephone: (415) 424-0160
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State without regard to any applicable
conflicts of law rules.
21. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
23. Expenses. Except as otherwise expressly provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
24. Amendments; Waiver. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
C-9
<PAGE> 174
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
ARROW ELECTRONICS, INC.
By: /s/ ROBERT E. KLATELL
------------------------------------
Robert E. Klatell
Senior Vice President and
Chief Financial Officer
ANTHEM ELECTRONICS, INC.
By: /s/ ROBERT S. THROOP
------------------------------------
Robert S. Throop
Chairman and Chief Executive Officer
C-10
<PAGE> 175
EXHIBIT D
PROPOSED AMENDMENT OF THE ARROW CERTIFICATE OF INCORPORATION
The Arrow Certificate of Incorporation is proposed to be amended to
increase the authorized number of common stock by deleting the first paragraph
of Article THIRD thereof in its entirety and by substituting in lieu therefor a
new first paragraph of Article THIRD, to read in its entirety as follows:
"THIRD: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is eighty-two million
(82,000,000) shares, consisting of:
(a) Two Million (2,000,000) shares of Preferred Stock having a par
value of $1 per share (hereinafter referred to as "Preferred Stock");
and
(b) Eighty Million (80,000,000) shares of Common Stock having a par
value of $1 per share (hereinafter referred to as "Common Stock")."
D-1
<PAGE> 176
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 9 of the Registrant's Restated Certificate of Incorporation permits
the indemnification of officers and directors under certain circumstances to the
full extent that such indemnification may be permitted by law.
Such rights of indemnification are in addition to, and not in limitation
of, any rights to indemnification to which any officer or director of the
Registrant is entitled under the Business Corporation Law of the State of New
York (Sections 721 through 726) which provides for indemnification by a
corporation of its officers and directors under certain circumstances as stated
in the Business Corporation Law and subject to specified limitations set forth
in the Business Corporation Law.
The Registrant also maintains directors' and officers liability insurance
coverage which insures directors and officers of the Registrant against certain
losses arising from claims made, and for which the Registrant has not provided
reimbursement, by reason of their being directors and officers of the Registrant
or its subsidiaries.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) See Exhibit Index.
(b) See the financial statement schedules included in the Annual Reports on
Form 10-K incorporated in the Joint Proxy Statement/Prospectus included in this
Registration Statement.
(c) The following supplemental consolidated financial statement schedules
are included in Part II of this Registration Statement:
(1) Schedule II -- Amounts Receivable From Employees
(2) Schedule VIII -- Valuation and Qualifying Accounts
(3) Schedule IX -- Short-Term Borrowings
ITEM 22. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-1
<PAGE> 177
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes as follows: that prior to
any public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this Registration Statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
(d) The undersigned Registrant undertakes that every prospectus (i) that is
filed pursuant to paragraph (c) immediately preceding, or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Securities Act and is used in
connection with an offering of securities subject to Rule 415, will be filed as
part of an amendment to the Registration Statement and will not be used until
such amendment is effective, and that, for purposes of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) Insofar as indemnification (other than insurance pursuant to Item 20
above) for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(f) The undersigned Registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Joint Proxy
Statement/Prospectus to Items 4, 10(b), 11 or 13 of this form, within one
business day of receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
Registration Statement through the date of responding to this request.
(g) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the Registration Statement when it became effective.
II-2
<PAGE> 178
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT HAS DULY
CAUSED THIS AMENDMENT NO. 1 TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF
BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF MELVILLE, STATE OF
NEW YORK, ON THIS 24TH DAY OF OCTOBER, 1994.
ARROW ELECTRONICS, INC.
By: /s/ ROBERT E. KLATELL
--------------------------------
ROBERT E. KLATELL
Senior Vice President and
Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
NO. 1 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------- -----------------
<C> <S> <C>
PRINCIPAL EXECUTIVE OFFICER:
*STEPHEN P. KAUFMAN Chairman and Chief October 24, 1994
- --------------------------------------------- Executive Officer
STEPHEN P. KAUFMAN
PRINCIPAL FINANCIAL OFFICER:
/s/ ROBERT E. KLATELL Senior Vice President October 24, 1994
- --------------------------------------------- Chief Financial
ROBERT E. KLATELL Officer
PRINCIPAL ACCOUNTING OFFICER:
*PAUL J. REILLY Controller October 24, 1994
- ---------------------------------------------
PAUL J. REILLY
DIRECTORS:
*DANIEL W. DUVAL Director October 24, 1994
- ---------------------------------------------
DANIEL W. DUVAL
*CARLO GIERSCH Director October 24, 1994
- ---------------------------------------------
CARLO GIERSCH
*J. SPENCER GOULD Director October 24, 1994
- ---------------------------------------------
J. SPENCER GOULD
</TABLE>
II-3
<PAGE> 179
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ---------------------- -----------------
<C> <S> <C>
*STEPHEN P. KAUFMAN Director October 24, 1994
- ---------------------------------------------
STEPHEN P. KAUFMAN
*LAWRENCE R. KEM Director October 24, 1994
- ---------------------------------------------
LAWRENCE R. KEM
/s/ ROBERT E. KLATELL Director October 24, 1994
- ---------------------------------------------
ROBERT E. KLATELL
*STEVEN W. MENEFEE Director October 24, 1994
- ---------------------------------------------
STEVEN W. MENEFEE
*KAREN GORDON MILLS Director October 24, 1994
- ---------------------------------------------
KAREN GORDON MILLS
*ANNE POL Director October 24, 1994
- ---------------------------------------------
ANNE POL
*RICHARD S. ROSENBLOOM Director October 24, 1994
- ---------------------------------------------
RICHARD S. ROSENBLOOM
*JOHN C. WADDELL Director October 24, 1994
- ---------------------------------------------
JOHN C. WADDELL
*By: /s/ ROBERT E. KLATELL
- ---------------------------------------------
ROBERT E. KLATELL
ATTORNEY-IN-FACT
</TABLE>
II-4
<PAGE> 180
ARROW ELECTRONICS, INC.
SCHEDULE II -- AMOUNTS RECEIVABLE FROM EMPLOYEES
FOR THE THREE YEARS ENDED DECEMBER 31, 1993
<TABLE>
<CAPTION>
DEDUCTIONS
--------------------
BALANCE AT AMOUNTS BALANCE
BEGINNING AMOUNTS WRITTEN AT END
OF YEAR ADDITIONS COLLECTED OFF OF YEAR
---------- --------- --------- -------- --------
<S> <C> <C> <C> <C> <C>
1993
John C. Waddell(1)...................... $ 120,000 $ -- $ -- $ -- $120,000
1992
John C. Waddell(1)...................... 120,000 -- -- -- 120,000
1991
John C. Waddell(1)...................... 120,000 -- -- -- 120,000
</TABLE>
- ---------------
(1) Demand note bearing interest at 12% per annum. The obligation was satisfied
in full in 1994.
S-1
<PAGE> 181
ARROW ELECTRONICS, INC.
SCHEDULE VIII -- VALUATION AND QUALIFYING ACCOUNTS
FOR THE THREE YEARS ENDED DECEMBER 31, 1993
<TABLE>
<CAPTION>
ADDITIONS
BALANCE AT -------------------------- BALANCE
BEGINNING CHARGED CHARGED AT END
OF YEAR TO INCOME TO OTHER WRITE-OFFS OF YEAR
---------- ----------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Allowance for
doubtful
accounts
1993.............. $9,666,000 $13,604,000 $3,060,000(1) $ 7,733,000 $18,597,000
========== =========== ========== =========== ===========
1992.............. $8,963,000 $14,296,000 $1,288,000(2) $14,881,000 $ 9,666,000
========== =========== ========== =========== ===========
1991.............. $6,789,000 $ 6,033,000 $5,589,000(3) $ 9,448,000 $ 8,963,000
========== =========== ========== =========== ===========
</TABLE>
- ---------------
(1) Represents the allowance for doubtful accounts of the electronics
distribution businesses acquired by the company in 1993 including Zeus
Components, Inc., Microprocessor & Memory Distribution Limited,
Amitron-Arrow S.A., ATD Electronica S.A., CCI Electronique S.A., and Spoerle
Electronic.
(2) Represents the allowance for doubtful accounts of the European electronics
distribution businesses acquired from Lex Service PLC in 1992.
(3) Represents the allowance for doubtful accounts of the North American
electronics distribution businesses acquired from Lex Service PLC in 1991.
S-2
<PAGE> 182
ARROW ELECTRONICS, INC.
SCHEDULE IX -- SHORT-TERM BORROWINGS
FOR THE THREE YEARS ENDED DECEMBER 31, 1993
<TABLE>
<CAPTION>
MAXIMUM
WEIGHTED AMOUNT WEIGHTED
AVERAGE OUTSTANDING AVERAGE AVERAGE
INTEREST AT ANY AMOUNT INTEREST
BALANCE AT RATE AT MONTH-END OUTSTANDING RATE
END OF END OF DURING DURING DURING
THE YEAR THE YEAR THE YEAR THE YEAR THE YEAR
----------- -------- ----------- ----------- --------
<S> <C> <C> <C> <C> <C>
Short-term borrowings
1993.............................. $35,769,000 6.61% $35,769,000 $19,666,000 7.82%
=========== ===== =========== =========== =====
1992.............................. $ -- -- $ 399,000 $ 114,000 8.23%
=========== ===== =========== =========== =====
1991.............................. $ 1,520,000 8.00% $ 1,790,000 $ 341,000 13.53%
=========== ===== =========== =========== ======
</TABLE>
Short-term borrowings represent obligations payable under short-term lines
of credit arrangements with various banks. Borrowings were arranged on an as
needed basis at either the bank's prime lending rate or LIBOR plus various
credit margins which vary from country to country in 1993, sterling LIBOR plus
2 1/4% in 1992, and sterling LIBOR plus 2% in 1991.
The average amount outstanding during the year was computed by averaging
the total month-end outstanding principal balances during the year. The weighted
average interest rate for each year was computed by dividing the interest
expense by the average amount outstanding.
S-3
<PAGE> 183
FORM S-4
ARROW ELECTRONICS, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------ ---------------------------------------------------------------------------- -----
<S> <C> <C>
2 -- Agreement and Plan of Merger dated as of September 21, 1994 by and among the
Registrant, MTA Acquisition Company and Anthem Electronics, Inc. (attached
as Exhibit A to the Joint Proxy Statement/Prospectus included in this
Registration Statement).....................................................
3(1) -- Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 4(1) to Registrant's Registration
Statement on Form S-3, Registration No. 33-67890)...........................
3(2) -- Certificate of Amendment of the Amended and Restated Certificate of
Incorporation of the Registrant dated as of August 24, 1993 (incorporated by
reference to Exhibit 4(2) to Registrant's Registration Statement on Form
S-3, Registration No. 33-67890).............................................
3(3) -- By-laws of the Registrant (incorporated by reference to Exhibit 3(b) to
Registrant's Annual Report on Form 10-K for the year ended December 31,
1986, File No. 1-4482)......................................................
4(1) -- Amended and Restated Credit Agreement dated as of January 28, 1994 among the
Registrant, Bankers Trust Company, Chemical Bank and the other banks and
financial institutions from time to time parties thereto (incorporated by
reference to Exhibit 10(e) to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1993, File No. 1-4482)..........................
4(2) -- Indenture, including Debenture, dated as of November 25, 1992, between the
Registrant and the Bank of Montreal Trust Company, as Trustee with respect
to the Registrant's 5% Convertible Subordinated Debentures due 2002
(incorporated by reference to Exhibit 4(a) to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1992, File No. 1-4482)............
4(3) -- Senior Note Purchase Agreement dated as of December 29, 1992 between the
Registrant and each of the Purchasers listed on Annex A thereto
(incorporated by reference to Exhibit 10(d) to Registrant's Annual Report on
Form 10-K for the year ended December 31, 1992, File No. 1-4482)............
4(4) -- Rights Agreement dated as of March 2, 1988 between the Registrant and
Chemical Bank (formerly Manufacturers Hanover Trust Company), as Rights
Agent, which includes as Exhibit A a Certificate of Amendment of the
Restated Certificate of Incorporation for the Registrant for the
Participating Preferred Stock, as Exhibit B a letter to shareholders
describing the Rights and a summary of the provisions of the Rights
Agreement and as Exhibit C the forms of Rights Certificate and Election to
Exercise (incorporated by reference to Exhibit 1 to Registrant's Current
Report on Form 8-K dated March 3, 1988, File No. 1-4482)....................
4(5) -- First Amendment, dated June 30, 1989, to the Rights Agreement in 4(4) above
(incorporated by reference to Exhibit 4(b) to Registrant's Current Report on
Form 8-K dated June 30, 1989, File No. 1-4482)..............................
4(6) -- Second Amendment, dated June 8, 1991, to the Rights Agreement in 4(4) above
(incorporated by reference to Exhibit 4(i)(iii) to Registrant's Annual
Report on Form 10-K for the year ended December 31, 1991, File No.
1-4482).....................................................................
</TABLE>
<PAGE> 184
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- ------ ---------------------------------------------------------------------------- -----
<S> <C> <C>
4(7) -- Third Amendment, dated July 19, 1991, to the Rights Agreement in 4(4) above
(incorporated by reference to Exhibit 4(i)(iv) to Registrant's Annual Report
on Form 10-K for the year ended December 31, 1991, File No. 1-4482).........
4(8) -- Fourth Amendment, dated August 26, 1991, to the Rights Agreement in 4(4)
above (incorporated by reference to Exhibit 4(i)(v) to Registrant's Annual
Report on Form 10-K for the year ended December 31, 1991,
File No. 1-4482)............................................................
5 -- Opinion of Winthrop, Stimson, Putnam & Roberts dated October 24, 1994,
containing the consent of such counsel......................................
8(1) -- Opinion of Winthrop, Stimson, Putnam & Roberts dated October 24, 1994,
containing the consent of such counsel......................................
8(2) -- Opinion of Brobeck, Phleger & Harrison dated October 24, 1994, containing
the consent of such counsel.................................................
21 -- Subsidiaries of the Registrant (incorporated by reference to Exhibit 22 to
Registrant's Annual Report on Form 10-K for the year ended December 31,
1993, File No. 1-4482)......................................................
23(1) -- Consent of Ernst & Young LLP................................................
23(2) -- Consent of Price Waterhouse LLP.*...........................................
23(3) -- Consent of Winthrop, Stimson, Putnam & Roberts (see Exhibit 5 and Exhibit
8(1) above).................................................................
23(4) -- Consent of Brobeck, Phleger & Harrison (see Exhibit 8(2) above).............
23(5) -- Consent of Morgan Stanley & Co. Incorporated................................
23(6) -- Consent of Lehman Brothers Inc..............................................
24 -- Power of Attorney (see page II-3)*..........................................
27 -- Financial Data Schedule*....................................................
99(1) -- Stock Option Agreement dated as of September 21, 1994 between the Registrant
and Anthem Electronics, Inc. (attached as Exhibit C to the Joint Proxy
Statement/Prospectus included in this Registration Statement)...............
99(2) -- Irrevocable Proxies dated September 21, 1994, granted by each of Robert S.
Throop, John J. Powers, Alan R. McMillan, Neil J. Hynes, Robert G. Teal and
Peyton L. Gannaway to the Registrant.*......................................
99(3) -- Form of Proxy for the Special Meeting of Shareholders of Arrow
Electronics, Inc............................................................
99(4) -- Form of Proxy for the Special Meeting of Stockholders of
Anthem Electronics, Inc. ...................................................
</TABLE>
- ---------------
* Previously filed
<PAGE> 1
EXHIBIT 5
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NY 10004-1490
TELEPHONE: 212-858-1000
TELEFAX: 212-858-1500
TELEX: 62854 WINSTIM
October 24, 1994
Arrow Electronics, Inc.
25 Hub Drive
Melville, NY 11747
Gentlemen:
We have acted as counsel to Arrow Electronics, Inc., a New York corporation
(the "Company"), in connection with the Registration Statement on Form S-4 of
the Company, filed with the Securities and Exchange Commission (the
"Commission") on September 28, 1994 (the "Registration Statement"), relating to
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of (i) 12,056,337 shares (the "Shares") of the common stock, $1.00 par
value per share, of the Company and (ii) the associated rights to purchase
Participating Preferred Stock of the Company (the "Rights"), to be issued
pursuant to a Rights Agreement, dated as of March 2, 1988, as amended, between
the Company and Chemical Bank (formerly Manufacturers Hanover Trust Company), as
Rights Agent (the "Rights Agreement").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K promulgated under the Securities Act.
In connection with this opinion, we have examined originals, certified
copies or copies otherwise identified to our satisfaction, of the following: (i)
the Registration Statement; (ii) the Amended and Restated Certificate of
Incorporation, as amended, and By-laws of the Company, as currently in effect;
(iii) certain resolutions of the Board of Directors of the Company relating to
the issuance of the Shares and the other transactions contemplated by the
Registration Statement; (iv) the Rights Agreement; and (v) such other documents
and such questions of law as we have deemed necessary or appropriate as a basis
for the opinions set forth below. In our examination, we have assumed the
genuineness of all signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies. As to any facts
material to this opinion that we did not independently establish or verify, we
have relied upon statements and representations of officers and other
representatives of the Company and others.
Based upon the foregoing, we are of the opinion that:
(1) the Shares, if and when issued in exchange for shares of common stock
of Anthem Electronics, Inc. ("Anthem") pursuant to the terms of the Agreement
and Plan of Merger, dated as of September 21, 1994, by and among the Company,
MTA Acquisition Company and Anthem, will be validly issued, fully paid and
nonassessable; and
(2) the Rights associated with the Shares have been duly authorized, and
such Rights, when issued in accordance with said authorization, will be validly
issued, and will constitute valid and legally binding obligations of the
Company.
<PAGE> 2
We hereby consent to the filing of this opinion with the Commission as an
exhibit to the Registration Statement, as it may be amended, and to the
reference to our firm under the heading "Legal Opinion" in the Joint Proxy
Statement/Prospectus constituting a part of the Registration Statement. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
2
<PAGE> 1
EXHIBIT 8(1)
WINTHROP, STIMSON, PUTNAM & ROBERTS
ONE BATTERY PARK PLAZA
NEW YORK, NY 10004-1490
TELEPHONE: 212-858-1000
TELEFAX: 212-858-1500
TELEX: 62854 WINSTIM
October 24, 1994
Arrow Electronics, Inc.
MTA Acquisition Company
25 Hub Drive
Melville, New York 11747
Gentlemen:
You have requested our opinion as to the federal income tax consequences to
Arrow Electronics, Inc., a New York corporation ("Parent"), Anthem Electronics,
Inc., a Delaware corporation (the "Company"), and the shareholders of the
Company, resulting from the consummation of the merger (the "Merger") of MTA
Acquisition Company, a Delaware corporation and a wholly-owned subsidiary of
Parent ("Sub"), with and into the Company pursuant to the Agreement and Plan of
Merger, dated as of September 21, 1994, by and among Parent, Sub and the Company
(the "Merger Agreement"). As counsel to Parent, we have assisted in the
preparation of the Proxy Statement to be used in connection with the Merger,
including the description of certain federal income tax consequences resulting
therefrom contained therein under the headings "Certain Federal Income Tax
Consequences."
Except as otherwise provided, capitalized terms not defined herein have the
meanings set forth in the Merger Agreement or in the certificates dated October
24, 1994, which have been delivered to us by Parent, Sub and the Company for
purposes of this opinion and which contain certain representations of Parent,
Sub and the Company (the "Officer's Certificates"). All section references,
unless otherwise indicated, are to the Internal Revenue Code of 1986, as amended
(the "Code").
Pursuant to the Merger Agreement, (i) the separate existence of Sub shall
cease, Sub shall be merged with and into the Company and the Company will become
a wholly-owned subsidiary of Parent, (ii) each issued and outstanding share of
the capital stock of Sub shall be converted into and become one fully paid and
nonassessable share of Company Common Stock, (iii) each share of Company Common
Stock owned by the Company as treasury stock and any shares of Company Common
Stock owned by Parent, Sub or any wholly-owned subsidiary of the Company or
Parent shall be canceled and retired and shall cease to exist and no stock of
Parent or other consideration shall be delivered as consideration in exchange
therefor, (iv) all shares of Parent Common Stock, if any, owned by the Company
shall be unaffected by the Merger, (v) subject to Section 2.2(e) of the Merger
Agreement, each issued and outstanding share of Company Common Stock (other than
shares to be canceled as described above) shall be converted into the right to
receive .875 shares of Parent Common Stock or such other number of shares of
Parent Common Stock as is properly determined under Section 2.1(c) of the Merger
Agreement, (vi) each share of Parent Common Stock issued pursuant to the Merger
shall entitle the holder thereof to the corresponding number of rights to
purchase shares of Participating Preferred Stock of Parent pursuant to the
Rights Agreement dated as of March 2, 1988, as amended, between Parent and
Chemical Bank (formerly Manufacturers Hanover Trust Company), as Rights Agent,
and (vii) pursuant to Section 2.2(e) of
<PAGE> 2
the Merger Agreement, the stockholders of the Company shall receive cash in lieu
of fractional interests in Parent Common Stock to which they would otherwise be
entitled.
The description referred to in the first paragraph hereof, and our opinion
as stated herein, are based upon and subject to (i) the Merger's being effected
in the manner described in the Proxy Statement and in accordance with the
provisions of the Merger Agreement, (ii) the accuracy of the representations
made to us by Parent, Sub and the Company in their respective Officer's
Certificates, which representations shall, by the terms of such Officer's
Certificates, be true and correct at all times through the Effective Time of the
Merger except to the extent that we have received written notification to the
contrary from the appropriate officer, (iii) the accuracy and completeness of
the statements concerning the Merger set forth in the Proxy Statement, including
the purposes of the Company for consummating the Merger, and (iv) the accuracy
of the statements concerning the Merger that have come to our attention during
our engagement.
Based on our examination of the foregoing items and subject to the
limitations set forth herein, we are of the opinion that for federal income tax
purposes:
(i) the Merger will constitute a reorganization within the meaning of
Section 368(a) of the Code, and Parent, Sub and the Company will each be a party
to the reorganization within the meaning of Section 368(b) of the Code;
(ii) no gain or loss will be recognized by Parent, Sub or the Company in
the Merger;
(iii) no gain or loss will be recognized by the stockholders of the Company
upon their receipt of Parent Common Stock in exchange for their Company Common
Stock, except that stockholders who receive cash in lieu of fractional interests
in Parent Common Stock will recognize gain or loss equal to the difference
between such cash proceeds and the tax basis allocated to their fractional share
interests, and such gain or loss will constitute capital gain or loss if their
Company Common Stock is held as a capital asset at the Effective Time;
(iv) the tax basis of the shares of Parent Common Stock (including
fractional share interests) received by the stockholders of the Company will be
the same as the tax basis of their Company Common Stock exchanged therefor; and
(v) the holding period of Parent Common Stock in the hands of the Company
stockholders will include the holding period of their Company Common Stock
exchanged therefor, provided such Company Common Stock is held as a capital
asset at the Effective Time.
This opinion does not address state, local or foreign tax consequences that
may result from the Merger. In addition, no opinion is expressed as to any
federal income tax consequence of the Merger except as specifically set forth
herein and this opinion may not be relied upon except with respect to the
consequences specifically discussed herein.
This opinion has been delivered to you in accordance with Section 6.2(b) of
the Merger Agreement. We hereby consent to (i) the filing of this opinion with
the SEC as an exhibit to the S-4 and (ii) the reference to our firm under the
headings "Certain Federal Income Tax Consequences" in the Proxy Statement that
constitutes part of the S-4. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7
of the Securities Act.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
<PAGE> 1
EXHIBIT 8(2)
BROBECK, PHLEGER & HARRISON
TWO EMBARCADERO PLACE
2200 GENG RD
PALO ALTO, CA 94303-0913
TELEPHONE: (415) 424-0160
FACSIMILE: (415) 496-2885
October 24, 1994
Anthem Electronics, Inc.
1160 Ridder Park Drive
San Jose, CA 95131
Gentlemen:
You have requested our opinion as to certain of the federal income tax
consequences to Arrow Electronics, Inc., a New York corporation ("Parent"),
Anthem Electronics, Inc., a Delaware corporation (the "Company"), and the
shareholders of the Company, resulting from the consummation of the merger (the
"Merger") of MTA Acquisition Company, a Delaware corporation and a wholly-owned
subsidiary of Parent ("Sub"), with and into the Company pursuant to the
Agreement and Plan of Merger, dated as of September 21, 1994, by and among
Parent, Sub and the Company (the "Merger Agreement"). Except as otherwise
provided, capitalized terms not defined herein have the meanings set forth in
the Merger Agreement or in the certificates dated October 24, 1994, which have
been delivered to us by Parent, Sub and the Company for purposes of this opinion
and which contain certain representations of Parent, Sub and the Company (the
"Officer's Certificates"). All section references, unless otherwise indicated,
are to the Internal Revenue Code of 1986, as amended (the "Code").
We have acted as legal counsel to the Company in connection with the Merger
and have assisted in the preparation of the Proxy Statement to be used in
connection with the Merger, including the description of certain federal income
tax consequences resulting therefrom contained therein under the headings
"Certain Federal Income Tax Consequences". As such, and for the purpose of
rendering this opinion, we have examined (or will examine on or prior to the
Effective Time of the Merger) and are relying (or will rely) upon (without any
independent investigation or review thereof) the truth and accuracy, at all
relevant times, of the statements, covenants, representations and warranties
contained in the following documents:
1. The Merger Agreement and the Proxy Statement and such other statements
concerning the Merger that have come to our attention during our engagement;
2. Representations made to us by Parent and Sub in the Officer's
Certificate reproduced as Exhibit A hereto, which representations shall, by the
terms of such Officer's Certificate, be true and correct at all times through
the Effective Time of the Merger except to the extent that we have received
written notification to the contrary from the appropriate officer;
3. Representations made to us by the Company in the Officer's Certificate
reproduced as Exhibit B hereto, which representations shall, by the terms of
such Officer's Certificate, be true and correct at all times through the
Effective Time of the Merger except to the extent that we have received written
notification to the contrary from the appropriate officer;
4. Representations made by certain affiliates of the Company in written
agreements delivered to Parent pursuant to Section 5.6 of the Agreement;
<PAGE> 2
5. An opinion of counsel, received by Parent from Winthrop, Stimson,
Putnam & Roberts, substantially identical in substance to this opinion (the
"WSP&R Tax Opinion"); and
6. Such other instruments and documents related to the formation,
organization and operation of Parent, the Company and Sub or to the consummation
of the Merger and the transactions contemplated thereby as we have deemed
necessary or appropriate.
In connection with rendering this opinion, we have assumed or obtained
representations (and we are relying thereon, without any independent
investigation or review thereof) that:
1. Original documents (including signatures) are authentic, documents
submitted to us as copies conform to the original documents, and there has been
(or will be by the Effective Time of the Merger) due execution and delivery of
all documents where due execution and delivery are prerequisites to
effectiveness thereof;
2. The Merger will be effective under the laws of the State of Delaware
and will be effected in the manner described in the Proxy Statement and in
accordance with the provisions of the Merger Agreement;
3. The shareholders of the Company do not, and will not on or before the
Effective Time of the Merger, have an existing plan or intent to dispose of an
amount of Parent Common Stock to be received in the Merger (or to dispose of
capital stock of the Company in anticipation of the Merger) such that the
shareholders of the Company will not receive and retain a meaningful continuing
equity ownership in Parent that is sufficient to satisfy the continuity of
interest requirement as specified in Treas. Reg. sec.1.368-1(b) and as
interpreted in certain Internal Revenue Service rulings and federal judicial
decisions;
4. After the Merger, the Company will hold "substantially all" of its and
Sub's properties within the meaning of Section 368(a)(2)(E)(i) of the Code and
the regulations promulgated thereunder;
5. To the extent any expenses relating to the Merger (or the "plan of
reorganization" within the meaning of Treas. Reg. sec.1.368-1(c) with respect to
the Merger) are funded directly or indirectly by a party other than the
incurring party, such expenses will be within the guidelines established in
Revenue Ruling 73-54, 1973-1 C.B. 187; any expenses paid on behalf of
shareholders of the Company will not exceed one percent (1%) of the total
consideration that will be issued in the Merger to shareholders of the Company
in exchange for their shares of stock of the Company;
6. No shareholder of the Company guaranteed any indebtedness of the Company
outstanding during the period immediately prior to the Merger, and at all
relevant times, including as of the Effective Time of the Merger, and at all
relevant times, including as of the Effective Time of the Merger, (i) no
outstanding indebtedness of the Company, Parent or Sub has represented or will
represent equity for tax purposes; and (ii) no outstanding equity of the
Company, Parent or Sub has represented or will represent indebtedness for tax
purposes;
7. The WSP&R Tax Opinion has been concurrently delivered and not withdrawn.
Pursuant to the Merger Agreement, (i) the separate existence of Sub shall
cease, Sub shall be merged with and into the Company and the Company will become
a wholly-owned subsidiary of Parent, (ii) each issued and outstanding share of
the capital stock of Sub shall be converted into and become one fully paid and
nonassessable share of Company Common Stock, (iii) each share of Company Common
Stock owned by the Company as treasury stock and any shares of Company Common
Stock owned by Parent, Sub or wholly-owned subsidiary of the Company or Parent
shall be canceled and retired and shall cease to exist and no stock of Parent or
other consideration shall be delivered as consideration in exchange therefor,
(iv) all shares of Parent Common Stock, if any, owned by the Company shall be
unaffected by the Merger, (v) subject to Section 2.2(e) of the Merger Agreement,
each issued and outstanding share of Company Common Stock (other than shares to
be canceled as described above) shall be converted into the right to receive
0.875 shares of Parent Common Stock or such other number of shares of Parent
Common Stock as is properly
<PAGE> 3
determined under Section 2.1(c) of the Merger Agreement, (vi) each share of
Parent Common Stock issued pursuant to the Merger shall entitle the holder
thereof to the corresponding number of rights (the "Parent Rights") to purchase
shares of Participating Preferred Stock of Parent pursuant to the Rights
Agreement dated as of March 2, 1988, as amended, between parent and Chemical
Bank (formerly Manufacturers Hanover Trust Company), as Rights Agent, and (vii)
pursuant to Section 2.2(e) of the Merger Agreement, the stockholders of the
Company shall receive cash in lieu of fractional interests in Parent Common
Stock to which they would otherwise be entitled.
Based on our examination of the foregoing items and subject to the
assumptions, exceptions, limitations and qualifications set forth herein, we are
of the opinion that, for federal income tax purposes:
(i) the Merger will constitute a reorganization within the meaning of
Section 368(a) of the Code, and Parent, Sub and the Company will each be a
party to the reorganization within the meaning of Section 368(b) of the
Code;
(ii) no gain or loss will be recognized by Parent, Sub or the Company
in the Merger;
(iii) no gain or loss will be recognized by the stockholders of the
Company upon their receipt of Parent Common Stock in exchange for their
Company Common Stock, except that stockholders who receive cash in lieu of
fractional interests in Parent Common Stock will recognize gain or loss
equal to the difference between such cash proceeds and the tax basis
allocated to their fractional share interests, and such gain or loss will
constitute capital gain or loss if their Company Common Stock is held as a
capital asset at the Effective Time;
(iv) the tax basis of the shares of Parent Common Stock (including
fractional share interests) received by the stockholders of the Company
will be the same as the tax basis of their Company Common Stock exchanged
therefor; and
(v) the holding period of Parent Common Stock in the hands of the
Company stockholders will include the holding period of their Company
Common Stock exchanged therefor, provided such Company Common Stock is held
as a capital asset at the Effective Time.
In addition to the assumptions set forth above, this opinion is subject to
the exceptions, limitations and qualifications set forth below.
1. This opinion represents and is based upon our best judgment regarding
the application of federal income tax laws arising under the Code, existing
judicial decisions, administrative regulations and published rulings and
procedures. Our opinion is not binding upon the Internal Revenue Service or the
courts, and there is no assurance that the Internal Revenue Service will not
successfully assert a contrary position. Furthermore, no assurance can be given
that future legislative, judicial or administrative changes, on either a
prospective or retroactive basis, would not adversely affect the accuracy of the
conclusions stated herein. Nevertheless, we undertake no responsibility to
advise you of any new developments in the application or interpretation of the
federal income tax laws.
2. This opinion does not address state, local or foreign tax consequences
that may result from the Merger. In addition, no opinion is expressed as to any
federal income tax consequence of the Merger except as specifically set forth
herein and this opinion may not be relied upon except with respect to the
consequences specifically discussed herein.
3. This opinion addresses only the classification of the Merger as a
reorganization under Section 368(a) of the Code, and does not address any other
federal, state, local or foreign tax consequences that may result from the
Merger or any other transaction (including any transaction undertaken in
connection with the Merger). In particular, we express no opinion regarding (i)
whether and the extent to which any stockholder of the Company who has provided
or will provide services to the Company, Parent or Sub will have compensation
income under any provision of the Code; (ii) the effects of such compensation
income, including but not limited to the effect
<PAGE> 4
upon the basis and holding period of the Parent stock received by any such
shareholder in the Merger; (iii) the potential application of the "golden
parachute" provisions (Sections 280G, 3121(v)(2) and 4999) of the Code, the
alternative minimum tax provisions (Sections 55, 56 and 57) of the Code or
Sections 305, 306, 357, 424, and 708, or the regulations promulgated thereunder;
(iv) certain corporate level tax consequences of the Merger to Parent, Sub or
the Company, including without limitation the survival and/or availability,
after the Merger, of any of the federal income tax attributes or elections of
the Company, after application of any provision of the Code, as well as the
regulations promulgated thereunder and judicial interpretations thereof; (v) the
basis of any equity interest in the Company acquired by Parent in the Merger;
(vi) the tax consequences of any transaction in which Company stock or a right
to acquire Company stock was received; and (vii) the tax consequences of the
Merger (including the opinion set forth above) as applied to particular
stockholders of the Company and/or holders of options or warrants for the
Company stock or that may be relevant to particular classes of the Company
stockholders and/or holders of options or warrants for the Company stock such as
dealers in securities, corporate stockholders subject to the alternative minimum
tax, foreign persons, and holders of shares acquired upon exercise of stock
options or in other compensatory transactions.
4. No opinion is expressed as to any transaction other than the Merger as
described in the Merger Agreement or to any transaction whatsoever, including
the Merger, if all the transactions described in the Merger Agreement are not
consummated in accordance with the terms of such Merger Agreement and without
waiver or breach of any material provision thereof or if all of the
representations, warranties, statements and assumptions upon which we relied are
not true and accurate at all relevant times. In the event any one of the
statements, representations, warranties or assumptions upon which we have relied
to issue this opinion is incorrect, our opinion might be adversely affected and
may not be relied upon.
5. This opinion has been delivered to you in accordance with Section 6.2(b)
of the Merger Agreement. We hereby consent to (i) the filing of this opinion
with the SEC as an exhibit to the S-4 and (ii) the reference to our firm under
the headings "Certain Federal Income Tax Consequences" in the Proxy Statement
that constitutes part of the S-4. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Securities Act.
Very truly yours,
BROBECK, PHLEGER & HARRISON
<PAGE> 1
EXHIBIT 23(1)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-4) and related Prospectus
of Arrow Electronics, Inc. ("Arrow") dated October 24, 1994 and to:
(a) the incorporation by reference therein of our report dated
February 24, 1994, with respect to the consolidated financial statements
and schedules of Arrow included in its Annual Report (Form 10-K) for the
year ended December 31, 1993 filed with the Securities and Exchange
Commission; and
(b) the inclusion of our report dated September 23, 1994, with respect
to the supplemental consolidated financial statements and schedules of
Arrow at December 31, 1993 and 1992 and for each of the three years in the
period ended December 31, 1993 (which give effect to the August 29, 1994
merger of Arrow and Gates/FA Distributing, Inc. which was accounted for as
a pooling of interests, such supplemental consolidated financial statements
will become the historical financial statements of Arrow once financial
statements covering the consummation date of the Gates/FA Distributing,
Inc. business combination are issued) appearing elsewhere in this Joint
Proxy Statement/Prospectus and Registration Statement.
ERNST & YOUNG LLP
New York, New York
October 21, 1994
<PAGE> 1
EXHIBIT 23(5)
MORGAN STANLEY
MORGAN STANLEY & CO.
INCORPORATED
1251 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10020
(212) 703-4000
CONSENT OF MORGAN STANLEY & CO. INCORPORATED
October 24, 1994
To: Board of Directors
Arrow Electronics, Inc.
25 Hub Drive
Melville, NY 11747
Members of the Board:
Morgan Stanley & Co. Incorporated hereby consents to the filing of the
opinion letter dated October 24, 1994, as an exhibit to the Registration
Statement on S-4 of Arrow Electronics, Inc., to the inclusion thereof in the
Joint Proxy Statement/Prospectus forming a part of such Registration Statement,
and to the use of our name and the references therein to such opinion letter. In
giving our consent, we do not admit that we are of the category of persons from
whom such a consent is required under Section 7 of the Securities Act of 1933 or
the rules and regulations adopted by the Securities and Exchange Commission
thereunder nor do we admit that we are experts with respect to any part of such
Registration Statement within the meaning of the term "experts" as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
Morgan Stanley & Co. Incorporated
By: /s/ DHIREN H. SHAH
Dhiren H. Shah
Principal
<PAGE> 1
LEHMAN BROTHERS
EXHIBIT 23(6)
CONSENT OF LEHMAN BROTHERS
We hereby consent to the inclusion in the Joint Proxy Statement/Prospectus
forming part of this Registration Statement on Form S-4 of our opinion dated on
October 24, 1994 (and confirmed as of the date of the Joint Proxy
Statement/Prospectus) to the Board of Directors of Anthem Electronics, Inc.
attached as Exhibit B-2 to such Joint Proxy Statement/Prospectus and the
references to such opinion therein. In giving such consent, we do not admit that
we come within the category of persons whose consent is required under Section 7
of the Securities Act of 1933 and the rules and regulations issued thereunder,
and we do not thereby admit that we are experts with respect to any part of the
Registration Statement within the meaning of the term "expert" as used in the
Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission promulgated thereunder.
LEHMAN BROTHERS
By: /s/ J. STUART FRANCIS
------------------------------------
J. Stuart Francis
<PAGE> 1
Exhibit 99(3)
ARROW ELECTRONICS, INC.
This Proxy is Solicited by the Board of Directors.
Proxy for Special Meeting of Shareholders, November 23, 1994
The undersigned hereby appoints Stephen P. Kaufman, Robert E. Klatell,
and John C. Waddell, and any one or more of them, with full power of
substitution, as proxy or proxies of the undersigned to vote all shares of
stock of ARROW ELECTRONICS, INC. which the undersigned would be entitled to
vote if personally present at the Special Meeting of Shareholders to be held on
November 23, 1994 at 11:00 A.M., New York City time, at the executive offices
of the corporation, 25 Hub Drive, Melville, New York, or any adjournments
thereof, as set forth on the reverse hereof:
Please Return This Proxy Promptly in the Enclosed Envelope
-------------- /X/ Please mark your vote as this
Common
Management recommends a vote FOR
1. Authority to vote FOR the approval and adoption of an Agreement and
Plan of Merger, which provides for the merger of a wholly owned
subsidiary of Arrow with and into Anthem Electronics, Inc. ("Anthem"),
the issuance of shares of Arrow common stock to the holders of the
outstanding shares of Anthem common stock, and the assumption of the stock
options outstanding under the Anthem stock option plans, all on the terms
and subject to the conditions set forth in such Agreement.
FOR AGAINST ABSTAIN
/ / / / / /
2. Authority to vote FOR the adoption of a proposed amendment to the Arrow
Electronics, Inc. Stock Option Plan to increase the number
of shares of common stock subject thereto from
4,500,000 to 6,000,000.
FOR AGAINST ABSTAIN
/ / / / / /
3. Authority to vote FOR the adoption of a proposed amendment to the Arrow
Electronics, Inc. Restricted Stock Plan to increase the number of shares
of common stock subject thereto from 1,330,000 to 1,480,000.
FOR AGAINST ABSTAIN
/ / / / / /
4. Authority to vote FOR the adoption of a proposed amendment to the
Certificate of Incorporation of Arrow Electronics, Inc. to
increase the number of authorized shares of common stock
from 60,000,000 to 80,000,000.
FOR AGAINST ABSTAIN
/ / / / / /
5. In accordance with their discretion upon such other matters as may properly
come before the meeting or any adjournments thereof.
This proxy is being solicited by the management and will be voted as
specified. If not otherwise specified, it will be voted for the
proposals described in items 1, 2, 3, and 4 above.
Dated:
----------------------------------------------------------, 1994
Signature of Shareholder(s)
------------------------------------------------------------------------
Signature of Shareholder(s)
------------------------------------------------------------------------
Please sign exactly as name appears to the left. When signing as
attorney, administrator, executor, guardian or trustee, please add your
full title as such. If shares are registered to the names of joint
tenants or trustees, each joint tenant or trustee should sign.
<PAGE> 1
Exhibit 99(4)
ANTHEM ELECTRONICS, INC.
This Proxy is Solicited by the Board of Directors.
Proxy for Special Meeting of Stockholders, November 22, 1994
The undersigned hereby appoints Robert S. Throop and Wayne B. Snyder, and any
one of them, with full power of substitution, as proxy or proxies of the
undersigned to vote all shares of stock of ANTHEM ELECTRONICS, INC. which the
undersigned would be entitled to vote if personally present at the Special
Meeting of Stockholders to be held on November 22, 1994 at 10:30 A.M., local
time, at the executive offices of the corporation, 1160 Ridder Park Drive, San
Jose, California, or any adjournments thereof, as set forth on the reverse
hereof:
Please Return This Proxy Promptly in the Enclosed Envelope
Management recommends a vote FOR
1. Authority to vote FOR the approval and adoption of an Agreement and
Plan of Merger, which provides for the merger of a wholly owned
subsidiary of Arrow Electronics, Inc. with and into Anthem, all on the
terms and subject to the conditions set forth in such Agreement.
FOR / / AGAINST / / ABSTAIN / /
2. In accordance with their discretion upon such other matters as may
properly come before the meeting or any adjournments thereof.
Please mark your / X /
votes as this
This proxy is being solicited by the management and
will be voted as specified. If not otherwise specified,
it will be voted for the proposal described in item 1
above.
Dated: , 1994
---------------------------------------------
---------------------------------------------------------
Signature of Stockholder(s)
---------------------------------------------------------
Signature of Stockholder(s)
Please sign exactly as name appears to the left. When signing as attorney,
administrator, executor, guardian or trustee, please add your full title as
such. If shares are registered in the names of joint tenants or trustees, each
joint tentant or trustee should sign.
