<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO
SECTION 14(D)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
AND
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
-------------------
EDMARK CORPORATION
(Name of Subject Company)
INDIGO ACQUISITION CORP.
INTERNATIONAL BUSINESS MACHINES CORPORATION
(Bidders)
------------------------
COMMON STOCK, NO PAR VALUE
(including the associated rights to purchase Common Stock)
(Title of Class of Securities)
------------------------
281094 20 1
(CUSIP Number of Class of Securities)
------------------------
LAWRENCE R. RICCIARDI, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
INTERNATIONAL BUSINESS MACHINES CORPORATION
OLD ORCHARD ROAD
ARMONK, NEW YORK 10504
(914) 765-1900
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
------------------------
COPY TO:
ALLEN FINKELSON, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
825 EIGHTH AVENUE
NEW YORK, NEW YORK 10019
(212) 474-1000
-------------------
NOVEMBER 12, 1996
(Date of Event Which Requires Filing Statement on Schedule 13D)
------------------------------
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE
<S> <C>
$122,143,426 $24,429
</TABLE>
* For purposes of calculating amount of filing fee only. The amount assumes
the purchase of 7,880,221 shares of Common Stock, no par value, together
with the associated rights to purchase Common Stock. Such number of shares
represents all the shares outstanding as of November 10, 1996, plus the
number of shares issuable upon the exercise of all options.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
<TABLE>
<S> <C> <C> <C>
Filing
Amount Previously Paid: N/A Party: N/A
Form or Registration
No.: N/A Date Filed: N/A
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Page 1 of 8 pages
Exhibit Index on page 8
<PAGE>
14D-1 and 13D
CUSIP No. 281094 20 1 Page 2 of 8 Pages
<TABLE>
<C> <S>
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
INDIGO ACQUISITION CORP. (13-3916731)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(e) or 2(f) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
WASHINGTON
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,099,946
8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
APPROXIMATELY 26.6% OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS AS OF
NOVEMBER 10, 1996*
10 TYPE OF REPORTING PERSON
CO
</TABLE>
* See footnote on following page.
Page 2 of 8 Pages
Exhibit Index on Page 8
<PAGE>
14D-1 AND 13D
CUSIP NO. 281094 20 1 PAGE 3 OF 8 PAGES
<TABLE>
<C> <S>
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
INTERNATIONAL BUSINESS MACHINES CORPORATION (13-0871985)
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(e) or 2(f)
/ /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,099,946
8 CHECK IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN SHARES
/ /
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
APPROXIMATELY 26.6% OF THE SHARES OUTSTANDING ON A FULLY DILUTED BASIS AS OF
NOVEMBER 10, 1996*
10 TYPE OF REPORTING PERSON
CO
</TABLE>
* On November 12, 1996, International Business Machines Corporation ("IBM") and
Indigo Acquisition Corp. (the "Purchaser") entered into a Shareholder
Agreement (the "Shareholder Agreement") with all of the directors and
executive officers of Edmark Corporation, a Washington corporation (the
"Company"), and certain other persons (collectively, the "Selling
Shareholders"), pursuant to which the Selling Shareholders have
unconditionally agreed to tender into the Offer (as hereinafter defined), and
not to withdraw therefrom, the shares of Common Stock, no par value (the
"Shares"), of the Company that they collectively owned on November 12, 1996,
as well as any Shares that they thereafter acquire, including upon the
exercise of stock options. In addition, the Selling Shareholders have agreed
to sell to the Purchaser, and the Purchaser has agreed to purchase, all the
Selling Shareholders' Shares (including those acquired after the execution of
the Shareholder Agreement) at a price per share of $15.50, or such higher
price per Share as may be offered by the Purchaser in the Offer, subject to
certain conditions. Under the Shareholder Agreement, each Selling Shareholder
has granted an irrevocable proxy for the benefit of the Purchaser with respect
to the Shares subject to the Shareholder Agreement to vote such Shares under
certain circumstances. The Purchaser's right to purchase and vote the Shares
subject to the Shareholder Agreement is reflected in Rows 7 and 9 of each of
the tables above, which information takes into account all stock options owned
by the Selling Shareholders on November 12, 1996. A copy of the Shareholder
Agreement is attached hereto as Exhibit (c)(2), and the Shareholder Agreement
is described more fully in Section 12 of the Offer to Purchase dated November
18, 1996 (the "Offer to Purchase") attached hereto as Exhibit (a)(1). Unless
the context otherwise requires, all references to Shares include the
associated rights (the "Rights") to purchase Shares issued pursuant to the
Shareholder Rights Agreement dated as of November 29, 1995 between the Company
and ChaseMellon Shareholder Services, L.L.C. (as successor to First Interstate
Bank of Washington, N.A.), as rights agent.
Page 3 of 8 Pages
Exhibit Index on Page 8
<PAGE>
This Tender Offer Statement on Schedule 14D-1 also constitutes a Statement
on Schedule 13D with respect to the acquisition by the Purchaser and IBM of
beneficial ownership of the Shares subject to the Shareholder Agreement. The
cover page above and item numbers and responses thereto below are in accordance
with the requirements of Schedule 14D-1.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Edmark Corporation, a Washington
corporation, which has its principal executive offices at 6727 185th Avenue
N.E., Redmond, Washington 98052.
(b) This Schedule 14D-1 relates to the offer by the Purchaser to purchase
all outstanding Shares (which includes the associated Rights) at a price of
$15.50 per Share, net to the seller in cash (the "Offer Price"), upon the terms
and subject to the conditions set forth in the Offer to Purchase and in the
related Letter of Transmittal (which, together with any amendments and
supplements thereto, collectively constitute the "Offer"), copies of which are
attached hereto as Exhibits (a)(1) and (a)(2), respectively. Information
concerning the number of outstanding Shares is set forth in "Introduction" of
the Offer to Purchase and is incorporated herein by reference.
(c) Information concerning the principal market in which the Shares are
traded and the high and low sales prices of the Shares for each quarterly period
during the past two years is set forth in Section 6 ("Price Range of the Shares;
Dividends on the Shares") of the Offer to Purchase and is incorporated herein by
reference.
ITEM 2. IDENTITY AND BACKGROUND.
This Schedule 14D-1 is being filed by the Purchaser, a Washington
corporation, and IBM, a New York corporation. The Purchaser is a wholly owned
subsidiary of IBM. Information concerning the principal business and the address
of the principal offices of the Purchaser and IBM is set forth in Section 9
("Certain Information Concerning the Purchaser and IBM") of the Offer to
Purchase and is incorporated herein by reference. Information regarding the
names, business addresses, principal occupation and occupations, positions,
offices or employments during the last five years as well as the other
information required by Item 2 with respect to directors and executive officers
of IBM and the Purchaser is set forth in Schedule I to the Offer to Purchase and
is incorporated herein by reference.
The information set forth in Section 9 ("Certain Information Concerning the
Purchaser and IBM") and Section 15 ("Certain Legal Matters") of the Offer to
Purchase is incorporated herein by reference.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a) The information set forth in Section 11 ("Contacts and Transactions with
the Company; Background of the Offer") and Section 12 ("Purpose of the Offer;
the Merger Agreement; the Shareholder Agreement; etc.") of the Offer to Purchase
is incorporated herein by reference.
(b) The information set forth in Section 11 ("Contacts and Transactions with
the Company; Background of the Offer") and Section 12 ("Purpose of the Offer;
the Merger Agreement; the Shareholder Agreement; etc.") of the Offer to Purchase
is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in Section 10 ("Source and Amount of Funds")
of the Offer to Purchase is incorporated herein by reference.
(b) Not applicable.
(c) Not applicable.
Page 4 of 8 Pages
Exhibit Index on Page 8
<PAGE>
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDER.
(a)--(e) The information set forth in Section 12 ("Purpose of the Offer; the
Merger Agreement; the Shareholder Agreement; etc.") of the Offer to Purchase is
incorporated herein by reference.
(f) and (g) The information set forth in Section 7 ("Effect of the Offer on
the Market for the Shares; Share Quotation; Exchange Act Registration; Margin
Regulations") of the Offer to Purchase is incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) and (b) The information set forth in "Introduction", Section 11
("Contacts and Transactions with the Company; Background of the Offer") and
Section 12 ("Purpose of the Offer; the Merger Agreement; the Shareholder
Agreement; etc.") of the Offer to Purchase is incorporated herein by reference.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
THE SUBJECT COMPANY'S SECURITIES.
The information set forth in "Introduction", Section 11 ("Contacts and
Transactions with the Company; Background of the Offer") and Section 12
("Purpose of the Offer; the Merger Agreement; the Shareholder Agreement; etc.")
of the Offer to Purchase is incorporated herein by reference.
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in "Introduction" and in Section 16 ("Fees and
Expenses") of the Offer to Purchase is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Not applicable.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in Section 12 ("Purpose of the Offer; the
Merger Agreement; the Shareholder Agreement; etc.") of the Offer to Purchase is
incorporated herein by reference.
(b) and (c) The information set forth in Section 15 ("Certain Legal
Matters") of the Offer to Purchase is incorporated herein by reference.
(d) The information set forth in Section 7 ("Effect of the Offer on the
Market for the Shares; Share Quotation; Exchange Act Registration; Margin
Regulations") of the Offer to Purchase is incorporated herein by reference.
(e) None.
(f) The information set forth in the Offer to Purchase, the Letter of
Transmittal, the Agreement and Plan of Merger dated as of November 12, 1996,
among IBM, the Purchaser and the Company, and the Shareholder Agreement, copies
of which are attached hereto as Exhibits (a)(1), (a)(2), (c)(1) and (c)(2),
respectively, is incorporated herein by reference.
Page 5 of 8 Pages
Exhibit Index on Page 8
<PAGE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and
Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9.
(a)(7) Summary Advertisement dated November 18, 1996.
(a)(8) Text of Press Release dated November 13, 1996, issued by the Company and
IBM.
(c)(1) Agreement and Plan of Merger dated as of November 12, 1996, among IBM, the
Purchaser and the Company.
(c)(2) Shareholder Agreement dated as of November 12, 1996, among IBM, the
Purchaser and all directors and executive officers of the Company and
certain other persons.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
Page 6 of 8 Pages
Exhibit Index on Page 8
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that
the information set forth in this statement is true, complete and correct.
Dated: November 18, 1996
<TABLE>
<S> <C> <C>
INDIGO ACQUISITION CORP.,
By /s/ LEE A. DAYTON
-------------------------------------------
Name: Lee A. Dayton
Title: President
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
By /s/ JOHN E. HICKEY
-------------------------------------------
Name: John E. Hickey
Title: Vice President, Assistant General
Counsel and
Secretary
</TABLE>
Page 7 of 8 Pages
Exhibit Index on Page 8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER EXHIBIT NAME NUMBER
- --------- --------------------------------------------------------------------------------------------- -------------
<S> <C> <C>
(a)(1) Offer to Purchase............................................................................
(a)(2) Letter of Transmittal........................................................................
(a)(3) Notice of Guaranteed Delivery................................................................
(a)(4) Letter to Brokers, Dealers, Banks, Trust Companies and Other Nominees........................
(a)(5) Letter to Clients for use by Brokers, Dealers, Banks, Trust Companies and Other Nominees.....
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9........
(a)(7) Summary Advertisement dated November 18, 1996................................................
(a)(8) Text of Press Release dated November 13, 1996, issued by the Company and IBM.................
(c)(1) Agreement and Plan of Merger dated as of November 12, 1996, among IBM, the Purchaser and the
Company......................................................................................
(c)(2) Shareholder Agreement dated as of November 12, 1996, among IBM, the Purchaser and all
directors and executive officers of the Company and certain other persons....................
(d) None.........................................................................................
(e) Not applicable...............................................................................
(f) None.........................................................................................
</TABLE>
Page 8 of 8 Pages
Exhibit Index on Page 8
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
EDMARK CORPORATION
AT
$15.50 NET PER SHARE
BY
INDIGO ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
INTERNATIONAL BUSINESS MACHINES CORPORATION
------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON MONDAY, DECEMBER 16,
1996, UNLESS THE OFFER IS EXTENDED.
------------------------
THE BOARD OF DIRECTORS OF EDMARK CORPORATION (THE "COMPANY") HAS UNANIMOUSLY
APPROVED THE OFFER AND THE MERGER REFERRED TO HEREIN AND DETERMINED THAT THE
TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS
OF, THE SHAREHOLDERS OF THE COMPANY AND UNANIMOUSLY RECOMMENDS THAT
SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER THEIR SHARES.
------------------------
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES THAT WOULD CONSTITUTE TWO-THIRDS OF ALL OUTSTANDING SHARES ON A FULLY
DILUTED BASIS ON THE DATE OF PURCHASE AND (2) ANY WAITING PERIOD UNDER THE HART-
SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE REGULATIONS
THEREUNDER APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING
EXPIRED OR BEEN TERMINATED.
------------------------
IMPORTANT
ANY SHAREHOLDER DESIRING TO TENDER ALL OR ANY PORTION OF SUCH SHAREHOLDER'S
SHARES (AS DEFINED HEREIN) SHOULD EITHER (1) COMPLETE AND SIGN THE LETTER OF
TRANSMITTAL OR A FACSIMILE COPY THEREOF IN ACCORDANCE WITH THE INSTRUCTIONS IN
THE LETTER OF TRANSMITTAL, HAVE SUCH SHAREHOLDER'S SIGNATURE THEREON GUARANTEED
IF REQUIRED BY INSTRUCTION 1 TO THE LETTER OF TRANSMITTAL, MAIL OR DELIVER THE
LETTER OF TRANSMITTAL (OR SUCH FACSIMILE), OR, IN THE CASE OF A BOOK-ENTRY
TRANSFER EFFECTED PURSUANT TO THE PROCEDURE SET FORTH IN SECTION 2, AN AGENT'S
MESSAGE (AS DEFINED HEREIN), AND ANY OTHER REQUIRED DOCUMENTS TO THE DEPOSITARY
AND EITHER DELIVER THE CERTIFICATES FOR SUCH SHARES TO THE DEPOSITARY ALONG WITH
THE LETTER OF TRANSMITTAL (OR FACSIMILE) OR DELIVER SUCH SHARES PURSUANT TO THE
PROCEDURE FOR BOOK-ENTRY TRANSFER SET FORTH IN SECTION 2 PRIOR TO THE EXPIRATION
OF THE OFFER OR (2) REQUEST SUCH SHAREHOLDER'S BROKER, DEALER, BANK, TRUST
COMPANY OR OTHER NOMINEE TO EFFECT THE TRANSACTION FOR SUCH SHAREHOLDER. A
SHAREHOLDER HAVING SHARES REGISTERED IN THE NAME OF A BROKER, DEALER, BANK,
TRUST COMPANY OR OTHER NOMINEE MUST CONTACT SUCH BROKER, DEALER, BANK, TRUST
COMPANY OR OTHER NOMINEE IF SUCH SHAREHOLDER DESIRES TO TENDER SUCH SHARES.
A SHAREHOLDER WHO DESIRES TO TENDER SHARES AND WHOSE CERTIFICATES FOR SUCH
SHARES ARE NOT IMMEDIATELY AVAILABLE OR WHO CANNOT COMPLY IN A TIMELY MANNER
WITH THE PROCEDURE FOR BOOK-ENTRY TRANSFER, OR WHO CANNOT DELIVER ALL REQUIRED
DOCUMENTS TO THE DEPOSITARY PRIOR TO THE EXPIRATION OF THE OFFER, MAY TENDER
SUCH SHARES BY FOLLOWING THE PROCEDURE FOR GUARANTEED DELIVERY SET FORTH IN
SECTION 2.
QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR ADDITIONAL COPIES OF THIS OFFER
TO PURCHASE, THE LETTER OF TRANSMITTAL AND THE NOTICE OF GUARANTEED DELIVERY MAY
BE DIRECTED TO THE INFORMATION AGENT AT ITS ADDRESS AND TELEPHONE NUMBERS SET
FORTH ON THE BACK COVER OF THIS OFFER TO PURCHASE.
NOVEMBER 18, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Introduction............................................................................................... 1
The Tender Offer........................................................................................... 3
1. Terms of the Offer..................................................................................... 3
2. Procedure for Tendering Shares......................................................................... 4
3. Withdrawal Rights...................................................................................... 8
4. Acceptance for Payment and Payment..................................................................... 8
5. Certain U.S. Federal Income Tax Consequences........................................................... 9
6. Price Range of the Shares; Dividends on the Shares..................................................... 10
7. Effect of the Offer on the Market for the Shares; Share Quotation; Exchange Act Registration; Margin
Regulations............................................................................................ 11
8. Certain Information Concerning the Company............................................................. 12
9. Certain Information Concerning the Purchaser and IBM................................................... 13
10. Source and Amount of Funds............................................................................. 14
11. Contacts and Transactions with the Company; Background of the Offer.................................... 14
12. Purpose of the Offer; the Merger Agreement; the Shareholder Agreement; etc............................. 15
13. Dividends and Distributions............................................................................ 23
14. Certain Conditions of the Offer........................................................................ 24
15. Certain Legal Matters.................................................................................. 25
16. Fees and Expenses...................................................................................... 27
17. Miscellaneous.......................................................................................... 27
Schedule I--Directors and Executive Officers of IBM and the Purchaser...................................... S-1
</TABLE>
<PAGE>
To the Holders of Common Stock
of Edmark Corporation:
INTRODUCTION
Indigo Acquisition Corp., a Washington corporation (the "Purchaser") which
is a wholly owned subsidiary of International Business Machines Corporation, a
New York corporation ("IBM"), hereby offers to purchase all outstanding shares
of Common Stock, no par value (the "Shares"), of Edmark Corporation, a
Washington corporation (the "Company"), together with the associated rights (the
"Rights") to purchase Shares issued pursuant to the Shareholder Rights Agreement
dated as of November 29, 1995 between the Company and ChaseMellon Shareholder
Services, L.L.C. (as successor to First Interstate Bank of Washington, N.A.), as
rights agent (as amended, the "Rights Agreement"), at a price of $15.50 per
Share, net to the seller in cash, without interest thereon (the "Offer Price"),
upon the terms and subject to the conditions set forth in this Offer to Purchase
and in the related Letter of Transmittal (which, together with any amendments or
supplements hereto or thereto, collectively constitute the "Offer"). Unless the
context otherwise requires, all references to Shares include the associated
Rights.
Tendering shareholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, transfer taxes on the purchase of Shares pursuant to the Offer. The
Purchaser will pay all fees and expenses of ChaseMellon Shareholder Services,
L.L.C., which is acting as the Depositary (the "Depositary"), and Morrow & Co.,
Inc., which is acting as the Information Agent (the "Information Agent"),
incurred in connection with the Offer. See Section 16.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE OFFER AND
THE MERGER (AS DEFINED BELOW) AND DETERMINED THAT THE TERMS OF THE OFFER AND THE
MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE SHAREHOLDERS OF THE
COMPANY AND UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS OF THE COMPANY ACCEPT THE
OFFER AND TENDER THEIR SHARES. THE FACTORS CONSIDERED BY THE BOARD OF DIRECTORS
OF THE COMPANY IN ARRIVING AT ITS DECISION TO APPROVE THE OFFER AND THE MERGER
AND TO RECOMMEND THAT SHAREHOLDERS OF THE COMPANY ACCEPT THE OFFER AND TENDER
THEIR SHARES ARE DESCRIBED IN THE COMPANY'S SOLICITATION/ RECOMMENDATION
STATEMENT ON SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"), WHICH IS BEING MAILED TO
SHAREHOLDERS OF THE COMPANY HEREWITH.
ALEX. BROWN & SONS INCORPORATED ("ALEX. BROWN") HAS ACTED AS THE COMPANY'S
FINANCIAL ADVISOR. THE OPINION OF ALEX. BROWN DATED NOVEMBER 12, 1996 THAT, AS
OF SUCH DATE, THE CONSIDERATION TO BE RECEIVED BY HOLDERS OF SHARES IN THE OFFER
AND THE MERGER IS FAIR, FROM A FINANCIAL POINT OF VIEW, TO SUCH HOLDERS, IS SET
FORTH IN FULL AS AN ANNEX TO THE SCHEDULE 14D-9.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (I) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION DATE (AS DEFINED IN SECTION
1) THAT NUMBER OF SHARES THAT WOULD CONSTITUTE TWO-THIRDS OF ALL OUTSTANDING
SHARES ON A FULLY DILUTED BASIS ON THE DATE OF PURCHASE (THE "MINIMUM
CONDITION") AND (II) ANY WAITING PERIOD UNDER THE HART-SCOTT -RODINO ANTITRUST
IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE REGULATIONS THEREUNDER (THE "HSR
ACT") APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING EXPIRED
OR BEEN TERMINATED (THE "HSR CONDITION"). The Purchaser reserves the right
(subject to obtaining the consent of the Company and the applicable rules and
regulations of the Securities and Exchange Commission (the "Commission")), which
it presently has no intention of exercising, to waive or reduce the Minimum
Condition. See Sections 1, 12 and 14.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of November 12, 1996 (the "Merger Agreement"), among IBM, the Purchaser and
the Company pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
and into the Company, or, at the election of IBM, the Company may be merged with
and into the Purchaser (the "Merger"). In the Merger, each outstanding Share
(other than Shares owned by IBM, the Purchaser or any other subsidiary of IBM or
by shareholders, if any, who are entitled to and who properly exercise
dissenters' rights under Washington law) will be converted into the right to
receive
1
<PAGE>
an amount in cash equal to the price per Share paid pursuant to the Offer,
without interest thereon. See Section 12.
Consummation of the Merger is subject to a number of conditions, including
approval by shareholders of the Company, if such approval is required by
applicable law. If the Purchaser acquires 90% or more of the outstanding Shares
pursuant to the Offer or otherwise, the Purchaser may be able to effect the
Merger pursuant to the short-form merger provisions of the Washington Business
Corporation Act (the "WBCA"), without prior notice to, or any action by, any
shareholder of the Company. See Section 12.
In connection with the execution of the Merger Agreement, the Purchaser and
IBM entered into a Shareholder Agreement dated as of November 12, 1996 (the
"Shareholder Agreement"), with all of the directors and executive officers of
the Company and certain other persons (collectively, the "Selling
Shareholders"), pursuant to which such Selling Shareholders have unconditionally
agreed to tender into the Offer, and not to withdraw therefrom, the 1,325,946
Shares that they collectively owned on November 12, 1996, as well as any Shares
they thereafter acquire, including upon the exercise of Stock Options (as
defined below). In addition, the Selling Shareholders have agreed to sell to the
Purchaser, and the Purchaser has agreed to purchase, all the Selling
Shareholders' Shares (including those acquired after the execution of the
Shareholder Agreement) at a price per Share of $15.50, or such higher price per
Share as may be offered by the Purchaser in the Offer, provided that (i) such
obligation to purchase is subject to the Purchaser having accepted Shares for
payment under the Offer and the Minimum Condition having been satisfied, which
conditions to such obligation may be waived by the Purchaser in its sole
discretion, and (ii) such obligation to sell is subject to the Minimum Condition
having been satisfied or a Takeover Proposal (as defined herein) having been
made. Under the Shareholder Agreement, each Selling Shareholder has granted an
irrevocable proxy for the benefit of the Purchaser with respect to the Shares
subject to the Shareholder Agreement to vote such Shares under certain
circumstances.
The Merger Agreement and the Shareholder Agreement are more fully described
in Section 12.
The Company has informed the Purchaser that, as of November 10, 1996, there
were 6,632,111 Shares issued and outstanding and 1,248,110 Shares reserved for
issuance upon the exercise of outstanding options to purchase Shares ("Stock
Options"). Based upon the foregoing and assuming that no Stock Options are
exercised or Shares otherwise issued after November 10, 1996, there would be
7,880,221 Shares outstanding on a fully diluted basis and the Minimum Condition
will be satisfied if at least 5,253,481 Shares (including the 1,325,946 Shares
subject to the Shareholder Agreement) are validly tendered and not withdrawn
prior to the Expiration Date. The actual number of Shares required to be
tendered to satisfy the Minimum Condition will depend upon the actual number of
Shares outstanding on the date that the Purchaser accepts Shares for payment
pursuant to the Offer. If the Minimum Condition is satisfied and the Purchaser
accepts for payment Shares tendered pursuant to the Offer, the Purchaser will be
able to elect a majority of the members of the Company's Board of Directors and
to effect the Merger without the affirmative vote of any other shareholder of
the Company. See Section 12.
Certain U.S. federal income tax consequences of the sale of Shares pursuant
to the Offer and the conversion of Shares pursuant to the Merger are described
in Section 5.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION THAT SHOULD BE READ BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
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THE TENDER OFFER
1. TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer, the Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date and not theretofore withdrawn in accordance with Section 3. The
term "Expiration Date" means 12:00 midnight, New York City time, on Monday,
December 16, 1996, unless and until the Purchaser, in its sole discretion (but
subject to the terms of the Merger Agreement), shall have extended the period of
time during which the Offer is open, in which event the term "Expiration Date"
shall mean the latest time and date on which the Offer, as so extended by the
Purchaser, will expire.
In the Merger Agreement the Purchaser has agreed that it will not, without
the consent of the Company, extend the Offer, except that, without the consent
of the Company, the Purchaser may extend the Offer (a) if at the Expiration Date
any of the conditions to the Purchaser's obligation to accept Shares for payment
are not satisfied or waived, until such time as such conditions are satisfied or
waived, (b) for any period required by any rule, regulation, interpretation or
position of the Commission or the staff thereof applicable to the Offer and (c)
for any reason on one or more occasions for an aggregate period of not more than
25 business days beyond the latest expiration date that would otherwise be
permitted under the terms of the Merger Agreement as described in this sentence.
As used in this Offer to Purchase, "business day" has the meaning set forth in
Rule 14d-1 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, the Purchaser has agreed in the Merger Agreement that it will
not, without the consent of the Company, (a) reduce the number of Shares subject
to the Offer, (b) reduce the Offer Price, (c) add to the conditions set forth in
Section 14, (d) change the form of consideration payable in the Offer or (e)
amend any other term of the Offer in any manner adverse to the Company's
shareholders.
Subject to the terms of the Merger Agreement and the applicable rules and
regulations of the Commission, the Purchaser reserves the right (but shall not
be obligated), at any time and from time to time, and regardless of whether or
not any of the events or facts set forth in Section 14 hereof shall have
occurred, (a) to extend the period of time during which the Offer is open, and
thereby delay acceptance for payment of and the payment for any Shares, by
giving oral or written notice of such extension to the Depositary and (b) to
amend the Offer in any other respect by giving oral or written notice of such
amendment to the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE
PURCHASE PRICE FOR TENDERED SHARES, WHETHER OR NOT THE PURCHASER EXERCISES ITS
RIGHT TO EXTEND THE OFFER.
If by 12:00 midnight, New York City time, on Monday, December 16, 1996 (or
any date or time then set as the Expiration Date), any or all of the conditions
to the Offer have not been satisfied or waived, the Purchaser reserves the right
(but shall not be obligated), subject to the terms and conditions contained in
the Merger Agreement and to the applicable rules and regulations of the
Commission, (a) to terminate the Offer and not accept for payment or pay for any
Shares and return all tendered Shares to tendering shareholders, (b) to waive
all the unsatisfied conditions and accept for payment and pay for all Shares
validly tendered prior to the Expiration Date and not theretofore withdrawn, (c)
to extend the Offer and, subject to the right of shareholders to withdraw Shares
until the Expiration Date, retain the Shares that have been tendered during the
period or periods for which the Offer is extended or (d) to amend the Offer.
There can be no assurance that the Purchaser will exercise its right to
extend the Offer. Any extension, waiver, amendment or termination will be
followed as promptly as practicable by public announcement. In the case of an
extension, Rule 14e-l(d) under the Exchange Act requires that the announcement
be issued no later than 9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Date in accordance with the public
announcement requirements of Rule 14d-4(c) under the Exchange Act. Subject to
applicable law (including Rules 14d-4(c) and 14d-6(d) under the Exchange Act,
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which require that any material change in the information published, sent or
given to shareholders in connection with the Offer be promptly disseminated to
shareholders in a manner reasonably designed to inform shareholders of such
change) and without limiting the manner in which the Purchaser may choose to
make any public announcement, the Purchaser will not have any obligation to
publish, advertise or otherwise communicate any such public announcement other
than by making a release to the Dow Jones News Service.
If the Purchaser extends the Offer or if the Purchaser is delayed in its
acceptance for payment of or payment (whether before or after its acceptance for
payment of Shares) for Shares or it is unable to pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer, the Depositary may retain tendered Shares on behalf of the Purchaser,
and such Shares may not be withdrawn except to the extent tendering shareholders
are entitled to withdrawal rights as described in Section 3. However, the
ability of the Purchaser to delay the payment for Shares that the Purchaser has
accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which
requires that a bidder pay the consideration offered or return the securities
deposited by or on behalf of holders of securities promptly after the
termination or withdrawal of such bidder's offer, and by the terms of the Merger
Agreement, which require that the Purchaser pay for Shares accepted for payment
as soon as practicable after the Expiration Date.
If the Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer or waives a material condition of the Offer
(including, with the Company's consent, a waiver of the Minimum Condition), the
Purchaser will disseminate additional tender offer materials and extend the
Offer to the extent required by Rules 14d-4(c), 14d-6(d) and 14e-1 under the
Exchange Act. The minimum period during which an offer must remain open
following material changes in the terms of the offer or information concerning
the offer, other than a change in price or a change in the percentage of
securities sought, will depend upon the facts and circumstances then existing,
including the relative materiality of the changed terms or information. With
respect to a change in price or a change in the percentage of securities sought,
a minimum period of 10 business days is generally required to allow for adequate
dissemination to shareholders.
Consummation of the Offer is conditioned upon satisfaction of the Minimum
Condition, the HSR Condition and the other conditions set forth in Section 14.
Subject to the terms and conditions contained in the Merger Agreement, the
Purchaser reserves the right (but shall not be obligated) to waive any or all
such conditions. However, if the Purchaser waives or amends the Minimum
Condition (which action may not be taken without the Company's consent) during
the last five business days during which the Offer is open, the Purchaser will
be required to extend the Expiration Date so that the Offer will remain open for
at least five business days after the announcement of such waiver or amendment
is first published, sent or given to holders of Shares and may also be required
to extend the Offer if other conditions are waived, depending upon the
materiality of the waiver.
The Company has provided the Purchaser with the Company's shareholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed by the Purchaser to record holders of
Shares, and will be furnished to brokers, dealers, banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
shareholder lists, or, if applicable, who are listed as participants in a
clearing agency's security position listing, for subsequent transmittal to
beneficial owners of Shares.
2. PROCEDURE FOR TENDERING SHARES
VALID TENDER. For a shareholder validly to tender Shares pursuant to the
Offer, either (a) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, together with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message (as defined below),
and any other required documents, must be received by the Depositary at one of
its addresses set forth on the
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back cover of this Offer to Purchase prior to the Expiration Date and either
certificates for tendered Shares must be received by the Depositary at one of
such addresses or such Shares must be delivered pursuant to the procedures for
book-entry transfer set forth below (and a Book-Entry Confirmation (as defined
below) received by the Depositary), in each case prior to the Expiration Date,
or (b) the tendering shareholder must comply with the guaranteed delivery
procedures set forth below.
The Depositary will establish accounts with respect to the Shares at The
Depository Trust Company, the Midwest Securities Trust Company and the
Philadelphia Depository Trust Company (the "Book-Entry Transfer Facilities") for
purposes of the Offer within two business days after the date of this Offer to
Purchase. Any financial institution that is a participant in any of the
Book-Entry Transfer Facilities' systems may make book-entry delivery of Shares
by causing a Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with such Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of Shares may be
effected through book-entry transfer into the Depositary's account at a
Book-Entry Transfer Facility, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees, or
an Agent's Message, and any other required documents, must, in any case, be
transmitted to, and received by, the Depositary at one of its addresses set
forth on the back cover of this Offer to Purchase prior to the Expiration Date,
or the tendering shareholder must comply with the guaranteed delivery procedures
described below. The confirmation of a book-entry transfer of Shares into the
Depositary's account at a Book-Entry Transfer Facility as described above is
referred to herein as a "Book-Entry Confirmation". DELIVERY OF DOCUMENTS TO A
BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY TRANSFER
FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgement from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
SIGNATURE GUARANTEES. No signature guarantee is required on the Letter of
Transmittal (a) if the Letter of Transmittal is signed by the registered
holder(s) (which term, for purposes of this Section, includes any participant in
any of the Book-Entry Transfer Facilities' systems whose name appears on a
security position listing as the owner of the Shares) of Shares tendered
therewith and such registered holder has not completed either the box entitled
"Special Delivery Instructions" or the box entitled "Special Payment
Instructions" on the Letter of Transmittal or (b) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(such participant, an "Eligible Institution"). In all other cases, all
signatures on the Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instructions 1 and 5 to the Letter of Transmittal. If the
certificates for Shares are registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made or certificates
for Shares not tendered or not accepted for payment are to be returned to a
person other than the registered holder of the certificates surrendered, the
tendered certificates must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name or names of the registered
holders or owners appear on the certificates, with the
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signatures on the certificates or stock powers guaranteed as aforesaid. See
Instructions 1 and 5 to the Letter of Transmittal.
GUARANTEED DELIVERY. If a shareholder desires to tender Shares pursuant to
the Offer and such shareholder's certificates for Shares are not immediately
available or the procedure for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary prior to the Expiration Date, such shareholder's tender may be
effected if all the following conditions are met:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by the Purchaser, is received
by the Depositary, as provided below, prior to the Expiration Date; and
(iii) the certificates for all tendered Shares, in proper form for
transfer (or a Book-Entry Confirmation with respect to all such Shares),
together with a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or, in
the case of a book-entry transfer, an Agent's Message, and any other
required documents are received by the Depositary within three trading days
after the date of execution of such Notice of Guaranteed Delivery. A
"trading day" is any day on which the Nasdaq National Market (the "Nasdaq
National Market") operated by the National Association of Securities
Dealers, Inc. (the "NASD") is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the Depositary
or transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution in the form set forth in
such Notice of Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares accepted for
payment pursuant to the Offer will in all cases be made only after timely
receipt by the Depositary of (a) certificates for (or a timely Book-Entry
Confirmation with respect to) such Shares, (b) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer, an Agent's
Message, and (c) any other documents required by the Letter of Transmittal.
Accordingly, tendering shareholders may be paid at different times depending
upon when certificates for Shares or Book-Entry Confirmations with respect to
Shares are actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
The valid tender of Shares pursuant to one of the procedures described above
will constitute a binding agreement between the tendering shareholder and the
Purchaser upon the terms and subject to the conditions of the Offer.
DISTRIBUTION OF RIGHTS. Holders of Shares will be required to tender one
Right for each Share tendered to effect a valid tender of such Share. Unless and
until the Distribution Date (as defined in the Rights Agreement) occurs, the
Rights are represented by and transferred with the Shares. Accordingly, if the
Distribution Date does not occur prior to the Expiration Date of the Offer (and
under the terms of the Rights Agreement, a Distribution Date will not occur by
reason of the Offer), a tender of Shares will constitute a tender of the
associated Rights. If, however, pursuant to the Rights Agreement or otherwise, a
Distribution Date does occur, certificates representing a number of Rights equal
to the number of Shares being tendered must be delivered to the Depositary in
order for such Shares to be validly tendered. If a Distribution Date has
occurred, a tender of Shares without Rights constitutes an agreement by the
tendering shareholder to deliver certificates representing a number of Rights
equal to the number of Shares tendered pursuant to the Offer to the Depositary
within three trading days after the date such certificates are distributed. The
Purchaser reserves the right to require that it receive such certificates prior
to accepting Shares for payment. Payment for Shares tendered and purchased
pursuant to the Offer will be
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made only after timely receipt by the Depositary of, among other things, such
certificates, if such certificates have been distributed to holders of Shares.
The Purchaser will not pay any additional consideration for the Rights tendered
pursuant to the Offer.
APPOINTMENT. By executing a Letter of Transmittal as set forth above, the
tendering shareholder will irrevocably appoint designees of the Purchaser as
such shareholder's attorneys-in-fact and proxies in the manner set forth in the
Letter of Transmittal, each with full power of substitution, to the full extent
of such shareholder's rights with respect to the Shares tendered by such
shareholder and accepted for payment by the Purchaser and with respect to any
and all other Shares or other securities or rights issued or issuable in respect
of such Shares on or after November 12, 1996. All such proxies will be
considered coupled with an interest in the tendered Shares. Such appointment
will be effective when, and only to the extent that, the Purchaser accepts for
payment Shares tendered by such shareholder as provided herein. Upon such
appointment, all prior powers of attorney, proxies and consents given by such
shareholder with respect to such Shares or other securities or rights will,
without further action, be revoked and no subsequent powers of attorney,
proxies, consents or revocations may be given (and, if given, will not be deemed
effective). The designees of the Purchaser will thereby be empowered to exercise
all voting and other rights with respect to such Shares and other securities or
rights in respect of any annual, special or adjourned meeting of the Company's
shareholders, actions by written consent in lieu of any such meeting or
otherwise, as they in their sole discretion deem proper. The Purchaser reserves
the right to require that, in order for Shares to be deemed validly tendered,
immediately upon the Purchaser's acceptance for payment of such Shares, the
Purchaser must be able to exercise full voting, consent and other rights with
respect to such Shares and other securities or rights, including voting at any
meeting of shareholders.
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by the Purchaser in its sole discretion, which determination
will be final and binding. The Purchaser reserves the absolute right to reject
any or all tenders determined by it not to be in proper form or the acceptance
for payment of or payment for which may, in the opinion of the Purchaser's
counsel, be unlawful. The Purchaser also reserves the absolute right to waive
any defect or irregularity in the tender of any Shares of any particular
shareholder whether or not similar defects or irregularities are waived in the
case of other shareholders. No tender of Shares will be deemed to have been
validly made until all defects or irregularities relating thereto have been
cured or waived. None of the Purchaser, IBM, the Depositary, the Information
Agent or any other person will be under any duty to give notification of any
defects or irregularities in tenders or incur any liability for failure to give
any such notification. The Purchaser's interpretation of the terms and
conditions of the Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding.
BACKUP WITHHOLDING. In order to avoid "backup withholding" of U.S. federal
income tax on payments of cash pursuant to the Offer, a shareholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such shareholder's correct taxpayer identification number ("TIN") on a
Substitute Form W-9 and certify under penalties of perjury that such TIN is
correct and that such shareholder is not subject to backup withholding. If a
shareholder does not provide such shareholder's correct TIN or fails to provide
the certifications described above, the Internal Revenue Service (the "IRS") may
impose a penalty on such shareholder and payment of cash to such shareholder
pursuant to the Offer may be subject to backup withholding of 31%. All
shareholders surrendering Shares pursuant to the Offer should complete and sign
the main signature form and the Substitute Form W-9 included as part of the
Letter of Transmittal to provide the information and certification necessary to
avoid backup withholding (unless an applicable exemption exists and is proved in
a manner satisfactory to the Purchaser and the Depositary). Certain shareholders
(including, among others, all corporations and certain foreign individuals and
entities) are not subject to backup withholding. Noncorporate foreign
shareholders should complete and sign the main signature form and a Form W-8,
Certificate of Foreign Status, a copy of which may be obtained from the
Depositary, in order to avoid backup withholding. See Instruction 9 to the
Letter of Transmittal.
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3. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn pursuant to
the procedures set forth below at any time prior to the Expiration Date and,
unless theretofore accepted for payment and paid for by the Purchaser pursuant
to the Offer, may also be withdrawn at any time after Thursday, January 16,
1997.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase and
must specify the name of the person having tendered the Shares to be withdrawn,
the number of Shares to be withdrawn and the name of the registered holder of
the Shares to be withdrawn, if different from the name of the person who
tendered the Shares. If certificates for Shares have been delivered or otherwise
identified to the Depositary, then, prior to the physical release of such
certificates, the serial numbers shown on such certificates must be submitted to
the Depositary and, unless such Shares have been tendered by an Eligible
Institution, the signatures on the notice of withdrawal must be guaranteed by an
Eligible Institution. If Shares have been delivered pursuant to the procedures
for book-entry transfer as set forth in Section 2, any notice of withdrawal must
also specify the name and number of the account at the appropriate Book-Entry
Transfer Facility to be credited with the withdrawn Shares and otherwise comply
with such Book-Entry Transfer Facility's procedures. Withdrawals of tenders of
Shares may not be rescinded, and any Shares properly withdrawn will thereafter
be deemed not validly tendered for purposes of the Offer. However, withdrawn
Shares may be retendered by again following one of the procedures described in
Section 2 at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by the Purchaser in its sole
discretion, which determination will be final and binding. None of the
Purchaser, IBM, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification.
4. ACCEPTANCE FOR PAYMENT AND PAYMENT
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension or
amendment), the Purchaser will accept for payment and will pay for all Shares
validly tendered prior to the Expiration Date and not properly withdrawn in
accordance with Section 3 promptly after the Expiration Date. All determinations
concerning the satisfaction of such terms and conditions will be within the
Purchaser's sole discretion, which determinations will be final and binding. See
Sections 1 and 14. The Purchaser expressly reserves the right to delay
acceptance for payment of or payment for Shares in order to comply in whole or
in part with any applicable law, including, without limitation, the HSR Act. Any
such delays will be effected in compliance with Rule 14e-l(c) under the Exchange
Act (relating to a bidder's obligation to pay for or return tendered securities
promptly after the termination or withdrawal of such bidder's offer).
IBM filed a Notification and Report Form with respect to the Offer under the
HSR Act on November 15, 1996. The waiting period under the HSR Act with respect
to the Offer will expire at 11:59 p.m., New York City time, on November 30,
1996, unless early termination of the waiting period is granted. However, the
Antitrust Division of the Department of Justice (the "Antitrust Division") or
the Federal Trade Commission (the "FTC") may extend the waiting period by
requesting additional information or documentary material from IBM. If such a
request is made, such waiting period will expire at 11:59 p.m., New York City
time, on the 10th day after substantial compliance by IBM with such request. See
Section 15 hereof for additional information concerning the HSR Act and the
applicability of the antitrust laws to the Offer.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (a) certificates for
(or a timely Book-Entry Confirmation with respect
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to) such Shares, (b) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, or, in the
case of a book-entry transfer, an Agent's Message, and (c) any other documents
required by the Letter of Transmittal. The per Share consideration paid to any
shareholder pursuant to the Offer will be the highest per Share consideration
paid to any other shareholder pursuant to the Offer.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares properly tendered to the Purchaser and
not withdrawn as, if and when the Purchaser gives oral or written notice to the
Depositary of the Purchaser's acceptance for payment of such Shares. Payment for
Shares accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as an agent for
tendering shareholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering shareholders. UNDER NO CIRCUMSTANCES WILL
INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE
PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT.
If the Purchaser is delayed in its acceptance for payment of or payment for
Shares or is unable to accept for payment or pay for Shares pursuant to the
Offer for any reason, then, without prejudice to the Purchaser's rights under
the Offer (but subject to compliance with Rule 14e-1(c) under the Exchange Act,
which requires that a tender offeror pay the consideration offered or return the
tendered securities promptly after termination or withdrawal of a tender offer,
and to the terms of the Merger Agreement), the Depositary may, nevertheless, on
behalf of the Purchaser, retain tendered Shares, and such Shares may not be
withdrawn except to the extent tendering shareholders are entitled to exercise,
and duly exercise, withdrawal rights as described in Section 3.
If any tendered Shares are not purchased pursuant to the Offer for any
reason, certificates for any such Shares will be returned, without expense to
the tendering shareholder (or, in the case of Shares delivered by book-entry
transfer of such Shares into the Depositary's account at a Book-Entry Transfer
Facility pursuant to the procedure set forth in Section 2, such Shares will be
credited to an account maintained at the appropriate Book-Entry Transfer
Facility), as promptly as practicable after the expiration or termination of the
Offer.
The Purchaser reserves the right to transfer or assign, in whole or from
time to time in part, to IBM, or to one or more direct or indirect wholly owned
subsidiaries of IBM, the right to purchase Shares tendered pursuant to the
Offer, but any such transfer or assignment will not relieve the Purchaser of its
obligations under the Offer and will in no way prejudice the rights of tendering
shareholders to receive payment for Shares validly tendered and accepted for
payment pursuant to the Offer.
5. CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES
The receipt of cash pursuant to the Offer or the Merger will be a taxable
transaction for U.S. federal income tax purposes under the Internal Revenue Code
of 1986, as amended (the "Code"), and may also be a taxable transaction under
applicable state, local or foreign income or other tax laws. Generally, for U.S.
federal income tax purposes, a tendering shareholder will recognize gain or loss
equal to the difference between the amount of cash received by the shareholder
pursuant to the Offer or the Merger and the aggregate tax basis in the Shares
tendered by the shareholder and purchased pursuant to the Offer or converted in
the Merger, as the case may be. Gain or loss will be calculated separately for
each block of Shares tendered and purchased pursuant to the Offer or converted
in the Merger, as the case may be.
If Shares are held by a shareholder as capital assets, gain or loss
recognized by the shareholder will be capital gain or loss, which will be
long-term capital gain or loss if the shareholder's holding period for the
Shares exceeds one year. Under present law, long-term capital gains recognized
by an individual shareholder will generally be taxed at a maximum U.S. federal
marginal tax rate of 28%, and long-term capital gains recognized by a corporate
shareholder will be taxed at a maximum U.S. federal marginal tax rate of 35%. In
addition, under present law the ability to use capital losses to offset ordinary
income is limited.
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A shareholder that tenders Shares may be subject to 31% backup withholding
unless the shareholder provides its TIN and certifies that such number is
correct or properly certifies that it is awaiting a TIN, or unless an exemption
applies. Exemptions are available for shareholders that are corporations and for
certain foreign individuals and entities. A shareholder that does not furnish a
required TIN may be subject to a penalty imposed by the IRS. See "Backup
Withholding" under Section 2.
If backup withholding applies to a shareholder, the Depositary is required
to withhold 31% from payments to such shareholder. Backup withholding is not an
additional tax. Rather, the amount of the backup withholding can be credited
against the U.S. federal income tax liability of the person subject to the
backup withholding, provided that the required information is given to the IRS.
If backup withholding results in an overpayment of tax, a refund can be obtained
by the shareholder upon filing an income tax return.
THE FOREGOING DISCUSSION MAY NOT BE APPLICABLE WITH RESPECT TO SHARES
RECEIVED PURSUANT TO THE EXERCISE OF EMPLOYEE STOCK OPTIONS OR OTHERWISE AS
COMPENSATION OR WITH RESPECT TO HOLDERS OF SHARES WHO ARE SUBJECT TO SPECIAL TAX
TREATMENT UNDER THE CODE, SUCH AS NON-U.S. PERSONS, LIFE INSURANCE COMPANIES,
TAX-EXEMPT ORGANIZATIONS AND FINANCIAL INSTITUTIONS, AND MAY NOT APPLY TO A
HOLDER OF SHARES IN LIGHT OF INDIVIDUAL CIRCUMSTANCES. SHAREHOLDERS ARE URGED TO
CONSULT THEIR OWN TAX ADVISORS TO DETERMINE THE PARTICULAR TAX CONSEQUENCES TO
THEM (INCLUDING THE APPLICATION AND EFFECT OF ANY STATE, LOCAL OR FOREIGN INCOME
AND OTHER TAX LAWS) OF THE OFFER AND THE MERGER.
6. PRICE RANGE OF THE SHARES; DIVIDENDS ON THE SHARES
The Shares are traded in the over-the-counter market and prices are quoted
on the Nasdaq National Market under the symbol EDMK, and have been at all times
since February 22, 1995. Prior to such time, the Shares were traded in the
over-the-counter market and prices were quoted on the Nasdaq SmallCap Market.
The following table sets forth, for each of the periods indicated, the high and
low last reported sales prices per Share as reported by the Nasdaq National
Market or the Nasdaq SmallCap Market, as applicable, and the Dow Jones News
Retrieval Service. All amounts in the following table have been adjusted to
reflect a three-for-two split of the Shares effected in the form of a 50% share
dividend to shareholders of record on July 27, 1995 and payable August 3, 1995.
EDMARK CORPORATION
<TABLE>
<CAPTION>
HIGH LOW
--------- ---------
<S> <C> <C>
FISCAL YEAR ENDED JUNE 30, 1995:
First Quarter................................................................................ $ 7.17 $ 6.50
Second Quarter............................................................................... 10.33 6.50
Third Quarter................................................................................ 17.08 9.67
Fourth Quarter............................................................................... 27.50 16.17
FISCAL YEAR ENDED JUNE 30, 1996:
First Quarter................................................................................ $ 49.00 $ 27.42
Second Quarter............................................................................... 49.13 29.25
Third Quarter................................................................................ 40.25 20.75
Fourth Quarter............................................................................... 32.00 18.25
FISCAL YEAR ENDING JUNE 30, 1997:
First Quarter................................................................................ $ 20.25 $ 11.25
Second Quarter (through November 15, 1996)................................................... 15.38 9.50
</TABLE>
On November 12, 1996, the last full trading day before the public
announcement of the execution of the Merger Agreement, the last reported sales
price of the Shares on the Nasdaq National Market was $11.44 per Share. On
November 15, 1996, the last full trading day before commencement of the Offer,
the
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<PAGE>
last reported sales price of the Shares on the Nasdaq National Market was $15.31
per Share. SHAREHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE
SHARES.
The Company has informed the Purchaser that it has never paid any dividends
on the Shares.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; SHARE QUOTATION; EXCHANGE
ACT REGISTRATION; MARGIN REGULATIONS
MARKET FOR THE SHARES. The purchase of Shares pursuant to the Offer will
reduce the number of holders of Shares and the number of Shares that might
otherwise trade publicly and could adversely affect the liquidity and market
value of the remaining Shares held by the public.
SHARE QUOTATION. Depending upon the number of Shares purchased pursuant to
the Offer, the Shares may no longer meet the requirements of the NASD for
continued inclusion in the Nasdaq National Market, which require that an issuer
have at least 200,000 publicly held shares, held by at least 400 shareholders or
300 shareholders of round lots, with a market value of at least $1,000,000, and
have net tangible assets of at least $1,000,000, $2,000,000 or $4,000,000,
depending on profitability levels during the issuer's four most recent fiscal
years. If these standards are not met, the Shares might nevertheless continue to
be included in the NASD's Nasdaq Stock Market (the "Nasdaq Stock Market") with
quotations published in the Nasdaq "additional list" or in one of the "local
lists", but if the number of holders of the Shares were to fall below 300, or if
the number of publicly held Shares were to fall below 100,000 or there were not
at least two registered and active market makers for the Shares, the NASD's
rules provide that the Shares would no longer be "qualified" for Nasdaq Stock
Market reporting and the Nasdaq Stock Market would cease to provide any
quotations. Shares held directly or indirectly by directors, officers or
beneficial owners of more than 10% of the Shares are not considered as being
publicly held for this purpose. According to the Company, as of November 10,
1996, there were approximately 542 holders of record of Shares and there were
6,632,111 Shares outstanding. If, as a result of the purchase of Shares pursuant
to the Offer or otherwise, the Shares no longer meet the requirements of the
NASD for continued inclusion in the Nasdaq National Market or in any other tier
of the Nasdaq Stock Market and the Shares are no longer included in the Nasdaq
National Market or in any other tier of the Nasdaq Stock Market, as the case may
be, the market for Shares could be adversely affected.
In the event that the Shares no longer meet the requirements of the NASD for
continued inclusion in any tier of the Nasdaq Stock Market, it is possible that
the Shares would continue to trade in the over-the-counter market and that price
quotations would be reported by other sources. The extent of the public market
for the Shares and the availability of such quotations would, however, depend
upon the number of holders of Shares remaining at such time, the interests in
maintaining a market in Shares on the part of securities firms, the possible
termination of registration of the Shares under the Exchange Act, as described
below, and other factors.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. Registration of the Shares under the Exchange Act may be
terminated upon application of the Company to the Commission if the Shares are
neither listed on a national securities exchange nor held by 300 or more holders
of record. Termination of registration of the Shares under the Exchange Act
would substantially reduce the information required to be furnished by the
Company to its shareholders and to the Commission and would make certain
provisions of the Exchange Act no longer applicable to the Company, such as the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act, the
requirement of furnishing a proxy statement pursuant to Section 14(a) of the
Exchange Act in connection with shareholders' meetings and the related
requirement of furnishing an annual report to shareholders and the requirements
of Rule 13e-3 under the Exchange Act with respect to "going private"
transactions. Furthermore, the ability of "affiliates" of the Company and
persons holding "restricted securities" of the Company to dispose of such
securities pursuant to Rule 144 or 144A promulgated under the Securities Act of
1933 may be impaired or eliminated. The Purchaser intends to seek to cause the
Company to apply for
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<PAGE>
termination of registration of the Shares under the Exchange Act as soon after
the completion of the Offer as the requirements for such termination are met.
If registration of the Shares is not terminated prior to the Merger, then
the Shares will be delisted from all stock exchanges and the registration of the
Shares under the Exchange Act will be terminated following the consummation of
the Merger.
MARGIN REGULATIONS. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on the collateral of the Shares. Depending upon factors
similar to those described above regarding listing and market quotations, it is
possible that, following the Offer, the Shares would no longer constitute
"margin securities" for the purposes of the margin regulations of the Federal
Reserve Board and therefore could no longer be used as collateral for loans made
by brokers.
8. CERTAIN INFORMATION CONCERNING THE COMPANY
The Company is a Washington corporation with its principal offices at 6727
185th Avenue N.E., Redmond, Washington 98052. The Company is a leading developer
and publisher of multimedia educational software and other educational products
for the home and for schools.
Set forth below is certain selected financial information with respect to
the Company excerpted from the information contained in the Company's Annual
Report to Shareholders for the year ended June 30, 1996 (the "Company 1996
Annual Report") and the Company's Quarterly Report on Form 10-Q for the three
months ended September 30, 1996 (the "Company 1996 10-Q"). More comprehensive
financial information is included in the Company 1996 Annual Report, the Company
1996 10-Q and other documents filed by the Company with the Commission, and the
following summary is qualified in its entirety by reference to the Company 1996
Annual Report, the Company 1996 10-Q and such other documents and all the
financial information (including any related notes) contained therein. The
Company 1996 Annual Report, the Company 1996 10-Q and such other documents
should be available for inspection and copies thereof should be obtainable in
the manner set forth below under "Available Information".
EDMARK CORPORATION
SELECTED FINANCIAL INFORMATION
(In thousands)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
YEAR ENDED AND AT JUNE 30, AND AT SEPTEMBER 30,
------------------------------- --------------------
1996 1995 1994 1996 1995
--------- --------- --------- --------- ---------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Net revenues............................................. $ 32,188 $ 22,719 $ 11,663 $ 6,771 $ 6,932
Operating income (loss).................................. 1,422 1,800 (2,413) (1,384) 114
Net earnings (loss)...................................... 2,013 2,024 (1,937) (685) 242
Balance Sheet Data:
Working capital.......................................... $ 30,496 $ 11,455 $ 30,119
Total assets............................................. 43,408 16,690 43,373
Total shareholders' equity............................... 40,491 13,687 39,827
</TABLE>
CERTAIN COMPANY PROJECTIONS. During the course of discussions between IBM
and the Company, the Company provided IBM with certain non-public business and
financial information about the Company. This information included two different
sets of forecasts for the fiscal year ending June 30, 1997, each of which was
prepared in the Summer of 1996. Such forecasts projected fiscal 1997 net
revenues of $32.6 million and $34.7 million, fiscal 1997 operating income of $.4
million and $1.8 million and fiscal 1997 net earnings of $1.3 million and $2.3
million. At the time of furnishing such information to IBM, the Company
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<PAGE>
indicated that each such set of projections was likely to exceed actual fiscal
1997 results. The Company does not as a matter of course make public any
projections as to future performance or earnings, and the projections set forth
above are included in this Offer to Purchase only because the information was
provided to IBM. The projections were not prepared with a view to public
disclosure or compliance with the published guidelines of the Commission or the
guidelines established by the American Institute of Certified Public Accountants
regarding projections or forecasts. The projections were based on a number of
assumptions that are beyond the control of the Company, the Purchaser or IBM or
their respective advisors, including economic forecasting (both general and
specific to the Company's business), which is inherently uncertain and
subjective. None of the Company, the Purchaser or IBM or their respective
advisors assumes any responsibility for the accuracy of any of the projections.
The inclusion of the foregoing projections should not be regarded as an
indication that the Company, the Purchaser, IBM or any other person who received
such information considers it an accurate prediction of future events. Neither
the Company nor IBM intends to update, revise or correct such projections if
they become inaccurate (even in the short term).
AVAILABLE INFORMATION. The Company is subject to the informational
requirements of the Exchange Act and, in accordance therewith, is required to
file reports relating to its business, financial condition and other matters.
Information as of particular dates concerning the Company's directors and
officers, their remuneration, stock options and other matters, the principal
holders of the Company's securities and any material interest of such persons in
transactions with the Company is required to be disclosed in the Company's proxy
statements distributed to the Company's shareholders and filed with the
Commission. Such information should be available for inspection at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington, DC
20549, and at the regional offices of the Commission located at Seven World
Trade Center, 13th Floor, New York, NY 10048 and Citicorp Center, 500 West
Madison Street (Suite 1400), Chicago, IL 60661. Copies of such information
should be obtainable, by mail, upon payment of the Commission's customary
charges, by writing to the Commission's principal office at 450 Fifth Street,
N.W., Washington, DC 20549. The Commission maintains a Web site that contains
reports, proxy and information statements and other information regarding
registrants that file electronically with the Commission. Such reports, proxy
and information statements and other information may be found on the
Commission's Web site address, http://www.sec.gov. Such material should also be
available for inspection at the offices of Nasdaq Operations, 1735 K Street,
N.W., Washington, DC 20006.
Except as otherwise stated in this Offer to Purchase, the information
concerning the Company contained herein has been taken from or based upon
publicly available documents on file with the Commission and other publicly
available information. Although the Purchaser and IBM do not have any knowledge
that any such information is untrue, neither the Purchaser nor IBM takes any
responsibility for the accuracy or completeness of such information or for any
failure by the Company to disclose events that may have occurred and may affect
the significance or accuracy of any such information.
9. CERTAIN INFORMATION CONCERNING THE PURCHASER AND IBM
The Purchaser, a Washington corporation which is a wholly owned subsidiary
of IBM, was organized to acquire the Company and has not conducted any unrelated
activities since its organization. The principal office of the Purchaser is
located at the principal office of IBM. All outstanding shares of capital stock
of the Purchaser are owned by IBM.
IBM is a New York corporation with its principal office located at Old
Orchard Road, Armonk, NY 10504. IBM has two fundamental missions. First, IBM
strives to lead in the creation, development and manufacture of the industry's
most advanced information technologies, including computer systems, software,
networking systems and microelectronics. Second, IBM translates these advanced
technologies into value for its customers worldwide through its sales and
professional services units in North America, Europe/Middle East/Africa, Asia
Pacific and Latin America.
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<PAGE>
AVAILABLE INFORMATION. IBM is subject to the informational requirements of
the Exchange Act and, in accordance therewith, files reports relating to its
business, financial condition and other matters. Information, as of particular
dates, concerning IBM's directors and officers, their remuneration, stock
options and other matters, the principal holders of IBM's securities and any
material interest of such persons in transactions with IBM is required to be
disclosed in proxy statements distributed to IBM's shareholders and filed with
the Commission. Such reports, proxy statements and other information should be
available for inspection at the Commission and copies thereof should be
obtainable from the Commission in the same manner as is set forth with respect
to the Company in Section 8. Such material should also be available for
inspection at the offices of The New York Stock Exchange, Inc., 20 Broad Street,
New York, NY 10005.
10. SOURCE AND AMOUNT OF FUNDS
The Purchaser estimates that the total amount of funds required to purchase
pursuant to the Offer the number of Shares that are outstanding on a fully
diluted basis and to pay fees and expenses related to the Offer and the Merger
will be approximately $110 million. The Purchaser plans to obtain all funds
needed for the Offer and the Merger through a capital contribution. IBM intends
to use its available cash on hand to make this capital contribution.
11. CONTACTS AND TRANSACTIONS WITH THE COMPANY; BACKGROUND OF THE OFFER
During February 1996 representatives of IBM and Sally G. Narodick, at that
time the Company's Chairman and Chief Executive Officer, discussed IBM's
strategic focus on the enhanced learning area and possible cooperative
relationships between IBM and the Company. Following such discussions, on March
28, 1996, IBM and the Company entered into a license agreement providing IBM
with the right to market the Company's STRATEGY GAMES OF THE WORLD product with
IBM's Aptiva personal computers. Amounts payable to the Company under this
agreement have aggregated less than $500,000 to date.
On May 16, 1996 James A. Firestone, General Manager of IBM's Consumer
Division, and James B. Rice, Director of Consumer Software Marketing of IBM's
Consumer Division, and Ms. Narodick met and had a general discussion about
business trends.
On August 13, 1996 Ms. Narodick called Mr. Firestone to arrange a meeting to
discuss possible business relationships between IBM and the Company, including
development activities and licensing by IBM of Company products, and inquiring
as to IBM's interest in a possible acquisition of the Company. On August 29,
1996 Mr. Firestone and Ms. Narodick, along with other representatives of IBM and
the Company, met and discussed the Company's interest in a possible acquisition
by IBM. On such date IBM and the Company executed a bi-lateral Non-Disclosure
Agreement and the Company presented IBM with certain financial and business
information.
On September 6, 1996, Ms. Narodick called Mr. Firestone to advise him that
she intended to resign the following week and that Frances M. Conley would serve
as Chairman of the Board and Donna G. Stanger would serve as acting Chief
Executive Officer while the Company searched for a permanent Chief Executive
Officer.
At various times during September and October 1996 representatives of IBM
met with representatives of the Company and Alex. Brown to discuss, among other
things, personnel matters, sales and marketing plans and strategy, possible
synergies, the Company's operating performance, financial projections and
long-term objectives and IBM's interest in making an offer to acquire the
Company. In addition, during this period and through the date hereof the Company
and IBM have discussed potential development and marketing relationships. On
November 1, 1996 IBM submitted an indication of interest in a possible
acquisition of the Company.
On November 2 and 3, 1996 a number of conversations were held among
representatives of IBM and representatives of the Company, including Ms. Conley,
as well as Alex. Brown, regarding the possible price that IBM would be willing
to offer for the Shares. During the period from November 5 to November 8,
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<PAGE>
1996 representatives of IBM met with representatives of the Company to continue
IBM's due diligence review of the Company and to discuss, among other things,
the state of the Company's business, its prospects and personnel matters. During
the period from November 7 to November 12, 1996 representatives of IBM,
including Mr. Firestone, and IBM's legal counsel, on the one hand, and
representatives of the Company, including Ms. Conley and Ms. Stanger, and the
Company's legal counsel, on the other hand, negotiated documentation for the
contemplated transactions.
On November 12, 1996 the Boards of Directors of the Company and the
Purchaser each approved the transactions and the purchase price. Following such
approvals the Merger Agreement and other related agreements were executed and
delivered, and the transaction was publicly announced before financial markets
in the United States opened on November 13, 1996.
Except as described in this Offer to Purchase (including Schedule I hereto),
none of the Purchaser, IBM or, to the best knowledge of the Purchaser, any of
the persons listed in Schedule I hereto, or any associate or majority-owned
subsidiary of the Purchaser, IBM or any of the persons so listed, beneficially
owns any equity security of the Company, and none of the Purchaser, IBM or, to
the best knowledge of the Purchaser, any of the other persons referred to above,
or any of the respective directors, executive officers or subsidiaries of any of
the foregoing, has effected any transaction in any equity security of the
Company during the past 60 days. The Purchaser and IBM disclaim beneficial
ownership of any Shares owned by any pension plan of IBM or any affiliate of
IBM.
Except as described in this Offer to Purchase, as of the date hereof (a)
there have not been any contacts, transactions or negotiations between the
Purchaser or IBM, any of their respective subsidiaries or, to the best knowledge
of the Purchaser, any of the persons listed in Schedule I hereto, on the one
hand, and the Company or any of its directors, officers or affiliates, on the
other hand, that are required to be disclosed pursuant to the rules and
regulations of the Commission and (b) none of the Purchaser, IBM or, to the best
knowledge of the Purchaser, any of the persons listed in Schedule I hereto has
any contract, arrangement, understanding or relationship with any person with
respect to any securities of the Company. During the Offer, the Purchaser and
IBM intend to have ongoing contacts and negotiations with the Company and its
directors, officers and shareholders.
12. PURPOSE OF THE OFFER; THE MERGER AGREEMENT; THE SHAREHOLDER AGREEMENT; ETC.
PURPOSE
The purpose of the Offer is to enable IBM to acquire control of, and the
entire equity interest in, the Company. The Offer, as the first step in the
acquisition of the Company, is intended to facilitate the acquisition of all the
Shares. The purpose of the Merger is to acquire all Shares not tendered and
purchased pursuant to the Offer, the Shareholder Agreement or otherwise.
THE MERGER AGREEMENT
The Merger Agreement provides that following the satisfaction or waiver of
the conditions described below under "Conditions to the Merger", the Purchaser
will be merged with and into the Company, and each then outstanding Share (other
than Shares owned by IBM, the Purchaser, any other subsidiary of IBM or by
shareholders, if any, who are entitled to and who properly exercise dissenters'
rights under Washington law) will be converted into the right to receive an
amount in cash equal to the price per Share paid pursuant to the Offer. The
Merger Agreement further provides that, at the election of IBM, the Company may
be merged with and into the Purchaser, with the Purchaser continuing as the
surviving corporation.
15
<PAGE>
VOTE REQUIRED TO APPROVE MERGER. The WBCA requires, among other things,
that any plan of merger or consolidation of the Company must be adopted by the
Board of Directors and, if the "short-form" merger procedure described below is
not available, approved by the holders of the Company's outstanding voting
securities. The Board of Directors of the Company has adopted the Merger
Agreement and approved the Offer and the Merger; consequently, the only
additional action of the Company that may be necessary to effect the Merger is
approval by the Company's shareholders, if such "short-form" merger procedure is
not available. Under the WBCA, if shareholder approval of the Merger is
required, the vote required is the affirmative vote of the holders of two-thirds
of the outstanding Shares. If the Purchaser acquires, through the Offer, the
Shareholder Agreement or otherwise, voting power with respect to two-thirds of
the outstanding Shares (which would be the case if the Minimum Condition were
satisfied and the Purchaser were to accept for payment Shares tendered pursuant
to the Offer), it would have sufficient voting power to effect the Merger
without the vote of any other shareholder of the Company.
The WBCA also provides that if a parent company owns at least 90% of the
outstanding shares of each class of stock of a subsidiary, the parent company
may merge that subsidiary into itself without the approval of the shareholders
of the parent or the subsidiary. Accordingly, if, as a result of the Offer, the
Shareholder Agreement or otherwise, the Purchaser owns at least 90% of the
outstanding Shares and IBM elects, as described above, to merge the Company into
the Purchaser, the Purchaser could effect the Merger without prior notice to, or
any action by, any shareholder of the Company.
CONDITIONS TO THE MERGER. The Merger Agreement provides that the respective
obligations of each party to effect the Merger is subject to the satisfaction or
waiver of the following conditions: (a) if required by applicable law, the
Merger having been approved by the affirmative vote of the holders of two-thirds
of the Shares; (b) no statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or other order
issued by any federal, state or local government or any court, tribunal,
administrative agency or commission or other governmental or other regulatory
authority or agency, domestic, foreign or supranational (a "Governmental
Entity"), or other legal restraint or prohibition preventing the consummation of
the Merger being in effect; PROVIDED, HOWEVER, that each of the Company, the
Purchaser and IBM has used reasonable efforts to prevent the entry of any such
injunction or other order and to appeal as promptly as possible any injunction
or other order that may have been entered; and (c) the Purchaser having
previously accepted for payment and paid for Shares pursuant to the Offer.
TERMINATION OF THE MERGER AGREEMENT. The Merger Agreement may be terminated
at any time prior to the effective time of the Merger, whether before or after
approval of the terms of the Merger Agreement by the shareholders of the
Company:
(1) by mutual written consent of the Company and IBM;
(2) by either the Company or IBM (a) if (i) as a result of the failure
of any of the conditions to the Offer, the Offer has terminated or expired
in accordance with its terms without the Purchaser having accepted for
payment any Shares pursuant to the Offer or (ii) the Purchaser has not
accepted for payment any Shares pursuant to the Offer prior to February 28,
1997, PROVIDED, HOWEVER, that the right to terminate the Merger Agreement
described in this clause (2) is not available to any party whose failure to
perform any of its obligations under the Merger Agreement results in the
failure of any such condition or if the failure of such condition results
from facts or circumstances that constitute a breach of a representation or
warranty under the Merger Agreement by such party; or (b) if any
Governmental Entity has issued an order, decree or ruling or taken any other
action permanently enjoining, restraining or otherwise prohibiting the
acceptance for payment of, or payment for, Shares pursuant to the Offer or
the Merger and such order, decree or ruling or other action has become final
and nonappealable;
16
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(3) by the Purchaser or IBM (a) prior to the purchase of Shares pursuant
to the Offer in the event of a breach by the Company of any representation,
warranty, covenant or other agreement contained in the Merger Agreement
which (i) would give rise to the failure of a condition set forth in
paragraph (e) or (f) of Section 14 and (ii) cannot be or has not been cured
within 20 days after the giving of written notice to the Company; or (b) if
either the Purchaser or IBM is entitled to terminate the Offer as a result
of (i) the Board of Directors of the Company or any committee thereof having
withdrawn or modified in a manner adverse to the Purchaser or IBM its
approval or recommendation of the Offer or the Merger or its adoption of the
Merger Agreement, or approved or recommended any Takeover Proposal, (ii) the
Company having entered into any agreement with respect to any Superior
Proposal (as defined below) in accordance with the provisions described
below under "Takeover Proposals" or (iii) the Board of Directors of the
Company or any committee thereof having resolved to take any of the actions
described in clauses (3)(b)(i) or (3)(b)(ii); or
(4) by the Company (i) in accordance with the terms of the Merger
Agreement described below under "Takeover Proposals", provided it has
complied with all provisions thereof, including the notice provisions
therein, and that it complies with the applicable requirements relating to
the payment (including the timing of any payment) of Expenses and the
Termination Fee (as such terms are defined below under "Fees and Expenses")
or (ii) if the Purchaser or IBM has breached or failed to perform in any
material respect any of their respective representations, warranties,
covenants or other agreements contained in the Merger Agreement, which
breach or failure to perform is incapable of being cured or has not been
cured within 20 days after the giving of written notice to the Purchaser or
IBM, as applicable, except, in any case, such breaches and failures which
are not reasonably likely to affect adversely the Purchaser's or IBM's
ability to consummate the Offer or the Merger.
TAKEOVER PROPOSALS. The Merger Agreement provides that the Company will
not, nor will it authorize or permit any of its directors, officers or employees
or any investment banker, financial advisor, attorney, accountant or other
representative or agent retained by it to, directly or indirectly, (1) solicit,
initiate or encourage (including by way of furnishing information), or take any
other action designed or reasonably likely to facilitate, any inquiries or the
making of any proposal which constitutes, or may reasonably be expected to lead
to, any Takeover Proposal or (2) participate in any discussions or negotiations
regarding any Takeover Proposal; PROVIDED, HOWEVER, that if, at any time prior
to the acceptance for payment of Shares pursuant to the Offer, the Board of
Directors of the Company determines in good faith, after consultation with
outside counsel, that it is necessary to do so in order to comply with its
fiduciary duties to the Company's shareholders under applicable law, the Company
may, in response to a Takeover Proposal which was not solicited subsequent to
the date of the Merger Agreement, and subject to compliance with the
notification provisions described below, (i) furnish information with respect to
the Company to any person pursuant to a confidentiality agreement in a form
approved by IBM (such approval not to be unreasonably withheld) and (ii)
participate in negotiations regarding such Takeover Proposal. The Merger
Agreement defines "Takeover Proposal" as any inquiry, proposal or offer, or any
expression of interest by any third party relating to the Company's willingness
or ability to receive or discuss a proposal or offer, other than a proposal or
offer by IBM or any of its subsidiaries, for a merger, consolidation or other
business combination involving the Company, or any purchase of, all or
substantially all of its assets or more than 30% of the Shares.
The Merger Agreement provides further that, except as described below,
neither the Board of Directors of the Company nor any committee thereof may (i)
withdraw or modify, or propose to withdraw or modify, in a manner adverse to
IBM, the approval or recommendation by such Board of Directors or such committee
of the Offer, the Merger Agreement or the Merger, (ii) approve or recommend, or
propose to approve or recommend, any Takeover Proposal or (iii) cause the
Company to enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement (each, an "Acquisition Agreement") related
to any Takeover Proposal. Notwithstanding the foregoing, in the event that prior
to the acceptance for payment of Shares pursuant to the Offer the Board of
Directors of the
17
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Company determines in good faith, after consultation with outside counsel, that
it is necessary to do so in order to comply with its fiduciary duties to the
Company's shareholders under applicable law, such Board of Directors may, in
response to a Takeover Proposal which was not solicited subsequent to the date
of the Merger Agreement (subject to the provisions described in this and the
following sentences), (x) withdraw or modify its approval or recommendation of
the Offer, the Merger Agreement or the Merger or (y) approve or recommend a
Superior Proposal or terminate the Merger Agreement (and concurrently with or
after such termination, if it so chooses, cause the Company to enter into any
Acquisition Agreement with respect to a Superior Proposal), but in each of the
cases described in this clause (y) only at a time that is after the second
business day following IBM's receipt of written notice advising IBM that the
Board of Directors of the Company has received a Superior Proposal, specifying
the material terms and conditions of such Superior Proposal and identifying the
person making such Superior Proposal. The Merger Agreement defines "Superior
Proposal" as any bona fide Takeover Proposal made by a third party on terms
which the Board of Directors of the Company determines in its good faith
judgment (based on the advice of a financial advisor of nationally recognized
reputation) to be more favorable to the Company's shareholders than the Offer
and the Merger and for which financing, to the extent required, is then
committed or which, in the good faith judgment of the Board of Directors of the
Company, is reasonably capable of being financed by such third party.
In addition to the obligations of the Company described in the preceding two
paragraphs, the Merger Agreement provides that the Company will immediately
advise IBM orally and in writing of any request for information or of any
Takeover Proposal, the material terms and conditions of such request or Takeover
Proposal and the identity of the person making any such request or Takeover
Proposal. The Company is further required under the terms of the Merger
Agreement to immediately inform IBM of any material change in the details
(including amendments or proposed amendments) of any such request or Takeover
Proposal.
The Merger Agreement provides that nothing contained therein will prohibit
the Company from taking and disclosing to its shareholders a position
contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making
any disclosure to the Company's shareholders if, in the good faith judgment of
the Board of Directors of the Company, after consultation with outside counsel,
failure so to disclose would be inconsistent with applicable law; PROVIDED,
HOWEVER, that neither the Company nor its Board of Directors nor any committee
thereof may, except as permitted by the Merger Agreement and as described above,
withdraw or modify, or propose to withdraw or modify, its position with respect
to the Offer, the Merger or this Agreement or approve or recommend, or propose
to approve or recommend, a Takeover Proposal.
FEES AND EXPENSES. The Merger Agreement provides that, except as provided
below, all fees and expenses incurred in connection with the Offer, the Merger,
the Merger Agreement and the transactions contemplated by the Merger Agreement
will be paid by the party incurring such fees or expenses, whether or not the
Offer or the Merger is consummated. The Merger Agreement further provides that
the Company will pay, or cause to be paid, in same day funds to IBM the sum of
(x) the Expenses and (y) $4,000,000 (the "Termination Fee") under the
circumstances and at the times set forth as follows: (a) if the Company
terminates the Merger Agreement in accordance with the provisions described
above in clause (4)(i) under "Termination of the Merger Agreement", the Company
will pay the Expenses and the Termination Fee upon demand; (b) if the Purchaser
or IBM terminates the Merger Agreement in accordance with the provisions
described above in clause (3)(b) under "Termination of the Merger Agreement",
the Company will pay the Expenses upon demand; in addition, if within 12 months
after such termination (or concurrently therewith), the Company enters into an
Acquisition Agreement providing for a Takeover Proposal or a transaction
resulting from a Takeover Proposal is consummated, the Company will pay the
Termination Fee concurrently with the earlier of the entering into of such
Acquisition Agreement or the consummation of such transaction; and (c) if, at
the time of any other termination of the Merger Agreement (other than in
accordance with the provisions described above in clause (1) or clause
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(2)(b) under "Termination of the Merger Agreement" or by the Company in
accordance with the provisions described above in clause (4)(ii) under
"Termination of the Merger Agreement"), a Takeover Proposal has been made (other
than a Takeover Proposal made prior to the date hereof), the Company will pay
the Expenses, if terminated by the Company, concurrently therewith or, if
terminated by IBM, upon demand; in addition, if within 12 months of such
termination (or concurrently therewith), the Company enters into an Acquisition
Agreement providing for a Takeover Proposal or a transaction resulting from a
Takeover Proposal is consummated, the Company will pay the Termination Fee
concurrently with the earlier of the entering into of such Acquisition Agreement
or the consummation of such transaction. The Merger Agreement defines "Expenses"
as reasonable documented out-of-pocket fees and expenses incurred or paid by or
on behalf of IBM in connection with the Offer, the Merger or the consummation of
any of the transactions contemplated by the Merger Agreement, including all fees
and expenses of law firms, accountants, experts and consultants to IBM, but
excluding all fees and expenses of commercial banks and investment banking
firms.
CONDUCT OF BUSINESS BY THE COMPANY. The Merger Agreement provides that,
except as expressly contemplated or permitted by the Merger Agreement or to the
extent that IBM shall otherwise consent in writing, until such time as IBM's
designees constitute a majority of the Board of Directors of the Company, (a)
the Company will carry on its business in the usual, regular and ordinary course
in substantially the same manner as conducted prior to the execution of the
Merger Agreement (it being understood that the foregoing does not cover future
events resulting from public announcement of the Offer and the Merger) and in
compliance in all material respects with all applicable laws and regulations and
shall use all reasonable efforts to preserve intact its present business
organizations, keep available the services of its present officers and employees
and preserve its relationships with customers, suppliers and others having
business dealings with the Company; (b) the Company will not (i) declare or pay
any dividends on or make other distributions in respect of any of its capital
stock, (ii) split, combine or reclassify any of its capital stock or issue or
authorize or propose the issuance of any other securities in respect of, in lieu
of or in substitution for shares of its capital stock or (iii) repurchase,
redeem or otherwise acquire any shares of its capital stock or any of its other
securities or any rights, warrants or options to acquire any such shares or
other securities; (c) the Company will not issue, deliver, sell, pledge or
encumber, or authorize or propose the issuance, delivery, sale, pledge or
encumbrance of, any shares of its capital stock of any class or any securities
convertible into, or rights, warrants, calls, subscriptions or options to
acquire, any such shares or convertible securities, or any other ownership
interest (including stock appreciation rights or phantom stock) other than the
issuance of Shares (i) upon the exercise of Stock Options outstanding on the
date of the Merger Agreement in accordance with their terms and (ii) in
accordance with the terms of the Edmark Corporation 1994 Employee Stock Purchase
Plan as in effect on the date of the Merger Agreement (the "Share Purchase
Plan"); (d) the Company will not amend or propose to amend its Amended and
Restated Articles of Incorporation or its Bylaws, as amended and restated; (e)
the Company will not acquire or agree to acquire (i) any business or any
corporation, partnership, joint venture, association or other business
organization or division thereof or (ii) any assets that are material,
individually or in the aggregate, to the Company, except purchases of inventory
in the ordinary course of business consistent with past practice; (f) the
Company will not sell, lease, license, encumber or otherwise dispose of, or
agree to sell, lease, license, encumber or otherwise dispose of, any of its
assets, other than sales or licenses of its products in the ordinary course of
business consistent with past practice; (g) the Company will confer on a regular
and frequent basis with IBM, as reasonably requested by IBM, report on
operational matters and promptly advise IBM orally and in writing of any
material adverse change with respect to the Company and will promptly provide to
IBM (or its counsel) copies of all filings made by the Company with any
Governmental Entity in connection with the Merger Agreement and the transactions
contemplated thereby; (h) the Company will not make any tax election that would
have a material adverse effect on the tax liability or tax attributes of the
Company or settle or compromise any tax liability of the Company and the Company
will, before filing or causing to be filed any tax return of the Company,
consult with IBM and its advisors as to the positions and elections that may be
taken or made with respect to such return, and
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take such positions or make such elections as the Company and IBM shall jointly
agree; (i) the Company will not make or agree to make any new capital
expenditure or expenditures other than in accordance with the Company's fiscal
year 1997 budget approved by the Company's Board of Directors, which capital
expenditures do not exceed $250,000 in the aggregate; (j) the Company will not
pay, discharge, settle or satisfy any claims, liabilities or obligations other
than the payment, discharge, settlement or satisfaction of certain claims,
liabilities and obligations in the ordinary course of business consistent with
past practice or in accordance with their terms; (k) except in the ordinary
course of business the Company will not (i) modify, amend or terminate any
material contract or agreement to which the Company is a party, (ii) waive,
release or assign any material rights or claims or (iii) waive the benefits of,
or agree to modify in any manner, any confidentiality, standstill or similar
agreement to which the Company is a party; and (l) the Company will not
authorize any of, or commit or agree to take any of, the foregoing actions.
In addition to the foregoing, in the Merger Agreement the Company has agreed
that it will not take any action that would, or that could reasonably be
expected to, result in (a) any of the representations and warranties of the
Company set forth in the Merger Agreement that are qualified as to materiality
becoming untrue, (b) any of such representations and warranties that are not so
qualified becoming untrue in any material respect or (c) any of the conditions
to the Offer set forth in Section 14 not being satisfied.
BOARD OF DIRECTORS. The Merger Agreement provides that promptly upon the
acceptance for payment of, and payment for, Shares by the Purchaser pursuant to
the Offer, the Purchaser will be entitled to designate, subject to compliance
with Section 14(f) of the Exchange Act, a majority of the directors on the
Company's Board of Directors, and the Company will, at such time, cause the
Purchaser's designees to be so elected by its existing Board of Directors.
Subject to applicable law, the Company has agreed to take all action requested
by IBM necessary to effect any such election, including mailing to its
shareholders the Information Statement containing the information required by
Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, which
Information Statement is attached as Appendix A to the Schedule 14D-9. The
Merger Agreement further provides that in the event that the Purchaser's
designees are elected to the Board of Directors of the Company, until the
effective time of the Merger the Board of Directors of the Company will have at
least two directors who are directors on the date of the Merger Agreement and
who are not officers of the Company.
STOCK OPTIONS. Each director or former director of the Company who held any
Stock Options on the date of the Merger Agreement has agreed in writing that all
unexercised Stock Options (other than Stock Options granted under the Edmark
Corporation Stock Option Plan (Restated as of July 14, 1995) (the "Plan")) which
remain outstanding at the time the Purchaser accepts Shares for payment in the
Offer will be cancelled. In the Merger Agreement, the parties acknowledged and
agreed that all Stock Options granted under the Plan will terminate in
accordance with their terms prior to the effective time of the Merger.
INDEMNIFICATION AND INSURANCE. In the Merger Agreement, the Purchaser and
IBM have agreed that all rights to indemnification for acts or omissions
occurring prior to the effective time of the Merger that are in existence as of
the date of the Merger Agreement in favor of the current or former directors or
officers of the Company as provided in its Amended and Restated Articles of
Incorporation or its Bylaws, as amended and restated, will survive the Merger
and will continue in full force and effect in accordance with their terms.
Pursuant to the Merger Agreement, IBM will, for a period of six years from the
effective time of the Merger, unless IBM agrees in writing to guarantee the
indemnification obligations described above, maintain in effect the Company's
current directors' and officers' liability insurance covering those persons who
are currently covered by the Company's directors' and officers' liability
insurance policy except that, to the extent that such coverage is not obtainable
at less than or equal to 200% of the current annual premiums, IBM will be
obligated to purchase only so much coverage as may then be obtained for such
amount.
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REASONABLE EFFORTS. The Merger Agreement provides that each of the parties
will use its reasonable efforts to take, or cause to be taken, all actions
necessary to comply promptly with all legal requirements that may be imposed on
itself with respect to the Offer and the Merger and will promptly cooperate with
and furnish information to each other in connection with any such requirements
imposed upon any of them or any of their subsidiaries in connection with the
Offer and the Merger and will use its reasonable efforts to take all reasonable
actions necessary to obtain (and will cooperate with each other in obtaining)
any consent, authorization, order or approval of, or any exemption by, any
Governmental Entity or other public or private third party required to be
obtained or made by any of them or any of their subsidiaries in connection with
the Offer and the Merger or the taking of any action contemplated thereby or by
the Merger Agreement, except that no party need waive any substantial rights or
agree to any substantial limitation on its operations or to dispose of any
assets.
REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains various
customary representations and warranties.
PROCEDURE FOR TERMINATION, AMENDMENT, EXTENSION OR WAIVER. The Merger
Agreement provides that in the event the Purchaser's designees are appointed or
elected to the Board of Directors of the Company as described above under "Board
of Directors", after the acceptance for payment of Shares pursuant to the Offer
and prior to the effective time of the Merger, the affirmative vote of the
directors of the Company not designated by the Purchaser or IBM is required for
the Company to amend or terminate the Merger Agreement, exercise or waive any of
its rights or remedies under the Merger Agreement or extend the time for
performance of IBM's and the Purchaser's respective obligations under the Merger
Agreement.
RIGHTS AGREEMENT. The Rights Agreement has been amended to (i) render the
Rights Agreement inapplicable to the Offer, the Merger, the Merger Agreement,
the Shareholder Agreement, the acquisition of Shares by the Purchaser pursuant
to the Offer and the Shareholder Agreement and the other transactions
contemplated by the Merger Agreement and the Shareholder Agreement and (ii)
ensure that (y) none of the Purchaser, IBM or any of their respective affiliates
is an Acquiring Person (as defined in the Rights Agreement) pursuant to the
Rights Agreement and (z) a Distribution Date does not occur by reason of the
Offer, the Merger, the execution of the Merger Agreement or the Shareholder
Agreement, the acquisition of Shares by the Purchaser pursuant to the Offer or
the Shareholder Agreement or the other transactions contemplated by the Merger
Agreement or the Shareholder Agreement.
The foregoing summary of the Merger Agreement is qualified in its entirety
by reference to the Merger Agreement, a copy of which is filed as Exhibit (c)(1)
to the Company's Tender Offer Statement on Schedule 14D-1 filed with the
Commission on the date hereof (the "Schedule 14D-1"). The Merger Agreement
should be read in its entirety for a more complete description of the matters
summarized above.
THE SHAREHOLDER AGREEMENT
Pursuant to the Shareholder Agreement, the Selling Shareholders have
unconditionally agreed to tender into the Offer, and not to withdraw therefrom,
the 1,325,946 Shares that they owned on November 12, 1996, together with any
Shares they acquire after such time, including upon the exercise of Stock
Options. In addition, the Selling Shareholders have agreed to sell to the
Purchaser, and the Purchaser has agreed to purchase, the foregoing number of
Shares at a price per Share of $15.50, or such higher price per Share as may be
offered by the Purchaser in the Offer, provided that (i) such obligation to
purchase is subject to the Purchaser having accepted Shares for payment under
the Offer and the Minimum Condition having been satisfied, which conditions to
such obligation may be waived by the Purchaser in its sole discretion, and (ii)
such obligation to sell is subject to the Minimum Condition having been
satisfied or a Takeover Proposal having been made.
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Each of the Selling Shareholders has agreed not to: (i) sell, transfer,
pledge, assign or otherwise dispose of, or enter into any contract, option or
other arrangement (including any profit sharing arrangement) or understanding
with respect to the sale, transfer, pledge, assignment or other disposition of,
Shares to any person other than the Purchaser or the Purchaser's designee, (ii)
enter into any voting arrangement, whether by proxy, voting agreement, voting
trust, power-of-attorney or otherwise, with respect to Shares or (iii) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby. Each of the Selling Shareholders has also agreed not to solicit,
initiate or encourage (including by way of furnishing information) and not to
participate in any discussions or negotiations regarding any Takeover Proposal.
Under the Shareholder Agreement, each Selling Shareholder has granted an
irrevocable proxy with respect to the Shares subject to the Shareholder
Agreement to IBM to vote such Shares against (i) any merger agreement or merger
(other than the Merger Agreement and the Merger), consolidation, combination,
sale of substantial assets, reorganization, joint venture, recapitalization,
dissolution, liquidation or winding up of or by the Company and (ii) any
amendment of the Company's Amended and Restated Articles of Incorporation or its
Bylaws, as amended and restated, or other proposal or transaction (including any
consent solicitation to remove or elect any directors of the Company) involving
the Company, which amendment or other proposal or transaction would in any
manner impede, frustrate, prevent or nullify, or result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under or with respect to, the Offer, the Merger, the Merger Agreement or
any of the other transactions contemplated by the Merger Agreement.
The foregoing summary of the Shareholder Agreement is qualified in its
entirety by reference to the Shareholder Agreement, a copy of which is filed as
Exhibit (c)(2) to the Schedule 14D-1. The Shareholder Agreement should be read
in its entirety for a more complete description of the matters summarized above.
NONCOMPETITION AGREEMENTS
Donna G. Stanger, the Company's Vice President--Product Development and
Acting Chief Executive Officer, Paul N. Bialek, the Company's Vice
President--Finance and Administration, Chief Financial Officer, Secretary and
Treasurer, Daniel P. Vetras, the Company's Vice President--Consumer Sales, and
Sally G. Narodick, the Company's former Chairman and Chief Executive Officer,
who is one of the Company's directors, have entered into noncompetition
agreements with IBM. The noncompetition agreement between IBM and Ms. Stanger
provides that in the event that her employment with IBM or any of its
subsidiaries terminates during the period of time for which she has agreed not
to compete (the "Noncompetition Period"), other than as a result of a voluntary
termination by her or a termination for cause by IBM or any of its subsidiaries
(collectively, an "IBM Termination"), IBM will continue to pay and to provide
her during the Noncompetition Period the salary (which will not be less than the
salary she is paid at the effective time of the Merger, but not including bonus)
and medical benefits (but not other benefits) that she is being paid and
provided with at the date of her termination (or, with respect to salary, any
higher salary that she had been paid in the preceeding 12 months). The
noncompetition agreement between IBM and Ms. Narodick contains a provision which
provides that, upon an IBM Termination, IBM will pay to Ms. Narodick $10,000 per
month for the duration of the Noncompetition Period.
PLANS FOR THE COMPANY
IBM's current intention is to continue the Edmark operations under the
Edmark name in Redmond, Washington. IBM expects that Edmark will continue to
work closely with educators and parents to develop high-quality educational
software for children, making products available across a wide range of
technology platforms.
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APPRAISAL RIGHTS
Holders of Shares do not have dissenters' rights as a result of the Offer.
However, if the Merger is consummated, holders of Shares at the effective time
of the Merger will have certain rights pursuant to the provisions of Chapter
23B.13 of the WBCA ("Chapter 23B.13") to dissent and demand fair value of their
Shares. Under Chapter 23B.13, dissenting shareholders who comply with the
applicable statutory procedures will be entitled to receive a judicial
determination of the fair value of their Shares (excluding any appreciation or
depreciation in anticipation of the Merger unless such exclusion would be
inequitable) and to receive payment of such fair value in cash, together with a
fair rate of interest, if any. Any such judicial determination of the fair value
of Shares could be based upon factors other than, or in addition to, the price
per Share to be paid in the Merger or the market value of the Shares. The value
so determined could be more or less than the price per Share to be paid in the
Merger.
The foregoing summary of Chapter 23B.13 does not purport to be complete and
is qualified in its entirety by reference to Chapter 23B.13. FAILURE TO FOLLOW
THE STEPS REQUIRED BY CHAPTER 23B.13 OF THE WBCA FOR PERFECTING DISSENTERS'
RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS.
GOING PRIVATE TRANSACTIONS
The Commission has adopted Rule 13e-3 under the Exchange Act which is
applicable to certain "going private" transactions. The Purchaser does not
believe that Rule 13e-3 will be applicable to the Merger unless the Merger is
consummated more than one year after the termination of the Offer. If
applicable, Rule 13e-3 requires, among other things, that certain financial
information concerning the fairness of the Merger and the consideration offered
to minority shareholders in such transaction be filed with the Commission and
disclosed to shareholders prior to the consummation of the Merger.
Except as otherwise described in this Offer to Purchase, the Purchaser and
IBM have no current plans or proposals that would relate to, or result in, any
extraordinary corporate transaction involving the Company, such as a merger,
reorganization or liquidation involving the Company, a sale or transfer of a
material amount of assets of the Company, any change in the Company's
capitalization or dividend policy or any other material change in the Company's
business, corporate structure or personnel.
13. DIVIDENDS AND DISTRIBUTIONS
Pursuant to the terms of the Merger Agreement, the Company is prohibited
from taking any of the actions described in the two succeeding paragraphs, and
nothing herein shall constitute a waiver by the Purchaser or IBM of any of its
rights under the Merger Agreement or a limitation of remedies available to the
Purchaser or IBM for any breach of the Merger Agreement, including termination
thereof.
If, on or after November 12, 1996, the Company should (a) split, combine or
otherwise change the Shares or its capitalization, (b) acquire or otherwise
cause a reduction in the number of outstanding Shares or other securities or (c)
issue or sell additional Shares, shares of any other class of capital stock,
other voting securities or any securities convertible into, or rights, warrants
or options, conditional or otherwise, to acquire any of the foregoing, other
than Shares issued pursuant to the exercise of outstanding Company Stock Options
or pursuant to the Share Purchase Plan, then, subject to the provisions of
Section 14, the Purchaser, in its sole discretion, may make such adjustments as
it deems appropriate in the Offer Price and other terms of the Offer, including,
without limitation, the number or type of securities offered to be purchased.
If, on or after November 12, 1996, the Company should declare or pay any
cash dividend on the Shares or other distribution on the Shares, or issue with
respect to the Shares any additional Shares, shares of any other class of
capital stock, other voting securities or any securities convertible into, or
rights, warrants or options, conditional or otherwise, to acquire, any of the
foregoing, payable or distributable to shareholders of record on a date prior to
the transfer of the Shares purchased pursuant to the Offer to the
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Purchaser or its nominee or transferee on the Company's stock transfer records,
then, subject to the provisions of Section 14, (a) the Offer Price may, in the
sole discretion of the Purchaser, be reduced by the amount of any such cash
dividend or cash distribution and (b) the whole of any such noncash dividend,
distribution or issuance to be received by the tendering shareholders will (i)
be received and held by the tendering shareholders for the account of the
Purchaser and will be required to be promptly remitted and transferred by each
tendering shareholder to the Depositary for the account of the Purchaser,
accompanied by appropriate documentation of transfer, or (ii) at the direction
of the Purchaser, be exercised for the benefit of the Purchaser, in which case
the proceeds of such exercise will promptly be remitted to the Purchaser.
Pending such remittance and subject to applicable law, the Purchaser will be
entitled to all rights and privileges as owner of any such noncash dividend,
distribution, issuance or proceeds and may withhold the entire Offer Price or
deduct from the Offer Price the amount or value thereof, as determined by the
Purchaser in its sole discretion.
14. CERTAIN CONDITIONS OF THE OFFER
Notwithstanding any other term of the Offer or the Merger Agreement, the
Purchaser will not be required to accept for payment or, subject to any
applicable rules and regulations of the Commission, including Rule 14e-1(c)
under the Exchange Act (relating to the Purchaser's obligation to pay for or
return tendered Shares after the termination or withdrawal of the Offer), to pay
for any Shares tendered pursuant to the Offer unless (i) the Minimum Condition
shall have been satisfied and (ii) the HSR Condition shall have been satisfied.
Furthermore, notwithstanding any other term of the Offer or the Merger
Agreement, the Purchaser will not be required to accept for payment or, subject
as aforesaid, to pay for any Shares not theretofore accepted for payment or paid
for, and may terminate the Offer if, at any time on or after the date of the
Merger Agreement and before the acceptance of such Shares for payment or the
payment therefor, any of the following conditions exists (other than as a result
of any action or inaction of IBM or any of its subsidiaries that constitutes a
breach of the Merger Agreement):
(a) there shall be threatened, instituted or pending by any Governmental
Entity any suit, action or proceeding (i) challenging the acquisition by IBM
or the Purchaser of any Shares under the Offer, seeking to restrain or
prohibit the making or consummation of the Offer or the Merger or the
performance of any of the other transactions contemplated by the Merger
Agreement or the Shareholder Agreement, (ii) seeking to prohibit or
materially limit the ownership or operation by the Company, IBM or any of
IBM's subsidiaries of a material portion of the business or assets of the
Company or IBM and its subsidiaries, taken as a whole, or to compel the
Company or IBM to dispose of or hold separate any material portion of the
business or assets of the Company or IBM and its subsidiaries, taken as a
whole, in each case as a result of the Offer or any of the other
transactions contemplated by the Merger Agreement, (iii) seeking to impose
material limitations on the ability of IBM or the Purchaser to acquire or
hold, or exercise full rights of ownership of, any Shares to be accepted for
payment pursuant to the Offer, including, without limitation, the right to
vote such Shares on all matters properly presented to the shareholders of
the Company, (iv) seeking to prohibit IBM or any of its subsidiaries from
effectively controlling in any material respect any material portion of the
business or operations of the Company or (v) which otherwise is reasonably
likely to have any effect (or any development that, insofar as can
reasonably be foreseen, is likely to result in any effect) that,
individually or in the aggregate with any such other effects, is materially
adverse to the business, properties, financial condition or results of
operations of the Company.
(b) there shall be any statute, rule, regulation, judgment, order or
injunction enacted, entered, enforced, promulgated or deemed applicable to
the Offer or the Merger, by any Governmental Entity, other than the
application to the Offer or the Merger of applicable waiting periods under
the HSR Act, that is reasonably likely to result, directly or indirectly, in
any of the consequences referred to in clauses (i) through (v) of paragraph
(a) above;
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(c) there shall have occurred any change (or any development that,
insofar as reasonably can be foreseen, is reasonably likely to result in any
change) that, individually or in the aggregate with any other such changes,
is materially adverse to the business, properties, financial condition or
results of operations of the Company;
(d) (i) the Board of Directors of the Company or any committee thereof
shall have withdrawn or modified in a manner adverse to IBM or the Purchaser
its approval or recommendation of the Offer or the Merger or its adoption of
the Merger Agreement, or approved or recommended any Takeover Proposal, (ii)
the Company shall have entered into any agreement with respect to any
Superior Proposal in accordance with the Merger Agreement or (iii) the Board
of Directors of the Company or any committee thereof shall have resolved to
take any of the foregoing actions (see "The Merger Agreement--Takeover
Proposals" in Section 12);
(e) any of the representations and warranties of the Company set forth
in the Merger Agreement that are qualified as to materiality shall not be
true and correct or any such representations and warranties that are not so
qualified shall not be true and correct in any material respect, in each
case at the date of the Merger Agreement and at the scheduled or extended
expiration of the Offer;
(f) the Company shall have failed to perform in any material respect any
material obligation or to comply in any material respect with any material
agreement or covenant of the Company to be performed or complied with by it
under the Merger Agreement, which failure to perform or comply has not been
cured within five business days after the giving of written notice to the
Company; or
(g) the Merger Agreement shall have been terminated in accordance with
its terms.
The foregoing conditions are for the sole benefit of the Purchaser and IBM
and may, subject to the terms of the Merger Agreement, be waived by the
Purchaser and IBM in whole or in part at any time and from time to time in their
sole discretion. The failure by the Purchaser or IBM at any time to exercise any
of the foregoing rights will not be deemed a waiver of any such right, the
waiver of any such right with respect to particular facts and circumstances will
not be deemed a waiver with respect to any other facts and circumstances and
each such right will be deemed an ongoing right that may be asserted at any time
and from time to time.
15. CERTAIN LEGAL MATTERS
Except as described in this Section 15, based on a review of publicly
available filings made by the Company with the Commission and other publicly
available information concerning the Company and discussions of representatives
of IBM with representatives of the Company, neither the Purchaser nor IBM is
aware of any license or regulatory permit that appears to be material to the
business of the Company that might be adversely affected by the Purchaser's
acquisition of Shares as contemplated herein or of any approval or other action
by any Governmental Entity that would be required or desirable for the
acquisition or ownership of Shares by the Purchaser as contemplated herein.
Should any such approval or other action be required or desirable, the Purchaser
and IBM currently contemplate that such approval or other action will be sought,
except as described below under "State Takeover Laws". While, except as
otherwise expressly described in this Section 15, the Purchaser does not
presently intend to delay the acceptance for payment of or payment for Shares
tendered pursuant to the Offer pending the outcome of any such matter, there can
be no assurance that any such approval or other action, if needed, would be
obtained or would be obtained without substantial conditions or that failure to
obtain any such approval or other action might not result in consequences
adverse to the Company's business or that certain parts of the Company's
business might not have to be disposed of if such approvals were not obtained or
such other actions were not taken or in order to obtain any such approval or
other action. If certain types of adverse action are taken with respect to the
matters discussed below, the Purchaser could decline to accept for payment or
pay for any Shares tendered. See Section 14 for certain conditions to the Offer.
25
<PAGE>
STATE TAKEOVER LAWS. A number of states throughout the United States have
enacted takeover statutes that purport, in varying degrees, to be applicable to
attempts to acquire securities of corporations that are incorporated or have
assets, shareholders, executive offices or places of business in such states. In
EDGAR V. MITE CORP., the Supreme Court of the United States held that the
Illinois Business Takeover Act, which involved state securities laws that made
the takeover of certain corporations more difficult, imposed a substantial
burden on interstate commerce and therefore was unconstitutional. In CTS CORP.
V. DYNAMICS CORP. OF AMERICA, however, the Supreme Court of the United States
held that a state may, as a matter of corporate law and, in particular, those
laws concerning corporate governance, constitutionally disqualify a potential
acquiror from voting on the affairs of a target corporation without prior
approval of the remaining shareholders, provided that such laws were applicable
only under certain conditions. Subsequently, a number of Federal courts ruled
that various state takeover statutes were unconstitutional insofar as they apply
to corporations incorporated outside the state of enactment.
Chapter 23.B.19 of the WBCA, in general, prohibits a Washington corporation
such as the Company from engaging in a "Significant Business Transaction"
(defined as a variety of transactions, including mergers) with an "Acquiring
Person" (defined generally as a person that is the beneficial owner of 10% or
more of a corporation's outstanding voting stock) for a period of five years
following the date that such person became an Acquiring Person unless, among
other things, prior to the date such person became an Acquiring Person, the
board of directors of the corporation approved either the Significant Business
Transaction or the transaction that resulted in the shareholder becoming an
Acquiring Person. The Company's Board of Directors has approved the Merger
Agreement, the Shareholder Agreement and the Purchaser's acquisition of Shares
pursuant to the Offer and the Shareholder Agreement. Therefore, Chapter 23.B.19
of the WBCA is inapplicable to the Merger.
Based on information supplied by the Company, the Purchaser does not believe
that any other state takeover statutes purport to apply to the Offer or the
Merger. Neither the Purchaser nor IBM has currently complied with any state
takeover statute or regulation. The Purchaser reserves the right to challenge
the applicability or validity of any state law purportedly applicable to the
Offer or the Merger and nothing in this Offer to Purchase or any action taken in
connection with the Offer or the Merger is intended as a waiver of such right.
If it is asserted that any state takeover statute is applicable to the Offer or
the Merger and an appropriate court does not determine that it is inapplicable
or invalid as applied to the Offer or the Merger, the Purchaser might be
required to file certain information with, or to receive approvals from, the
relevant state authorities, and the Purchaser might be unable to accept for
payment or pay for Shares tendered pursuant to the Offer, or be delayed in
consummating the Offer or the Merger. In such case, the Purchaser may not be
obligated to accept payment or pay for any Shares tendered pursuant to the
Offer. See Section 14.
ANTITRUST. Under the provisions of the HSR Act applicable to the Offer, the
acquisition of Shares under the Offer may be consummated after the expiration of
a 15-calendar day waiting period commenced by the filing by IBM of a
Notification and Report Form with respect to the Offer, unless IBM receives a
request for additional information or documentary material from the Antitrust
Division or the FTC or unless early termination of the waiting period is
granted. IBM made such filing on November 15, 1996. If, within the initial
15-day waiting period, either the Antitrust Division or the FTC requests
additional information or material from IBM concerning the Offer, the waiting
period will be extended and would expire at 11:59 p.m., New York City time, on
the tenth calendar day after the date of substantial compliance by IBM with such
request. Only one extension of the waiting period pursuant to a request for
additional information is authorized by the HSR Act. Thereafter, such waiting
period may be extended only by court order or with the consent of IBM. In
practice, complying with a request for additional information or material can
take a significant amount of time. In addition, if the Antitrust Division or the
FTC raises substantive issues in connection with a proposed transaction, the
parties frequently engage in negotiations with the relevant governmental agency
concerning possible means of addressing those issues and may agree to delay
consummation of the transaction while such negotiations continue. Expiration or
26
<PAGE>
termination of the applicable waiting period under the HSR Act is a condition to
the Purchaser's obligation to accept for payment and pay for Shares tendered
pursuant to the Offer.
The provisions of the HSR Act would similarly apply to any purchase, other
than pursuant to the Offer, of the Shares subject to the Shareholder Agreement,
except that the initial waiting period for any purchase of such Shares would
expire 30 calendar days following the filing of HSR Act Notification and Report
Forms by IBM and the Company. IBM made such filing on November 15, 1996 and the
Company intends to make such filing shortly. A request for additional
information or material from IBM or the Company during the initial 30-day
waiting period would extend the waiting period until 11:59 p.m. New York City
time on the 20th calendar day after the date of substantial compliance by IBM
and the Company with such request. If the purchase of Shares pursuant to the
Shareholder Agreement is effected through a tender of such Shares pursuant to
the Offer, the HSR requirements applicable to the Offer described in the prior
paragraph would apply rather than the requirements described in this paragraph.
The Merger would not require an additional filing under the HSR Act if the
Purchaser owns 50% or more of the outstanding Shares at the time of the Merger
or if the Merger occurs within one year after the HSR Act waiting period
applicable to the Offer expires or is terminated.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the Purchaser's proposed acquisition
of the Company. At any time before or after the Purchaser's acquisition of
Shares pursuant to the Offer, the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the purchase of Shares pursuant to the
Offer or the consummation of the Merger or seeking the divestiture of Shares
acquired by the Purchaser or the divestiture of substantial assets of the
Company or its subsidiaries or IBM or its subsidiaries. Private parties may also
bring legal action under the antitrust laws under certain circumstances. There
can be no assurance that a challenge to the Offer on antitrust grounds will not
be made or, if such a challenge is made, of the result thereof.
16. FEES AND EXPENSES
The Purchaser and IBM have retained Morrow & Co., Inc. to act as the
Information Agent and ChaseMellon Shareholder Services, L.L.C. to serve as the
Depositary in connection with the Offer. The Information Agent and the
Depositary each will receive reasonable and customary compensation for their
services, be reimbursed for certain reasonable out-of-pocket expenses and be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities and expenses under the U.S. federal securities
laws.
Neither the Purchaser nor IBM will pay any fees or commissions to any broker
or dealer or other person (other than the Information Agent) in connection with
the solicitation of tenders of Shares pursuant to the Offer. Brokers, dealers,
banks and trust companies will be reimbursed by the Purchaser upon request for
customary mailing and handling expenses incurred by them in forwarding material
to their customers.
17. MISCELLANEOUS
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. Neither the Purchaser nor IBM is aware of any jurisdiction in
which the making of the Offer or the acceptance thereof would not be in
compliance with the laws of such jurisdiction. To the extent the Purchaser or
IBM becomes aware of any state law that would limit the class of offerees in the
Offer, the Purchaser will amend the Offer and, depending on the timing of such
amendment, if any, will extend the Offer to provide adequate dissemination of
such information to holders of Shares prior to the expiration of the Offer.
27
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION ON BEHALF OF THE PURCHASER OR IBM NOT CONTAINED HEREIN OR IN THE
LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION
MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
The Purchaser and IBM have filed with the Commission the Schedule 14D-1
pursuant to Rule 14d-3 under the Exchange Act, together with exhibits,
furnishing certain additional information with respect to the Offer, and may
file amendments thereto. In addition, the Company has filed the Schedule 14D-9
pursuant to Rule 14d-9 under the Exchange Act, together with exhibits, setting
forth its recommendation with respect to the Offer and the reasons for such
recommendation and furnishing certain additional related information. Such
Schedules and any amendments thereto, including exhibits, should be available
for inspection and copies should be obtainable in the manner set forth in
Section 8 (except that such material will not be available at the regional
offices of the Commission).
INDIGO ACQUISITION CORP.
November 18, 1996
28
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
IBM AND THE PURCHASER
1. DIRECTORS AND EXECUTIVE OFFICERS OF IBM. The name, business address,
present principal occupation or employment and five-year employment history of
each of the directors and executive officers of IBM are set forth below. All
such directors and executive officers listed below are citizens of the United
States except Mr. Dormann, who is a citizen of Germany, Mr. van Wachem, who is a
citizen of the Netherlands, and Mr. Thompson, who is a citizen of Canada. Unless
otherwise indicated, the principal business address of each director or
executive officer is International Business Machines Corporation, Old Orchard
Road, Armonk, NY 10504.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT; MATERIAL POSITIONS
NAME, AGE AND BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- --------------------------------------------- ------------------------------------------------------------------
<S> <C>
Louis V. Gerstner, Jr. (54).................. Chairman of the Board and Chief Executive Officer of IBM since
1993. From 1989 until joining IBM, he was Chairman of the Board
and Chief Executive Officer of RJR Nabisco Holdings Corp. Mr.
Gerstner is a director of Bristol-Myers Squibb Company and The New
York Times Company, the Vice Chairman of the Board of the New
American School Development Corp., a director of The Council on
Foreign Relations and a member of the Smithsonian Board of
Regents.
Cathleen Black (52).......................... Director of IBM since 1995. President, Hearst Magazines, a
Hearst Magazines division of The Hearst Corporation, beginning January 1996. From
959 8th Avenue 1991 to 1996, she served as President and Chief Executive Officer
New York, NY 10019 of Newspaper Association of America. From 1985 to 1991, Ms. Black
was Executive Vice President/ Marketing for Gannett Company, Inc.
and also President, then publisher, of USA TODAY from 1983 to
1991. She is a director of The Coca-Cola Company, the Advertising
Council and the United Way of America and a Trustee of the
University of Notre Dame.
Harold Brown (69)............................ Director of IBM from 1972 to 1977 and since 1981. Counselor,
Center for Strategic and Center for Strategic and International Studies, Washington, D.C.,
International Studies and a general partner in Warburg, Pincus & Company. He is former
Suite 400 U.S. Secretary of Defense and former U.S. Secretary of the Air
1800 K Street, N.W. Force. He is a director of Alumax Inc., Cummins Engine Company,
Washington, DC 20006 Inc., Philip Morris Companies Inc. and Mattel, Inc.; a member of
the National Academy of Sciences and the National Academy of
Engineering; and a trustee and President Emeritus of the
California Institute of Technology.
Juergen Dormann (56)......................... Director of IBM since January 1996. Chairman of the Management
Hoechst AG Board of Hoechst AG. Mr. Dormann joined Hoechst in 1963 and was
Frankfurt G65926 elected Finance and Accounting Director in 1987 and to his present
Germany position in 1994. He
is a director of Wacker Chemie GmbH, Allianz Lebensversicherungs
AG and Rheinische Hypothekenbank AG.
</TABLE>
S-1
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT; MATERIAL POSITIONS
NAME, AGE AND BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- --------------------------------------------- ------------------------------------------------------------------
<S> <C>
Nannerl O. Keohane (56)...................... Director of IBM since 1986. President and professor of political
Office of the President science at Duke University. She was formerly President of
207 Allen Building Wellesley College, and a former faculty member at Swarthmore
Box 90001 College and Stanford University. She is a member of The Council on
Duke University Foreign Relations and the American Academy of Arts and Sciences
Durham, NC 27708-0001 and a trustee of the Colonial Williamsburg Foundation. Dr. Keohane
is a member of the MIT Corporation and has served as Vice
President of the American Political Science Association.
Charles F. Knight (60)....................... Director of IBM since 1993. Chairman, Chief Executive Officer and
Emerson Electric Co. President of Emerson Electric Co. He joined Emerson Electric Co.
8000 West Florissant Avenue in 1972 as Vice Chairman and was elected Chief Executive Officer
P.O. Box 4100 in 1973, Chairman in 1974 and President in 1995. He is a director
St. Louis, MO 63136-8506 of SBC Communications Inc., Anheuser Busch Companies, Inc. and The
British Petroleum Company p.l.c.
Lucio A. Noto (58)........................... Director of IBM since 1995. Chairman and Chief Executive Officer
Mobil Corporation of Mobil Corporation. Mr. Noto joined Mobil in 1962 and was
3225 Gallows Road elected to Mobil's board in 1988. He was elected Chief Financial
Fairfax, VA 22037 Officer in 1989, President and Chief Operating Officer in 1993 and
to his present position in 1994. He also serves as Chairman of
Mobil's executive committee. Mr. Noto is a member of The Council
on Foreign Relations.
John B. Slaughter (62)....................... Director of IBM since 1988. President of Occidental College. He is
Office of the President a former chancellor of the University of Maryland and a former
Occidental College director of the National Science Foundation. He is a director of
1600 Campus Road the Atlantic Richfield Company, Avery Dennison Corporation,
Los Angeles, CA 90041 Monsanto Company and Northrop Grumman Corporation. He is a member
of the National Academy of Engineering, a member of the American
Academy of Arts and Sciences, a fellow of the American Association
for the Advancement of Science, a fellow of the Institute of
Electrical and Electronics Engineers and a member of the Hall of
Fame of the American Society for Engineering Education.
Alex Trotman (63)............................ Director of IBM since 1994. Chairman and Chief Executive Officer
Ford Motor Company of the Ford Motor Company. Mr. Trotman joined Ford of Britain in
American Road 1955 and was elected President of Ford Asia-Pacific in 1983 and
Dearborn, MI 48121-1899 Chairman of Ford of Europe in 1988. He became President and Chief
Operating Officer of Ford Automotive Group and a director in 1993.
He was subsequently elected to his present position in 1993.
</TABLE>
S-2
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT; MATERIAL POSITIONS
NAME, AGE AND BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- --------------------------------------------- ------------------------------------------------------------------
<S> <C>
Lodewijk C. van Wachem (65).................. Director of IBM since 1992. Chairman of the supervisory board of
Royal Dutch Petroleum Royal Dutch Petroleum Company. In 1992, Mr. van Wachem retired as
Company President of Royal Dutch Petroleum, a post he had held since 1982.
P.O. Box 162 He is a director of ATCO Ltd., ABB Asea Brown Boveri Ltd. and
2501 AN The Hague Zurich Versicherungs- Gesellschaft; and a member of the
Netherlands supervisory boards of AKZO N.V., Philips Electronics N.V. and
Bavarian Motor Works A.G.
Charles M. Vest (55)......................... Director of IBM since 1994. President and professor of mechanical
Massachusetts Institute of engineering at the Massachusetts Institute of Technology. Dr. Vest
Technology was formerly the Provost and Vice President for Academic Affairs
President's Office of the University of Michigan. He is a director of E.I. du Pont de
Room 3-208 Nemours and Company, a fellow of the American Association for the
77 Massachusetts Avenue Advancement of Science, a member of the National Academy of
Cambridge, MA 02139 Engineering and the Corporation of Woods Hole Oceanographic
Institution and a trustee of Wellesley College.
J. Thomas Bouchard (56)...................... Senior Vice President, Human Resources of IBM since 1994.
Previously Mr. Bouchard was Senior Vice President, Chief Human
Resources Officer of U.S. West, Inc. from 1989 to 1994.
Nicholas M. Donofrio (51).................... Senior Vice President and Group Executive of IBM since 1995. Mr.
Donofrio was General Manager, Large Scale Computing Division, from
1994 to 1995; IBM Senior Vice President and General Manager, Large
Scale Computing Division, from 1993 to 1994; IBM Senior Vice
President and General Manager, Enterprise Systems, 1993; IBM Vice
President and General Manager, Enterprise Systems, from 1991 to
1993; IBM Vice President and President, Data Systems Division,
1991; IBM Vice President and President, Advanced Workstations
Division, from 1988 to 1991.
J. Bruce Harreld (45)........................ Senior Vice President, Strategy of IBM since 1995. Mr. Harreld was
President of Boston Chicken Company from 1993 to 1995, Senior Vice
President, Marketing and Information Services of Kraft General
Foods from 1992 to 1993 and Senior Vice President, Chief
Information Officer of Kraft General Foods from 1989 to 1992.
Paul M. Horn (50)............................ Senior Vice President, Research of IBM since 1996. Dr. Horn was
Vice President, Storage Systems Division and Director, Almaden
Research Center from 1994 to 1995, Director, Advanced
Semiconductor Technology Lab from 1992 to 1994 and Director,
Silicon Technology from 1990 to 1992.
</TABLE>
S-3
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT; MATERIAL POSITIONS
NAME, AGE AND BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- --------------------------------------------- ------------------------------------------------------------------
<S> <C>
Ned C. Lautenbach (52)....................... Senior Vice President and Group Executive, Worldwide Sales and
Services of IBM and Chairman, IBM World Trade Corporation since
1995. Mr. Lautenbach was IBM Senior Vice President and Group
Executive and Chairman, IBM World Trade Corporation, from 1993 to
1995; IBM Senior Vice President and Chairman, IBM World Trade
Corporation, 1993; IBM Senior Vice President and President and
Representative Director, Asia Pacific, from 1992 to 1993; IBM Vice
President and President and Representative Director, Asia Pacific,
from 1991 to 1992; IBM Vice President and Senior Managing
Director, Operations, Asia Pacific, 1991; and IBM Vice President
and General Manager, Application Solutions, from 1988 to 1991.
Lawrence R. Ricciardi (56)................... Senior Vice President and General Counsel of IBM since 1995. Mr.
Ricciardi was President and General Counsel of RJR Nabisco
Holdings Corp. from 1993 to 1995, Co-Chairman and Chief Executive
Officer and General Counsel from March to May 1993 and Executive
Vice President and General Counsel of RJR Nabisco Holdings Corp.
from 1989 to 1993.
Robert M. Stephenson (58).................... Senior Vice President and Group Executive of IBM since 1995. Mr.
Stephenson was also General Manager, IBM North America in 1995 and
IBM Vice President & Representative Director then General Manager,
Asia Pacific from 1993 to 1995; IBM Vice President and President,
Services Sector Division, Application Solutions, from 1991 to
1993; and IBM Vice President and Assistant General Manager,
Operations, Finance & Planning, IBM U.S., from 1989 to 1991.
G. Richard Thoman (52)....................... Senior Vice President and Chief Financial Officer of IBM since
1995. Mr. Thoman was IBM Senior Vice President and Group Executive
from 1993 to 1995. He was President, Nabisco International, from
1992 until joining IBM in 1993. From 1989 to 1992 he was Co-Chief
Executive Officer, American Express Travel Related Services and
Chief Executive Officer, American Express International.
John M. Thompson (54)........................ Senior Vice President and Group Executive of IBM since 1994 and
Chairman, IBM Canada, from 1990 to 1995. Mr. Thompson was IBM
Senior Vice President and Group Executive, from 1993 to 1994; IBM
Senior Vice President and General Manager, Applications Business
Systems, 1993; IBM Vice President and General Manager,
Applications Business Systems, from 1991 to 1993; IBM Vice
President, Corporate Marketing and Services, 1991; IBM Vice
President, from 1990 to 1991; IBM Vice President, Chairman and
Chief Executive Officer, Americas Group, from 1989 to 1990.
</TABLE>
S-4
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT; MATERIAL POSITIONS
NAME, AGE AND BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- --------------------------------------------- ------------------------------------------------------------------
<S> <C>
Patrick A. Toole (59)........................ Senior Vice President and Group Executive of IBM since 1994. Mr.
Toole was IBM Senior Vice President, Manufacturing and
Development, from 1992 to 1994; IBM Senior Vice President and
General Manager, Worldwide Manufacturing and Development
Operations, from 1990 to 1992; IBM Senior Vice President and
General Manager, Operations, IBM U.S., 1990; and IBM Senior Vice
President and General Manager, Technology Products, from 1988 to
1990.
John E. Hickey (53).......................... Vice President, Assistant General Counsel and Secretary of IBM
since 1994. Mr. Hickey was IBM Secretary and Assistant General
Counsel from 1990 to 1994 and Assistant General Counsel from 1989
to 1990.
John R. Joyce (43)........................... Vice President and Controller of IBM since June 1996. Mr. Joyce
was Vice President, Finance and Planning, IBM North America, from
1995 to 1996; Vice President, Finance, Asia Pacific, from 1994 to
1995; Chief Financial Officer, IBM Japan, from 1993 to 1994; and
Managing Director, Finance Planning and Accounting, Asia Pacific,
from 1991 to 1993.
Jeffrey D. Serkes (37)....................... Vice President and Treasurer of IBM since 1995. Mr. Serkes was
Assistant Treasurer of IBM from 1994 to 1995. Previously, he was
Vice President and Deputy Treasurer of RJR Nabisco. Inc., from
1993 to 1994; Vice President and Assistant Treasurer--Corporate
Finance from 1991 to 1993; and Director--Capital Markets from 1989
to 1991.
</TABLE>
S-5
<PAGE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER. The name, business
address, present principal occupation or employment and five-year employment
history of each of the directors and executive officers of the Purchaser are set
forth below. The business address of each such director and executive officer is
Indigo Acquisition Corp. in care of International Business Machines Corporation,
Old Orchard Road, Armonk, NY 10504. All such directors and executive officers
listed below are citizens of the United States.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT; MATERIAL POSITIONS
NAME, AGE AND BUSINESS ADDRESS HELD DURING THE PAST FIVE YEARS
- --------------------------------------------- ------------------------------------------------------------------
<S> <C>
Lee A. Dayton (53)........................... Director and President of the Purchaser. Vice President, Corporate
Development and Real Estate of IBM since 1996. Mr. Dayton was
General Manager, Real Estate and Business Development of IBM from
1994 to 1996; General Manager, Real Estate and Procurement
Services, General Manager, Real Estate Services, and IBM Director,
Real Estate and Construction Staff, from 1990 to 1994; and Senior
Managing Director, Asia Pacific, from 1988 to 1990.
Donald D. Westfall (58)...................... Director, Vice President and Secretary of the Purchaser. Associate
General Counsel of IBM since 1988.
Archie W. Colburn (43)....................... Director, Vice President, Treasurer and Assistant Secretary of the
Purchaser. Business Development Executive of IBM since 1995. Mr.
Colburn was Business Development Consultant of IBM from 1994 to
1995; and Business Development Associate from 1989 to 1994.
</TABLE>
S-6
<PAGE>
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent or delivered by each shareholder of the
Company or such shareholder's broker, dealer, bank, trust company or other
nominee to the Depositary at one of its addresses set forth below.
THE DEPOSITARY FOR THE OFFER IS
CHASEMELLON SHAREHOLDER SERVICES
Reorganization Dept.
<TABLE>
<S> <C> <C>
BY MAIL: BY HAND OR OVERNIGHT
PO Box 798 DELIVERY:
Midtown Station 120 Broadway
New York, NY 10018 13th Floor
New York, NY 10271
BY FACSIMILE TRANSMISSION:
201-329-8936
FOR CONFIRMATION OF
FACSIMILE:
201-296-4209
201-296-4381
</TABLE>
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent at its telephone numbers and location
listed below. You may also contact your broker, dealer, bank, trust company or
other nominee for assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
Morrow & Co., Inc.
909 Third Avenue
20th Floor
New York, NY 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage Firms
please call:
(800) 662-5200
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
EDMARK CORPORATION
PURSUANT TO THE OFFER TO PURCHASE DATED NOVEMBER 18, 1996
BY
INDIGO ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
INTERNATIONAL BUSINESS MACHINES CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED.
TO: CHASEMELLON SHAREHOLDER SERVICES, AS DEPOSITARY
Reorganization Dept.
<TABLE>
<S> <C>
BY MAIL: BY HAND OR OVERNIGHT DELIVERY:
PO Box 798 120 Broadway
Midtown Station 13th Floor
New York, NY 10018 New York, NY 10271
</TABLE>
BY FACSIMILE TRANSMISSION:
201-329-8936
FOR CONFIRMATION OF FACSIMILE:
201-296-4209
201-296-4381
------------------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE DOES NOT
CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
This Letter of Transmittal is to be used either if certificates for Shares
(as defined below) are to be forwarded herewith or, unless an Agent's Message
(as defined in Section 2 of the Offer to Purchase (as defined below)) is
utilized, if delivery of Shares is to be made by book-entry transfer to an
account maintained by the Depositary at a Book-Entry Transfer Facility as
defined in and pursuant to the procedures set forth in Section 2 of the Offer to
Purchase. Shareholders who deliver Shares by book-entry transfer are referred to
herein as "Book-Entry Shareholders" and other shareholders are referred to
herein as "Certificate Shareholders". Shareholders whose certificates for Shares
are not immediately available or who cannot deliver either the certificates for,
or a Book-Entry Confirmation (as defined in Section 2 of the Offer to Purchase)
with respect to, their Shares and all other documents required hereby to the
Depositary prior to the Expiration Date (as defined in Section 1 of the Offer to
Purchase) must tender their Shares in accordance with the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase. See Instruction 2.
DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY DOES NOT CONSTITUTE
DELIVERY TO THE DEPOSITARY.
<PAGE>
Holders of Shares will be required to tender one Right (as defined below)
for each Share tendered to effect a valid tender of such Share. Unless and until
the Distribution Date (as defined in the Offer to Purchase) occurs, the Rights
are represented by and transferred with the Shares. Accordingly, if the
Distribution Date does not occur prior to the Expiration Date (and under the
terms of the Rights Agreement (as defined below), a Distribution Date will not
occur by reason of the Offer (as defined below)), a tender of Shares will
constitute a tender of the associated Rights. If, however, pursuant to the
Rights Agreement or otherwise, a Distribution Date does occur, certificates
representing a number of Rights equal to the number of Shares being tendered
must be delivered to the Depositary in order for such Shares to be validly
tendered. If a Distribution Date has occurred, a tender of Shares without Rights
constitutes an agreement by the tendering shareholder to deliver certificates
representing a number of Rights equal to the number of Shares tendered pursuant
to the Offer to the Depositary within three trading days (as defined herein)
after the date such certificates are distributed. The Purchaser (as defined
herein) reserves the right to require that it receive such certificates prior to
accepting Shares for payment. Payment for Shares tendered and purchased pursuant
to the Offer will be made only after timely receipt by the Depositary of, among
other things, such certificates, if such certificates have been distributed to
holders of Shares. The Purchaser will not pay any additional consideration for
the Rights tendered pursuant to the Offer.
<TABLE>
<S> <C> <C> <C>
DESCRIPTION OF SHARES TENDERED
<CAPTION>
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S)
(PLEASE FILL IN, IF BLANK, EXACTLY AS NAME(S)
APPEAR(S) SHARES TENDERED
ON CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
<S> <C> <C> <C>
<CAPTION>
TOTAL NUMBER
OF SHARES NUMBER
CERTIFICATE REPRESENTED BY OF SHARES
NUMBER(S)(1) CERTIFICATE(S)(1) TENDERED(2)
<S> <C> <C> <C>
TOTAL SHARES
(1) Need not be completed by Book-Entry Shareholders.
(2) Unless otherwise indicated, it will be assumed that all Shares described above are being tendered. See
Instruction 4.
</TABLE>
<TABLE>
<S> <C>
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER MADE TO AN ACCOUNT
MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER FACILITY AND COMPLETE THE FOLLOWING
(ONLY PARTICIPANTS IN A BOOK-ENTRY TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY
TRANSFER):
Name of Tendering Institution
Check box of Book-Entry Transfer Facility:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number
Transaction Code Number
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s)
Date of Execution of Notice of Guaranteed Delivery
Name of Institution that Guaranteed Delivery
If delivered by book-entry transfer check box:
/ / The Depository Trust Company
/ / Midwest Securities Trust Company
/ / Philadelphia Depository Trust Company
Account Number
Transaction Code Number
</TABLE>
<PAGE>
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
The undersigned hereby tenders to Indigo Acquisition Corp., a Washington
corporation (the "Purchaser") which is a wholly owned subsidiary of
International Business Machines Corporation, a New York corporation, the above-
described shares of Common Stock, no par value (the "Shares"), of Edmark
Corporation, a Washington corporation (the "Company"), together with the
associated rights (the "Rights") to purchase Shares issued pursuant to the
Shareholder Rights Agreement dated as of November 29, 1995 between the Company
and ChaseMellon Shareholder Services, L.L.C. (as successor to First Interstate
Bank of Washington, N.A.), as rights agent (as amended, the "Rights Agreement"),
upon the terms and subject to the conditions set forth in the Purchaser's Offer
to Purchase dated November 18, 1996 (the "Offer to Purchase"), and this Letter
of Transmittal (which, together with any amendments or supplements thereto or
hereto, collectively constitute the "Offer"), receipt of which is hereby
acknowledged. Unless the context otherwise requires, all references to Shares
include the associated Rights.
Upon the terms of the Offer, subject to, and effective upon, acceptance for
payment of, and payment for, the Shares tendered herewith in accordance with the
terms of the Offer, the undersigned hereby sells, assigns and transfers to, or
upon the order of, the Purchaser all right, title and interest in and to all the
Shares that are being tendered hereby (and any and all other Shares or other
securities or rights issued or issuable in respect thereof on or after November
12, 1996), and irrevocably constitutes and appoints ChaseMellon Shareholder
Services, L.L.C. (the "Depositary"), the true and lawful agent and
attorney-in-fact of the undersigned, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with an interest),
to the full extent of the undersigned's rights with respect to such Shares (and
any such other Shares or securities or rights), (a) to deliver certificates for
such Shares (and any such other Shares or securities or rights) or transfer
ownership of such Shares (and any such other Shares or securities or rights) on
the account books maintained by a Book-Entry Transfer Facility together, in any
such case, with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Purchaser, (b) to present such Shares (and any such other
Shares or securities or rights) for transfer on the Company's books and (c) to
receive all benefits and otherwise exercise all rights of beneficial ownership
of such Shares (and any such other Shares or securities or rights), all in
accordance with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the tendered Shares
(and any and all other Shares or other securities or rights issued or issuable
in respect of such Shares on or after November 12, 1996) and, when the same are
accepted for payment by the Purchaser, the Purchaser will acquire good title
thereto, free and clear of all liens, restrictions, claims and encumbrances, and
the same will not be subject to any adverse claim. The undersigned will, upon
request, execute any additional documents deemed by the Depositary or the
Purchaser to be necessary or desirable to complete the sale, assignment and
transfer of the tendered Shares (and any and all such other Shares or securities
or rights).
All authority conferred or agreed to be conferred pursuant to this Letter of
Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
<PAGE>
The undersigned hereby irrevocably appoints Lee A. Dayton, Donald D.
Westfall and Archie W. Colburn, and each of them, and any other designees of the
Purchaser, the attorneys-in-fact and proxies of the undersigned, each with full
power of substitution, to vote at any annual, special or adjourned meeting of
the Company's shareholders or otherwise in such manner as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, to execute any written consent concerning any matter as
each such attorney-in-fact and proxy or his substitute shall in his sole
discretion deem proper with respect to, and to otherwise act as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, the Shares tendered hereby that have been accepted for
payment by the Purchaser prior to the time any such action is taken and with
respect to which the undersigned is entitled to vote (and any and all other
Shares or other securities or rights issued or issuable in respect of such
Shares on or after November 12, 1996). This appointment is effective when, and
only to the extent that, the Purchaser accepts for payment such Shares as
provided in the Offer to Purchase. This power of attorney and proxy are
irrevocable and are granted in consideration of the acceptance for payment of
such Shares in accordance with the terms of the Offer. Upon such acceptance for
payment, all prior powers of attorney, proxies and consents given by the
undersigned with respect to such Shares (and any such other Shares or securities
or rights) will, without further action, be revoked and no subsequent powers of
attorney, proxies, consents or revocations may be given (and, if given, will not
be deemed effective) by the undersigned.
The undersigned understands that the valid tender of Shares pursuant to any
of the procedures described in Section 2 of the Offer to Purchase and in the
Instructions hereto will constitute a binding agreement between the undersigned
and the Purchaser upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated herein under "Special Payment Instructions",
please issue the check for the purchase price and/or return any certificates for
Shares not tendered or accepted for payment in the name(s) of the registered
holder(s) appearing under "Description of Shares Tendered". Similarly, unless
otherwise indicated under "Special Delivery Instructions", please mail the check
for the purchase price and/or return any certificates for Shares not tendered or
accepted for payment (and accompanying documents, as appropriate) to the
address(es) of the registered holder(s) appearing under "Description of Shares
Tendered". In the event that both "Special Delivery Instructions" and "Special
Payment Instructions" are completed, please issue the check for the purchase
price and/or return any certificates for Shares not tendered or accepted for
payment (and any accompanying documents, as appropriate) in the name of, and
deliver such check and/or return such certificates (and any accompanying
documents, as appropriate) to, the person or persons so indicated. Please credit
any Shares tendered herewith by book-entry transfer that are not accepted for
payment by crediting the account at the Book-Entry Transfer Facility designated
above. The undersigned recognizes that the Purchaser has no obligation pursuant
to "Special Payment Instructions" to transfer any Shares from the name of the
registered holder thereof if the Purchaser does not accept for payment any of
the Shares so tendered.
/ / CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
Number of Shares represented by the lost or destroyed certificates:
___________________
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not accepted for
payment and/or the check for the purchase price of Shares accepted for payment
are to be issued in the name of someone other than the undersigned.
Issue: / / Check
/ / Certificate(s) to:
Name ___________________________________________________________________________
(PLEASE PRINT)
Address ________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
________________________________________________________________________________
(EMPLOYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if certificates for Shares not tendered or not accepted for
payment and/or the check for the purchase price of Shares accepted for payment
are to be sent to someone other than the undersigned, or to the undersigned at
an address other than that above.
Mail: / / Check
/ / Certificate(s) to:
Name ___________________________________________________________________________
(PLEASE PRINT)
Address ________________________________________________________________________
________________________________________________________________________________
(INCLUDE ZIP CODE)
________________________________________________________________________________
(EMPLOYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
<PAGE>
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
______________________________________________________
______________________________________________________
(Signature(s) of Shareholder(s))
Dated: ________________, 1996
(Must be signed by registered holder(s) as name(s)
appear(s) on the certificate(s) for the Shares or on a
security position listing or by person(s) authorized
to become registered holder(s) by certificates and
documents transmitted herewith. If signature is by
trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity,
please provide the following information and see
Instruction 5.)
Name(s) ______________________________________________
______________________________________________________
(Please Print)
Capacity (Full Title) ________________________________
Address ______________________________________________
______________________________________________________
(Include Zip Code)
Daytime Area Code and Telephone No. __________________
Employer Identification or
Social Security Number _______________________________
(See Substitute Form W-9)
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
______________________________________________________
Authorized Signature
______________________________________________________
Name (Please Print)
______________________________________________________
Name of Firm
______________________________________________________
Address
______________________________________________________
(Include Zip Code)
______________________________________________________
Daytime Area Code and Telephone No.
Dated: ________________, 1996
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required on this
Letter of Transmittal (a) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Section, includes any
participant in any of the Book-Entry Transfer Facilities' systems whose name
appears on a security position listing as the owner of the Shares) of Shares
tendered herewith, unless such registered holder(s) has completed either the box
entitled "Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on this Letter of Transmittal or (b) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(such participant, an "Eligible Institution"). In all other cases, all
signatures on this Letter of Transmittal must be guaranteed by an Eligible
Institution. See Instruction 5.
2. REQUIREMENTS OF TENDER. This Letter of Transmittal is to be completed by
shareholders either if certificates are to be forwarded herewith or, unless an
Agent's Message (as defined below) is utilized, if delivery of Shares is to be
made pursuant to the procedures for book-entry transfer set forth in Section 2
of the Offer to Purchase. For a shareholder validly to tender Shares pursuant to
the Offer, either (a) a Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, together with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message, and any other
required documents, must be received by the Depositary at one of its addresses
set forth herein prior to the Expiration Date and either certificates for
tendered Shares must be received by the Depositary at one of such addresses or
Shares must be delivered pursuant to the procedures for book-entry transfer set
forth herein (and a Book-Entry Confirmation received by the Depositary), in each
case prior to the Expiration Date, or (b) the tendering shareholder must comply
with the guaranteed delivery procedures set forth below and in Section 2 of the
Offer to Purchase.
Shareholders whose certificates for Shares are not immediately available or
who cannot deliver their certificates and all other required documents to the
Depositary or complete the procedures for book-entry transfer prior to the
Expiration Date may tender their Shares by properly completing and duly
executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase. Pursuant to such
procedures, (a) such tender must be made by or through an Eligible Institution,
(b) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Purchaser, must be received by the
Depositary prior to the Expiration Date and (c) the certificates for all
tendered Shares in proper form for transfer (or a Book-Entry Confirmation with
respect to all such Shares), together with a Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message, and
any other required documents, must be received by the Depositary within three
trading days after the date of execution of such Notice of Guaranteed Delivery
as provided in Section 2 of the Offer to Purchase. A "trading day" is any day on
which the Nasdaq National Market operated by the National Association of
Securities Dealers, Inc. is open for business.
The term "Agent's Message" means a message transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation which states that such Book-Entry Transfer Facility has
received an express acknowledgement from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that the
Purchaser may enforce such agreement against the participant.
<PAGE>
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY,
IS AT THE ELECTION AND RISK OF THE TENDERING SHAREHOLDER. SHARES WILL BE DEEMED
DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE
OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering shareholders, by execution of
this Letter of Transmittal (or facsimile hereof), waive any right to receive any
notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
certificate numbers and/or the number of Shares should be listed on a separate
schedule attached hereto.
4. PARTIAL TENDERS (APPLICABLE TO CERTIFICATE SHAREHOLDERS ONLY). If fewer
than all the Shares evidenced by any certificate submitted are to be tendered,
fill in the number of Shares that are to be tendered in the box entitled "Number
of Shares Tendered". In any such case, new certificate(s) for the remainder of
the Shares that were evidenced by the old certificate(s) will be sent to the
registered holder, unless otherwise provided in the appropriate box on this
Letter of Transmittal, as soon as practicable after the acceptance for payment
of, and payment for, the Shares tendered herewith. All Shares represented by
certificates delivered to the Depositary will be deemed to have been tendered
unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder of the Shares
tendered hereby, the signature must correspond with the name as written on the
face of the certificate(s) without any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of certificates.
If this Letter of Transmittal or any certificates or stock powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and proper evidence satisfactory to the
Purchaser of their authority so to act must be submitted.
When this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of certificates or
separate stock powers are required unless payment is to be made to, or
certificates for Shares not tendered or accepted for payment are to be issued
to, a person other than the registered owner(s). Signatures on such certificates
or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the certificates listed, the certificates must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name or names of the registered owner or owners appear on the
certificates. Signatures on such certificates or stock powers must be guaranteed
by an Eligible Institution.
<PAGE>
6. STOCK TRANSFER TAXES. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price is to be made to, or if
certificates for Shares not tendered or accepted for payment are to be
registered in the name of, any person(s) other than the registered owner(s), or
if tendered certificates are registered in the name(s) of any person(s) other
than the person(s) signing this Letter of Transmittal, the amount of any stock
transfer taxes (whether imposed on the registered owner(s) or such person(s))
payable on account of the transfer to such person(s) will be deducted from the
purchase price unless satisfactory evidence of the payment of such taxes or
exemption therefrom is submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE CERTIFICATES LISTED IN THIS LETTER OF
TRANSMITTAL.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check is to be issued in
the name of, and/or certificates for Shares not accepted for payment are to be
returned to, a person other than the signer of this Letter of Transmittal or if
a check is to be sent and/or such certificates are to be returned to a person
other than the signer of this Letter of Transmittal or to an address other than
that shown above, the appropriate boxes on this Letter of Transmittal should be
completed.
8. WAIVER OF CONDITIONS. The Purchaser reserves the absolute right in its
sole discretion to waive any of the specified conditions of the Offer, in whole
or in part, in the case of any Shares tendered.
9. 31% BACKUP WITHHOLDING. In order to avoid backup withholding of Federal
income tax on payments of cash pursuant to the Offer, a shareholder surrendering
Shares in the Offer must, unless an exemption applies, provide the Depositary
with such shareholder's correct taxpayer identification number ("TIN") on
Substitute Form W-9 below in this Letter of Transmittal and certify under
penalties of perjury that such TIN is correct and that such shareholder is not
subject to backup withholding. If a shareholder does not provide such
shareholder's correct TIN or fails to provide the certifications described
above, the Internal Revenue Service (the "IRS") may impose a $50 penalty on such
shareholder and payment of cash to such shareholder pursuant to the Offer may be
subject to backup withholding of 31%.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the U.S. federal income tax
liability of the person subject to the backup withholding, provided that the
required information is given to the IRS. If backup withholding results in an
overpayment of tax, a refund can be obtained by the shareholder upon filing an
income tax return.
The shareholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the tendering
shareholder has not been issued a TIN and has applied for a TIN or intends to
apply for a TIN in the near future. If the box in Part 3 is checked, the
shareholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
shareholder if a TIN is provided to the Depositary within 60 days.
Certain shareholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign shareholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
<PAGE>
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for
assistance or additional copies of the Offer to Purchase, this Letter of
Transmittal, the Notice of Guaranteed Delivery and the Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 may be
directed to the Information Agent at its address set forth below.
11. LOST, DESTROYED OR STOLEN CERTIFICATES. If any certificate representing
Shares has been lost, destroyed or stolen, the shareholder should promptly
notify the Depositary by checking the box immediately preceding the special
payment/special delivery instructions and indicating the number of Shares lost.
The shareholder will then be instructed as to the steps that must be taken in
order to replace the certificate. This Letter of Transmittal and related
documents cannot be processed until the procedures for replacing lost or
destroyed certificates have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), TOGETHER WITH
ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE
DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER CERTIFICATES FOR TENDERED
SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED PURSUANT
TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE EXPIRATION
DATE, OR THE TENDERING SHAREHOLDER MUST COMPLY WITH THE PROCEDURES FOR
GUARANTEED DELIVERY.
<PAGE>
<TABLE>
<S> <C> <C>
PAYER'S NAME: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
SUBSTITUTE PART 1--PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND
FORM W-9 CERTIFY BY SIGNING AND DATING BELOW Social Security Number(s)
OR
Employer Identification
Number(s)
PART 2--Certification--Under penalties of perjury, I Part 3--
certify that: Awaiting TIN
(1) the number shown on this form is my correct Taxpayer / /
Identification Number (or I am waiting for a number Part 4--
to be issued to me) and Exempt TIN
(2) I am not subject to backup withholding because (a) I / /
am exempt from backup withholding or (b) I have not been
notified by the Internal Revenue Service ("IRS") that
I am subject to backup withholding as a result of a
failure to report all interest or dividends or (c)
the IRS has notified me that I am no longer subject
to backup withholding.
Certification instructions--You must cross out item (2) in Part 2 above if you have been
notified by the IRS that you are subject to backup withholding because of under reporting
interest or dividends on your tax returns. However, if after being notified by the IRS
that you were subject to backup withholding you received another notification from the
IRS stating that you are no longer subject to backup withholding, do not cross out such
item (2). If you are exempt from backup withholding, check the box in Part 4 above.
Department of the Treasury
Internal Revenue Service
Payer's Request for Taxpayer
Identification Number (TIN)
SIGNATURE DATE , 1996
</TABLE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (b)
I intend to mail or deliver an application in the near future. I understand
that, if I do not provide a taxpayer identification number to the Depositary,
31% of all reportable payments made to me will be withheld, but will be refunded
if I provide a certified taxpayer identification number within 60 days.
<TABLE>
<S> <C>
, 1996
Signature Date
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL INFORMATION.
<PAGE>
THE INFORMATION AGENT FOR THE OFFER IS:
Morrow & Co., Inc.
909 Third Avenue
20th Floor
New York, NY 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage Firms
please call:
(800) 662-5200
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
EDMARK CORPORATION
As set forth in Section 2 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to accept the Offer (as
defined below) if certificates for shares of Common Stock, no par value (the
"Shares"), of Edmark Corporation, a Washington corporation (the "Company"),
together with the associated rights (the "Rights") to purchase Shares issued
pursuant to the Shareholder Rights Agreement dated as of November 29, 1995
between the Company and ChaseMellon Shareholder Services, L.L.C. (as successor
to First Interstate Bank of Washington, N.A.), as rights agent, are not
immediately available or if the procedure for book-entry transfer cannot be
completed on a timely basis or time will not permit all required documents to
reach the Depositary prior to the Expiration Date (as defined in Section 1 of
the Offer to Purchase). This form may be delivered by hand to the Depositary or
transmitted by telegram, facsimile transmission or mail to the Depositary and
must include a guarantee by an Eligible Institution (as defined in Section 2 of
the Offer to Purchase). See Section 2 of the Offer to Purchase. Unless the
context otherwise requires, all references to Shares shall include the
associated Rights.
THE DEPOSITARY:
CHASEMELLON SHAREHOLDER SERVICES
Reorganization Dept.
<TABLE>
<CAPTION>
BY MAIL: BY HAND OR OVERNIGHT DELIVERY:
<S> <C>
PO Box 798 120 Broadway
Midtown Station 13th Floor
New York, NY 10018 New York, NY 10271
BY FACSIMILE TRANSMISSION:
201-329-8936
FOR CONFIRMATION OF FACSIMILE:
201-296-4209
201-296-4381
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A
VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Indigo Acquisition Corp., a Washington
corporation (the "Purchaser") which is a wholly owned subsidiary of
International Business Machines Corporation, a New York corporation, upon the
terms and subject to the conditions set forth in the Purchaser's Offer to
Purchase dated November 18, 1996 (the "Offer to Purchase"), and the related
Letter of Transmittal (which, together with any amendments or supplements
thereto, collectively constitute the "Offer"), receipt of which is hereby
acknowledged, the number of Shares set forth below, all pursuant to the
guaranteed delivery procedures set forth in Section 2 of the Offer to Purchase.
Number of Shares _______________________________________________________________
Name(s) of Record
Holder(s): _____________________________________________________________________
Certificate Nos.
______________________________
(if available): ________________________________________________________________
______________________________
________________________________________________________________________________
Please Print
Address(es): _________________
________________________________________________________________________________
(CHECK ONE BOX IF SHARES
______________________________
Zip Code
WILL BE TENDERED BY BOOK-ENTRY TRANSFER)
/ / The Depository Trust Company
Daytime Area Code
/ / Midwest Securities Trust Company
and Tel. No.: __________________________________________________________________
/ / Philadelphia Depository Trust Company
Account Number _________________________________________________________________
Signature(s): ________________
Dated: _________________________________________________________________________
______________________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agents Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program, hereby guarantees to deliver to the
Depositary either the certificates representing the Shares tendered hereby, in
proper form for transfer, or a Book-Entry Confirmation (as defined in the Offer
to Purchase) with respect to such Shares, in any such case together with a
properly completed and duly executed Letter of Transmittal (or facsimile
thereof), with any required signature guarantees, or an Agent's Message (as
defined in the Offer to Purchase), and any other required documents, within
three trading days (as defined in the Offer to Purchase) after the date hereof.
The Eligible Institution that completes this form must communicate this
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible Institution.
Name of Firm: __________________________________________________________________
______________________________
Authorized Signature
Address: _______________________________________________________________________
Name: ________________________
Please Print
________________________________________________________________________________
Title: _______________________
Zip Code
Area Code and Tel No.: _________________________________________________________
Dated: _______________________
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE. CERTIFICATES FOR
SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
EDMARK CORPORATION
AT
$15.50 NET PER SHARE
BY
INDIGO ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
INTERNATIONAL BUSINESS MACHINES CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED.
November 18, 1996
To Brokers, Dealers, Banks,
Trust Companies and Other Nominees:
Indigo Acquisition Corp., a Washington corporation (the "Purchaser") which
is a wholly owned subsidiary of International Business Machines Corporation, a
New York corporation ("IBM"), is offering to purchase all outstanding shares of
Common Stock, no par value (the "Shares"), of Edmark Corporation, a Washington
corporation (the "Company"), together with the associated rights (the "Rights")
to purchase Shares issued pursuant to the Shareholder Rights Agreement dated as
of November 29, 1995 between the Company and ChaseMellon Shareholder Services,
L.L.C. (as successor to First Interstate Bank of Washington, N.A.), as rights
agent, at a price of $15.50 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions set forth in the
Purchaser's Offer to Purchase dated November 18, 1996 (the "Offer to Purchase"),
and in the related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"). Please furnish copies
of the enclosed materials to those of your clients for whom you hold Shares
registered in your name or in the name of your nominee. Unless the context
otherwise requires, all references to Shares include the associated Rights.
Enclosed herewith are copies of the following documents:
1. Offer to Purchase dated November 18, 1996;
2. Letter of Transmittal to be used by shareholders of the Company in
accepting the Offer;
3. The Letter to Shareholders of the Company from the Chairman of the
Board of Directors of the Company accompanied by the Company's
Solicitation/Recommendation Statement on Schedule 14D-9;
4. A printed form of letter that may be sent to your clients for whose
account you hold Shares in your name or in the name of a nominee, with space
provided for obtaining such clients' instructions with regard to the Offer;
5. Notice of Guaranteed Delivery;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. Return envelope addressed to ChaseMellon Shareholder Services,
L.L.C., the Depositary.
<PAGE>
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, (1) THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER THAT NUMBER OF
SHARES THAT WOULD CONSTITUTE TWO-THIRDS OF ALL OUTSTANDING SHARES ON A FULLY
DILUTED BASIS ON THE DATE OF PURCHASE AND (2) ANY WAITING PERIOD UNDER THE HART-
SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS AMENDED, AND THE REGULATIONS
THEREUNDER APPLICABLE TO THE PURCHASE OF SHARES PURSUANT TO THE OFFER HAVING
EXPIRED OR BEEN TERMINATED.
WE URGE YOU TO CONTACT YOUR CLIENTS PROMPTLY. PLEASE NOTE THAT THE OFFER AND
WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON MONDAY,
DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED BY THE PURCHASER.
The Board of Directors of the Company has unanimously approved the Offer and
the Merger (as defined below) and determined that the terms of the Offer and the
Merger are fair to, and in the best interests of, the shareholders of the
Company and unanimously recommends that shareholders of the Company accept the
Offer and tender their Shares.
The Offer is being made pursuant to the Agreement and Plan of Merger dated
as of November 12, 1996 (the "Merger Agreement"), among IBM, the Purchaser and
the Company pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
and into the Company, or, at the election of IBM, the Company may be merged with
and into the Purchaser (the "Merger"). In the Merger, each outstanding Share
(other than Shares owned by IBM, the Purchaser or any other subsidiary of IBM or
by shareholders, if any, who are entitled to and who properly exercise
dissenters' rights under Washington law) will be converted into the right to
receive an amount in cash equal to the price per Share paid pursuant to the
Offer, without interest thereon, as set forth in the Merger Agreement and
described in the Offer to Purchase.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (a) certificates for
(or a timely Book-Entry Confirmation (as defined in the Offer to Purchase) with
respect to) such Shares, (b) a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
or, in the case of a book-entry transfer effected pursuant to the procedure set
forth in Section 2 of the Offer to Purchase, an Agent's Message (as defined in
the Offer to Purchase), and (c) any other documents required by the Letter of
Transmittal. Accordingly, tendering shareholders may be paid at different times
depending upon when certificates for Shares or Book-Entry Confirmations with
respect to Shares are actually received by the Depositary. UNDER NO
CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE OF THE SHARES TO BE
PAID BY THE PURCHASER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN
MAKING SUCH PAYMENT.
Neither the Purchaser nor IBM will pay any fees or commissions to any broker
or dealer or other person (other than the Information Agent as described in the
Offer to Purchase) in connection with the solicitation of tenders of Shares
pursuant to the Offer. You will be reimbursed upon request for customary mailing
and handling expenses incurred by you in forwarding the enclosed offering
materials to your customers.
Questions and requests for additional copies of the enclosed material may be
directed to the Information Agent at its address and telephone numbers set forth
on the back cover of the enclosed Offer to Purchase.
Very truly yours,
INDIGO ACQUISITION CORP.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY OTHER PERSON THE AGENT OF THE PURCHASER, IBM, THE DEPOSITARY OR THE
INFORMATION AGENT OR AUTHORIZE YOU OR ANY OTHER PERSON TO GIVE ANY INFORMATION
OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH RESPECT TO THE OFFER
NOT CONTAINED IN THE OFFER TO PURCHASE OR THE LETTER OF TRANSMITTAL.
<PAGE>
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
EDMARK CORPORATION
AT
$15.50 NET PER SHARE
BY
INDIGO ACQUISITION CORP.
A WHOLLY OWNED SUBSIDIARY OF
INTERNATIONAL BUSINESS MACHINES CORPORATION
----------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED.
---------------------
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated November 18,
1996 (the "Offer to Purchase"), and the related Letter of Transmittal (which,
together with any amendments or supplements thereto, collectively constitute the
"Offer") relating to the offer by Indigo Acquisition Corp., a Washington
corporation (the "Purchaser") which is a wholly owned subsidiary of
International Business Machines Corporation, a New York corporation ("IBM"), to
purchase all outstanding shares of Common Stock, no par value (the "Shares"), of
Edmark Corporation, a Washington corporation (the "Company"), together with the
associated rights (the "Rights") to purchase Shares issued pursuant to the
Shareholder Rights Agreement dated as of November 29, 1995 between the Company
and ChaseMellon Shareholder Services, L.L.C. (as successor to First Interstate
Bank of Washington, N.A.), as rights agent, at a price of $15.50 per Share, net
to the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer. Also enclosed is the Letter to
Shareholders of the Company from the Chairman of the Board of Directors of the
Company accompanied by the Company's Solicitation/Recommendation Statement on
Schedule 14D-9. Unless the context otherwise requires, all references to Shares
include the associated Rights.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED TO TENDER SHARES HELD BY US FOR YOUR
ACCOUNT.
We request instructions as to whether you wish to tender any of or all the
Shares held by us for your account, pursuant to the terms and conditions set
forth in the Offer.
Your attention is directed to the following:
1. The offer price is $15.50 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions of the
Offer.
2. The Offer is being made for all outstanding Shares.
3. The Board of Directors of the Company has unanimously approved the Offer
and the Merger (as defined below) and determined that the terms of the
Offer and the Merger are fair to, and in the best interests of,
1
<PAGE>
the shareholders of the Company and unanimously recommends that
shareholders of the Company accept the Offer and tender their Shares.
4. The Offer is being made pursuant to the Agreement and Plan of Merger
dated as of November 12, 1996 (the "Merger Agreement"), among IBM, the
Purchaser and the Company pursuant to which, following the consummation
of the Offer and the satisfaction or waiver of certain conditions, the
Purchaser will be merged with and into the Company, or, at the election
of IBM, the Company may be merged with and into the Purchaser (the
"Merger"). In the Merger, each outstanding Share (other than Shares owned
by IBM, the Purchaser or any other subsidiary of IBM or by shareholders,
if any, who are entitled to and who properly exercise dissenters' rights
under Washington law) will be converted into the right to receive an
amount in cash equal to the price per Share paid pursuant to the Offer,
without interest thereon, as set forth in the Merger Agreement and
described in the Offer to Purchase.
5. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED BY
THE PURCHASER (THE "EXPIRATION DATE").
6. The Offer is conditioned upon, among other things, (1) there being
validly tendered and not withdrawn prior to the expiration of the Offer
that number of Shares that would constitute two-thirds of all outstanding
Shares on a fully diluted basis on the date of purchase and (2) any
waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the regulations thereunder applicable to the
purchase of Shares pursuant to the Offer having expired or been
terminated.
7. Any stock transfer taxes applicable to a sale of Shares to the Purchaser
will be borne by the Purchaser, except as otherwise provided in
Instruction 6 of the Letter of Transmittal.
Your instructions to us should be forwarded promptly to permit us to submit
a tender on your behalf prior to the Expiration Date.
If you wish to have us tender any of or all the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form on the detachable part hereof. An envelope to return
your instructions to us is enclosed. If you authorize the tender of your Shares,
all such Shares will be tendered unless otherwise specified on the detachable
part hereof. Your instructions should be forwarded to us in ample time to permit
us to submit a tender on your behalf prior to the Expiration Date.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by ChaseMellon Shareholder Services,
L.L.C. (the "Depositary"), of (a) certificates for (or a timely Book-Entry
Confirmation (as defined in the Offer to Purchase) with respect to) such Shares,
(b) a Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, or, in the case of a
book-entry transfer effected pursuant to the procedure set forth in Section 2 of
the Offer to Purchase, an Agent's Message (as defined in the Offer to Purchase),
and (c) any other documents required by the Letter of Transmittal. Accordingly,
tendering shareholders may be paid at different times depending upon when
certificates for Shares or Book-Entry Confirmations with respect to Shares are
actually received by the Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE
PAID ON THE PURCHASE PRICE OF THE SHARES TO BE PAID BY THE PURCHASER, REGARDLESS
OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.
The Offer is not being made to (nor will tenders be accepted from or on
behalf of) holders of Shares in any jurisdiction in which the making of the
Offer or acceptance thereof would not be in compliance with the laws of such
jurisdiction.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(TOGETHER WITH THE ASSOCIATED RIGHTS TO PURCHASE COMMON STOCK)
OF
EDMARK CORPORATION
The undersigned acknowledge(s) receipt of your letter, the Offer to Purchase
of Indigo Acquisition Corp. dated November 18, 1996 (the "Offer to Purchase"),
and the related Letter of Transmittal relating to shares of Common Stock, no par
value (the "Shares"), of Edmark Corporation, a Washington corporation, together
with the associated rights to purchase Shares issued pursuant to the Shareholder
Rights Agreement dated as of November 29, 1995 between the Company and
ChaseMellon Shareholder Services, L.L.C. (as successor to First Interstate Bank
of Washington, N.A.), as rights agent. Unless the context otherwise requires,
all references to Shares include the associated Rights.
This will instruct you to tender the number of Shares indicated below held
by you for the account of the undersigned, on the terms and subject to the
conditions set forth in the Offer to Purchase and related Letter of Transmittal.
SIGN HERE
NUMBER OF SHARES TO BE TENDERED:*
__________________________________
________________ SHARES
DAYTIME AREA CODE
__________________________________
AND TEL. NO. ___________________________________________________________________
SIGNATURE(S)
TAXPAYER IDENTIFICATION
NO. OR SOCIAL
__________________________________
SECURITY NO. ___________________________________________________________________
__________________________________
DATED: ___________________________________________________________________, 1996
(PLEASE PRINT NAME(S) AND ADDRESS(ES))
- ------------------------
* Unless otherwise indicated, it will be assumed that all your Shares are to
be tendered.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
Social Security numbers have nine digits separated by two hyphens: I.E.,
000-00-0000. Employer identification numbers have nine digits separated by only
one hyphen: I.E., 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
<C> <S> <C>
- ----------------------------------------------------------------
GIVE THE
SOCIAL SECURITY
NUMBER OF--
FOR THIS TYPE OF ACCOUNT:
- ----------------------------------------------------------------
- ----------------------------------------------------------------
GIVE THE EMPLOYER
IDENTIFICATION
NUMBER OF--
FOR THIS TYPE OF ACCOUNT:
- ----------------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals The actual owner of the
(joint account) account or, if combined
funds, any one of the
individuals(1)
3. Husband and wife (joint The actual owner of the
account) account or, if joint
funds, either person(1)
4. Custodian account of a The minor(2)
minor (Uniform Gift to
Minors Act)
5. Adult and minor (joint The adult, or if the
account) minor is the only
contributor, the
minor(1)
6. Account in the name of The ward, minor, or
guardian or committee for a incompetent person(3)
designated ward, minor, or
incompetent person
7. A. The usual revocable The grantor-trustee(1)
savings trust account
(grantor is also
trustee)
B. So-called trust account The actual owner(4)
that is not a legal or
valid trust under State
law
8. Sole proprietorship account The owner(4)
9. A valid trust, estate or The legal entity (Do not
pension trust furnish the identifying
number of the personal
representative or
trustee unless the legal
entity itself is not
designated in the
account title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization
account
12. Partnership account held in The partnership
the name of the business
13. Association, club, or other The organization
tax-exempt organization
14. A broker or registered The broker or
nominee nominee
15. Account with the Department The public entity
of Agriculture in the name
of a public entity (such as
a state or local
government, school
district, or prison) that
receives agricultural
program payments
</TABLE>
<TABLE>
<C> <S> <C>
- ----------------------------------------------------------------
- ----------------------------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate or pension trust.
NOTE: IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME, THE NUMBER WILL BE
CONSIDERED TO BE THAT OF THE FIRST NAME LISTED.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card (for
individuals), or Form SS-4, Application for Employer Identification Number (for
businesses and all other entities), at the local office of the Social Security
Administration or the Internal Revenue Service and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a), or an individual
retirement plan.
- The United States or any agency or instrumentality thereof.
- A state, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the U.S. or a
possession of the U.S.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a).
- An exempt charitable remainder trust, or a non-exempt trust described in
section 4947(a) (1).
- An entity registered at all times under the Investment Company Act of 1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to
backup withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441.
- Payments to partnerships not engaged in a trade or business in the U.S. and
which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852).
- Payments described in section 6049(b)(5) to nonresident aliens.
- Payments on tax-free covenant bonds under section 1451.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
EXEMPT PAYEES DESCRIBED ABOVE MUST STILL COMPLETE THE SUBSTITUTE FORM W-9 TO
AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE SUBSTITUTE FORM W-9 WITH THE
PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER. WRITE "EXEMPT" ON THE FACE
OF THE FORM, AND RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST,
DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends, that
are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
PRIVACY ACT NOTICE. Section 6109 requires most recipients of dividends,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to the IRS. The IRS uses the numbers for
identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Payers must generally withhold 31%
of taxable interest, dividends, and certain other payments to a payee who does
not furnish a taxpayer identification number to a payer. Certain penalties may
also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail
to furnish your correct taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you make
a false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.
Willfully falsifying certifications or affirmations may subject you to criminal
penalties including fines and/or imprisonment.
(4) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. If you fail to
include any portion of an includible payment for interest, dividends or
patronage dividends in gross income and such failure is due to negligence, a
penalty of 20% is imposed on any portion of an underpayment attributable to that
failure.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
<PAGE>
Exhibit (a)(1)
================================================================================
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated
November 18, 1996, and the related Letter of Transmittal and is not being made
to (nor will tenders be accepted from or on behalf of) holders of Shares in any
jurisdiction of which the making of the Offer or the acceptance thereof would
not be in compliance with the laws of such jurisdiction.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(including the associated rights to purchase Common Stock)
of
Edmark Corporation
at
$15.50 Net Per Share
by
Indigo Acquisition Corp.
a wholly owned subsidiary of
International Business Machines Corporation
Indigo Acquisition Corp., a Washington corporation (the "Purchaser"), which
is a wholly owned subsidiary of International Business Machines Corporation, a
New York corporation ("IBM"), is offering to purchase all outstanding shares of
Common Stock, no par value (the "Shares"), of Edmark Corporation, a Washington
corporation (the "Company"), together with the associated rights (the "Rights")
to purchase Shares issued pursuant to the Shareholder Rights Agreement dated as
of November 29, 1995 between the Company and ChaseMellon Shareholder Services,
L.L.C. (as successor to First Interstate Bank of Washington, N.A.), as rights
agent (as amended, the "Rights Agreement"), at a price of $15.50 per Share, net
to the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer to Purchase dated November 18, 1996, and
in the related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the "Offer"). Unless the context
otherwise requires, all references to Shares include the associated Rights, and
all references to the Rights include the benefits that may enure to holders of
the Rights pursuant to the Rights Agreement.
- --------------------------------------------------------------------------------
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, DECEMBER 16, 1996, UNLESS THE OFFER IS EXTENDED.
- --------------------------------------------------------------------------------
The Offer is conditioned upon, among other things, (1) there being validly
tendered and not withdrawn prior to the expiration of the Offer that number of
Shares that would constitute two-thirds of all outstanding Shares on a fully
diluted basis on the date of purchase and (2) any waiting period under the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations
thereunder applicable to the purchase of Shares pursuant to the Offer having
expired or been terminated.
The Offer is being made pursuant to an Agreement and Plan of Merger dated
as of November 12, 1996 (the "Merger Agreement"), among IBM, the Purchaser and
the Company pursuant to which, following the consummation of the Offer and the
satisfaction or waiver of certain conditions, the Purchaser will be merged with
the Company (the "Merger"). In the Merger, each outstanding Share (other than
Shares owned by IBM, the Purchaser or any other subsidiary of IBM or by
shareholders, if any, who are entitled to and who properly exercise dissenters'
rights under Washington law) will be converted into the right to receive $15.50
in cash, without interest.
The Board of Directors of the Company has unanimously approved the Offer
and the Merger and determined that the terms of the Offer and the Merger are
fair to, and in the best interests of, the shareholders of the Company and
unanimously recommends that shareholders of the Company accept the Offer and
tender their Shares.
<PAGE>
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares properly tendered to the Purchaser
and not withdrawn as, if and when the Purchaser gives oral or written notice to
the Depositary of the Purchaser's acceptance for payment of such Shares. Upon
the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as an agent for
tendering shareholders for the purpose of receiving payment from the Purchaser
and transmitting payment to tendering shareholders. In all cases, payment for
Shares accepted for payment pursuant to the Offer will be made only after timely
receipt by the Depositary of (a) certificates for such Shares or timely
confirmation of book-entry transfer of such Shares into the Depositary's account
at a Book-Entry Transfer Facility (as defined in the Offer to Purchase) pursuant
to the procedures set forth in Section 2 of the Offer to Purchase, (b) a Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees, or, in the case of a book-entry
transfer, an Agent's Message (as defined in the Offer to Purchase) and (c) any
other documents required by the Letter of Transmittal. Under no circumstances
will interest be paid on the purchase price of the Shares to be paid by the
Purchaser, regardless of any extension of the Offer or any delay in making such
payment.
The term "Expiration Date" means 12:00 Midnight, New York City time, on
Monday, December 16, 1996, unless and until the Purchaser, in its sole
discretion (but subject to the terms of the Merger Agreement), shall have
extended the period of time during which the Offer is open, in which event the
term "Expiration Date" shall mean the latest time and date on which the Offer,
as so extended by the Purchaser, shall expire. Subject to the terms of the
Merger Agreement and the applicable rules and regulations of the Securities and
Exchange Commission, the Purchaser reserves the right (but shall not be
obligated), at any time and from time to time, and regardless of whether or not
any of the events or facts set forth in Section 14 of the Offer to Purchase
shall have occurred, (i) to extend the period of time during which the Offer is
open, and thereby delay acceptance for payment of and the payment for any
Shares, by giving oral or written notice of such extension to the Depositary and
(ii) to amend the Offer in any other respect by giving oral or written notice of
such amendment to the Depositary. Under no circumstances will interest be paid
on the purchase price for tendered Shares, whether or not the Purchaser
exercises its right to extend the Offer. There can be no assurance that the
Purchaser will exercise its right to extend the Offer. Any such extension will
be followed by a public announcement thereof no later than 9:00 A.M., New York
City time, on the next business day after the previously scheduled Expiration
Date. During any such extension, all Shares previously tendered and not
withdrawn will remain subject to the Offer, subject to the right of a tendering
shareholder to withdraw such shareholder's Shares.
Except as otherwise provided below, tenders of Shares are
irrevocable. Shares tendered pursuant to the Offer may be withdrawn
pursuant to the procedures set forth below at any time prior to the
Expiration Date and, unless theretofore accepted for payment and
paid for by the Purchaser pursuant to the Offer, may also be
withdrawn at any time after Thursday, January 16, 1997. For a
withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the
Depositary at one of its addresses set forth on the back cover of
the Offer to Purchase and must specify the name of the person
having tendered the Shares to be withdrawn, the number of Shares to
be withdrawn and the name of the registered holder of the Shares to
be withdrawn, if different from the name of the person who tendered
the Shares. If certificates for Shares have been delivered or
otherwise identified to the Depositary, then, prior to the physical
release of such certificates, the serial numbers shown on such
certificates must be submitted to the Depositary and, unless such
Shares have been tendered by an Eligible Institution (as defined in
Section 2 of the Offer to Purchase), the signatures on the notice
of withdrawal must be guaranteed by an Eligible Institution. If
Shares have been delivered pursuant to the procedures for
book-entry transfer as set forth in Section 2 of the Offer to
Purchase, any notice of withdrawal must also specify the name and
number of the account at the appropriate Book-Entry Transfer
Facility to be credited with the withdrawn Shares and otherwise
comply with such Book-Entry Transfer Facility's procedures.
Withdrawals of tenders of Shares may not be rescinded, and any
Shares properly withdrawn will thereafter be deemed not validly
tendered for purposes of the Offer. However, withdrawn Shares may
be retendered by again following one of the procedures described in
Section 2 of the Offer to Purchase at any time prior to the
Expiration Date. All questions as to the form and validity
(including time of receipt) of notices of withdrawal will be
determined by the Purchaser in its sole discretion, which
determination will be final and binding.
<PAGE>
The Company has provided the Purchaser with the Company's shareholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. The Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed to record holders of Shares and will be
furnished to brokers, dealers, banks, trust companies and similar persons whose
names, or the names of whose nominees, appear on the shareholder lists or, if
applicable, who are listed as participants in a clearing agency's security
position listing for subsequent transmittal to beneficial owners of Shares.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the
Securities Exchange Act of 1934, as amended, is contained in the Offer to
Purchase and is incorporated herein by reference.
The Offer to Purchase and Letter of Transmittal contain important
information which should be read before any decision is made with respect to the
Offer.
Requests for copies of the Offer to Purchase, the Letter of Transmittal and
other tender offer materials may be directed to the Information Agent as set
forth below, and copies will be furnished promptly at the Purchaser's expense.
No fees or commissions will be payable to brokers, dealers or other persons
other than the Information Agent for soliciting tenders of Shares pursuant to
the Offer.
The Information Agent for the Offer is:
MORROW & CO., INC.
909 Third Avenue
20th Floor
New York, New York 10022
(212) 754-8000
Toll Free (800) 566-9061
Banks and Brokerage Firms please call:
(800) 662-5200
The Depositary for the Offer is:
ChaseMellon Shareholder Services
Reorganization Dept.
By Mail: By Hand or Overnight Delivery:
PO Box 798 120 Broadway
Midtown Station 13th Floor
New York, New York 10018 New York, New York 10271
By Facsimile Transmission:
201-329-8936
For Confirmation of Facsimile:
201-296-4209
201-296-4381
November 18, 1996
================================================================================
<PAGE>
FOR RELEASE: IMMEDIATE
[LETTERHEAD]
Contacts: Rob Wilson Kendra Collins Paul Bialek
IBM IBM CFO, Edmark
914-765-6565 914-766-3804 206-556-8810
IBM, EDMARK ANNOUNCE MERGER AGREEMENT
ARMONK, N.Y., Nov. 13, 1996--IBM and Edmark (NASDAQ:EDMK) today
announced that they have entered into a definitive merger agreement under
which IBM will shortly commence a cash tender offer for Edmark's shares at a
price of $15.50 per share. Edmark, based in Redmond, Washington, is a
leading developer and publisher of quality consumer and education software
for kindergarten through 12th grade.
The directors and executive officers of Edmark have agreed to sell
their shares to IBM. The net cash cost of the transaction to IBM is
expected to be approximately $80 million.
"The merger of Edmark represents the next stage in our strategy of
focusing on education and enhanced learning and further strengthens our
leadership position in the home consumer marketplace," said Jim Firestone,
general manager, IBM Consumer Division. "As a company, we are strongly
committed to bringing the power and the magic of technology to the home.
Education software is one of the most important applications for consumers
and this merger will substantially accelerate our efforts in this area."
The merger brings to IBM a library of high quality educational software
titles, as well as a highly experienced management and software development
team. The creator of the newly released Mighty Math Series, Sammy's Science
House, Stanley's Stickers Stories, and the popular Thinkin' Things Series,
Edmark is widely recognized as having some of the most advanced educational
software products on the market. The
- more -
<PAGE>
- 2 -
company currently offers 20 multimedia titles that have been recognized with
more than 100 important industry awards for their rich educational depth,
thought-provoking content and open-ended environments where children can
investigate, experiment, role play and construct their own ideas and projects.
IBM plans to operate the unit under the Edmark name in Redmond. Mr.
Firestone will oversee and direct the operations of the company.
"Schools and parents are changing the way they use technology to
educate their children," Firestone added. "Increasingly, networks and the
Internet will allow parents, teachers and students to work together in new
ways. Having both an understanding of educational content and networking
technology, IBM is well-positioned to make this happen."
The terms and conditions of IBM's cash tender offer will be set forth
in the offering documents expected to be filed by November 19, 1996 with the
Securities and Exchange Commission. These conditions will include the
acquisition of at least two-thirds of all outstanding shares of Edmark
common stock on a fully diluted basis.
"IBM brings size, scale, distribution and marketing to our company and
will add viability and credibility," said Donna Stanger, Edmark acting CEO.
"With our award-winning products and IBM's strong commitment to education and
technology, we can break out of the pack and be a leader in education
software sales.
Edmark has more than 25 years of experience applying proven educational
concepts to the development of educational products for children. The
company develops products for both consumers and educational institutions,
including such award-winning titles as The Early Learning House Series,
Strategy Challenges Series, and The Imagination Express Series.
- more -
<PAGE>
- 3 -
The IBM Consumer Division is a leading manufacturer and developer of
both hardware and software solutions for the home. Established as a
business unit within IBM in 1995, the Consumer Division's products include
the award-winning Aptiva family of personal computers. These products have
been recognized for technology innovation and product design. IBM's
multimedia software titles, including Emergency Room, Pinocchio and Friendly
Forest, have attracted a strong following among consumers. For additional
information, access the IBM Aptiva home page at http://www.pc.ibm.com/Aptiva/.
# # #
111396
<PAGE>
=========================================================================
AGREEMENT AND PLAN OF MERGER
Among
INTERNATIONAL BUSINESS MACHINES CORPORATION,
INDIGO ACQUISITION CORP.
and
EDMARK CORPORATION
Dated as of November 12, 1996
=========================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
The Offer
SECTION 1.01. The Offer................................................ 2
SECTION 1.02. Company Actions.......................................... 4
ARTICLE II
The Merger
SECTION 2.01. The Merger............................................... 6
SECTION 2.02. Closing.................................................. 6
SECTION 2.03. Effective Time........................................... 6
SECTION 2.04. Effects of the Merger.................................... 7
SECTION 2.05. Articles of Incorporation and Bylaws..................... 7
SECTION 2.06. Directors................................................ 7
SECTION 2.07. Officers................................................. 7
ARTICLE III
Effect of the Merger on the Capital Stock of the
Constituent Corporations; Exchange of Certificates
SECTION 3.01. Effect on Capital Stock.................................. 8
(a) Capital Stock of Sub................................ 8
(b) Cancellation of Parent Owned Stock.................. 8
(c) Conversion of Shares................................ 8
(d) Shares of Dissenting Shareholders................... 8
(e) Withholding Tax..................................... 9
SECTION 3.02. Exchange of Certificates................................ 9
(a) Paying Agent........................................ 9
(b) Exchange Procedure.................................. 9
(c) No Further Ownership Rights in
Shares............................................. 10
(d) No Liability........................................ 10
<PAGE>
Contents, p. 2
Page
----
ARTICLE IV
Representations and Warranties of the Company
SECTION 4.01. Organization............................................. 11
SECTION 4.02. Subsidiaries............................................. 11
SECTION 4.03. Capitalization........................................... 11
SECTION 4.04. Authority................................................ 12
SECTION 4.05. Consents and Approvals; No Violations.................... 13
SECTION 4.06. SEC Reports and Financial Statements..................... 14
SECTION 4.07. Absence of Certain Changes or Events..................... 15
SECTION 4.08. No Undisclosed Liabilities............................... 15
SECTION 4.09. Information Supplied..................................... 16
SECTION 4.10. Benefit Plans; Employees and Employment
Practices ............................................ 16
SECTION 4.11. Contracts................................................ 18
SECTION 4.12. Litigation .............................................. 19
SECTION 4.13. Compliance with Applicable Law........................... 19
SECTION 4.14. Tax Matters.............................................. 20
SECTION 4.15. State Takeover Statutes.................................. 22
SECTION 4.16. Brokers; Schedule of Fees and Expenses................... 22
SECTION 4.17. Opinion of Financial Advisor............................. 22
SECTION 4.18. Intellectual Property.................................... 23
SECTION 4.19. Certain Agreements....................................... 25
SECTION 4.20. Indebtedness............................................. 25
SECTION 4.21. Rights Agreement......................................... 25
SECTION 4.22 Director Stock Options .................................. 26
ARTICLE V
Representations and Warranties
of Parent and Sub
SECTION 5.01. Organization ............................................ 26
SECTION 5.02. Authority................................................ 26
SECTION 5.03. Consents and Approvals; No Violations ................... 27
SECTION 5.04. Information Supplied..................................... 28
SECTION 5.05. Interim Operations of Sub................................ 28
SECTION 5.06. Brokers.................................................. 28
SECTION 5.07. Financing................................................ 28
<PAGE>
Contents, p. 3
Page
----
ARTICLE VI
Covenants
SECTION 6.01. Covenants of the Company................................. 29
(a) Ordinary Course..................................... 29
(b) Dividends; Changes in Stock......................... 29
(c) Issuance of Securities.............................. 29
(d) Governing Documents................................. 30
(e) No Acquisitions..................................... 30
(f) No Dispositions..................................... 30
(g) Advice of Changes; Filings.......................... 30
(h) Tax Matters......................................... 30
(i) Capital Expenditures................................ 31
(j) Discharge of Liabilities............................ 31
(k) Material Contracts.................................. 31
(l) General............................................. 31
SECTION 6.02. No Solicitation.......................................... 31
SECTION 6.03. Other Actions............................................ 34
ARTICLE VII
Additional Agreements
SECTION 7.01. Shareholder Approval; Preparation of
Proxy Statement....................................... 34
SECTION 7.02. Access to Information.................................... 35
SECTION 7.03. Reasonable Efforts....................................... 36
SECTION 7.04. Company Stock Options.................................... 36
SECTION 7.05. Directors................................................ 37
SECTION 7.06. Fees and Expenses........................................ 37
SECTION 7.07. Indemnification; Insurance............................... 39
SECTION 7.08. Certain Litigation....................................... 39
SECTION 7.09. Rights Agreement......................................... 39
ARTICLE VIII
Conditions
SECTION 8.01. Conditions to Each Party's Obligation To
Effect the Merger..................................... 40
(a) Company Shareholder Approval........................ 40
(b) No Injunctions or Restraints........................ 40
(c) Purchase of Shares.................................. 41
<PAGE>
Contents, p. 4
Page
----
ARTICLE IX
Termination and Amendment
SECTION 9.01. Termination.............................................. 41
SECTION 9.02. Effect of Termination.................................... 42
SECTION 9.03. Amendment................................................ 43
SECTION 9.04. Extension; Waiver........................................ 43
ARTICLE X
Miscellaneous
SECTION 10.01. Nonsurvival of Representations,
Warranties and Agreements............................. 43
SECTION 10.02. Notices.................................................. 44
SECTION 10.03. Interpretation........................................... 45
SECTION 10.04. Counterparts............................................. 45
SECTION 10.05. Entire Agreement; No Third Party
Beneficiaries......................................... 45
SECTION 10.06. Governing Law............................................ 46
SECTION 10.07. Publicity................................................ 46
SECTION 10.08. Assignment............................................... 46
SECTION 10.09. Enforcement.............................................. 46
EXHIBIT A -- Conditions of the Offer
<PAGE>
AGREEMENT AND PLAN OF MERGER dated as of November 12,
1996, among INTERNATIONAL BUSINESS MACHINES CORPORATION, a New
York corporation ("Parent"), INDIGO ACQUISITION CORP., a
Washington corporation and a wholly owned subsidiary of Parent
("Sub"), and EDMARK CORPORATION, a Washington corporation (the
"Company").
WHEREAS, the acquisition of the Company by Parent on the terms and
subject to the conditions set forth in this Agreement has been authorized by all
necessary corporate action on behalf of Parent and Sub and has been approved by
the Board of Directors of the Company;
WHEREAS, in furtherance of such acquisition, Parent proposes to
cause Sub to make a tender offer (as it may be amended from time to time as
permitted under this Agreement, the "Offer") to purchase all the outstanding
shares of Common Stock, no par value, of the Company (the "Company Common
Stock"; the shares of Company Common Stock being hereinafter collectively
referred to as the "Shares"), including the associated Rights (as defined in
Section 4.03)), at a purchase price (the "Offer Price") of $15.50 per Share
(including the associated Right), net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the merger of Sub with the Company (the "Merger") upon the
terms and subject to the conditions set forth in this Agreement, whereby each
issued and outstanding Share, other than Shares owned directly or indirectly by
Parent and Dissenting Shares (as defined in Section 3.01(d)), will be converted
into the right to receive in cash the price per share paid in the Offer, has
been authorized by all necessary corporate action on behalf of Parent and Sub
and has been approved by the Board of Directors of the Company;
WHEREAS, concurrently with the execution of this Agreement and as an
inducement to Parent to enter into this Agreement, Parent, Sub and certain
shareholders of the Company are entering into a Shareholder Agreement (the
"Shareholder Agreement") pursuant to which such shareholders have, among other
things, agreed to sell all such shareholders' Shares to Sub at the price per
Share paid in the Offer, upon the terms and subject to the conditions set
<PAGE>
2
forth in the Shareholder Agreement; and the Shareholder Agreement has been
approved by the Board of Directors of the Company;
WHEREAS, concurrently with the execution of this Agreement and as an
inducement to Parent to enter into this Agreement, Parent and certain
shareholders of the Company who are employed by the Company are entering into
Noncompetition Agreements (the "Noncompetition Agreements") pursuant to which
such shareholders have, among other things, agreed to not have any Relationship
(as defined in the Noncompetition Agreements) with certain third parties during
the Noncompetition Period (as defined in the Noncompetition Agreements); and
WHEREAS, Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Offer and the Merger and also to prescribe various conditions to the Offer and
the Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Sub and the Company hereby agree as follows:
ARTICLE I
The Offer
SECTION 1.01. The Offer. (a) Subject to the provisions of this
Agreement, as promptly as practicable but in no event later than five business
days after the date of the public announcement by Parent and the Company of this
Agreement, Sub shall, and Parent shall cause Sub to, commence the Offer. The
obligation of Sub to, and of Parent to cause Sub to, commence the Offer and
accept for payment, and pay for, any Shares tendered pursuant to the Offer shall
be subject only to the conditions set forth in Exhibit A (the "Offer
Conditions") (any of which may be waived in whole or in part by Sub in its sole
discretion, provided that, without the consent of the Company, Sub shall not
waive the Minimum Condition (as defined in Exhibit A)) and to the terms and
conditions of this Agreement. Sub expressly reserves the right to modify the
terms of the Offer, except that, without the consent of the Company, Sub
<PAGE>
3
shall not (i) reduce the number of Shares subject to the Offer, (ii) reduce the
Offer Price, (iii) amend or add to the Offer Conditions, (iv) except as provided
in the next sentence, extend the Offer, (v) change the form of consideration
payable in the Offer or (vi) amend any other term of the Offer in any manner
adverse to the holders of the Shares. Notwithstanding the foregoing, Sub may,
without the consent of the Company, (i) extend the Offer, if at the scheduled or
extended expiration date of the Offer any of the Offer Conditions shall not be
satisfied or waived, until such time as such conditions are satisfied or waived,
(ii) extend the Offer for any period required by any rule, regulation,
interpretation or position of the Securities and Exchange Commission (the "SEC")
or the staff thereof applicable to the Offer and (iii) extend the Offer for any
reason on one or more occasions for an aggregate period of not more than 25
business days beyond the latest expiration date that would otherwise be
permitted under clause (i) or (ii) of this sentence. Subject to the terms and
conditions of the Offer and this Agreement, Sub shall, and Parent shall cause
Sub to, accept for payment, and pay for, all Shares validly tendered and not
withdrawn pursuant to the Offer that Sub becomes obligated to accept for
payment, and pay for, pursuant to the Offer as promptly as practicable after the
expiration of the Offer.
(b) On the date of commencement of the Offer, Parent and Sub shall
file with the SEC a Tender Offer Statement on Schedule 14D-1 (the "Schedule
14D-1") with respect to the Offer, which shall contain an offer to purchase and
a related letter of transmittal and summary advertisement (such Schedule 14D-1
and the documents included therein pursuant to which the Offer will be made,
together with any supplements or amendments thereto, the "Offer Documents").
Parent and Sub agree that the Offer Documents shall comply as to form in all
material respects with the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations promulgated thereunder and the
Offer Documents, on the date first published, sent or given to the Company's
shareholders, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that no representation or warranty is made by
Parent or Sub with respect to information supplied by the Company or any of its
shareholders specifically for inclusion or incorporation by
<PAGE>
4
reference in the Offer Documents. Each of Parent, Sub and the Company agree
promptly to correct any information provided by it for use in the Offer
Documents if and to the extent that such information shall have become false or
misleading in any material respect, and Parent and Sub further agree to take all
steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the
SEC and the other Offer Documents as so corrected to be disseminated to the
Company's shareholders, in each case as and to the extent required by applicable
federal securities laws. The Company and its counsel shall be given reasonable
opportunity to review and comment upon the Offer Documents prior to their filing
with the SEC or dissemination to the shareholders of the Company. Parent and Sub
agree to provide the Company and its counsel any comments Parent, Sub or their
counsel may receive from the SEC or its staff with respect to the Offer
Documents promptly after the receipt of such comments.
(c) Parent shall provide or cause to be provided to Sub on a timely
basis the funds necessary to accept for payment, and pay for, any Shares that
Sub becomes obligated to accept for payment, and pay for, pursuant to the Offer.
SECTION 1.02. Company Actions. (a) The Company hereby approves of
and consents to the Offer and represents that the Board of Directors of the
Company, at a meeting duly called and held, duly and unanimously adopted
resolutions adopting this Agreement and approving the Shareholder Agreement,
approving the Offer and the Merger, determining that the terms of the Offer and
the Merger are fair to, and in the best interests of, the Company's
shareholders, recommending that the Company's shareholders accept the Offer,
tender their shares pursuant to the Offer and approve this Agreement (if
required) and approving the acquisition of Shares by Sub pursuant to the Offer
and the Shareholder Agreement and the other transactions contemplated by this
Agreement and the Shareholder Agreement. The Company has been advised by each of
its directors and executive officers that each such person intends to tender all
Shares owned by such person pursuant to the Offer.
(b) On the date the Offer Documents are filed with the SEC, the
Company shall file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer (such Schedule 14D-9, as amended from
time to time, the "Schedule 14D-9") containing the recommendation described in
paragraph (a) and shall mail the
<PAGE>
5
Schedule 14D-9 to the shareholders of the Company. The Schedule 14D-9 shall
comply as to form in all material respects with the requirements of the Exchange
Act and the rules and regulations promulgated thereunder and, on the date filed
with the SEC and on the date first published, sent or given to the Company's
shareholders, shall not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that no representation or warranty is made by
the Company with respect to information supplied by Parent or Sub specifically
for inclusion in the Schedule 14D-9. Each of the Company, Parent and Sub agrees
promptly to correct any information provided by it for use in the Schedule 14D-9
if and to the extent that such information shall have become false or misleading
in any material respect, and the Company further agrees to take all steps
necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule
14D-9 as so amended or supplemented to be filed with the SEC and disseminated to
the Company's shareholders, in each case as and to the extent required by
applicable federal securities laws. Parent and its counsel shall be given
reasonable opportunity to review and comment upon the Schedule 14D-9 prior to
its filing with the SEC or dissemination to shareholders of the Company. The
Company agrees to provide Parent and its counsel any comments the Company or its
counsel may receive from the SEC or its staff with respect to the Schedule 14D-9
promptly after the receipt of such comments.
(c) In connection with the Offer and the Merger, the Company shall
cause its transfer agent to furnish Sub promptly with mailing labels containing
the names and addresses of the record holders of Shares as of a recent date and
of those persons becoming record holders subsequent to such date, together with
copies of all lists of shareholders, security position listings and computer
files and all other information in the Company's possession or control regarding
the beneficial owners of Shares, and shall furnish to Sub such information and
assistance (including updated lists of shareholders, security position listings
and computer files) as Parent may reasonably request in communicating the Offer
to the Company's shareholders. Subject to the requirements of applicable law,
and except for such steps as are necessary to disseminate the Offer Documents
and any other documents necessary to consummate the Merger, Parent and Sub and
their agents shall hold in
<PAGE>
6
confidence the information contained in any such labels, listings and files,
will use such information only in connection with the Offer and the Merger and,
if this Agreement shall be terminated, will, upon request, deliver, and will use
their reasonable efforts to cause their agents to deliver, to the Company all
copies and any extracts or summaries from such information then in their
possession or control.
ARTICLE II
The Merger
SECTION 2.01. The Merger. Subject to the last two sentences of this
Section 2.01, upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the Washington Business Corporation Act (the
"WBCA"), Sub shall be merged with and into the Company at the Effective Time (as
defined in Section 2.03). Following the Effective Time, the separate corporate
existence of Sub shall cease and the Company shall continue as the surviving
corporation (the "Surviving Corporation") and shall succeed to and assume all
the rights and obligations of Sub in accordance with the WBCA. At the election
of Parent, (i) any direct or indirect wholly owned subsidiary (as defined in
Section 10.03) of Parent may be substituted for and assume all of the rights and
obligations of Sub as a constituent corporation in the Merger or (ii) the
Company may be merged with and into Sub with Sub continuing as the Surviving
Corporation with the effects set forth above and in Section 2.04. In either such
event, the parties agree to execute an appropriate amendment to this Agreement
in order to reflect the foregoing.
SECTION 2.02. Closing. The closing of the Merger will take place at
10:00 a.m. (New York City time) on a date to be specified by Parent or Sub,
which shall be no later than the second business day after satisfaction or
waiver of the conditions set forth in Article VIII (the "Closing Date"), at the
offices of Cravath, Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New
York, New York 10019, unless another date, time or place is agreed to in writing
by the parties hereto.
SECTION 2.03. Effective Time. Subject to the provisions of this
Agreement, as soon as practicable on or after the Closing Date, the parties
shall file articles of
<PAGE>
7
merger or other appropriate documents (in any such case, the "Articles of
Merger") executed in accordance with the relevant provisions of the WBCA and
shall make all other filings or recordings required under the WBCA. The Merger
shall become effective at such time as the Articles of Merger are duly filed
with the Washington Secretary of State, or at such other time as Sub and the
Company shall agree should be specified in the Articles of Merger (the time the
Merger becomes effective being hereinafter referred to as the "Effective Time").
SECTION 2.04. Effects of the Merger. The Merger shall have the
effects set forth in Section 23B.11.060 of the WBCA.
SECTION 2.05. Articles of Incorporation and Bylaws. (a) The Amended
and Restated Articles of Incorporation of the Company as in effect immediately
prior to the Effective Time shall be the articles of incorporation of the
Surviving Corporation, until thereafter changed or amended as provided therein
or by applicable law.
(b) The Bylaws of the Company, as amended and restated and as in
effect immediately prior to the Effective Time, shall be the bylaws of the
Surviving Corporation, until thereafter changed or amended as provided therein
or by applicable law.
SECTION 2.06. Directors. The directors of Sub immediately prior to
the Effective Time shall be the directors of the Surviving Corporation, until
the earlier of their resignation or removal or until their respective successors
are duly elected and qualified, as the case may be.
SECTION 2.07. Officers. The officers of the Company immediately
prior to the Effective Time shall be the officers of the Surviving Corporation,
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
<PAGE>
8
ARTICLE III
Effect of the Merger on the Capital Stock of the
Constituent Corporations; Exchange of Certificates
SECTION 3.01. Effect on Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
Shares or any shares of capital stock of Sub:
(a) Capital Stock of Sub. Each issued and outstanding share of
capital stock of Sub shall be converted into and become one fully paid and
nonassessable share of Common Stock, no par value, of the Surviving
Corporation.
(b) Cancellation of Parent Owned Stock. Each Share that is owned by
Parent, Sub or any other subsidiary of Parent shall automatically be
canceled and retired and shall cease to exist, and no consideration shall
be delivered in exchange therefor.
(c) Conversion of Shares. Subject to Section 3.01(d), each issued
and outstanding Share (other than Shares to be canceled in accordance with
Section 3.01(b)) shall be converted into the right to receive from the
Surviving Corporation in cash, without interest, the price paid in the
Offer (the "Merger Consideration"). As of the Effective Time, all such
Shares 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 Merger Consideration, without
interest.
(d) Shares of Dissenting Shareholders. Notwithstanding anything in
this Agreement to the contrary, any issued and outstanding Shares held by
a person (a "Dissenting Shareholder") who does not vote to approve the
Merger and complies with all the provisions of the WBCA concerning the
right of holders of Shares to dissent from the Merger and require payment
of fair value (as defined in the WBCA) for their Shares ("Dissenting
Shares") shall not be converted as described in Section 3.01(c), but shall
be converted into the right to receive such consideration as may be
determined to be due to such Dissenting
<PAGE>
9
Shareholder pursuant to the WBCA. If, after the Effective Time, such
Dissenting Shareholder withdraws his demand or fails to perfect or
otherwise loses his rights as a Dissenting Shareholder to payment of fair
value, in any case pursuant to the WBCA, his Shares shall be deemed to be
converted as of the Effective Time into the right to receive the Merger
Consideration. The Company shall give Parent (i) prompt notice of any
demands for fair value for Shares received by the Company and (ii) the
opportunity to participate in and direct all negotiations and proceedings
with respect to any such demands. The Company shall not, without the prior
written consent of Parent, make any payment with respect to, or settle,
offer to settle or otherwise negotiate, any such demands.
(e) Withholding Tax. The right of any shareholder to receive the
Merger Consideration shall be subject to and reduced by the amount of any
required tax withholding obligation.
SECTION 3.02. Exchange of Certificates. (a) Paying Agent. Prior to
the Effective Time, Parent shall designate a bank or trust company to act as
paying agent in the Merger (the "Paying Agent"), and, from time to time on,
prior to or after the Effective Time, Parent shall make available, or cause the
Surviving Corporation to make available, to the Paying Agent cash in amounts and
at the times necessary for the prompt payment of the Merger Consideration upon
surrender of certificates representing Shares as part of the Merger pursuant to
Section 3.01 (it being understood that any and all interest earned on funds made
available to the Paying Agent pursuant to this Agreement shall be turned over to
Parent).
(b) Exchange Procedure. As soon as reasonably practicable after the
Effective Time, the Paying Agent shall mail to each holder of record of a
certificate or certificates that immediately prior to the Effective Time
represented Shares (the "Certificates"), (i) a letter of transmittal (which
shall specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the Paying
Agent and shall be in a form and have such other provisions as Parent may
reasonably specify) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for the Merger Consideration. Upon
<PAGE>
10
surrender of a Certificate for cancellation to the Paying Agent or to such other
agent or agents as may be appointed by Parent, together with such letter of
transmittal, duly executed, and such other documents as may reasonably be
required by the Paying Agent, the holder of such Certificate shall be entitled
to receive in exchange therefor the amount of cash into which the Shares
theretofore represented by such Certificate shall have been converted pursuant
to Section 3.01, and the Certificate so surrendered shall forthwith be canceled.
In the event of a transfer of ownership of Shares that is not registered in the
transfer records of the Company, payment may be made to a person other than the
person in whose name the Certificate so surrendered is registered, if such
Certificate shall be properly endorsed or otherwise be in proper form for
transfer and the person requesting such payment shall pay any transfer or other
taxes required by reason of the payment to a person other than the registered
holder of such Certificate or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not applicable. Until surrendered
as contemplated by this Section 3.02, each Certificate shall be deemed at any
time after the Effective Time to represent only the right to receive upon such
surrender the amount of cash, without interest, into which the Shares
theretofore represented by such Certificate shall have been converted pursuant
to Section 3.01. No interest will be paid or will accrue on the cash payable
upon the surrender of any Certificate.
(c) No Further Ownership Rights in Shares. All cash paid upon the
surrender of Certificates in accordance with the terms of this Article III shall
be deemed to have been paid in full satisfaction of all rights pertaining to the
Shares theretofore represented by such Certificates. At the Effective Time, the
stock transfer books of the Company shall be closed, and there shall be no
further registration of transfers on the stock transfer books of the Surviving
Corporation of the Shares that were outstanding immediately prior to the
Effective Time. If, after the Effective Time, Certificates are presented to the
Surviving Corporation or the Paying Agent for any reason, they shall be canceled
and exchanged as provided in this Article III.
(d) No Liability. None of Parent, Sub, the Company or the Paying
Agent shall be liable to any person in respect of any cash delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law.
If any Certificates shall not have been surrendered
<PAGE>
11
prior to seven years after the Effective Time (or immediately prior to such
earlier date on which any payment pursuant to this Article III would otherwise
escheat to or become the property of any Governmental Entity (as defined in
Section 4.05)), the cash payment in respect of such Certificate shall, to the
extent permitted by applicable law, become the property of the Surviving
Corporation, free and clear of all claims or interests of any person previously
entitled thereto.
ARTICLE IV
Representations and Warranties of the Company
The Company represents and warrants to Parent and Sub as follows:
SECTION 4.01. Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to carry on its business as now being conducted. The Company is duly
qualified or licensed to do business and in good standing in each jurisdiction
in which the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification or licensing necessary, except
in such jurisdictions where the failure to be so duly qualified or licensed and
in good standing would not have a material adverse effect (as defined in Section
10.03) on the Company or prevent or materially delay the consummation of the
Offer and/or the Merger. The Company has delivered to Parent complete and
correct copies of its Amended and Restated Articles of Incorporation and Bylaws,
as amended and restated.
SECTION 4.02. Subsidiaries. Except pursuant to contracts,
agreements, arrangements or understandings referred to in Section 4.19 and
except for shares of publicly-traded companies owned by the Company which
collectively have a market value of less than $5,000, the Company does not own,
directly or indirectly, any capital stock or other ownership interest in any
corporation, partnership, joint venture or other entity.
SECTION 4.03. Capitalization. The authorized capital stock of the
Company consists of 30,000,000 Shares. At the close of business on November 10,
1996, (i) 6,632,111
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12
Shares were issued and outstanding, and (ii) 1,248,110 Shares were reserved for
issuance upon exercise of outstanding Company Stock Options (as defined in
Section 7.04(a)). Except as set forth above, for Shares reserved for issuance in
connection with the rights (the "Rights") to purchase Shares issued pursuant to
the Shareholder Rights Agreement dated as of November 29, 1995 (the "Rights
Agreement") between the Company and ChaseMellon Shareholder Services, L.L.C. (as
successor to First Interstate Bank of Washington, N.A.), as rights agent, and
for Shares reserved for issuance pursuant to the Company's employee stock
purchase plan, as of the date of this Agreement, no shares of capital stock or
other voting securities of the Company were issued, reserved for issuance or
outstanding. All outstanding shares of capital stock of the Company are, and all
shares which may be issued will be, when issued, duly authorized, validly
issued, fully paid and nonassessable and not subject to preemptive rights. There
are no bonds, debentures, notes or other indebtedness of the Company having the
right to vote (or convertible into, or exchangeable for, securities having the
right to vote) on any matters on which shareholders of the Company may vote.
Except as set forth above, as of the date of this Agreement, there are no
securities, options, warrants, calls, rights, commitments, agreements,
arrangements or undertakings of any kind to which the Company is a party or by
which the Company is bound obligating the Company to issue, deliver or sell, or
cause to be issued, delivered or sold, additional shares of capital stock or
other voting securities of the Company. As of the date of this Agreement, there
are no outstanding contractual obligations of the Company to repurchase, redeem
or otherwise acquire any shares of capital stock of the Company.
SECTION 4.04. Authority. The Company has the requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby (other than, with respect to the Merger, the
approval of this Agreement by the holders of two-thirds of the Shares (the
"Company Shareholder Approval")). The execution, delivery and performance of
this Agreement and the consummation by the Company of the Merger and of the
other transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company and no other corporate
proceedings on the part of the Company are necessary to authorize this Agreement
or to consummate the transactions so contemplated (in each case, other than,
with respect to the Merger, the Company
<PAGE>
13
Shareholder Approval). This Agreement has been duly executed and delivered by
the Company and, assuming this Agreement constitutes a valid and binding
obligation of Parent and Sub, constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except (i)
as limited by applicable bankruptcy, insolvency, reorganization, moratorium and
other laws of general application affecting enforcement of creditors' rights
generally and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies.
SECTION 4.05. Consents and Approvals; No Violations. Except for
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Exchange Act (including the
filing with the SEC of the Schedule 14D-9 and a proxy statement relating to any
required approval by the Company's shareholders of this Agreement (the "Proxy
Statement")), the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), the WBCA or the laws of other states in which the
Company is qualified to do or is doing business, neither the execution, delivery
or performance of this Agreement by the Company nor the consummation by the
Company of the transactions contemplated hereby will (i) conflict with or result
in any breach of any provision of the Amended and Restated Articles of
Incorporation or Bylaws, as amended and restated, of the Company, (ii) require
any filing with, or permit, authorization, consent or approval of, any federal,
state or local government or any court, tribunal, administrative agency or
commission or other governmental or regulatory authority or agency, domestic,
foreign or supranational (a "Governmental Entity") (except where the failure to
make such filings or to obtain such permits, authorizations, consents or
approvals would not have a material adverse effect on the Company or prevent or
materially delay the consummation of the Offer and/or the Merger), (iii) result
in a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration) under, any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, lease, license, contract, agreement or
other instrument or obligation to which the Company is a party or by which any
of its properties or assets may be bound or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company or any
of its properties or assets, except in
<PAGE>
14
the case of clauses (iii) or (iv) for violations, breaches or defaults that
could not reasonably be expected to have a material adverse effect on the
Company or prevent or materially delay the consummation of the Offer and/or the
Merger.
SECTION 4.06. SEC Reports and Financial Statements. The Company has
filed with the SEC, and has heretofore made available to Parent, true and
complete copies of, all forms, reports, schedules, statements and other
documents required to be filed by it since June 30, 1995 under the Exchange Act
or the Securities Act of 1933 (the "Securities Act") (such forms, reports,
schedules, statements and other documents, including any financial statements or
schedules included therein, are referred to as the "Company SEC Documents"). The
Company SEC Documents, at the time filed, (a) did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading and (b) complied in
all material respects with the applicable requirements of the Exchange Act and
the Securities Act, as the case may be, and the applicable rules and regulations
of the SEC thereunder. Except to the extent that information contained in any
Company SEC Document has been revised or superseded by a subsequently filed
Company Filed SEC Document (as defined in Section 4.07) (a copy of which has
been made available to Parent prior to the date hereof), none of the Company SEC
Documents contains an untrue statement of a material fact or omits to state a
material fact required to be stated or incorporated by reference therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of the
Company included in the Company SEC Documents comply as to form in all material
respects with applicable accounting requirements and with the published rules
and regulations of the SEC with respect thereto, have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis during the periods involved (except as may be indicated in the notes
thereto or, in the case of the unaudited statements, as permitted by Form 10-Q
of the SEC) and fairly present (subject, in the case of the unaudited
statements, to normal, recurring audit adjustments) the financial position of
the Company as at the dates thereof and the results of its operations and cash
flows for the periods then ended.
<PAGE>
15
SECTION 4.07. Absence of Certain Changes or Events. Except as
disclosed in Schedule 4.07 or in the Company SEC Documents filed and publicly
available prior to the date of this Agreement (the "Company Filed SEC
Documents"), since June 30, 1996, the Company has conducted its business only in
the ordinary course, and there has not been (i) any material adverse change (as
defined in Section 10.03) with respect to the Company, (ii) any declaration,
setting aside or payment of any dividend or other distribution with respect to
its capital stock or any redemption, purchase or other acquisition of any of its
capital stock, (iii) any split, combination or reclassification of any of its
capital stock or any issuance or the authorization of any issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
capital stock, (iv) (x) any granting by the Company to any officer of the
Company of any increase in compensation (including in connection with
promotions), except in the ordinary course of business consistent with past
practice or as was required under employment agreements in effect as of June 30,
1996, (y) any granting by the Company to any such officer of any increase in
severance or termination pay, except as required under employment, severance or
termination agreements in effect as of June 30, 1996, or (z) except employment
agreements in the ordinary course of business consistent with past practice with
employees other than any executive officer of the Company, any entry by the
Company into any employment, consulting, severance, termination, change in
control or indemnification agreement with any such employee or executive
officer, (v) any damage, destruction or loss, whether or not covered by
insurance, that has or reasonably could be expected to have a material adverse
effect on the Company, (vi) any revaluation by the Company of any of its
material assets, (vii) any material change in accounting methods, principles or
practices by the Company or (viii) (A) any licensing or other agreement with
regard to the acquisition or disposition of any material Intellectual Property
(as defined in Section 4.18) or rights thereto other than sales or licenses of
its products to customers in the ordinary course of business consistent with
past practice or (B) any amendment or consent with respect to any licensing or
other agreement described in clause (A) above.
SECTION 4.08. No Undisclosed Liabilities. Except as and to the
extent set forth in the Company's financial statements dated as of June 30,
1996, as of June 30, 1996, the Company did not have any liabilities or
obligations of
<PAGE>
16
any nature, whether or not accrued, contingent or otherwise, that would be
required by generally accepted accounting principles to be reflected on a
balance sheet of the Company (including the notes thereto). Since June 30, 1996,
except as and to the extent set forth in the Company Filed SEC Documents, the
Company has not incurred any liabilities of any nature, whether or not accrued,
contingent or otherwise, that would be reasonably expected to have a material
adverse effect on the Company.
SECTION 4.09. Information Supplied. None of the information supplied
or to be supplied by the Company specifically for inclusion or incorporation by
reference in (i) the Offer Documents, (ii) the Schedule 14D-9, (iii) the
information to be filed by the Company in connection with the Offer pursuant to
Rule 14f-1 promulgated under the Exchange Act (the "Information Statement") or
(iv) the Proxy Statement, will, in the case of the Offer Documents, the Schedule
14D-9 and the Information Statement, at the respective times the Offer
Documents, the Schedule 14D-9 and the Information Statement are filed with the
SEC or first published, sent or given to the Company's shareholders, or, in the
case of the Proxy Statement, at the time the Proxy Statement is first mailed to
the Company's shareholders or at the time of the Shareholders Meeting (as
defined in Section 7.01), contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading. The Schedule 14D-9, the Information Statement and
the Proxy Statement will comply as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder,
except that no representation or warranty is made by the Company with respect to
statements made or incorporated by reference therein based on information
supplied by Parent or Sub specifically for inclusion or incorporation by
reference therein.
SECTION 4.10. Benefit Plans; Employees and Employment Practices. (a)
Except as disclosed in the Company Filed SEC Documents, since June 30, 1996
there has not been any adoption or amendment in any material respect (including
any increase or improvements in benefits or coverage) by the Company of any
Benefit Plan (as defined in Section 4.10(b)). Except as disclosed in Schedule
4.10(a), there exist no employment or consulting agreements, or any other
similar arrangements or understandings (whether or not
<PAGE>
17
in writing), between the Company and any current or former employee, officer or
director of the Company.
(b) Schedule 4.10(b) lists each "employee pension benefit plan" (as
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") (sometimes referred to herein as "Pension Plans"),
"employee welfare benefit plan" (as defined in Section 3(1) of ERISA), bonus,
deferred compensation, incentive compensation, stock ownership, stock purchase,
stock option, phantom stock, retirement, vacation, severance, change of control,
disability, death benefit, hospitalization, medical, fringe benefit, excess
benefit, supplemental executive compensation, stock appreciation, restricted
stock, indemnification, collective bargaining agreement or other material
employee benefit plan, policy, agreement, arrangement or understanding (whether
or not in writing) providing benefits to any current or former employee,
officer, director or independent contractor of the Company or any entity that is
or required under Section 414 of the Code to be treated with the Company as a
single employer (an "ERISA Affiliate") or with respect to which the Company or
any ERISA Affiliate could have any liability (collectively, the "Benefit
Plans"). The Company has delivered to Parent true, complete and correct copies
of (i) each Benefit Plan (or, in the case of any unwritten Benefit Plans,
descriptions thereof) and each employment and consulting agreement, arrangement
or understanding between the Company and any current or former employee, officer
or director of the Company, (ii) the most recent annual report on Form 5500 (and
related schedules and financial statements or opinions required in connection
therewith) filed with the Internal Revenue Service with respect to each Benefit
Plan (if any such report was required), (iii) the most recent actuarial report
with respect to each Benefit Plan, as applicable, (iv) the most recent summary
plan description (and a summary of material modifications, if applicable) for
each Benefit Plan, (v) each trust agreement and group annuity contract relating
to any Benefit Plan, and (vi) the most recent determination letter, if any,
issued with respect to such Benefit Plan.
(c) Each Benefit Plan has been administered in all material respects
in accordance with its terms and the applicable requirements of ERISA, the
Internal Revenue Code of 1986, as amended (the "Code") and all other applicable
laws. No event has occurred and to the knowledge of the Company there exists no
condition or set of conditions in
<PAGE>
18
connection with the Benefit Plans that, individually or in the aggregate, could
have a material adverse effect on, or give rise to material liability to, the
Company or any ERISA Affiliate under ERISA, the Code or any other applicable
law.
(d) Each Pension Plan intended to be qualified under Section 401(a)
of the Code has been the subject of a determination letter from the Internal
Revenue Service to the effect that such Pension Plan is so qualified under all
currently applicable provisions of Section 401(a) of the Code and, to the
knowledge of the Company, no circumstances exist that would adversely affect the
qualification of any such Pension Plan.
(e) No Benefit Plan is subject to Title IV of ERISA.
(f) Each Benefit Plan may be amended or terminated without material
liability to the Company or any ERISA Affiliate.
(g) The Company has previously delivered to Parent a list which sets
forth the names of all current officers, directors and employees of the Company,
together with each employee's current salary, most recent bonus (excluding sales
bonuses), date of birth and date of employment.
(h) (i) There are no material controversies, strikes, work stoppages
or disputes pending or threatened between the Company and any current or former
employees, (ii) no labor union or other collective bargaining unit represents or
has ever represented any employee of the Company and (iii) no organizational
effort by any labor union or other collective bargaining unit currently is under
way or threatened with respect to any employee.
SECTION 4.11. Contracts. Except as referred to in Section 4.18 or
4.19 or disclosed in the Company Filed SEC Documents and except for contracts or
agreements which have previously been delivered to Parent, there are no
contracts or agreements that are material to the business, properties, financial
condition or results of operations of the Company. The Company is not in
violation or breach of or in default under (nor does there exist any condition
which upon the passage of time or the giving of notice would cause such a
violation or breach of or default under) any note, bond, mortgage, indenture,
lease, permit, concession,
<PAGE>
19
franchise, license, contract, agreement or other instrument or obligation to
which it is a party or by which it or any of its properties or assets is bound,
except for violations, breaches or defaults that could not reasonably be
expected to have a material adverse effect on the Company.
SECTION 4.12. Litigation. Except as disclosed in the Company Filed
SEC Documents, there is no suit, claim, action, proceeding or investigation
pending before any Governmental Entity or, to the best knowledge of the Company,
threatened against the Company that could reasonably be expected to have a
material adverse effect on the Company or prevent or materially delay the
consummation of the Offer and/or the Merger. Except as disclosed in the Company
Filed SEC Documents, the Company is not subject to any outstanding judgment,
order, writ, injunction or decree that could reasonably be expected to have a
material adverse effect on the Company or prevent or materially delay the
consummation of the Offer and/or the Merger.
SECTION 4.13. Compliance with Applicable Law. The Company holds all
permits, licenses, variances, exemptions, orders and approvals of all
Governmental Entities necessary for the lawful conduct of its business (the
"Company Permits"), except for failures to hold such permits, licenses,
variances, exemptions, orders and approvals that would not have a material
adverse effect on the Company. The Company is in compliance with the terms of
the Company Permits, except where the failure so to comply would not have a
material adverse effect on the Company. Except as disclosed in the Company Filed
SEC Documents, to the best knowledge of the Company, the business of the Company
is not being conducted in violation of any law, ordinance or regulation of any
Governmental Entity, except for possible violations that would not have a
material adverse effect on the Company or prevent or materially delay the
consummation of the Offer and/or the Merger. As of the date of this Agreement,
no investigation or review by any Governmental Entity with respect to the
Company is pending or, to the best knowledge of the Company, threatened, nor has
any Governmental Entity indicated an intention to conduct any such investigation
or review, other than, in each case, those the outcome of which would not be
reasonably expected to have a material adverse effect on the Company or prevent
or materially delay the consummation of the Offer and/or the Merger.
<PAGE>
20
SECTION 4.14. Tax Matters. Except as set forth in Schedule 4.14:
(a) The Company has timely filed all federal, state and local,
domestic and foreign, income and franchise tax returns and reports and all other
material tax returns and reports required to be filed by it. All such returns
and reports are complete and correct in all material respects. The Company has
timely paid all taxes due with respect to the taxable periods covered by such
returns and reports and all other material taxes (as defined below), and the
most recent financial statements contained in the Company Filed SEC Documents
reflect an adequate reserve for all taxes payable by the Company for all taxable
periods and portions thereof through the date of such financial statements.
(b) No federal, state or local, domestic or foreign, income or
franchise tax return or report or any other material tax return or report of the
Company is under audit or examination by any taxing authority, and no written or
unwritten notice of such an audit or examination has been received by the
Company. Each material deficiency resulting from any audit or examination
relating to taxes by any taxing authority has been timely paid. No material
issues relating to taxes were raised by the relevant taxing authority during any
presently pending audit or examination, and no material issues relating to taxes
were raised by the relevant taxing authority in any completed audit or
examination that can reasonably be expected to recur in a later taxable period.
No federal, state or local, domestic or foreign, tax return or report of the
Company has ever been under audit or examination by the Internal Revenue Service
or other relevant taxing authority, except for the Company's (i) U.S. federal
tax return for the year ended June 30, 1994, which has been examined by and
settled with the Internal Revenue Service, and (ii) Washington State Sales and
Use tax returns for all years through June 30, 1992, which have been examined by
and settled with the relevant taxing authority. The relevant statute of
limitations is closed with respect to the U.S. federal tax returns of the
Company for all years through June 30, 1990.
(c) There is no agreement or other document extending, or having the
effect of extending, the period of assessment or collection of any taxes and no
power of attorney with respect to any taxes has been executed or filed with any
taxing authority.
<PAGE>
21
(d) No material liens for taxes exist with respect to any assets or
properties of the Company, except for statutory liens for taxes not yet due.
(e) The Company is not a party to or bound by any tax sharing
agreement, tax indemnity obligation or similar agreement, arrangement or
practice with respect to taxes (including any advance pricing agreement, closing
agreement or other agreement relating to taxes with any taxing authority).
(f) The Company will not be required to include in a taxable period
ending after the Effective Time taxable income attributable to income that
accrued in a prior taxable period but was not recognized in any prior taxable
period as a result of the installment method of accounting, the completed
contract method of accounting, the long-term contract method of accounting, the
cash method of accounting or Section 481 of the Code or comparable provisions of
state or local tax law, domestic or foreign, or for any other reason.
(g) The disallowance of a deduction under Section 162(m) of the Code
for employee remuneration will not apply to any amount paid or payable by the
Company under any Benefit Plan or other compensation arrangement currently in
effect.
(h) Any amount or other entitlement that could be received (whether
in cash or property or the vesting of property) as a result of any of the
transactions contemplated by this Agreement by any employee, officer or director
of the Company or any of its affiliates who is a "disqualified individual" (as
such term is defined in proposed Treasury Regulation Section 1.280G-1) under any
Benefit Plan or other compensation arrangement currently in effect would not be
characterized as an "excess parachute payment" or a "parachute payment" (as such
terms are defined in Section 280G(b)(1) of the Code).
(i) The Company has complied in all respects with all applicable
laws, rules and regulations relating to the payment and withholding of taxes
(including, without limitation, withholding of taxes pursuant to Sections 1441,
1442, 3121 and 3402 of the Code or similar provisions under any foreign federal
laws or any state or local laws, domestic and foreign) and has, within the time
and the manner prescribed by law, withheld from and paid over to the
<PAGE>
22
proper governmental authorities all amounts required to be so withheld and paid
over under applicable laws.
(j) As used in this Agreement, "taxes" shall include all federal,
state and local, domestic and foreign, income, franchise, property, sales,
excise, employment, payroll, social security, value-added, ad valorum, transfer,
withholding and other taxes, including taxes based on or measured by gross
receipts, profits, sales, use or occupation, tariffs, levies, impositions,
assessments or governmental charges of any nature whatsoever, including any
interest penalties or additions with respect thereto.
SECTION 4.15. State Takeover Statutes. The Board of Directors of the
Company has approved the Offer, the Merger, this Agreement, the Shareholder
Agreement, the acquisition of Shares by Sub pursuant to the Offer and the
Shareholder Agreement and the other transactions contemplated by this Agreement
and the Shareholder Agreement and such approval is sufficient to render
inapplicable to the Offer, the Merger, this Agreement, the Shareholder
Agreement, the acquisition of Shares by Sub pursuant to the Offer and the
Shareholder Agreement and the other transactions contemplated by this Agreement
and the Shareholder Agreement the provisions of Chapter 23B.19 of the WBCA. To
the best knowledge of the Company, no other state takeover statute or similar
statute or regulation applies or purports to apply to the Offer, the Merger,
this Agreement, the Shareholder Agreement, the acquisition of Shares by Sub
pursuant to the Offer and the Shareholder Agreement or any of the transactions
contemplated by this Agreement or the Shareholder Agreement.
SECTION 4.16. Brokers; Schedule of Fees and Expenses. No broker,
investment banker, financial advisor or other person, other than Alex. Brown &
Sons Incorporated, the fees and expenses of which will be paid by the Company
(as reflected in an agreement between such firm and the Company, a copy of which
has been delivered to Parent), is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
the Company.
SECTION 4.17. Opinion of Financial Advisor. The Company has received
the opinion of Alex. Brown & Sons Incorporated, dated the date of this
Agreement, to the effect that, as of the date of this Agreement, the
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23
consideration to be received in the Offer and the Merger by the Company's
shareholders is fair to the Company's shareholders from a financial point of
view, and a complete and correct signed copy of such opinion has been, or
promptly upon receipt thereof will be, delivered to Parent.
SECTION 4.18. Intellectual Property. (a) The Company has provided
Parent with true and correct copies of all license agreements relating to
Intellectual Property to which the Company is a party.
(b) Except as set forth in Schedule 4.18(b) and except to the extent
that the inaccuracy of any of the following (or the circumstances giving rise to
such inaccuracy) would not have a material adverse effect on the Company:
(1) the Company owns, or is licensed or otherwise has the right to
use (in each case, clear of any liens or encumbrances of any kind), all
Intellectual Property used in or necessary for the conduct of its business
as currently conducted;
(2) no claims are pending or, to the best knowledge of the Company,
threatened that the Company is infringing on or otherwise violating the
rights of any person with regard to any Intellectual Property owned by
and/or licensed to the Company;
(3) to the best knowledge of the Company, no person is infringing on
or otherwise violating any right of the Company with respect to any
Intellectual Property owned by and/or licensed to the Company;
(4) none of the former or current members of management or key
personnel of the Company, including all former and current employees,
agents, consultants and contractors who have contributed to or
participated in the conception and development of computer software or
other Intellectual Property of the Company, have any valid claim against
the Company in connection with the involvement of such persons in the
conception and development of any computer software or other Intellectual
Property of the Company, and no such claim has been asserted or
threatened;
(5) the execution and delivery of this Agreement, compliance with
its terms and the consummation of the
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24
transactions contemplated hereby do not and will not conflict with or
result in any violation, breach or default (with or without notice or
lapse of time or both) or give rise to any right, license or encumbrance
relating to Intellectual Property owned by the Company or with respect to
which the Company now has or has had any agreement with any third party,
or right of termination, cancellation or acceleration of any material
Intellectual Property right or obligation set forth in any agreement to
which the Company is a party, or the loss or encumbrance of any
Intellectual Property or material benefit related thereto, or result in or
require the creation, imposition or extension of any lien or encumbrance
upon any Intellectual Property or right;
(6) no licenses or rights have been granted to distribute the source
code of, or to use the source code to create Derivative Works (as
hereinafter defined) of, any product currently marketed by, commercially
available from or under development by the Company; and
(7) the Company has taken reasonable and necessary steps to protect
their Intellectual Property and their rights thereunder, and to the best
knowledge of the Company no such rights to Intellectual Property have been
lost or are in jeopardy of being lost through failure to act by the
Company or any of its subsidiaries.
As used herein, "Derivative Work" shall mean a work that is based
upon one or more preexisting works, such as a revision, enhancement,
modification, abridgement, condensation, expansion or any other form in which
such preexisting works may be recast, transformed or adapted, and which, if
prepared without authorization of the owner of the copyright in such preexisting
work, would constitute a copyright infringement. For purposes hereof, a
Derivative Work shall also include any compilation that incorporates such a
preexisting work as well as translations from one human language to another and
from one type of code to another.
(c) For purposes of this Agreement, "Intellectual Property" shall
mean trademarks (registered or unregistered), service marks, brand names,
certification marks, trade dress, assumed names, trade names and other
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25
indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of any
such registration or application; inventions, discoveries and ideas, whether
patented, patentable or not in any jurisdiction; nonpublic information, trade
secrets and confidential information and rights in any jurisdiction to limit the
use or disclosure thereof by any person; writings and other works, whether
copyrighted, copyrightable or not in any jurisdiction; registration or
applications for registration of copyrights in any jurisdiction, and any
renewals or extensions thereof; any similar intellectual property or proprietary
rights and computer programs and software (including source code, object code
and data); licenses, immunities, covenants not to sue and the like relating to
the foregoing; and any claims or causes of action arising out of or related to
any infringement or misappropriation of any of the foregoing.
SECTION 4.19. Certain Agreements. The Company has delivered to
Parent and its representatives true and correct copies of all contracts,
agreements, arrangements or understandings to which it is a party, relating to
(i) the distribution or sale of its products or products licensed by it, and
(ii) strategic alliances, joint ventures and similar types of cooperative
ventures, including the Company's agreement with Harcourt Brace School
Publishers.
SECTION 4.20. Indebtedness. The Company has no outstanding
indebtedness for borrowed money, guarantees of any such indebtedness, debt
securities, guarantees of such debt securities or warrants or rights to acquire
any of the foregoing, nor has the Company entered into any "keep-well" or other
agreement to maintain any financial statement condition of another person or any
arrangement having the economic effect of any of the foregoing
SECTION 4.21. Rights Agreement. The Rights Agreement has been
amended to (i) render the Rights Agreement inapplicable to the Offer, the
Merger, this Agreement, the Shareholder Agreement, the acquisition of Shares by
Sub pursuant to the Offer and the Shareholder Agreement and the other
transactions contemplated by this Agreement and the Shareholder Agreement and
(ii) ensure that (y) none of Parent, Sub or any of their respective affiliates
is an Acquiring Person (as defined in the Rights Agreement) pursuant to the
Rights Agreement and (z) a
<PAGE>
26
Distribution Date (as defined in the Rights Agreement) does not occur by reason
of the Offer, the Merger, the execution of this Agreement or the Shareholder
Agreement, the acquisition of Shares by Sub pursuant to the Offer or the
Shareholder Agreement or the other transactions contemplated by this Agreement
or the Shareholder Agreement.
SECTION 4.22. Director Stock Options. Except as set forth on
Schedule 4.22, each director or former director of the Company who holds any
Company Stock Options on the date hereof has agreed in writing prior to the date
hereof or concurrently herewith that all Company Stock Options (other than
Company Stock Options granted under the Edmark Corporation Stock Option Plan
(Restated as of July 14, 1995)) which have not been exercised and which remain
outstanding at the time Sub accepts Shares for payment in the Offer shall be
canceled and be of no further force or effect, and such director or former
director shall have no rights after such time with respect to Company Stock
Options which have not been exercised.
ARTICLE V
Representations and Warranties
of Parent and Sub
Parent and Sub represent and warrant to the Company as follows:
SECTION 5.01. Organization. Each of Parent and Sub is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to carry on its business as now being conducted, except where the
failure to be so organized, existing and in good standing or to have such power
and authority would not be reasonably expected to prevent or materially delay
the consummation of the Offer and/or the Merger.
SECTION 5.02. Authority. Parent and Sub have the requisite corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Parent and
Sub and no other corporate proceedings on the part of
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27
Parent and Sub are necessary to authorize this Agreement or to consummate such
transactions. No vote of Parent shareholders is required to approve this
Agreement or the transactions contemplated hereby. This Agreement has been duly
executed and delivered by Parent and Sub, as the case may be, and, assuming this
Agreement constitutes a valid and binding obligation of the Company, constitutes
a valid and binding obligation of each of Parent and Sub enforceable against
them in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally and (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies.
SECTION 5.03. Consents and Approvals; No Violations. Except for
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Exchange Act (including the
filing with the SEC of the Offer Documents), the HSR Act, the WBCA or the laws
of other states in which Parent is qualified to do or is doing business, neither
the execution, delivery or performance of this Agreement by Parent and Sub nor
the consummation by Parent and Sub of the transactions contemplated hereby will
(i) conflict with or result in any breach of any provision of the respective
certificate or articles of incorporation or bylaws of Parent and Sub, (ii)
require any filing with, or permit, authorization, consent or approval of, any
Governmental Entity (except where the failure to make such filings or to obtain
such permits, authorizations, consents or approvals would not be reasonably
expected to prevent or materially delay the consummation of the Offer and/or the
Merger), (iii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration) under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which Parent
or any of its subsidiaries is a party or by which any of them or any of their
properties or assets may be bound or (iv) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to Parent, any of its
subsidiaries or any of their properties or assets, except in the case of clauses
(iii) and (iv) for violations, breaches or defaults that could not, individually
or in the aggregate, reasonably be
<PAGE>
28
expected to prevent or materially delay the consummation of the Offer and/or the
Merger.
SECTION 5.04. Information Supplied. None of the information supplied
or to be supplied by Parent or Sub specifically for inclusion or incorporation
by reference in (i) the Offer Documents, (ii) the Schedule 14D-9, (iii) the
Information Statement or (iv) the Proxy Statement will, in the case of the Offer
Documents, the Schedule 14D-9 and the Information Statement, at the respective
times the Offer Documents, the Schedule 14D-9 and the Information Statement are
filed with the SEC or first published, sent or given to the Company's
shareholders, or, in the case of the Proxy Statement, at the time the Proxy
Statement is first mailed to the Company's shareholders or at the time of the
Shareholders Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading. The Offer Documents will comply as to form in all material
respects with the requirements of the Exchange Act and the rules and regulations
thereunder, except that no representation or warranty is made by Parent or Sub
with respect to statements made or incorporated by reference therein based on
information supplied by the Company specifically for inclusion or incorporation
by reference therein.
SECTION 5.05. Interim Operations of Sub. Sub was formed solely for
the purpose of engaging in the transactions contemplated hereby, has engaged in
no other business activities and has conducted its operations only as
contemplated hereby.
SECTION 5.06. Brokers. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
Parent or Sub.
SECTION 5.07. Financing. Parent has sufficient funds available to
purchase, or to cause Sub to purchase, all the Shares pursuant to the Offer and
the Merger and to pay all fees and expenses related to the transactions
contemplated by this Agreement.
<PAGE>
29
ARTICLE VI
Covenants
SECTION 6.01. Covenants of the Company. Until such time as Parent's
designees shall constitute a majority of the members of the Board of Directors
of the Company, the Company agrees that (except as expressly contemplated or
permitted by this Agreement or except to the extent that Parent shall otherwise
consent in writing):
(a) Ordinary Course. The Company shall carry on its business in the
usual, regular and ordinary course in substantially the same manner as
heretofore conducted (it being understood that the foregoing does not cover
future events resulting from public announcement of the Offer or the Merger) and
in compliance in all material respects with all applicable laws and regulations
and shall use all reasonable efforts to preserve intact its present business
organizations, keep available the services of its present officers and employees
and preserve its relationships with customers, suppliers and others having
business dealings with the Company.
(b) Dividends; Changes in Stock. The Company shall not (i) declare
or pay any dividends on or make other distributions in respect of any of its
capital stock, (ii) split, combine or reclassify any of its capital stock or
issue or authorize or propose the issuance of any other securities in respect
of, in lieu of or in substitution for shares of its capital stock or (iii)
repurchase, redeem or otherwise acquire any shares of capital stock of the
Company or any other securities of the Company or any rights, warrants or
options to acquire any such shares or other securities.
(c) Issuance of Securities. The Company shall not issue, deliver,
sell, pledge or encumber, or authorize or propose the issuance, delivery, sale,
pledge or encumbrance of, any shares of its capital stock of any class or any
securities convertible into, or any rights, warrants, calls, subscriptions or
options to acquire, any such shares or convertible securities, or any other
ownership interest (including stock appreciation rights or phantom stock) other
than the issuance of Shares (i) upon the exercise of Company Stock Options
outstanding on the date of this Agreement and in accordance with the terms of
such Company Stock Options and (ii) in accordance with the terms of the Edmark
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30
Corporation 1994 Employee Stock Purchase Plan as in effect on the date of this
Agreement.
(d) Governing Documents. The Company shall not amend or propose to
amend its Amended and Restated Articles of Incorporation or Bylaws, as amended
and restated.
(e) No Acquisitions. The Company shall not acquire or agree to
acquire (i) by merging or consolidating with, or by purchasing a substantial
equity interest in or substantial portion of the assets of, or by any other
manner, any business or any corporation, partnership, joint venture, association
or other business organization or division thereof or (ii) any assets that are
material, individually or in the aggregate, to the Company, except purchases of
inventory in the ordinary course of business consistent with past practice.
(f) No Dispositions. Other than sales or licenses of its products in
the ordinary course of business consistent with past practice, the Company shall
not sell, lease, license, encumber or otherwise dispose of, or agree to sell,
lease, license, encumber or otherwise dispose of, any of its assets.
(g) Advice of Changes; Filings. The Company shall confer on a
regular and frequent basis with Parent, as reasonably requested by Parent,
report on operational matters and promptly advise Parent orally and in writing
of any material adverse change with respect to the Company. The Company shall
promptly provide to Parent (or its counsel) copies of all filings made by the
Company with any Governmental Entity in connection with this Agreement and the
transactions contemplated hereby.
(h) Tax Matters. The Company shall not make any tax election that
would have a material adverse effect on the tax liability or tax attributes of
the Company or settle or compromise any tax liability of the Company. The
Company shall, before filing or causing to be filed any tax return of the
Company or settling any tax liability not described in the preceding sentence,
consult with Parent and its advisors as to the positions and elections that may
be taken or made with respect to such return, and shall take such positions or
make such elections as the Company and Parent shall jointly agree.
<PAGE>
31
(i) Capital Expenditures. The Company shall not make or agree to
make any new capital expenditure or expenditures other than in accordance with
the Company's fiscal year 1997 budget approved by the Company's Board of
Directors, a copy of which budget has been made available to Parent, which
capital expenditures do not exceed $250,000 in the aggregate.
(j) Discharge of Liabilities. The Company shall not pay, discharge,
settle or satisfy any claims, liabilities or obligations (absolute, accrued,
asserted or unasserted, contingent or otherwise), other than the payment,
discharge, settlement or satisfaction, in the ordinary course of business
consistent with past practice or in accordance with their terms, of claims,
liabilities or obligations recognized or disclosed in the most recent financial
statements (or the notes thereto) of the Company included in the Company Filed
SEC Documents or incurred since the date of such financial statements in the
ordinary course of business consistent with past practice.
(k) Material Contracts. Except in the ordinary course of business,
the Company shall not (i) modify, amend or terminate any material contract or
agreement to which the Company is a party, (ii) waive, release or assign any
material rights or claims or (iii) waive the benefits of, or agree to modify in
any manner, any confidentiality, standstill or similar agreement to which the
Company is a party.
(l) General. The Company shall not authorize any of, or commit or
agree to take any of, the foregoing actions otherwise prohibited by this Section
6.01.
SECTION 6.02. No Solicitation. (a) The Company shall, and shall
direct and use reasonable efforts to cause its officers, directors, employees,
representatives and agents to, immediately cease any discussions or negotiations
with any parties that may be ongoing with respect to a Takeover Proposal (as
hereinafter defined). The Company shall not, nor shall it authorize or permit
any of its officers, directors or employees or any investment banker, financial
advisor, attorney, accountant or other representative or agent retained by it
to, directly or indirectly, (i) solicit, initiate or encourage (including by way
of furnishing information), or take any other action designed or reasonably
likely to facilitate, any inquiries or the making of any proposal which
constitutes, or may
<PAGE>
32
reasonably be expected to lead to, any Takeover Proposal or (ii) participate in
any discussions or negotiations regarding any Takeover Proposal; provided,
however, that if, at any time prior to the acceptance for payment of Shares
pursuant to the Offer, the Board of Directors of the Company determines in good
faith, after consultation with outside counsel, that it is necessary to do so in
order to comply with its fiduciary duties to the Company's shareholders under
applicable law, the Company may, in response to a Takeover Proposal which was
not solicited subsequent to the date hereof, and subject to compliance with
Section 6.02(c), (x) furnish information with respect to the Company to any
person pursuant to a confidentiality agreement in a form approved by Parent
(such approval not to be unreasonably withheld) and (y) participate in
negotiations regarding such Takeover Proposal. Without limiting the foregoing,
it is understood that any violation of the restrictions set forth in the
preceding sentence by any director or executive officer of the Company or any
investment banker, financial advisor, attorney, accountant or other
representative or agent of the Company shall be deemed to be a breach of this
Section 6.02(a) by the Company. For purposes of this Agreement, "Takeover
Proposal" means any inquiry, proposal or offer, or any expression of interest by
any third party relating to the Company's willingness or ability to receive or
discuss a proposal or offer, other than a proposal or offer by Parent or any of
its subsidiaries, for a merger, consolidation or other business combination
involving, or any purchase of, all or substantially all of the assets or more
than 30% of the Shares.
(b) Except as set forth in this Section 6.02, neither the Board of
Directors of the Company nor any committee thereof shall (i) withdraw or modify,
or propose to withdraw or modify, in a manner adverse to Parent, the approval or
recommendation by such Board of Directors or such committee of the Offer, the
Merger or this Agreement, (ii) approve or recommend, or propose to approve or
recommend, any Takeover Proposal or (iii) cause the Company to enter into any
letter of intent, agreement in principle, acquisition agreement or other similar
agreement (each, an "Acquisition Agreement") related to any Takeover Proposal.
Notwithstanding the foregoing, in the event that prior to the acceptance for
payment of Shares pursuant to the Offer the Board of Directors of the Company
determines in good faith, after consultation with outside counsel, that it is
necessary to do so in order to comply with its fiduciary duties to the Company's
shareholders under applicable law,
<PAGE>
33
the Board of Directors of the Company may, in response to a Takeover Proposal
which was not solicited subsequent to the date hereof (subject to this and the
following sentences), (x) withdraw or modify its approval or recommendation of
the Offer, the Merger or this Agreement or (y) approve or recommend a Superior
Proposal (as defined below) or terminate this Agreement (and concurrently with
or after such termination, if it so chooses, cause the Company to enter into any
Acquisition Agreement with respect to a Superior Proposal), but in each of the
cases set forth in this clause (y) only at a time that is after the second
business day following Parent's receipt of written notice advising Parent that
the Board of Directors of the Company has received a Superior Proposal,
specifying the material terms and conditions of such Superior Proposal and
identifying the person making such Superior Proposal. For purposes of this
Agreement, a "Superior Proposal" means any bona fide Takeover Proposal made by a
third party on terms which the Board of Directors of the Company determines in
its good faith judgment (based on the advice of a financial advisor of
nationally recognized reputation) to be more favorable to the Company's
shareholders than the Offer and the Merger and for which financing, to the
extent required, is then committed or which, in the good faith judgment of the
Board of Directors of the Company, is reasonably capable of being financed by
such third party.
(c) In addition to the obligations of the Company set forth in
paragraphs (a) and (b) of this Section 6.02, the Company shall immediately
advise Parent orally and in writing of any request for information or of any
Takeover Proposal, the material terms and conditions of such request or Takeover
Proposal and the identity of the person making such request or Takeover
Proposal. The Company will immediately inform Parent of any material change in
the details (including amendments or proposed amendments) of any such request or
Takeover Proposal.
(d) Nothing contained in this Section 6.02 shall prohibit the
Company from taking and disclosing to its shareholders a position contemplated
by Rule 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to the Company's shareholders if, in the good faith judgment of the
Board of Directors of the Company, after consultation with outside counsel,
failure so to disclose would be inconsistent with applicable law; provided,
however, neither the Company nor its Board of Directors nor any committee
thereof shall, except as
<PAGE>
34
permitted by Section 6.02(b), withdraw or modify, or propose to withdraw or
modify, its position with respect to the Offer, the Merger or this Agreement or
approve or recommend, or propose to approve or recommend, a Takeover Proposal.
SECTION 6.03. Other Actions. The Company shall not take any action
that would, or that could reasonably be expected to, result in (i) any of the
representations and warranties of the Company set forth in this Agreement that
are qualified as to materiality becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue in any
material respect or (iii) any of the Offer Conditions not being satisfied
(subject to the Company's right to take actions specifically permitted by
Section 6.02).
ARTICLE VII
Additional Agreements
SECTION 7.01. Shareholder Approval; Preparation of Proxy Statement.
(a) If the Company Shareholder Approval is required by law, the Company shall,
as soon as practicable following the expiration of the Offer, duly call, give
notice of, convene and hold a meeting of its shareholders (the "Shareholders
Meeting") for the purpose of obtaining the Company Shareholder Approval. The
Company shall, through its Board of Directors, recommend to its shareholders
that the Company Shareholder Approval be given. Notwithstanding the foregoing,
if Sub or any other subsidiary of Parent shall acquire at least 90% of the
outstanding Shares, the parties shall, at the option and request of Parent, take
all necessary and appropriate action to cause the Merger (as a merger of the
Company with and into Sub in accordance with Section 2.01) to become effective
as soon as practicable after the expiration of the Offer without a Shareholders
Meeting in accordance with Section 23B.11.040 of the WBCA. Without limiting the
generality of the foregoing, the Company agrees that its obligations pursuant to
the first sentence of this Section 7.01(a) shall not be affected by (i) the
commencement, public proposal, public disclosure or communication to the Company
of any Takeover Proposal or (ii) the withdrawal or modification by the Board of
Directors of the Company of its approval or recommendation of the Offer, this
Agreement or the Merger.
<PAGE>
35
(b) If the Company Shareholder Approval is required by law, the
Company shall, as soon as practicable following the expiration of the Offer,
prepare and file a preliminary Proxy Statement with the SEC and shall use its
best efforts to respond to any comments of the SEC or its staff and to cause the
Proxy Statement to be mailed to the Company's shareholders as promptly as
practicable after responding to all such comments to the satisfaction of the
staff. The Company shall notify Parent promptly of the receipt of any comments
from the SEC or its staff and of any request by the SEC or its staff for
amendments or supplements to the Proxy Statement or for additional information
and will supply Parent with copies of all correspondence between the Company or
any of its representatives, on the one hand, and the SEC or its staff, on the
other hand, with respect to the Proxy Statement or the Merger. If at any time
prior to the Shareholders Meeting there shall occur any event that should be set
forth in an amendment or supplement to the Proxy Statement, the Company shall
promptly prepare and mail to its shareholders such an amendment or supplement.
The Company shall not mail any Proxy Statement, or any amendment or supplement
thereto, to which Parent reasonably objects.
(c) Parent agrees to cause all Shares purchased pursuant to the
Offer and all other Shares owned by Parent or any subsidiary of Parent to be
voted in favor of the Company Shareholder Approval.
SECTION 7.02. Access to Information. Upon reasonable notice and
subject to restrictions contained in confidentiality agreements to which the
Company is subject (from which it shall use reasonable efforts to be released),
the Company shall afford to Parent and to the officers, employees, accountants,
counsel and other representatives of Parent access, during normal business hours
during the period prior to the Effective Time, to all its properties, books,
contracts, commitments and records and, during such period, the Company shall
furnish promptly to Parent (a) a copy of each report, schedule, registration
statement and other document filed or received by it during such period pursuant
to the requirements of the federal or state securities laws or the federal tax
laws, or state, local or foreign tax laws and (b) all other information
concerning its business, properties and personnel as Parent may reasonably
request (including the Company's outside accountants' work papers). Except as
otherwise agreed to by the Company, unless and until Parent and Sub shall have
<PAGE>
36
purchased a majority of the outstanding Shares pursuant to the Offer or
otherwise, and notwithstanding termination of this Agreement, the terms of the
IBM Business Development Non-Disclosure Agreement dated August 29, 1996 between
Parent and the Company shall apply to all information about the Company which
has been furnished under this Agreement by the Company to Parent or Sub.
SECTION 7.03. Reasonable Efforts. Each of the Company, Parent and
Sub agree to use its reasonable efforts to take, or cause to be taken, all
actions necessary to comply promptly with all legal requirements that may be
imposed on itself with respect to the Offer and the Merger (which actions shall
include furnishing all information required under the HSR Act and in connection
with approvals of or filings with any other Governmental Entity) and shall
promptly cooperate with and furnish information to each other in connection with
any such requirements imposed upon any of them or any of their subsidiaries in
connection with the Offer and the Merger. Each of the Company, Parent and Sub
shall, and shall cause its subsidiaries to, use its reasonable efforts to take
all reasonable actions necessary to obtain (and shall cooperate with each other
in obtaining) any consent, authorization, order or approval of, or any exemption
by, any Governmental Entity or other public or private third party required to
be obtained or made by the Company, Parent, Sub or any of their subsidiaries in
connection with the Offer and the Merger or the taking of any action
contemplated thereby or by this Agreement, except that no party need waive any
substantial rights or agree to any substantial limitation on its operations or
to dispose of any assets.
SECTION 7.04. Company Stock Options. Holders of outstanding options
to purchase Shares (a "Company Stock Option") under each of the Company's stock
option plans (the "Company Stock Option Plans") may exercise such Company Stock
Options in accordance with their terms as of the date hereof and tender all or
any portion of the Shares delivered pursuant to such exercise in response to the
Offer. The parties acknowledge and agree that all Company Stock Options granted
under the Edmark Corporation Stock Option Plan (restated as of July 14, 1995)
terminate in accordance with their terms prior to the Effective Time.
SECTION 7.05. Directors. Promptly upon the acceptance for payment
of, and payment for, Shares by Sub pursuant to the Offer, Sub shall be entitled
to designate
<PAGE>
37
such number of directors on the Board of Directors of the Company as will give
Sub, subject to compliance with Section 14(f) of the Exchange Act, a majority of
such directors, and the Company shall, at such time, cause Sub's designees to be
so elected by its existing Board of Directors; provided, however, that in the
event that Sub's designees are elected to the Board of Directors of the Company,
until the Effective Time such Board of Directors shall have at least two
directors who are directors on the date of this Agreement and who are not
officers of the Company (the "Independent Directors"); and provided further
that, in such event, if the number of Independent Directors shall be reduced
below two for any reason whatsoever, the remaining Independent Director shall
designate a person to fill such vacancy who shall be deemed to be an Independent
Director for purposes of this Agreement or, if no Independent Directors then
remain, the other directors shall designate two persons to fill such vacancies
who shall not be officers or affiliates of the Company, or officers or
affiliates of Parent or any of its subsidiaries, and such persons shall be
deemed to be Independent Directors for purposes of this Agreement. Subject to
applicable law, the Company shall take all action requested by Parent necessary
to effect any such election, including mailing to its shareholders the
Information Statement containing the information required by Section 14(f) of
the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees
to make such mailing with the mailing of the Schedule 14D-9 (provided that Sub
shall have provided to the Company on a timely basis all information required to
be included in the Information Statement with respect to Sub's designees). In
connection with the foregoing, the Company will promptly, at the option of
Parent, either increase the size of the Company's Board of Directors and/or
obtain the resignation of such number of its current directors as is necessary
to enable Sub's designees to be elected or appointed to, and to constitute a
majority of the Company's Board of Directors as provided above.
SECTION 7.06. Fees and Expenses. (a) Except as provided below in
this Section 7.06, all fees and expenses incurred in connection with the Offer,
the Merger, this Agreement and the transactions contemplated by this Agreement
shall be paid by the party incurring such fees or expenses, whether or not the
Offer or the Merger is consummated.
<PAGE>
38
(b) The Company shall pay, or cause to be paid, in same day funds to
Parent the sum of (x) the Expenses (as hereinafter defined) and (y) $4,000,000
(the "Termination Fee") under the circumstances and at the times set forth as
follows:
(i) if the Company terminates this Agreement under Section 9.01(e),
the Company shall pay the Expenses and the Termination Fee upon demand;
(ii) if Parent or Sub terminates this Agreement under Section
9.01(d), the Company shall pay the Expenses upon demand; in addition, if
within 12 months after such termination (or concurrently therewith), the
Company shall enter into an Acquisition Agreement providing for a Takeover
Proposal or a transaction resulting from a Takeover Proposal shall be
consummated, the Company shall pay the Termination Fee concurrently with
the earlier of the entering into of such Acquisition Agreement or the
consummation of such transaction; and
(iii) if, at the time of any other termination of this Agreement
(other than pursuant to Section 9.01(a) or Section 9.01(b)(ii) or by the
Company pursuant to Section 9.01(f)), a Takeover Proposal shall have been
made (other than a Takeover Proposal made prior to the date hereof), the
Company shall pay the Expenses, if terminated by the Company, concurrently
therewith or, if terminated by Parent, upon demand; in addition, if within
12 months of such termination (or concurrently therewith), the Company
shall enter into an Acquisition Agreement providing for a Takeover
Proposal or a transaction resulting from a Takeover Proposal shall be
consummated, the Company shall pay the Termination Fee concurrently with
the earlier of the entering into of such Acquisition Agreement or the
consummation of such transaction.
"Expenses" shall mean reasonable documented out-of-pocket fees and expenses
incurred or paid by or on behalf of Parent in connection with the Offer, the
Merger or the consummation of any of the transactions contemplated by this
Agreement, including all fees and expenses of law firms, accountants, experts
and consultants to Parent, but excluding all fees and expenses of commercial
banks and investment banking firms.
<PAGE>
39
SECTION 7.07. Indemnification; Insurance. (a) Parent and Sub agree
that all rights to indemnification for acts or omissions occurring prior to the
Effective Time now existing in favor of the current or former directors or
officers (the "Indemnified Parties") of the Company as provided in its Amended
and Restated Articles of Incorporation or Bylaws, as amended and restated, shall
survive the Merger and shall continue in full force and effect in accordance
with their terms.
(b) For six years from the Effective Time, Parent shall, unless
Parent agrees in writing to guarantee the indemnification obligations set forth
in Section 7.07(a), maintain in effect the Company's current directors' and
officers' liability insurance covering those persons who are currently covered
by the Company's directors' and officers' liability insurance policy (a copy of
which has been heretofore delivered to Parent); provided, however, that in no
event shall Parent be required to expend in any one year an amount in excess of
200% of the annual premiums currently paid by the Company for such insurance,
which the Company represents is $150,000; and, provided further, that if the
annual premiums of such insurance coverage exceed such amount, Parent shall be
obligated to obtain a policy with the greatest coverage available for a cost not
exceeding such amount.
(c) This Section 7.07 shall survive the consummation of the Merger
at the Effective Time, is intended to benefit the Company, Parent, the Surviving
Corporation and the Indemnified Parties, and shall be binding on all successors
and assigns of Parent and the Surviving Corporation.
SECTION 7.08. Certain Litigation. The Company agrees that it shall
not settle any litigation commenced after the date hereof against the Company or
any of its directors by any shareholder of the Company relating to the Offer,
the Merger, this Agreement, the Shareholder Agreement or the Noncompetition
Agreements, without the prior written consent of Parent. In addition, the
Company shall not voluntarily cooperate with any third party that may hereafter
seek to restrain or prohibit or otherwise oppose the Offer or the Merger and
shall cooperate with Parent and Sub to resist any such effort to restrain or
prohibit or otherwise oppose the Offer or the Merger.
<PAGE>
40
SECTION 7.09. Rights Agreement. The Company shall take all necessary
action to (i) render the Rights Agreement inapplicable to the Offer, the Merger,
this Agreement, the Shareholder Agreement, the acquisition of Shares by Sub
pursuant to the Offer and the Shareholder Agreement and the other transactions
contemplated by this Agreement and the Shareholder Agreement and (ii) ensure
that (y) none of Parent, Sub or any of their respective affiliates is an
Acquiring Person (as defined in the Rights Agreement) pursuant to the Rights
Agreement and (z) a Distribution Date (as defined in the Rights Agreement) does
not occur by reason of the Offer, the Merger the execution of this Agreement or
the Shareholder Agreement, the acquisition of Shares by Sub pursuant to the
Offer or the Shareholder Agreement or the other transactions contemplated by
this Agreement or the Shareholder Agreement. Except as provided above or as
requested in writing by Parent, the Board of Directors of the Company shall not
(i) amend the Rights Agreement or (ii) take any action with respect to, or make
any determination under, the Rights Agreement, including a redemption of the
Rights or any action to facilitate a Takeover Proposal.
ARTICLE VIII
Conditions
SECTION 8.01. Conditions to Each Party's Obligation To Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction or waiver prior to the Closing Date of the following
conditions:
(a) Company Shareholder Approval. If required by applicable law, the
Company Shareholder Approval shall have been obtained.
(b) No Injunctions or Restraints. No statute, rule, regulation,
executive order, decree, temporary restraining order, preliminary or
permanent injunction or other order issued by any court of competent
jurisdiction or other Governmental Entity or other legal restraint or
prohibition preventing the consummation of the Merger shall be in effect;
provided, however, that each of the parties shall have used reasonable
efforts to prevent the entry of any such injunction or other order and to
appeal as
<PAGE>
41
promptly as possible any injunction or other order that may be entered.
(c) Purchase of Shares. Sub shall have previously accepted for
payment and paid for Shares pursuant to the Offer.
ARTICLE IX
Termination and Amendment
SECTION 9.01. Termination. This Agreement may be terminated at any
time prior to the Effective Time, whether before or after approval of the terms
of this Agreement by the shareholders of the Company:
(a) by mutual written consent of Parent and the Company;
(b) by either Parent or the Company:
(i) if (x) as a result of the failure of any of the Offer
Conditions the Offer shall have terminated or expired in accordance
with its terms without Sub having accepted for payment any Shares
pursuant to the Offer or (y) Sub shall not have accepted for payment
any Shares pursuant to the Offer prior to February 28, 1997;
provided, however, that the right to terminate this Agreement
pursuant to this Section 9.01(b)(i) shall not be available to any
party whose failure to perform any of its obligations under this
Agreement results in the failure of any such condition or if the
failure of such condition results from facts or circumstances that
constitute a breach of representation or warranty under this
Agreement by such party; or
(ii) if any Governmental Entity shall have issued an order,
decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the acceptance for payment of,
or payment for, Shares pursuant to the Offer or the Merger and such
order, decree or ruling or other action shall have become final and
nonappealable;
<PAGE>
42
(c) by Parent or Sub prior to the purchase of Shares pursuant to the
Offer in the event of a breach or failure to perform by the Company of any
representation, warranty, covenant or other agreement contained in this
Agreement which (i) would give rise to the failure of a condition set
forth in paragraph (e) or (f) of Exhibit A and (ii) cannot be or has not
been cured within 20 days after the giving of written notice to the
Company;
(d) by Parent or Sub if either Parent or Sub is entitled to
terminate the Offer as a result of the occurrence of any event set forth
in paragraph (d) of Exhibit A to this Agreement;
(e) by the Company in accordance with Section 6.02(b), provided that
it has complied with all provisions thereof, including the notice
provisions therein, and that it complies with applicable requirements
relating to the payment (including the timing of any payment) of Expenses
and the Termination Fee; or
(f) by the Company, if Parent or Sub shall have breached or failed
to perform in any material respect any of their respective
representations, warranties, covenants or other agreements contained in
this Agreement, which breach or failure to perform is incapable of being
cured or has not been cured within 20 days after the giving of written
notice to Parent or Sub, as applicable, except, in any case, such breaches
and failures which are not reasonably likely to affect adversely Parent's
or Sub's ability to consummate the Offer or the Merger.
SECTION 9.02. Effect of Termination. In the event of a termination
of this Agreement by either the Company or Parent as provided in Section 9.01,
this Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Parent, Sub or the Company or their respective
officers or directors, except with respect to the last sentence of Section
1.02(c), Section 4.16, Section 5.06, the last sentence of Section 7.02, Section
7.06, this Section 9.02 and Article X; provided, however, that nothing herein
shall relieve any party for liability for any wilful breach hereof.
<PAGE>
43
SECTION 9.03. Amendment. This Agreement may be amended by the
parties hereto, by duly authorized action taken, at any time before or after
obtaining the Company Shareholder Approval, but, after the purchase of Shares
pursuant to the Offer, no amendment shall be made which decreases the Merger
Consideration and, after the Company Shareholder Approval, no amendment shall be
made which by law requires further approval by such shareholders without
obtaining such further approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto. Following
the election or appointment of the Sub's designees pursuant to Section 7.05 and
prior to the Effective Time, the affirmative vote of a majority of the
Independent Directors then in office shall be required by the Company to (i)
amend or terminate this Agreement by the Company, (ii) exercise or waive any of
the Company's rights or remedies under this Agreement or (iii) extend the time
for performance of Parent and Sub's respective obligations under this Agreement.
SECTION 9.04. Extension; Waiver. At any time prior to the Effective
Time, the parties hereto, by action taken or authorized by their respective
Boards of Directors, may, to the extent legally allowed, subject to Section
9.03, (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 or (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. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of those rights.
ARTICLE X
Miscellaneous
SECTION 10.01. Nonsurvival of Representations, Warranties and
Agreements. None of the representations and warranties in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Effective
Time or, in the case of the Company, shall survive the acceptance for payment
of, and payment for, Shares by Sub pursuant to
<PAGE>
44
the Offer. This Section 10.01 shall not limit any covenant or agreement of the
parties which by its terms contemplates performance after the Effective Time of
the Merger, including Section 7.07.
SECTION 10.02. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed), sent by overnight courier (providing proof of
delivery) or mailed by registered or certified mail (return receipt requested)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to Parent or Sub, to
International Business Machines Corporation
Old Orchard Road
Armonk, NY 10504
Attention: Mr. Lee A. Dayton
Telecopy No.: (914) 765-7803
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention: Allen Finkelson, Esq.
Telecopy No.: (212) 474-3700
and
(b) if to the Company, to
Edmark Corporation
6727 - 185th Avenue NE
Redmond, WA 98052
Attention: Ms. Donna G. Stanger
Telecopy No.: (206) 556-3700
with a copy to:
<PAGE>
45
Lane Powell Spears Lubersky LLP
1420 Fifth Avenue, Suite 4100
Seattle, WA 98101-2338
Attention: Michael E. Morgan, Esq.
Telecopy No.: (206) 223-7107
SECTION 10.03. Interpretation. When a reference is made in this
Agreement to an Article or a Section, such reference shall be to an Article or a
Section of this Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation". The phrase
"made available" in this Agreement shall mean that the information referred to
has been made available if requested by the party to whom such information is to
be made available. As used in this Agreement, the term "subsidiary" of any
person means another person, an amount of the voting securities, other voting
ownership or voting partnership interests of which is sufficient to elect at
least a majority of its Board of Directors or other governing body (or, if there
are no such voting interests, 50% or more of the equity interests of which) is
owned directly or indirectly by such first person. As used in this Agreement,
"material adverse change" or "material adverse effect" means, when used in
connection with the Company, any change or effect (or any development that,
insofar as can reasonably be foreseen, is likely to result in any change or
effect) that, individually or in the aggregate with any such other changes or
effects, is materially adverse to the business, properties, financial condition
or results of operations of the Company.
SECTION 10.04. Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
SECTION 10.05. Entire Agreement; No Third Party Beneficiaries. This
Agreement (including the documents and the instruments referred to herein) (a)
constitutes the
<PAGE>
46
entire agreement and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
and (b) except as provided in Section 7.07, is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
SECTION 10.06. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York without regard to
any applicable conflicts of law, except to the extent the WBCA shall be held to
govern the terms of the Merger.
SECTION 10.07. Publicity. Except as otherwise required by law, court
process or the rules of the NYSE or the Nasdaq National Market or as
contemplated or provided elsewhere herein, for so long as this Agreement is in
effect, neither the Company nor Parent shall, or shall permit any of its
subsidiaries to, issue or cause the publication of any press release or other
public announcement with respect to the transactions contemplated by this
Agreement, the Shareholder Agreement or the Noncompetition Agreements without
the consent of the other party, which consent shall not be unreasonably
withheld.
SECTION 10.08. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties, except that Sub may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to
Parent or to any direct or indirect wholly owned subsidiary of Parent. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
SECTION 10.09. Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which they are entitled at law or in equity. In addition,
each of the parties hereto waives any right to trial by jury with respect to any
claim
<PAGE>
47
or proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
IN WITNESS WHEREOF, Parent, Sub and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
INTERNATIONAL BUSINESS MACHINES
CORPORATION,
by /s/ Lee A. Dayton
----------------------------
Name: Lee A. Dayton
Title: Vice President,
Corporate Development
& Real Estate
INDIGO ACQUISITION CORP.,
by /s/ Lee A. Dayton
----------------------------
Name: Lee A. Dayton
Title: President
EDMARK CORPORATION,
by /s/ Donna G. Stanger
----------------------------
Name: Donna G. Stanger
Title: Vice President -
Product Development
<PAGE>
EXHIBIT A
Conditions of the Offer
Notwithstanding any other term of the Offer or this Agreement, Sub
shall not be required to accept for payment or, subject to any applicable rules
and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act
(relating to Sub's obligation to pay for or return tendered Shares after the
termination or withdrawal of the Offer), to pay for any Shares tendered pursuant
to the Offer unless (i) there shall have been validly tendered and not withdrawn
prior to the expiration of the Offer such number of Shares that would constitute
two-thirds of the outstanding Shares (determined on a fully diluted basis for
all outstanding stock options and any other rights to acquire Shares) (the
"Minimum Condition") and (ii) any waiting period under the HSR Act applicable to
the purchase of Shares pursuant to the Offer shall have expired or been
terminated. Furthermore, notwithstanding any other term of the Offer or this
Agreement, Sub shall not be required to accept for payment or, subject as
aforesaid, to pay for any Shares not theretofore accepted for payment or paid
for, and may terminate the Offer if, at any time on or after the date of this
Agreement and before the acceptance of such Shares for payment or the payment
therefor, any of the following conditions exists (other than as a result of any
action or inaction of Parent or any of its subsidiaries that constitutes a
breach of this Agreement):
(a) there shall be threatened instituted or pending by any
Governmental Entity any suit, action or proceeding (i) challenging the
acquisition by Parent or Sub of any Shares under the Offer, seeking to
restrain or prohibit the making or consummation of the Offer or the Merger
or the performance of any of the other transactions contemplated by this
Agreement or the Shareholder Agreement, (ii) seeking to prohibit or
materially limit the ownership or operation by the Company, Parent or any
of Parent's subsidiaries of a material portion of the business or assets
of the Company or Parent and its subsidiaries, taken as a whole, or to
compel the Company or Parent to dispose of or hold separate any material
portion of the business or assets of the Company or Parent and its
subsidiaries, taken as a whole, in each case as a result of the Offer or
any of the other transactions contemplated by this Agreement, (iii)
seeking to impose material limitations on the ability of Parent or Sub to
<PAGE>
2
acquire or hold, or exercise full rights of ownership of, any Shares to be
accepted for payment pursuant to the Offer including, without limitation,
the right to vote such Shares on all matters properly presented to the
shareholders of the Company, (iv) seeking to prohibit Parent or any of its
subsidiaries from effectively controlling in any material respect any
material portion of the business or operations of the Company or (v) which
otherwise is reasonably likely to have a material adverse effect on the
Company;
(b) there shall be any statute, rule, regulation, judgment, order or
injunction enacted, entered, enforced, promulgated or deemed applicable to
the Offer or the Merger, by any Governmental Entity or court, other than
the application to the Offer or the Merger of applicable waiting periods
under the HSR Act, that is reasonably likely to result, directly or
indirectly, in any of the consequences referred to in clauses (i) through
(v) of paragraph (a) above;
(c) there shall have occurred any material adverse change with
respect to the Company;
(d) (i) the Board of Directors of the Company or any committee
thereof shall have withdrawn or modified in a manner adverse to Parent or
Sub its approval or recommendation of the Offer or the Merger or its
adoption of this Agreement, or approved or recommended any Takeover
Proposal, (ii) the Company shall have entered into any agreement with
respect to any Superior Proposal in accordance with Section 6.02(b) of
this Agreement or (iii) the Board of Directors of the Company or any
committee thereof shall have resolved to take any of the foregoing
actions;
(e) any of the representations and warranties of the Company set
forth in this Agreement that are qualified as to materiality shall not be
true and correct or any such representations and warranties that are not
so qualified shall not be true and correct in any material respect, in
each case at the date of this Agreement and at the scheduled or extended
expiration of the Offer;
(f) the Company shall have failed to perform in any material respect
any material obligation or to comply in any material respect with any
material
<PAGE>
3
agreement or material covenant of the Company to be performed or complied
with by it under this Agreement, which failure to perform or comply has
not been cured within 5 business days after the giving of written notice
to the Company; or
(g) this Agreement shall have been terminated in accordance with its
terms.
The foregoing conditions are for the sole benefit of Parent and Sub
and may, subject to the terms of this Agreement, be waived by Parent and Sub in
whole or in part at any time and from time to time in their sole discretion. The
failure by Parent or Sub at any time to exercise any of the foregoing rights
shall not be deemed a waiver of any such right, the waiver of any such right
with respect to particular facts and circumstances shall not be deemed a waiver
with respect to any other facts and circumstances and each such right shall be
deemed an ongoing right that may be asserted at any time and from time to time.
Terms used but not defined herein shall have the meanings assigned to such terms
in the Agreement to which this Exhibit A is a part.
<PAGE>
SHAREHOLDER AGREEMENT, dated as of November 12, 1996,
among INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York
corporation ("Parent"), INDIGO ACQUISITION CORP., a Washington
corporation and a wholly owned subsidiary of Parent ("Sub"),
and the persons listed on Schedule A hereto (each a
"Shareholder", and, collectively, the "Shareholders").
WHEREAS, Parent, Sub and Edmark Corporation, a Washington
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger of even date herewith (as the same may be amended or supplemented, the
"Merger Agreement") providing for (i) the making of a cash tender offer (as such
offer may be amended from time to time as permitted under the Merger Agreement,
the "Offer") by Sub for all of the outstanding shares of Common Stock, no par
value, of the Company (the "Company Common Stock"), including the associated
rights (the "Rights") to purchase Company Common Stock issued pursuant to the
Shareholder Rights Agreement dated as of November 29, 1995 between the Company
and ChaseMellon Shareholder Services, L.L.C. (as successor to First Interstate
Bank of Washington, N.A.), as rights agent (as amended, the "Rights Agreement"),
and (ii) the merger of Sub with the Company (the "Merger");
WHEREAS, each Shareholder is the record and beneficial owner of the
number of shares of Company Common Stock, including the associated Rights, set
forth opposite such Shareholder's name on Schedule A hereto, which number
excludes shares issuable upon the exercise of Company Stock Options (as such
term is defined in the Merger Agreement) held by such Shareholder; such shares
of Company Common Stock, as such shares may be adjusted by stock dividend, stock
split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with (i) the associated Rights, as such Rights may be adjusted
pursuant to the terms of the Rights Agreement, and (ii) shares of Company Common
Stock (including the associated Rights) which may be acquired after the date
hereof by such Shareholder, including shares of Company Common Stock issuable
upon the exercise of Rights or Company Stock Options (as the same may be
adjusted as aforesaid), being collectively referred to herein as the "Shares";
and
<PAGE>
2
WHEREAS, as a condition to their willingness to enter into the
Merger Agreement, Parent and Sub have requested that the Shareholders enter into
this Agreement;
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Purchase and Sale of Shares.
(a) Each Shareholder hereby severally and not jointly agrees that it
shall tender its Shares into the Offer and that it shall not withdraw any
Shares so tendered (it being understood that the obligation contained in
this sentence is unconditional, subject to Section 8). In addition, each
Shareholder hereby severally and not jointly agrees to sell to Sub, and
Sub hereby agrees to purchase, all such Shareholder's Shares at a price
per Share equal to $15.50, or such higher price per Share as may be
offered by Sub in the Offer, provided that (i) such obligation to purchase
is subject to Sub having accepted Shares for payment under the Offer and
the Minimum Condition (as defined in Exhibit A to the Merger Agreement)
having been satisfied, which conditions may be waived by Sub in its sole
discretion, and (ii) such obligation to sell is subject to the Minimum
Condition having been satisfied or a Takeover Proposal (as defined in the
Merger Agreement) having been made.
(b) Subject to the satisfaction or waiver of the requirements of the
second sentence in paragraph (a) above, (i) if a Takeover Proposal shall
have been made and the Minimum Condition shall not have been satisfied,
Shares shall be purchased within three business days of the delivery by
Sub to the Shareholder of notice of Sub's intention to so purchase such
Shareholder's Shares, which notice may be given by Sub at any time
following the time such Takeover Proposal shall have been made and shall
specify the place, time and date for the closing of the purchase by Sub
pursuant to this paragraph (b), or (ii) if Sub shall have accepted Shares
for payment in the Offer and the Minimum Condition shall have been
satisfied, Shares shall be purchased under the Offer.
<PAGE>
3
2. Representations and Warranties of the Shareholders. Each
Shareholder hereby, severally and not jointly, represents and warrants to Parent
and Sub as follows:
(a) Authority. The Shareholder has all requisite power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by the Shareholder. This Agreement has been duly
executed and delivered by the Shareholder and constitutes a valid and
binding obligation of the Shareholder enforceable against the Shareholder
in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting enforcement of creditors' rights generally
and (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies. Except for the
expiration or termination of the waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act") and informational filings with the Securities and Exchange
Commission, neither the execution, delivery or performance of this
Agreement by the Shareholder nor the consummation by the Shareholder of
the transactions contemplated hereby will (i) require any filing with, or
permit, authorization, consent or approval of, any federal, state or local
government or any court, tribunal, administrative agency or commission or
other governmental or regulatory authority or agency, domestic, foreign or
supranational, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give
rise to any right of termination, amendment, cancellation or acceleration)
under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which the Shareholder is a party or by which
the Shareholder or any of the Shareholder's properties or assets,
including the Shareholder's Shares, may be bound or (iii) violate any
order, writ, injunction, decree, statute, rule or regulation applicable to
the Shareholder or any of the
<PAGE>
4
Shareholder's properties or assets, including the Shareholder's Shares.
(b) The Shares. The Shareholder's Shares and the certificates
representing such Shares are now and at all times during the term hereof
will be held by such Shareholder, or by a nominee or custodian for the
benefit of such Shareholder, and the Shareholder has good and marketable
title to such Shares, free and clear of any pledges, claims, liens,
charges, encumbrances, security interests, proxies, voting trusts or
agreements, understandings or arrangements or any other encumbrances of
any kind or nature whatsoever, except for any such encumbrances or proxies
arising hereunder. The Shareholder owns of record or beneficially no
shares of Company Common Stock other than such Shareholder's Shares and
shares of Company Common Stock issuable upon the exercise of Company Stock
Options.
(c) Brokers. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on
behalf of such Shareholder.
(d) Merger Agreement. The Shareholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Shareholder's execution and delivery of
this Agreement.
3. Representations and Warranties of Parent and Sub. Parent and Sub
hereby jointly and severally represent and warrant to the Shareholders as
follows:
(a) Authority. Parent and Sub have the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement by Parent and Sub and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Parent and Sub. This Agreement
has been duly executed and delivered by Parent and Sub and constitutes a
valid and binding obligation of Parent and Sub enforceable in accordance
with its
<PAGE>
5
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or
other equitable remedies.
(b) Securities Act. The Shares will be acquired in compliance with,
and Sub will not offer to sell or otherwise dispose of any Shares so
acquired by it in violation of any of, the Securities Exchange Act of
1934, as amended, or the registration requirements of the Securities Act
of 1933, as amended.
(c) Financing. Sub has, or will have at the time that any payment is
required to be made to any Shareholder hereunder, the funds necessary to
make such payment to such Shareholder.
4. Covenants of the Shareholders. Each Shareholder severally and not
jointly agrees as follows:
(a) The Shareholder shall not, except as contemplated by the terms
of this Agreement, (i) sell, transfer, pledge, assign or otherwise dispose
of, or enter into any contract, option or other arrangement (including any
profit sharing arrangement) or understanding with respect to the sale,
transfer, pledge, assignment or other disposition of, the Shares to any
person other than Sub or Sub's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-
attorney or otherwise, with respect to the Shares or (iii) take any other
action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby.
(b) Until the Merger is consummated or the Merger Agreement is
terminated, the Shareholder shall not, nor shall the Shareholder permit
any investment banker, financial adviser, attorney, accountant or other
representative or agent of the Shareholder to, directly or indirectly (i)
solicit, initiate or encourage (including by way of furnishing
information), or take any other action designed or reasonably likely to
facilitate, any inquiries or the making of any proposal which constitutes,
or may reasonably be expected to
<PAGE>
6
lead to, any Takeover Proposal or (ii) participate in any discussions or
negotiations regarding any Takeover Proposal. Without limiting the
foregoing, it is understood that any violation of the restrictions set
forth in the preceding sentence by an investment banker, financial
advisor, attorney, accountant or other representative or agent of the
Shareholder shall be deemed to be a violation of this Section 4(b) by the
Shareholder.
5. Grant of Irrevocable Proxy; Appointment of Proxy. (a) Each
Shareholder hereby irrevocably grants to, and appoints, Lee A. Dayton, Donald D.
Westfall and Archie W. Colburn, and any other individual who shall hereafter be
designated by Parent, and each of them, such Shareholder's proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Shareholder, to vote such Shareholder's Shares (not including
the Rights; such Shares not including the Rights, the "Proxy Shares"), or grant
a consent or approval in respect of such Proxy Shares, at any meeting of
shareholders of the Company or at any adjournment thereof or in any other
circumstances upon which their vote, consent or other approval is sought,
against (i) any merger agreement or merger (other than the Merger Agreement and
the Merger), consolidation, combination, sale of substantial assets,
reorganization, joint venture, recapitalization, dissolution, liquidation or
winding up of or by the Company and (ii) any amendment of the Company's Amended
and Restated Articles of Incorporation or Bylaws, as amended and restated, or
other proposal or transaction (including any consent solicitation to remove or
elect any directors of the Company) involving the Company which amendment or
other proposal or transaction would in any manner impede, frustrate, prevent or
nullify, or result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under or with respect to, the
Offer, the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement.
(b) Each Shareholder represents that any proxies heretofore given in
respect of such Shareholder's Proxy Shares are not irrevocable, and that any
such proxies are hereby revoked.
(c) Each Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 5 is given in connection with the execution of the Merger
Agreement, and
<PAGE>
7
that such irrevocable proxy is given to secure the performance of the duties of
such Shareholder under this Agreement. Such Shareholder hereby further affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked, subject to Section 8. Such Shareholder hereby ratifies
and confirms all that such irrevocable proxy may lawfully do or cause to be done
by virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 23B.07.220 of the
Washington Business Corporation Act.
6. Further Assurances. Each Shareholder will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Parent or Sub may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement and to vest the power to vote
such Shareholder's Proxy Shares as contemplated by Section 5. Parent and Sub
jointly and severally agree to use reasonable efforts to take, or cause to be
taken, all actions necessary to comply promptly with all legal requirements that
may be imposed with respect to the transactions contemplated by this Agreement
(including legal requirements of the HSR Act).
7. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to any direct or indirect wholly owned
subsidiary of Parent. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. Each Shareholder agrees that this
Agreement and the obligations of such Shareholder hereunder shall attach to such
Shareholder's Shares and shall be binding upon any person or entity to which
legal or beneficial ownership of such Shares shall pass, whether by operation of
law or otherwise, including without limitation such Shareholder's heirs,
guardians, administrators or successors.
8. Termination. This Agreement, and all rights and obligations of
the parties hereunder, shall terminate upon the earliest of (a) the date upon
which the Merger
<PAGE>
8
Agreement is terminated pursuant to Section 9.01(a), Section 9.01(b)(ii) or
Section 9.01(f) thereof, (b) the date that is 10 business days after the later
of (i) any other termination of the Merger Agreement and (ii) the date on which
all waiting periods under the HSR Act applicable to the purchase of Shares
pursuant to Section 1 shall have expired or been terminated and (c) the date
that Parent or Sub shall have purchased and paid for the Shareholders' Shares
pursuant to Section 1.
9. Stop Transfer. The Company agrees with, and covenants to, Parent
and Sub that the Company shall not register the transfer of any certificate
representing any Shareholder's Shares unless such transfer is made in accordance
with the terms of this Agreement.
10. Company Stock Options. Each Shareholder that is a director of
the Company severally and not jointly agrees that all Company Stock Options held
by such Shareholder (other than Company Stock Options granted under the Edmark
Corporation Stock Option Plan (Restated as of July 14, 1995)) which have not
been exercised and which remain outstanding at the time Sub accepts Shares for
payment in the Offer shall be canceled and be of no further force or effect, and
such Shareholder shall have no rights after such time with respect to Company
Stock Options which have not been exercised.
11. General Provisions.
(a) Payments. All payments required to be made to any party to this
Agreement shall be made by wire transfer of immediately available funds to
an account designated by such party at least one trading day prior to such
payment.
(b) Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense.
(c) Amendments. This Agreement may not be amended except by an
instrument in writing signed by each of the parties hereto.
(d) Notice. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, telecopied
(which is
<PAGE>
9
confirmed), sent by overnight courier (providing proof of delivery) or
mailed by registered or certified mail (return receipt requested) to the
parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(i) if to Parent, to
International Business Machines Corporation
Old Orchard Road
Armonk, NY 10504
Attention: Mr. Lee A. Dayton
Telecopy No: (914) 765-7803
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475
Attention: Allen Finkelson, Esq.
Telecopy No: (212) 474-3700
and
(ii) if to a Shareholder, to the address set forth
under the name of such Shareholder on
Schedule A hereto
with a copy to:
Lane Powell Spears Lubersky LLP
1420 Fifth Avenue, Suite 4100
Seattle, WA 98052
Attention: Michael E. Morgan, Esq.
Telecopy No: (206) 223-7107
(e) Interpretation. When a reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way
<PAGE>
10
the meaning or interpretation of this Agreement. Wherever the words
"include", "includes" or "including" are used in this Agreement, they
shall be deemed to be followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed
by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
(including the documents and instruments referred to herein) (i)
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 (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(h) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York without regard to any
applicable conflicts of law.
(i) Publicity. Except as otherwise required by law, court process or
the rules of a national securities exchange or the Nasdaq National Market
or as contemplated or provided in the Merger Agreement, for so long as
this Agreement is in effect, neither any Shareholder nor Parent shall
issue or cause the publication of any press release or other public
announcement with respect to the transactions contemplated by this
Agreement or the Merger Agreement without the consent of the other
parties, which consent shall not be unreasonably withheld.
12. Shareholder Capacity. No person executing this Agreement who is
or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his or her capacity as such director or
officer. Each Shareholder signs solely in his or her capacity as the record
holder and beneficial owner of, or the trustee of a trust whose beneficiaries
are the beneficial owners of, such Shareholder's Shares and nothing
<PAGE>
11
herein shall limit or affect any actions taken by a Shareholder in its capacity
as an officer or director of the Company to the extent specifically permitted by
the Merger Agreement.
13. Performance by Sub. Parent covenants and agrees for the benefit
of the Shareholders that it shall cause Sub to perform in full each obligation
of Sub set forth in this Agreement.
14. Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of the
parties hereto waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
<PAGE>
12
IN WITNESS WHEREOF, each of Parent and Sub has caused this Agreement
to be signed by its officer thereunto duly authorized and each Shareholder has
signed this Agreement, all as of the date first written above.
INTERNATIONAL BUSINESS
MACHINES CORPORATION
By /s/ Lee A. Dayton
------------------------------
Print Name: Lee A. Dayton
Title: Vice President,
Corporate Development
& Real Estate
INDIGO ACQUISITION CORP.
By /s/ Lee A. Dayton
------------------------------
Print Name: Lee A. Dayton
Title: President
SHAREHOLDERS
/s/ Frances M. Conley
----------------------------------
Frances M. Conley
/s/ Allan Epstein
----------------------------------
Allan Epstein
/s/ Harvey N. Gillis
----------------------------------
Harvey N. Gillis
/s/ Allen D. Glenn, Ph.D.
----------------------------------
Allen D. Glenn, Ph.D.
<PAGE>
13
/s/ Douglas J. Mackenzie /s/ Douglas J. Mackenzie
- ------------------------------ ------------------------------
Douglas J. Mackenzie
and on behalf of Kleiner
Perkins Caufield & Byers VI
/s/ Timothy Mott
------------------------------
Timothy Mott
/s/ Sally G. Narodick
------------------------------
Sally G. Narodick
/s/ W. Hunter Simpson
------------------------------
W. Hunter Simpson
/s/ Richard S. Thorp
------------------------------
Richard S. Thorp
/s/ Donna G. Stanger
------------------------------
Donna G. Stanger
/s/ Paul N. Bialek
------------------------------
Paul N. Bialek
/s/ Daniel P. Vetras
------------------------------
Daniel P. Vetras
/s/ John R. Moore
------------------------------
John R. Moore
<PAGE>
14
ROANOKE INVESTORS' LIMITED
PARTNERSHIP
BY ROANOKE CAPITAL LTD.,
GENERAL PARTNER
By /s/ Frances M. Conley
------------------------------
Frances M. Conley
Its Principal
ROANOKE CAPITAL LTD.
By /s/ Frances M. Conley
------------------------------
Frances M. Conley
Its Principal
KLEINER PERKINS CAUFIELD &
BYERS VI, L.P.
BY KPCB VI ASSOCIATES, L.P.,
GENERAL PARTNER
By /s/ Brook H. Byers
------------------------------
Brook H. Byers
Its General Partner
KPCB VI FOUNDERS FUND, L.P.
BY KPCB VI ASSOCIATES, L.P.,
GENERAL PARTNER
By /s/ Brook H. Byers
------------------------------
Brook H. Byers
Its General Partner
IRONWOOD CAPITAL
By /s/ Timothy Mott
------------------------------
Timothy Mott
Its General Partner
<PAGE>
15
ACKNOWLEDGED AND AGREED
TO AS TO SECTION 9:
EDMARK CORPORATION
By /s/ Donna G. Stanger
--------------------
Donna G. Stanger
Vice President -
Product Development
<PAGE>
Schedule A
Number of Shares
Number of Underlying
Name and Address Record and Options (Exercise Price
of Shareholder Beneficial Shares below $15.50)
Sally G. Narodick 9,721 225,000
4513 - 54th Avenue N.E.
Seattle, WA 98105
Frances M. Conley 11,500 2,000
c/o Roanoke Capital, Ltd.
1111 Third Avenue, Suite 2220
Seattle, WA 98101
Timothy Mott - 0 - 2,000
c/o Ironwood Capital LLC
2241 Lundy Avenue
San Jose, CA 95131
Douglas J. Mackenzie 1,832 2,000
c/o Kleiner Perkins Caufield & Byers
2750 Sand Hill Road
Menlo Park, CA 94025
Allan Epstein - 0 - 9,500
Orthopedic Systems, Inc.
30031 Ahern Avenue
Union City, CA 94587-1234
Allen D. Glenn 1,900 8,000
University of Washington
College of Education
Miller Hall, Room 222
P.O. Box 353600
Seattle, WA 98195
Harvey N. Gillis 11,250 5,750
13608 N.E. 36th Place
Bellevue, WA 98005-1412
<PAGE>
Number of Shares
Number of Underlying
Name and Address Record and Options (Exercise Price
of Shareholder Beneficial Shares below $15.50)
W. Hunter Simpson 21,360 17,000
2012 Faben Drive
Mercer Island, WA 98040-2002
Richard S. Thorp 381,487 2,000
c/o Shannon Industries
18646 - 68th Avenue S.
Kent, WA 98032
Donna G. Stanger 3,000 180,000
17121 N.E. 29th Place
Bellevue, WA 98008
Daniel P. Vetras - 0 - 48,000
17226 S.E. 46th Street
Issaquah, WA 98027
Paul N. Bialek - 0 - 78,500
19819 - 134th Place S.E.
Renton, WA 98058
John R. Moore 2,499 45,750
30019 Second Place S.W.
Federal Way, WA 98002
Ironwood Capital LLC 38,377 - 0 -
2241 Lundy Avenue
San Jose, CA 95131
Roanoke Investors' Limited 396,000 - 0 -
Partnership
c/o Roanoke Capital, Ltd.
1111 Third Avenue, Suite 2220
Seattle, WA 98101
Kleiner Perkins Caufield & 387,566 - 0 -
Byers VI, L.P.
2750 Sand Hill Road
Menlo Park, CA 94025
KPCB VI Founders Fund, L.P. 59,454 - 0 -
2750 Sand Hill Road
Menlo Park, CA 94025
2
