<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
------------------
CONCENTRA CORPORATION
(NAME OF SUBJECT COMPANY)
KL ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF
ORACLE CORPORATION
(BIDDERS)
COMMON STOCK, PAR VALUE $.00001 PER SHARE
(INCLUDING THE ASSOCIATED PREFERRED STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
205897 10 1
(CUSIP NUMBER OF CLASS OF SECURITIES)
------------------
DANIEL COOPERMAN
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ORACLE CORPORATION
500 ORACLE PARKWAY
REDWOOD SHORES, CA 94065
(650) 506-7000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
Copies to:
DONALD M. KELLER, JR.
STEVEN J. TONSFELDT
VENTURE LAW GROUP
A PROFESSIONAL CORPORATION
2800 SAND HILL ROAD
MENLO PARK, CA 94025
(650) 854-4488
CALCULATION OF FILING FEE
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- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
TRANSACTION VALUATION* AMOUNT OF FILING FEE
- -------------------------------------------------------------------------------
<S> <C>
$52,041,682 $10,409
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
* For purposes of fee calculation only. The total transaction value is based
on 6,103,944 shares of common stock, together with the associated preferred
stock purchase rights (collectively, the "Shares"), outstanding as of
November 10, 1998 plus 1,330,582 of the Shares issuable upon the exercise
of outstanding options or other rights to acquire shares as of that date,
multiplied by the offer price of $7.00 per Share. The amount of the filing
fee calculated in accordance with Regulation 240.0-11 of the Securities
Exchange Act of 1934 equals 1/50 of 1% of the value of the Shares to be
purchased.
[_]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 schedule
and the date of its filing.
<TABLE>
<S> <C> <C> <C>
Amount Previously Paid: None Filing Party: Not applicable
Form or Registration No.: Not applicable Date Filed: Not applicable
</TABLE>
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- -------------------------------------------------------------------------------
<PAGE>
CUSIP No. 205897 10 1 14D-1 Page 2 of 8
<TABLE>
<C> <S>
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
ORACLE CORPORATION
- -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [_]
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3 SEC USE ONLY
- -------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
- -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(e) or 2(f)
N/A
- -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,374,318
- -------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES
[_]
- -------------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
38.9%* (AS OF NOVEMBER 10, 1998)
- -------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON*
CO
</TABLE>
* See the "INTRODUCTION" of the Offer to Purchase, which is incorporated herein
by reference, for a description of the Support Agreements among Oracle
Corporation and certain major stockholders of Concentra Corporation.
2
<PAGE>
Page 3 of 8
<TABLE>
<C> <S>
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
KL ACQUISITION CORPORATION
- -------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [_]
(b) [_]
- -------------------------------------------------------------------------
3 SEC USE ONLY
- -------------------------------------------------------------------------
4 SOURCE OF FUNDS
AF
- -------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(e) or 2(f)
N/A
- -------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
- -------------------------------------------------------------------------
7 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,374,318
- -------------------------------------------------------------------------
8 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (7) EXCLUDES CERTAIN
SHARES
[_]
- -------------------------------------------------------------------------
9 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (7)
38.9%* (AS OF NOVEMBER 10, 1998)
- -------------------------------------------------------------------------
10 TYPE OF REPORTING PERSON
CO
</TABLE>
* See the "INTRODUCTION" of the Offer to Purchase, which is incorporated herein
by reference, for a description of the Support Agreements among Oracle
Corporation and certain major stockholders of Concentra Corporation.
3
<PAGE>
INTRODUCTION
This Tender Offer Statement on Schedule 14D-1 (this "Statement") relates to
the offer by KL Acquisition Corporation ("Purchaser"), a Delaware corporation
and a wholly-owned subsidiary of Oracle Corporation, a Delaware corporation
("Parent"), to purchase all outstanding shares of common stock, par value
$.00001 per share (the "Common Stock") of Concentra Corporation, a Delaware
corporation (the "Company"), and the associated Preferred Stock purchase
rights (the "Rights" and, together with the Common Stock, the "Shares") issued
pursuant to the Rights Agreement between the Company and First National Bank
of Boston, as Rights Agent, dated as of April 24, 1997, as amended November
10, 1998 (the "Rights Agreement") at a price of $7.00 per Share, net to the
seller in cash, upon the terms and subject to the conditions set forth in the
Offer to Purchase, dated November 17, 1998 (the "Offer to Purchase"), and the
related Letter of Transmittal (which together constitute the "Offer"), copies
of which are attached hereto as Exhibits (a)(1) and (a)(2), respectively. The
Offer is being made pursuant to an Agreement and Plan of Merger, dated as of
November 10, 1998, by and among Parent, the Purchaser and the Company (the
"Merger Agreement"), which provides, among other things, that as promptly as
practicable after the satisfaction or, if permissible, waiver of the
conditions set forth therein, the Purchaser will be merged with and into the
Company, with the Company continuing as the surviving corporation, and each
issued and outstanding Share (other than any Shares held in the treasury of
the Company or owned by the Purchaser, Parent or any subsidiary of Parent or
the Company, and other than Shares held by stockholders who shall not have
voted in favor of the Merger or consented thereto in writing and who shall
have demanded properly in writing appraisal for such Shares in accordance with
the General Corporation Law of the State of Delaware) will be converted into
the right to receive in cash, without interest, an amount equal to the price
paid per Share in the Offer.
This Schedule 14D-1 also constitutes a Statement on Schedule 13D with
respect to the acquisition by Parent and Purchaser of beneficial ownership of
the Shares pursuant to the Merger Agreement and the Support Agreements
described in the Offer to Purchase under "INTRODUCTION" which is incorporated
herein by reference.
The information contained in this Statement concerning the Company,
including, without limitation, information concerning the background of the
transaction, the deliberations, approvals and recommendations of the Board of
Directors of the Company in connection with the transaction, the opinion of
the Company's financial advisor, and the Company's capital structure and
historical financial information, was supplied by the Company. Parent and the
Purchaser take no responsibility for the accuracy of such information.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is Concentra Corporation, a Delaware
corporation with its principal executive offices at 21 North Avenue,
Burlington, Massachusetts 01803-3301.
(b) The class of equity securities being sought is all of the Company's
Common Stock and the associated Rights. The information set forth in the Offer
to Purchase under "INTRODUCTION" is incorporated herein by reference.
(c) The information concerning the principal market in which the Shares are
traded and certain high and low sales prices for the Shares in such principal
market set forth in the Offer to Purchase under "THE OFFER--Price Range of the
Shares" is incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a)-(d) and (g) This Statement is filed by the Purchaser and Parent. The
information concerning the name, state or other place of organization,
principal business and address of the principal office of each of Purchaser
and Parent, and the information concerning the name, business address, present
principal occupation or employment and the name, principal business and
address of any corporation or other organization in which such employment or
occupation is conducted, material occupations, positions, offices or
employment during the last five years and citizenship of each of the executive
officers and directors of Purchaser and Parent are set forth in the Offer to
Purchase under "INTRODUCTION," "THE OFFER--Certain Information Concerning the
Purchaser and Parent" and in Schedule I of the Offer to Purchase and are
incorporated herein by reference.
4
<PAGE>
(e)-(f) During the last five years, none of Purchaser, Parent, nor, to the
best knowledge of Purchaser and Parent, any of the persons listed in Schedule
I of the Offer to Purchase has been (i) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
activities subject to, federal or state securities laws or finding any
violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT
COMPANY.
(a) The information set forth in the Offer to Purchase under "SPECIAL
FACTORS--Background of the Offer and the Merger," "SPECIAL FACTORS--The Merger
Agreement," "SPECIAL FACTORS--Interests of Certain Persons in the Offer and
the Merger," "THE OFFER--Certain Information Concerning the Purchaser and
Parent" and "THE OFFER--Intercompany Arrangements Between Parent and the
Company; Other Existing Agreements" is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase under "INTRODUCTION,"
"SPECIAL FACTORS--Background of the Offer and the Merger," "SPECIAL FACTORS--
Purpose and Structure of the Offer and the Merger; Reasons of Parent and the
Purchaser for the Offer and the Merger," "SPECIAL FACTORS--Plans for the
Company After the Offer and the Merger; Certain Effects of the Offer and the
Merger," "SPECIAL FACTORS--The Merger Agreement," "THE OFFER--Certain
Information Concerning the Company" and "THE OFFER--Certain Information
Concerning the Purchaser and Parent" is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a)-(b) The information set forth in the Offer to Purchase under "THE
OFFER--Financing of the Offer and the Merger" is incorporated herein by
reference.
(c) Not applicable.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDERS.
(a)-(e) The information set forth in the Offer to Purchase under
"INTRODUCTION," "SPECIAL FACTORS--Background of the Offer and the Merger,"
"SPECIAL FACTORS--Purpose and Structure of the Offer and the Merger; Reasons
of Parent and the Purchaser for the Offer and the Merger," "SPECIAL FACTORS--
Plans for the Company After the Offer and the Merger; Certain Effects of the
Offer and the Merger" and "SPECIAL FACTORS--The Merger Agreement" is
incorporated herein by reference.
(f)-(g) The information set forth in the Offer to Purchase under "SPECIAL
FACTORS--Plans for the Company After the Offer and the Merger; Certain Effects
of the Offer and the Merger" and "THE OFFER--Effect of the Offer on the Market
for the Shares; NASDAQ Quotation and Exchange Act Registration" is
incorporated herein by reference.
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) The information set forth in the Offer to Purchase under "THE OFFER--
Certain Information Concerning the Purchaser and Parent" is incorporated
herein by reference.
(b) Not applicable.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in the Offer to Purchase under "INTRODUCTION,"
"SPECIAL FACTORS--Background of the Offer and the Merger," "SPECIAL FACTORS--
Purpose and Structure of the Offer and the Merger; Reasons of Parent and the
Purchaser for the Offer and the Merger," "SPECIAL FACTORS--Plans for the
Company After the Offer and the Merger; Certain Effects of the Offer and the
Merger," "SPECIAL FACTORS--The Merger Agreement," "SPECIAL FACTORS--Interests
of Certain Persons in the Offer and the Merger," "THE OFFER--Certain
Information Concerning the Purchaser and Parent" and "THE OFFER--Intercompany
Agreements between Parent and the Company; Other Existing Agreements" is
incorporated herein by reference.
5
<PAGE>
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the Offer to Purchase under "THE OFFER--Fees
and Expenses" is incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
Not applicable.
ITEM 10. ADDITIONAL INFORMATION.
(a) The information set forth in the Offer to Purchase under "SPECIAL
FACTORS--Interests of Certain Persons in the Offer and Merger" and "SPECIAL
FACTORS--Certain Information Concerning the Purchaser and Parent; Other
Existing Agreements" is incorporated herein by reference.
(b)-(c) The information set forth in the Offer to Purchase under "THE
OFFER--Certain Legal Matters" is incorporated herein by reference.
(d) The information set forth in the Offer to Purchase under "THE OFFER--
Effect of the Offer on the Market for the Shares; NASDAQ Quotation and
Exchange Act Registration" is incorporated herein by reference.
(e) Not applicable.
(f) The information set forth in the Offer to Purchase and the related
Letter of Transmittal, and the Agreement and Plan of Merger, dated as of
November 10, 1998, by and among Parent, Purchaser and the Company, copies of
which are attached hereto as Exhibits (a)(1), (a)(2) and (c)(1), respectively,
is incorporated herein by reference in its entirety.
6
<PAGE>
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT NAME
------- ----------------------------------------------------------------------
<C> <S>
(a)(1) Offer to Purchase, dated November 17, 1998.
(a)(2) Letter of Transmittal.
(a)(3) Form of Letter from Information Agent to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust Companies and
Nominees to Clients.
(a)(5) Notice of Guaranteed Delivery.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Form of Summary Advertisement dated November 17, 1998.
(a)(8) Press Release, dated November 10, 1998, issued by Oracle.
(b) Not applicable.
(c)(1) Agreement and Plan of Merger, dated as of November 10, 1998, by and
among Concentra Corporation, KL Acquisition Corporation and Oracle
Corporation.
(c)(2) Form of Support Agreement, dated November 10, 1998 by and among Oracle
Corporation and San Giorgio S.A., Special Situations Fund III, L.P.,
Special Situations Private Equity Fund, L.P., Special Situations
Cayman Fund, L.P., Special Situations Technology Fund, L.P., Lawrence
W. Rosenfeld, as an individual and trustee, Toyo Corporation, and
Stephen J. Cucchiaro.
(c)(3) Confidential Disclosure Agreement dated September 11, 1998, between
Concentra Corporation and Oracle Corporation.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
</TABLE>
7
<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.
Oracle Corporation
By: /s/ Daniel Cooperman
__________________________________
Daniel Cooperman
Senior Vice President, General
Counseland Secretary
Dated: November 17, 1998
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.
KL Acquisition Corporation
By: /s/ Thomas Theodores
__________________________________
Thomas Theodores
Vice President, Secretary
Dated: November 17, 1998
8
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT NAME
------- ----------------------------------------------------------------------
<C> <S>
(a)(1) Offer to Purchase, dated November 17, 1998.
(a)(2) Letter of Transmittal.
(a)(3) Form of Letter from Information Agent to Brokers, Dealers, Commercial
Banks, Trust Companies and Nominees.
(a)(4) Letter from Brokers, Dealers, Commercial Banks, Trust Companies and
Nominees to Clients.
(a)(5) Notice of Guaranteed Delivery.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9.
(a)(7) Form of Summary Advertisement dated November 17, 1998.
(a)(8) Press Release, dated November 10, 1998, issued by Oracle.
(b) Not applicable.
(c)(1) Agreement and Plan of Merger, dated as of November 10, 1998, by and
among Concentra Corporation, KL Acquisition Corporation and Oracle
Corporation.
(c)(2) Form of Support Agreement, dated November 10, 1998 by and among Oracle
Corporation and San Giorgio S.A., Special Situations Fund III, L.P.,
Special Situations Private Equity Fund, L.P., Special Situations
Cayman Fund, L.P., Special Situations Technology Fund, L.P., Lawrence
W. Rosenfeld, as an individual and trustee, Toyo Corporation, and
Stephen J. Cucchiaro.
(c)(3) Confidential Disclosure Agreement dated September 11, 1998, between
Concentra Corporation and Oracle Corporation.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
</TABLE>
<PAGE>
Exhibit (A)(1)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK)
OF
CONCENTRA CORPORATION
AT
$7.00 NET PER SHARE
BY
KL ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF
ORACLE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, DECEMBER 15, 1998, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT PROPERLY WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT
LEAST THAT NUMBER OF SHARES THAT, WHEN ADDED TO THE SHARES ALREADY OWNED BY
ORACLE CORPORATION ("PARENT"), KL ACQUISITION CORPORATION ("PURCHASER") OR ANY
DIRECT OR INDIRECT WHOLLY-OWNED SUBSIDIARY OF PARENT, SHALL CONSTITUTE FIFTY-
ONE PERCENT OF THE SHARES OF COMMON STOCK, $.00001 PAR VALUE PER SHARE, AND
ASSOCIATED RIGHTS (AS DEFINED BELOW) (REFERRED TO COLLECTIVELY HEREIN AS THE
"SHARES"), OF CONCENTRA CORPORATION (THE "COMPANY") THEN OUTSTANDING ON A
FULLY DILUTED BASIS (AS DEFINED HEREIN) (THE "MINIMUM SHARE CONDITION"). THE
OFFER IS ALSO SUBJECT TO THE OTHER TERMS AND CONDITIONS DESCRIBED IN THIS
OFFER TO PURCHASE. SEE THE INTRODUCTION AND "THE OFFER--CERTAIN CONDITIONS OF
THE OFFER."
---------------
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY DETERMINED THAT EACH
OF THE OFFER AND THE MERGER (EACH AS DEFINED HEREIN) IS FAIR TO AND IN THE
BEST INTERESTS OF THE STOCKHOLDERS OF THE COMPANY, AND RECOMMENDS THAT
STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
SEE "SPECIAL FACTORS--RECOMMENDATIONS OF THE COMPANY BOARD; FAIRNESS OF THE
OFFER AND THE MERGER."
---------------
IMPORTANT
Stockholders who desire to tender all or any portion of their Shares should
either (i) complete and sign the Letter of Transmittal (or facsimile thereof)
that accompanies this Offer to Purchase in accordance with the instructions in
such Letter of Transmittal, have their signature thereon guaranteed if
required by Instruction 1 to such Letter of Transmittal, and mail or deliver
the Letter of Transmittal (or such facsimile) together with the certificates
("Share Certificates") representing the tendered Shares and any other required
documents to BankBoston, N.A. (the "Depositary"), or tender their Shares
pursuant to the procedures for book-entry transfer set forth under "THE
OFFER -- Procedure for Accepting the Offer and Tendering Shares" or (ii)
request their broker, dealer, bank, trust company or other nominee to effect
the transaction for them. Stockholders 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 they desire to tender
such Shares.
Stockholders who desire to tender their Shares and whose Share
Certificate(s) are not immediately available, or who cannot comply in a timely
manner with the procedures 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 procedures for guaranteed delivery set
forth under "THE OFFER -- Procedure for Accepting the Offer and Tendering
Shares."
Questions and requests for assistance may be directed to the Information
Agent at its address and telephone number set forth on the back cover of this
Offer to Purchase. Additional copies of this Offer to Purchase, the Letter of
Transmittal and other related materials may be obtained from the Information
Agent.
---------------
THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION, NOR HAS THE SECURITIES AND EXCHANGE COMMISSION PASSED
UPON THE FAIRNESS OR MERITS OF SUCH TRANSACTION NOR UPON THE ACCURACY OR
ADEQUACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY
REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
---------------
The date of this Offer to Purchase is November 17, 1998.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<C> <S> <C>
INTRODUCTION
SPECIAL FACTORS
1. Background of the Offer and the Merger............................ 4
2. Recommendations of the Company Board; Fairness of the Offer and
the Merger....................................................... 5
3. Purpose and Structure of the Offer and the Merger; Reasons of
Parent and the Purchaser for the Offer and the Merger............ 6
4. Plans for the Company After the Offer and the Merger; Certain
Effects of the Offer and the Merger.............................. 7
5. Appraisal Rights; "Going Private" Transactions.................... 8
6. The Merger Agreement.............................................. 9
7. Interests of Certain Persons in the Offer and the Merger.......... 16
THE OFFER
1. Terms of the Offer................................................ 19
2. Procedure for Accepting the Offer and Tendering Shares............ 20
3. Withdrawal Rights................................................. 22
4. Acceptance for Payment and Payment for Shares..................... 23
5. Certain Federal Income Tax Consequences........................... 24
6. Price Range of the Shares......................................... 25
7. Certain Information Concerning the Company........................ 26
8. Certain Information Concerning the Purchaser and Parent........... 28
9. Financing of the Offer and the Merger............................. 29
10. Intercompany Arrangements between Parent and the Company; Other
Existing Agreements.............................................. 29
11. Effect of the Offer on the Market for the Shares; NASDAQ Quotation
and Exchange Act Registration.................................... 29
12. Certain Conditions of the Offer................................... 30
13. Certain Legal Matters............................................. 32
14. Fees and Expenses................................................. 34
15. Miscellaneous..................................................... 34
</TABLE>
SCHEDULE I DIRECTORS AND EXECUTIVE OFFICERS OF PARENT AND PURCHASER
SCHEDULE II DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY
<PAGE>
TO THE STOCKHOLDERS OF CONCENTRA CORPORATION:
INTRODUCTION
KL Acquisition Corporation (the "Purchaser"), a Delaware corporation and a
wholly-owned subsidiary of Oracle Corporation, a Delaware corporation
("Parent"), hereby offers to purchase all outstanding shares of common stock,
$.00001 par value (the "Common Stock"), of Concentra Corporation, a Delaware
corporation (the "Company"), and the associated Series A Participating
Cumulative Preferred Stock purchase rights (collectively, the "Rights") issued
pursuant to the Rights Agreement between the Company and First National Bank
of Boston, as Rights Agent, dated April 24, 1997, as amended November 10, 1998
(the "Rights Agreement") (the Rights and the Common Stock are referred to
herein collectively as the "Shares"), at a price of $7.00 per Share, net to
the seller in cash, without interest thereon (the "Offer Price"), upon the
terms and subject to the conditions set forth in this Offer to Purchase and
the related Letter of Transmittal (this Offer to Purchase and the related
Letter of Transmittal, together with any amendments or supplements hereto or
thereto, collectively constitute the "Offer").
Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as set forth in Instruction 6 of the Letter of
Transmittal, stock transfer taxes on the purchase of Shares by the Purchaser
pursuant to the Offer. Parent or the Purchaser will pay all fees and expenses
of BankBoston, N.A., as Depositary (the "Depositary"), and Georgeson & Company
Inc., as Information Agent (the "Information Agent"), incurred in connection
with the Offer. See "THE OFFER -- Fees and Expenses."
THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD") HAS UNANIMOUSLY
DETERMINED THAT EACH OF THE OFFER AND THE MERGER (AS DEFINED HEREIN) IS FAIR
TO AND IN THE BEST INTERESTS OF THE STOCKHOLDERS OF THE COMPANY, AND
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT
TO THE OFFER. SEE "SPECIAL FACTORS -- RECOMMENDATIONS OF THE COMPANY BOARD;
FAIRNESS OF THE OFFER AND THE MERGER."
VOLPE BROWN WHELAN & COMPANY, LLC, FINANCIAL ADVISOR TO THE COMPANY
("FINANCIAL ADVISOR"), HAS DELIVERED TO THE COMPANY BOARD ITS WRITTEN OPINION,
DATED NOVEMBER 10, 1998, THAT THE CONSIDERATION TO BE RECEIVED BY HOLDERS OF
THE COMPANY'S COMMON STOCK (AND ASSOCIATED RIGHTS) PURSUANT TO THE OFFER AND
THE MERGER (AS DEFINED HEREIN) IS FAIR TO SUCH STOCKHOLDERS FROM A FINANCIAL
POINT OF VIEW AS OF THE DATE OF SUCH OPINION. The full text of the written
opinion of the Financial Advisor containing the assumptions made, the matters
considered and the scope of the review undertaken in rendering such opinion,
as well as the limitations of such opinion, is included with the Company's
Solicitation/Recommendation Statement on Schedule 14D-9, which is being mailed
to stockholders concurrently herewith. Stockholders are urged to read the full
text of such opinion in conjunction with this Offer.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER AT LEAST THAT
NUMBER OF SHARES THAT, WHEN ADDED TO THE SHARES ALREADY OWNED BY PARENT,
PURCHASER OR ANY DIRECT OR INDIRECT WHOLLY-OWNED SUBSIDIARY OF PARENT, SHALL
CONSTITUTE FIFTY-ONE PERCENT OF THE SHARES THEN OUTSTANDING ON A FULLY DILUTED
BASIS (AS DEFINED HEREIN) (THE "MINIMUM SHARE CONDITION"). THE MINIMUM SHARE
CONDITION MAY NOT BE WAIVED WITHOUT THE CONSENT OF THE COMPANY. THE OFFER IS
ALSO SUBJECT TO THE OTHER TERMS AND CONDITIONS DESCRIBED IN THIS OFFER TO
PURCHASE. SEE "THE OFFER -- CERTAIN CONDITIONS OF THE OFFER."
THE OFFER DOES NOT CONSTITUTE A SOLICITATION OF PROXIES FOR ANY MEETING OF
THE COMPANY'S STOCKHOLDERS. ANY SUCH SOLICITATION WOULD BE MADE ONLY PURSUANT
TO SEPARATE PROXY MATERIALS COMPLYING WITH THE REQUIREMENTS OF SECTION 14(A)
OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
1
<PAGE>
In connection with the execution and delivery of the Merger Agreement, San
Giorgio S.A., Special Situations Fund III, L.P., Special Situations Private
Equity Fund, L.P., Special Situations Cayman Fund, L.P., Special Situations
Technology Fund, L.P., Lawrence W. Rosenfeld (individually and as trustee),
Toyo Corporation, and Stephen J. Cucchiaro (each, a "Seller" and,
collectively, the "Sellers") each entered into support agreements dated
November 10, 1998 (the "Support Agreements") in his or its capacity as a
stockholder of the Company, pursuant to which each Seller agrees to: (i)
tender pursuant to the Offer all Shares owned or thereafter acquired prior to
the termination of the Offer by such Seller and (ii) use his or its best
efforts to assist in the tender offer process so as to achieve as large an
amount of tendered shares as possible. As of November 10, 1998, the Sellers
beneficially owned approximately 38.9% of the Shares and held Stock Options
(as defined below) to purchase approximately 346,933 Shares (whether or not
vested).
The Company has advised the Purchaser that as of November 10, 1998, the
authorized capital stock of the Company consisted of 40,000,000 shares of
Common Stock and 4,000,000 shares of preferred stock, par value $0.01 per
share ("Preferred Stock"). As of the close of business on November 6, 1998,
(i) 6,103,944 shares of Common Stock were issued and outstanding, (ii) no
shares of Preferred Stock were issued and outstanding, (iii) 1,330,582 shares
of Common Stock were reserved for issuance upon the exercise of outstanding
options to acquire shares of Common Stock ("Stock Options"), and (iv) no
shares of Common Stock were held by the Company in its treasury. As of
November 6, 1998, no shares of Common Stock were available for issuance under
the Company's 1987 Stock Plan, 852,940 shares of Common Stock were available
for issuance under the Company's 1993 Stock Plan, and 112,500 shares of Common
Stock were available for issuance under the Company's 1994 Non-Employee
Directors' Stock Option Plan (the foregoing Stock Option Plans are referred
to, collectively, as the "Company Stock Option Plans"). As of November 6,
1998, 363,622 shares of Common Stock were available for issuance under the
Company's 1995 Employee Stock Purchase Plan, and the Company is obligated to
issue 20,769 shares of Common Stock under such Plan for the current period
ending March 31, 1999, assuming continued participation by all current
participants through the date of termination of such plan (the "Current ESPP
Shares"). For purposes of the Offer, "Fully Diluted Shares" means the number
of issued and outstanding shares of Common Stock at any time taken together
with the number of Current ESPP Shares and the number of shares of Common
Stock reserved for issuance upon the exercise or conversion of outstanding
Stock Options (other than the option granted to the Parent (the "Parent
Option")) and other than options first becoming vested after June 30, 1999,
but including any options that become vested as a result of the Merger
Agreement, the Offer or the Merger. As of November 10, 1998, all of the
executive officers and directors of the Company owned approximately 2,408,934
Shares (including Shares owned by affiliates of certain directors) and held
Stock Options to purchase approximately 910,996 Shares (whether or not
vested).
At the Effective Time (as defined below) of the Merger, each outstanding
Stock Option to purchase shares of Common Stock under the Company Stock Option
Plans shall terminate and each holder thereof shall receive in exchange for
such termination a cash payment equal to, subject to any applicable tax
withholding required under the Internal Revenue Code of 1986, as amended (the
"Code"), the excess, if any, of (i) the Merger Price (as defined below) times
the number of shares of Common Stock subject to such option which are vested
and exercisable (including such number of shares that become vested and
exercisable by its terms as a result of the transactions contemplated by this
Offer), over (ii) the aggregate exercise price of such option. The fair market
value of the Common Stock on the Effective Date shall be deemed to equal the
Merger Price.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of November 10, 1998, by and among Parent, the Purchaser and the Company
(the "Merger Agreement"). The Merger Agreement provides, among other things,
that as soon as practicable after the purchase of Shares pursuant to the Offer
and the satisfaction of the other conditions set forth in the Merger Agreement
and in accordance with the relevant provisions of the General Corporation Law
of the State of Delaware (the "DGCL"), the Purchaser will be merged with and
into the Company (the "Merger"). Following consummation of the Merger, the
Company will continue as the surviving corporation (the "Surviving
Corporation"), and will become a wholly-owned subsidiary of Parent. At the
effective time of the Merger (the "Effective Time"), each Share issued and
outstanding immediately prior to the Effective Time (other than Shares owned
by Parent, the Purchaser, the
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Company or any subsidiary of the Company, or Shares held by stockholders who
will have properly demanded and perfected appraisal rights, if any, under the
DGCL) will be canceled and converted automatically into the right to receive
in cash, without interest thereon, an amount equal to the price paid per Share
in the Offer (the "Merger Price"). The Merger Agreement is more fully
described under "SPECIAL FACTORS -- The Merger Agreement."
Under the DGCL, if, after consummation of the Offer, the Purchaser owns at
least 90% of the Shares then outstanding, the Purchaser will be able to cause
the Merger to occur without a vote of the Company's stockholders. In such
event, Parent, the Purchaser and the Company have agreed to take all necessary
and appropriate action to cause the Merger to become effective in accordance
with the DGCL as promptly as practicable after consummation of the Offer,
without a meeting of the stockholders of the Company. If, however, after
consummation of the Offer, the Purchaser owns less than such number of Shares,
a vote of the Company's stockholders will be required under the DGCL to
approve the Merger, and a significantly longer period of time will be required
to effect the Merger. See "SPECIAL FACTORS -- Purpose and Structure of the
Offer and the Merger; Reasons of Parent and the Purchaser for the Offer and
the Merger," "SPECIAL FACTORS -- The Merger Agreement" and "THE OFFER --
Certain Conditions of the Offer."
As of the date of this Offer to Purchase, Parent and Purchaser, pursuant to
the Support Agreements, beneficially own 2,374,318 Shares. Pursuant to the
Merger Agreement, the Parent Option is exercisable upon the occurrence of
certain future events and gives Parent the right to purchase, for $7.00 per
share in cash, without interest thereon, newly issued shares of Common Stock
representing 19.9% of the Company's total outstanding Common Stock (and
associated Rights), which percentage will be calculated after taking into
account the exercise in full of the Parent Option. See "SPECIAL FACTORS -- The
Merger Agreement."
No appraisal rights are available in connection with the Offer; however,
stockholders may have appraisal rights in connection with the Merger
regardless of whether the Merger is consummated with or without a vote of the
Company's stockholders. See "SPECIAL FACTORS -- Appraisal Rights."
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION ABOUT THE OFFER AND THE MERGER. STOCKHOLDERS ARE URGED
TO CAREFULLY READ THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL
IN THEIR ENTIRETY BEFORE MAKING ANY DECISION WITH RESPECT TO THE OFFER.
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SPECIAL FACTORS
1. BACKGROUND OF THE OFFER AND THE MERGER
Parent has an active corporate development program to review and evaluate
potential corporate acquisition opportunities and other strategic transactions
with the aim of obtaining and developing access to technologies, products and
distribution channels that are complementary to the Parent's business. Over
the past few years, Parent has completed numerous acquisitions of public and
private companies.
On September 5, 1998, David J. Roux, the Executive Vice President, Corporate
Development, of Parent, contacted Stephen J. Cucchiaro, a director of the
Company and a former business colleague of Mr. Roux, to discuss generally the
possible acquisition of the Company by the Parent. Mr. Cucchiaro informed Mr.
Roux that the Company Board might be interested in considering such an
acquisition.
On September 11, 1998, Mr. Roux contacted Lawrence W. Rosenfeld, the
Chairman of the Board, Chief Executive Officer and President of the Company,
to initiate discussion of a potential acquisition of the Company by Parent. At
this time, the Parent and the Company entered into a confidentiality agreement
concerning the proposed transaction under which the Company began to furnish
to Parent certain financial and business information concerning the Company.
On September 16, 1998, Messrs. Rosenfeld, David I. Lemont, Senior Vice
President, Chief Operating Officer, Marvin Mishkin, Vice President, OEM
Business Unit, and Robert E. Phillips, Ph.D., Chief Technology Officer and
Vice President, Product Definition, of the Company, met with John E. Somorjai,
Director, Corporate Development, Donald Klaiss, Vice President, Manufacturing
and Distribution Products, and Kurt Robson, Vice President, Design and
Architecture of Parent at a trade show in San Jose, California and discussed
the respective businesses of Parent and the Company as well as the potential
framework of an acquisition of the Company by Parent.
On September 18, 1998, Parent commenced its formal due diligence review of
the Company. On October 2, 1998, Mr. Somorjai, on behalf of Parent, delivered
a non-binding term sheet to the Company proposing a potential all-cash tender
offer by a wholly-owned subsidiary of Parent for all of the outstanding shares
of Common Stock with a subsequent cash-out merger at a price per share of
$4.75. From October 3, 1998 through October 17, 1998, Parent continued its due
diligence efforts and the parties continued their term sheet negotiations.
On October 18, 1998, Mr. Roux and Mr. Rosenfeld met to finalize the term
sheet. At this meeting, Messrs. Roux and Rosenfeld finalized the term sheet
and tentatively agreed upon a cash acquisition price of $5.00 per share of
Common Stock.
On October 18, 1998, the Company Board reviewed and approved the proposed
term sheet and authorized the Company's officers to continue negotiations
toward definitive documentation.
On October 19, 1998, the Parent's Board similarly reviewed and approved the
proposed term sheet. In addition, Parent's Board authorized its Executive
Committee to review and approve, and Parent's officers to continue
negotiations toward, final terms of the proposed tender offer and related
transactions.
From October 20, 1998 to November 8, 1998, representatives of Parent and the
Company, together with their respective legal counsel, held telephonic
meetings and negotiated the terms of the definitive agreement. On November 6,
1998, Parent's Executive Committee approved a proposed final definitive
agreement. Parent's legal counsel then delivered this proposed final agreement
to the Company and its legal representatives. On November 8, 1998, the
Company's representatives informed Mr. Somorjai that on November 6, 1998 a
publicly-traded software company had expressed interest in acquiring the
Company in a stock-for-stock merger and that the Company had on November 8,
1998 reached a tentative agreement with such company concerning such a merger.
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On November 8, 1998 and November 9, 1998, Parent's representatives
negotiated a revised acquisition proposal with the Company's representatives.
On the morning of November 9, 1998, Mr. Roux met with Mr. Rosenfeld to discuss
proposed revised acquisition terms. Later that night, Parent raised its
proposed bid price to $7.00 per share in cash. On November 10, 1998, each of
the Parent's and the Company's Boards of Directors, after presentations by the
respective management teams, approved the revised terms of the tender offer
and related transactions and authorized the execution of definitive
agreements.
At 7:00 p.m. (EST) on November 10, 1998, Parent, the Purchaser and the
Company executed the Merger Agreement and, simultaneously, Parent and certain
stockholders of the Company executed the Support Agreements. Shortly
thereafter, Parent and the Company issued a press release announcing the
execution of the Merger Agreement.
2. RECOMMENDATIONS OF THE COMPANY BOARD; FAIRNESS OF THE OFFER AND THE MERGER
The Company Board. The Company Board has unanimously determined that each of
the Offer and the Merger is fair to, and in the best interests of, the
stockholders of the Company, and the Company Board unanimously recommends that
the Company's stockholders accept the Offer and tender their Shares pursuant
to the Offer. In reaching these determinations, the Company Board considered
the following factors, each of which, in the view of the Company Board,
supported such determinations:
(i) the historical market prices and recent trading activity of the Shares,
including the fact that the $7.00 per share cash consideration to be received
by the stockholders of the Company in the Offer and Merger represents a
premium of approximately 96% over the reported closing sales price per share
on November 10, 1998, the last full trading day preceding the public
announcement of the Merger Agreement, and a premium of approximately 106% and
119% over the average closing price for the one-month and three-month periods,
respectively, preceding such date, and the fact that such price would be
payable in cash, thus eliminating any uncertainties in valuing the
consideration to be received by the Company's stockholders;
(ii) the history of the negotiations between the Company Board and its
representatives and Parent and its representatives, including the Company
Board's belief that Parent and the Purchaser would not further increase the
Offer Price and that $7.00 per Share was the highest price that could be
obtained from Parent and the Purchaser;
(iii) the opinion of the Financial Advisor that the consideration to be
received by holders of the Common Stock pursuant to the Offer and the Merger
was fair to such stockholders from a financial point of view, and the report
and analysis presented by the Financial Advisor in connection therewith;
(iv) the terms and conditions of the Merger Agreement;
(v) the effect of the Minimum Share Condition that, without the consent of
the Company, the Offer will not be consummated unless at least that number of
Shares that, when added to the Shares already owned by Parent, the Purchaser
or any direct or indirect wholly-owned subsidiary of Parent, will constitute
fifty-one percent of the Shares then outstanding (on a fully diluted basis)
are validly tendered pursuant to the Offer and not properly withdrawn;
(vi) the availability of appraisal rights in the Merger for the stockholders
of the Company under the DGCL;
(vii) the possibility that, because of a future decline in the Company's
business, the trading price of the Shares or the stock market in general, the
consideration that the stockholders of the Company would obtain in a future or
alternative transaction might be less advantageous than the consideration they
would receive pursuant to the Offer and the Merger;
(viii) the review of the possible alternatives to the Offer and the Merger
(including the possibility of continuing to operate the Company as an
independent entity in light of the Company's relative size and the
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presence of significant competitors in the configuration software market), the
range of possible benefits and risks to the Company's stockholders of such
alternatives and the timing and the likelihood of actually accomplishing any
such alternatives;
(ix) the likelihood that the proposed acquisition would be consummated,
based in part on the financial condition of Parent;
(x) the fact that, under the terms of the Merger Agreement, the Company is
not prohibited from responding to any unsolicited Superior Proposal (as
defined herein) to acquire the Company, and that, after giving Parent notice
of the receipt of a Superior Proposal and an opportunity to make an offer
which the Company Board determines, in its good faith judgment, is as
favorable as the Superior Proposal, the Company may elect to terminate the
Merger Agreement and pay the termination fee and/or trigger the Parent Option
as provided in the Merger Agreement; and
(xi) the structure of the transaction, which is designed, among other
things, to result in receipt by the stockholders at the earliest practicable
time of the consideration to be paid in the Offer and the fact that the
per Share consideration to be paid in the Offer and the Merger is the same.
Additional Considerations of the Company Board. The members of the Company
Board evaluated the various factors listed above in light of their knowledge
of the business, financial condition and prospects of the Company and based
upon the advice of financial and legal advisors to the Company. In light of
the number and variety of factors that the Company Board considered in
connection with its evaluation of the Offer and the Merger, the Company Board
did not find it practicable to assign relative weights to the foregoing
factors and, accordingly, the Company Board did not do so. In addition to the
factors listed above, the Company Board considered the fact that while
consummation of the Offer would result in the stockholders of the Company
receiving a premium for their Shares over the trading prices of the Shares
prior to the public announcement of the Merger Agreement, consummation of the
Offer and the Merger would eliminate any opportunity for stockholders of the
Company to participate in the potential future growth prospects of the
Company. The Company Board determined, however, that (i) the loss of
opportunity is reflected in the Offer Price, and (ii) there are continued
business risks associated with independent operations which could impact the
Company's long-term financial prospects.
In addition, the Company Board determined that the Offer and the Merger are
procedurally fair to the stockholders of the Company because, among other
things, (i) the Company Board retained the Financial Advisor as its
independent financial advisor to assist it in evaluating the Offer and the
Merger, (ii) the Minimum Share Condition, which may not be waived without the
consent of the Company, was made a condition to the Offer, (iii) there were
deliberations pursuant to which the Company Board evaluated the Offer and the
Merger and alternatives thereto, and (iv) the $7.00 per Share price and the
other terms and conditions of the Merger Agreement resulted from active arm's-
length bargaining between representatives of the Company, on the one hand, and
representatives of Parent, on the other.
Consummation of the Offer is conditioned upon, among other things, the
Minimum Share Condition, which may not be waived without the consent of the
Company. Pursuant to the Merger Agreement, the purchase by the Purchaser of
all Shares validly tendered in the Offer and not properly withdrawn is a
condition to the Merger.
In making its determinations and recommendations, the Company Board was
aware of the matters set forth under "SPECIAL FACTORS -- Interests of Certain
Persons in the Offer and Merger."
3. PURPOSE AND STRUCTURE OF THE OFFER AND THE MERGER; REASONS OF PARENT AND
THE PURCHASER FOR THE OFFER AND THE MERGER
The purpose of the Offer and the Merger is for Parent to acquire control of,
and the entire equity interest in, the Company. The purpose of the Merger is
for Parent to acquire all Shares not purchased pursuant to the Offer.
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Upon consummation of the Merger, the Company will become a direct wholly-owned
subsidiary of Parent. The Offer is being made pursuant to the Merger
Agreement.
Under the DGCL, the approval of the Company Board and the affirmative vote
of the holders of a majority of the outstanding Shares is required to approve
and adopt the Merger Agreement and the transactions contemplated thereby,
including the Merger. The Company Board has approved and adopted the Merger
Agreement and the transactions contemplated thereby, and, unless the Merger is
consummated pursuant to the "short-form" merger provisions under the DGCL
described below, the only remaining required corporate action of the Company
is the approval and adoption of the Merger Agreement and the transactions
contemplated thereby by the affirmative vote of the holders of a majority of
the Shares.
In the Merger Agreement, the Company has agreed to take all action necessary
to convene a meeting of its stockholders as soon as practicable after the
consummation of the Offer for the purpose of considering and taking action on
the Merger Agreement and the transactions contemplated thereby if such action
is required by the DGCL. However, under the DGCL, if Purchaser acquires,
pursuant to the Offer or otherwise, at least 90% of the outstanding Shares,
Purchaser will be able to approve the Merger without a vote of the Company's
stockholders. Accordingly, if Purchaser acquires at least 90% of the
outstanding Shares, it will have sufficient voting power to cause the approval
and adoption of the Merger Agreement and the transactions contemplated thereby
without a vote of the Company's stockholders. In such event, Parent, Purchaser
and the Company have agreed in the Merger Agreement to take, at the request of
Purchaser, all necessary and appropriate action to cause the Merger to become
effective without a meeting of the Company's stockholders. If, however,
Purchaser does not acquire at least 90% of the outstanding Shares pursuant to
the Offer or otherwise and a vote of the Company's stockholders is required
under the DGCL, a significantly longer period of time would be required to
effect the Merger.
If Purchaser purchases Shares pursuant to the Offer, the Merger Agreement
provides that Purchaser will be entitled to designate representatives to serve
on the Company Board in proportion to Purchaser's ownership of Shares
following such purchase. Purchaser expects that such representation would
permit Purchaser to exert substantial influence over the Company's conduct of
its business and operations.
4. PLANS FOR THE COMPANY AFTER THE OFFER AND THE MERGER; CERTAIN EFFECTS OF
THE OFFER AND THE MERGER
Pursuant to the Merger Agreement, promptly upon completion of the Offer,
Parent and the Purchaser intend to effect the Merger in accordance with the
terms of the Merger Agreement. See "SPECIAL FACTORS -- The Merger Agreement."
Parent's management has begun, and intends to continue, a review of the
Company and its assets, corporate structure, capitalization, operations,
properties, policies, management and personnel to determine what changes, if
any, would be desirable in order to best organize and integrate the activities
of the Company and Parent following the Merger. Parent expressly reserves the
right to make any changes that it deems necessary or appropriate in light of
its review or in light of future developments or that would be desirable to
permit Parent to manage the Company. Except as otherwise disclosed in this
Offer to Purchase, Parent has no present plans or proposals that would result
in an extraordinary corporate transaction involving the Company or any of its
subsidiaries, such as a merger, reorganization, liquidation, relocation of
operations, or sale or transfer of a material amount of assets.
As a result of the Offer, the interest of Parent in the Company's net book
value and net earnings will be in proportion to the number of Shares acquired
in the Offer. If the Merger is consummated, Parent's interest in such items
and in the Company's equity generally will equal 100% and Parent and its
subsidiaries will be entitled to all benefits resulting from such interest,
including all income generated by the Company's operations and any future
increase in the Company's value. Similarly, Parent will also bear the risk of
losses generated by the Company's operations and any future decrease in the
value of the Company after the Merger. Subsequent to the Merger, current
stockholders of the Company will cease to have any equity interest in the
Company, will not
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have the opportunity to participate in the earnings and growth of the Company
after the Merger and will not have any right to vote on corporate matters.
Similarly, stockholders will not face the risk of losses generated by the
Company's operations or decline in the value of the Company after the Merger.
The Shares are currently traded on The Nasdaq Stock Market, Inc.'s National
Market ("NASDAQ"). See "THE OFFER -- Price Range of the Shares." Following the
consummation of the Merger, the Shares will no longer be quoted on NASDAQ and
the registration of the Shares under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), will be terminated. Accordingly, after the
Merger there will be no publicly-traded equity securities of the Company
outstanding and the Company will no longer be required to file periodic
reports with the Securities and Exchange Commission (the "SEC"). See "THE
OFFER -- Effect of the Offer on the Market for the Shares; NASDAQ Quotation
and Exchange Act Registration." It is expected that, if Shares are not
accepted for payment by the Purchaser pursuant to the Offer and the Merger is
not consummated, the Company's current management, under the general direction
of the Company Board, will continue to manage the Company as an ongoing
business.
5. APPRAISAL RIGHTS; "GOING PRIVATE" TRANSACTIONS
No appraisal rights are available in connection with the Offer. However, if
the Merger is consummated, stockholders of the Company who have not tendered
their Shares will have certain rights under the DGCL to dissent and demand
appraisal of, and to receive payment in cash of the fair value of, their
Shares. Stockholders who perfect such rights by complying with the procedures
set forth in Section 262 of the DGCL ("Section 262") will have the fair value
of their Shares determined by the Delaware Court of Chancery and paid in cash
to such dissenting holders for their Shares. In addition, such dissenting
stockholders would be entitled to receive payment of a fair rate of interest
from the date of consummation of the Merger on the amount determined to be the
fair value of their Shares. In determining the fair value of the Shares, the
court is required to take into account all relevant factors. Accordingly, such
determination could be based upon considerations other than, or in addition
to, the market value of the Shares, including, among other things, asset
values and earning capacity. In Weinberger v. UOP, Inc., the Delaware Supreme
Court stated that "proof of value by any techniques or methods which are
generally considered acceptable in the financial community and otherwise
admissible in court" should be considered in an appraisal proceeding. The
Weinberger court also noted that under Section 262, fair value is to be
determined "exclusive of any element of value arising from the accomplishment
or expectation of the merger." In Cede & Co. v. Technicolor, Inc., however,
the Delaware Supreme Court stated that, in the context of a two-step cash
merger, "to the extent that value has been added following a change in
majority control before cash-out, it is still value attributable to the going
concern," to be included in the appraisal process. The value so determined in
any appraisal proceeding could be the same, more, or less than
$7.00 per Share. In the event a stockholder properly perfects and exercises
appraisal rights, Parent intends to cause the Surviving Corporation to argue
in an appraisal proceeding that, for purposes of such proceeding, the fair
value of each Share is less than the price paid in the Merger. In this regard,
stockholders should be aware that opinions of investment banking firms as to
the fairness from a financial point of view (including the Financial Advisor's
opinion described herein) are not necessarily opinions as to "fair value"
under Section 262. In addition, several decisions by Delaware courts have held
that, in certain circumstances, a controlling stockholder of a company
involved in a merger has a fiduciary duty to other stockholders which requires
that the merger be fair to such other stockholders. In determining whether a
merger is fair to minority stockholders, Delaware courts have considered,
among other things, the type and amount of consideration to be received by the
stockholders and whether there was fair dealing among the parties. The
Delaware Supreme Court stated in Weinberger and Rabkin v. Philip A. Hunt
Chemical Corp. that the remedy ordinarily available to minority stockholders
in a cash-out merger is the right to appraisal described above. However, a
damages remedy or injunctive relief may be available if a merger is found to
be the product of procedural unfairness, including fraud, misrepresentation or
other misconduct.
THE FOREGOING SUMMARY OF THE RIGHTS OF DISSENTING STOCKHOLDERS UNDER THE
DGCL DOES NOT PURPORT TO BE A COMPLETE STATEMENT OF THE PROCEDURES TO BE
FOLLOWED BY STOCKHOLDERS DESIRING TO EXERCISE ANY AVAILABLE APPRAISAL
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RIGHTS UNDER THE DGCL AND IS QUALIFIED IN ITS ENTIRETY BY THE FULL TEXT OF THE
APPLICABLE PROVISIONS OF THE DGCL. THE PRESERVATION AND EXERCISE OF APPRAISAL
RIGHTS ARE CONDITIONED ON STRICT ADHERENCE TO THE APPLICABLE PROVISIONS OF THE
DGCL.
The SEC has adopted Rule 13e-3 under the Exchange Act which is applicable to
certain "going private" transactions and which may under certain circumstances
be applicable to the Merger or another business combination following the
purchase of Shares pursuant to the Offer in which Purchaser seeks to acquire
the remaining Shares not held by it. Purchaser believes, however, that Rule
13e-3 will not be applicable to the Merger. Rule 13e-3 requires, among other
things, that certain financial information concerning the Company and certain
information relating to the fairness of the proposed transaction and the
consideration offered to minority stockholders in such transaction be filed
with the SEC and disclosed to stockholders prior to consummation of the
transaction.
6. THE MERGER AGREEMENT
The following is a summary of the material terms of the Merger Agreement, a
copy of which appears as an Exhibit to the Tender Offer Statement on Schedule
14D-1 filed by the Purchaser and Parent with the SEC in connection with the
Offer. Such summary is qualified in its entirety by reference to the Merger
Agreement.
The Offer. The Merger Agreement provides for the commencement of the Offer
as promptly as reasonably practicable after the date thereof, but in no event
later than five business days after the initial public announcement of
Purchaser's intention to commence the Offer (within the meaning of Rule 14d-
2(a) under the Exchange Act) for all of the outstanding Shares and the
associated Series A Participating Cumulative Preferred Stock purchase rights
(collectively, the "Rights") issued pursuant to the Rights Agreement between
the Company and First National Bank of Boston, as Rights Agent, dated as of
April 24, 1997, as amended November 10, 1998 (the "Rights Agreement"), at a
price of $7.00 per Share (and associated Rights), net to the seller in cash,
without interest thereon. The Merger Agreement further provides that the
obligation of the Purchaser to accept for payment and to pay for any Shares
(and associated Rights) tendered shall be subject only: (i) to such number of
Shares, when added to the number of Shares already owned by Parent, the
Purchaser or any direct or indirect wholly-owned subsidiary of Parent, as
shall constitute fifty-one percent of the Company's Fully Diluted Shares being
validly tendered prior to the expiration or termination of the Offer and not
withdrawn (the "Minimum Share Condition"); and (ii) certain other conditions
that are described therein (the "Offer Conditions"). See "THE OFFER -- Certain
Conditions of the Offer." The Merger Agreement provides that the Purchaser
shall not, without the prior written consent of the Company, amend or modify
the terms of the Offer to (i) reduce the cash price to be paid pursuant to the
Offer, (ii) reduce the number of Shares (and associated Rights) as to which
the Offer is made, (iii) change the form of consideration to be paid in the
Offer, (iv) impose conditions to the Offer in addition to the Offer Conditions
or modify the Offer Conditions (other than to waive any Offer Condition to the
extent permitted by the Merger Agreement), or (v) make any other change or
modification in any of the terms of the Offer in any manner that is adverse to
holders of the Shares. Subject to the terms and conditions thereof, the Offer
shall expire at midnight, New York City time, on the date that shall be 20
business days after the date on which the Offer shall be commenced. The Offer
may not be extended without the Company's prior written consent; provided,
however, that the Purchaser may (x) from time to time extend (and re-extend)
the Offer, if, at the scheduled expiration date of the Offer, any of the Offer
Conditions (other than the Minimum Share Condition) shall not have been
satisfied or waived, until such time as such conditions shall be satisfied or
waived, (y) extend the Offer for any period required by any rule, regulation,
interpretation or position of the SEC or the staff thereof applicable to the
Offer, or (z) extend (and re-extend) the Offer for any reason on one or more
occasions for an aggregate period of not more than 20 business days beyond the
latest expiration date that would otherwise be permitted under clause (x) or
(y) above if on such expiration date there shall not have been tendered at
least that number of Shares (and associated Rights) necessary to permit the
Merger to be effected without a meeting of the Company's stockholders in
accordance with the DGCL.
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The Merger. The Merger Agreement provides that as soon as practicable after
the purchase of Shares pursuant to the Offer and the satisfaction of the other
conditions set forth in the Merger Agreement and in accordance with the
relevant provisions of the DGCL, the Purchaser will be merged with and into
the Company. As a result of the Merger, the separate corporate existence of
the Purchaser will cease and the Company will continue as the Surviving
Corporation and will become a wholly-owned subsidiary of Parent. At the
Effective Time, each Share issued and outstanding immediately prior to the
Effective Time (other than Shares held in the treasury of the Company, Shares
owned by Parent, the Purchaser or any direct or indirect wholly-owned
subsidiary of Parent or the Company or Shares held by stockholders who shall
have properly demanded and perfected appraisal rights under the DGCL) will be
canceled and converted automatically into the right to receive the Merger
Price.
The Purchaser or the designated paying agent will be entitled to deduct and
withhold from the consideration otherwise payable pursuant to the Merger
Agreement to any holder of Shares such amounts that the Purchaser or the
paying agent is required to deduct and withhold with respect to the making of
such payment under the Code, the rules and regulations promulgated thereunder
or any provision of state, local or foreign tax law.
Pursuant to the Merger Agreement, each share of common stock, par value
$0.001 per share, of the Purchaser issued and outstanding immediately prior to
the Effective Time will be converted into one validly issued, fully paid and
nonassessable share of common stock, par value $0.00001 per share, of the
Surviving Corporation.
Promptly upon the purchase by the Purchaser of Shares in the Offer, and from
time to time thereafter, the Purchaser will be entitled to designate that
number of directors, rounded up to the next whole number, on the Company Board
that equals the product of (i) the total number of directors on the Company
Board (giving effect to the election of any additional directors pursuant to
the Merger Agreement) and (ii) the percentage that the number of Shares owned
by the Purchaser, Parent and any direct or indirect wholly-owned subsidiary of
Parent (including Shares purchased in the Offer) bears to the total number of
Shares outstanding at such time, and, to effect the foregoing, the Company
will, upon request by the Purchaser, at the Company's election, either
increase the number of directors comprising the Company Board or seek and
accept resignations of incumbent directors. The first date on which designees
of the Purchaser will constitute a majority of the Company's Board of
Directors is referred to as the "Cut-Off Date." At such times, the Company
will cause individuals designated by the Purchaser to constitute the same
percentage of each committee of the Company Board as such individuals
represent on the Company Board.
Following the Cut-Off Date and prior to the Effective Time, if the Company
shall have at least one director who is neither an employee of the Company or
any of its subsidiaries nor otherwise affiliated with the Purchaser (one or
more of such directors, the "Independent Directors"), any amendment of the
Merger Agreement or the Certificate of Incorporation or Bylaws of the Company
or any of its subsidiaries, any termination or amendment of the Merger
Agreement by the Company, any extension by the Company of the time for the
performance of any of the obligations or other acts of Parent or the Purchaser
or any exercise or waiver of any of the Company's rights under the Merger
Agreement, will require the concurrence of a majority of the Independent
Directors.
The Merger Agreement provides that the directors of the Purchaser at the
Effective Time will be the initial directors of the Surviving Corporation and
that the officers of the Company at the Effective Time will be the initial
officers of the Surviving Corporation. The Merger Agreement provides that, at
the Effective Time, the Certificate of Incorporation of the Purchaser will be
the Certificate of Incorporation of the Surviving Corporation; provided,
however, that, at the Effective Time, Article I of the Certificate of
Incorporation of the Surviving Corporation will be amended to read as follows:
"The name of the corporation is Concentra Corporation." The Merger Agreement
also provides that the Bylaws of the Purchaser will be the Bylaws of the
Surviving Corporation.
At the Effective Time, each outstanding Stock Option to purchase shares of
Common Stock under the Company Stock Option Plans shall terminate and each
holder thereof shall receive in exchange for such
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termination a cash payment equal to, subject to any applicable tax withholding
required under the Code, the excess, if any, of (i) the Merger Price times the
number of shares of Common Stock subject to such option which are vested and
exercisable (including such number of shares that become vested and
exercisable by its terms as a result of the transactions contemplated by the
Merger Agreement), over (ii) the aggregate exercise price of such option. The
fair market value of the Common Stock on the Effective Date shall be deemed to
equal the Merger Price.
Under the Merger Agreement, the Company has agreed to take all actions
reasonably necessary to cause the last day of the then-current "offering," as
such term is defined in the Company's 1995 Employee Stock Purchase Plan (the
"Purchase Plan"), to be December 15, 1998 (the "Final Purchase Date"), and
shall apply on the Final Purchase Date the funds within each participant's
accumulated payroll account as of such date to the purchase of whole shares of
Common Stock in accordance with the terms of the Purchase Plan. No new
offering shall commence under the Purchase Plan following the Final Purchase
Date. The Company has agreed to take all steps required to terminate the
Purchase Plan immediately after the Effective Time.
Certain non-employee directors of the Company have received options to
purchase Common Stock under the Company's 1994 Directors Stock Option Plan
(the "Directors Plan"). All stock options granted pursuant to the Directors
Plan are fully vested and all directors holding options under the Directors
Plan have agreed that such options will terminate, to the extent not
previously exercised, as of the Effective Time.
Representations and Warranties. The Merger Agreement contains various
customary representations and warranties of the parties thereto, including
representations by the Company, Parent and the Purchaser as to corporate
status and the enforceability of the Merger Agreement against each such party
and by the Company as to its capitalization, compliance with law, the accuracy
of financial statements and filings with the SEC and the absence of certain
material adverse changes or events concerning the Company's business.
Covenants of the Company and Parent. In the event that Purchaser shall
acquire at least 90% of the then outstanding Shares (and associated Rights),
the Company has agreed, at the request of Purchaser, subject to the provisions
of the Merger Agreement, to take all necessary and appropriate action to cause
the Merger to become effective, in accordance with Section 253 of the DGCL,
including the preparation and mailing of an Information Statement, if the
Purchaser determines that such Information Statement is appropriate or
required to cause the Merger to become effective, as soon as reasonably
practicable after such acquisition, without a meeting of the stockholders of
the Company.
The Merger Agreement provides that, if the DGCL requires approval by the
Company's stockholders of the Merger Agreement or the Merger, then the Company
shall cause a stockholders' meeting to be duly called and held as soon as
practicable for the purpose of voting on the approval and adoption of the
Merger Agreement and the transactions contemplated thereby. The Company Board
shall recommend approval and adoption of the Merger Agreement and the Merger
by the Company's stockholders. In connection with such meeting, the Company
(i) shall promptly prepare and file with the SEC, use all reasonable efforts
to have cleared by the SEC and thereafter mail to its stockholders as promptly
as practicable all proxy materials for such meeting, (ii) shall notify Parent
of the receipt of any comments of the SEC with respect to such proxy materials
and of any requests by the SEC for any amendment or supplement thereto or for
additional information and shall promptly provide to Parent copies of all
correspondence between the Company or any representative of the Company and
the SEC, (iii) shall give Parent and its counsel the opportunity to review the
proxy materials prior to filing with the SEC and shall give Parent and its
counsel the opportunity to review all amendments and supplements to such proxy
materials and all responses to requests for additional information and replies
to comments prior to their being filed with, or sent to, the SEC, (iv) shall,
subject to the fiduciary duties of the Company Board, as advised by counsel,
use all reasonable efforts to obtain the necessary approvals by its
stockholders of the Merger Agreement and the transactions contemplated hereby
and (v) shall otherwise comply with all legal requirements applicable to such
meeting.
Pursuant to the Merger Agreement, the Company has agreed that neither it,
nor any of the employees, officers or directors of the Company, nor the
Sellers who have executed the Support Agreements shall, and the
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Company shall direct and cause the agents and representatives (including the
Financial Advisor or any other investment banker and any attorney or
accountant retained by it (collectively, "Company Advisors")) not to, directly
or indirectly, initiate, solicit, encourage or otherwise facilitate the making
of any inquiries in respect of, or the making of any proposal for, a Third
Party Acquisition (as defined below). The Company further has agreed that
neither it, nor any of the employees, officers or directors of the Company,
nor the Sellers shall, and the Company shall direct and cause all Company
Advisors not to, directly or indirectly, engage in any negotiations
concerning, or provide any information or data to, or have any discussions
with, any Third Party (as defined below) relating to the proposal of a Third
Party Acquisition, or otherwise facilitate any effort or attempt to make or
implement a Third Party Acquisition; provided, however, that if at any time
prior to the acceptance by Purchaser for payment of Shares (and associated
Rights) pursuant to the Offer, the Company Board determines in good faith,
after consultation with outside counsel, that it is necessary to do so in
order to comply with its fiduciary duties to the Company's stockholders under
applicable law, the Company may, in response to an inquiry, proposal or offer
for a Third Party Acquisition which was not solicited subsequent to the date
of the Merger Agreement and that does not result from a breach of the Merger
Agreement by the Company, (x) furnish only such information with respect to
the Company to any such person pursuant to a customary confidentiality
agreement as was delivered to Parent prior to the execution of the Merger
Agreement and (y) participate in discussions and negotiations regarding such
inquiry, proposal or offer. The Company has agreed to notify Parent promptly
(and in any event within 24 hours) if (i) any inquiries relating to or
proposals for a Third Party Acquisition are received by the Company or any of
the Company Advisors, (ii) any information about the Company is requested from
the Company or any of the Company Advisors, or (iii) any negotiations or
discussions in connection with a possible Third Party Acquisition are sought
to be initiated or continued with the Company or any of the Company Advisors
indicating, in each such case, in connection with such notice, the principal
terms and conditions of any such proposals or offers, including the identity
of the offering party, and thereafter shall keep Parent informed in writing,
on a reasonably current basis, on the status and terms of any such proposals
or offers and the status of any such negotiations or discussions.
Except as set forth below, the Company Board has agreed not to withdraw its
recommendation of the Offer or the Merger and other transactions contemplated
thereby or approve or recommend any Third Party Acquisition. Notwithstanding
the preceding sentence, if the Company Board determines that it is necessary
to do so in order to comply with its fiduciary duties to the Company's
stockholders under applicable law, the Company Board may withdraw or alter its
recommendation of the Offer or the Merger, or approve or recommend or cause
the Company to enter into an agreement with respect to a Superior Proposal (as
defined below), but in each case only (i) after providing written notice to
Parent advising it that the Company Board has received a Superior Proposal and
(ii) if Parent does not, within five business days (or within two business
days with respect to any amendment to any Superior Proposal) after Parent's
receipt of notice, make an offer which the Company Board determines in its
good faith judgment to be as favorable to the Company's stockholders as such
Superior Proposal; provided, however, that the Company will not be entitled to
enter into any agreement with respect to a Superior Proposal unless the Merger
Agreement is concurrently terminated by its terms.
For purposes of the Merger Agreement, "Third Party Acquisition" means the
occurrence of any of the following events: (i) the acquisition of the Company
by merger or otherwise by any person or entity (which includes a "person" as
such term is defined in Section 13(d)(3) of the Exchange Act) other than
Parent, the Purchaser or any affiliate thereof (a "Third Party"); (ii) the
acquisition by a Third Party of 20% or more of the total assets of the Company
(other than the purchase of the Company's products in the ordinary course of
business); (iii) the acquisition by a Third Party of 20% or more of the
outstanding Shares; (iv) the adoption by the Company of a plan of partial or
complete liquidation or the declaration or payment of an extraordinary
dividend; (v) the repurchase by the Company of 20% or more of the outstanding
Shares; or (vi) the acquisition by the Company by merger, purchase of stock or
assets, joint venture or otherwise of a direct or indirect ownership interest
or investment in any business whose annual revenues, net income or assets is
equal to or greater than 20% of the annual revenues, net income or assets of
the Company. For purposes of the Merger Agreement, a "Superior Proposal" means
any bona fide proposal to acquire directly or indirectly for consideration
consisting of cash and/or securities 100% of the Shares then outstanding or
all or substantially all the assets of the Company
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<PAGE>
and otherwise on terms which the Company Board by a majority vote determines
in its good faith judgment (based on consultation with the Financial Advisor
or another financial adviser of nationally recognized reputation) to be
reasonably capable of being completed (taking into account all legal,
financial, regulatory and other aspects of the proposal and the person or
entity making the proposal, including the availability of financing therefor)
and more favorable to the Company's stockholders than the Offer and the
Merger.
Pursuant to the Merger Agreement, the Company has covenanted and agreed
that, between the date of the Merger Agreement and the Cut-Off Date, unless
Parent otherwise agrees in writing: (i) the businesses of the Company and its
subsidiaries will be conducted only in, and the Company will not take any
action except in, the ordinary course of business and in a manner consistent
with past practice; (ii) the Company will endeavor to preserve substantially
intact the business organization of the Company, to keep available the
services of the current officers and employees of the Company and to preserve
the current relationships of the Company with customers, suppliers and other
persons with which the Company has significant business relations; and (iii)
the Company will not declare or pay dividends, split, combine or reclassify
its stock, issue convertible securities or issue rights, warrants or options
to purchase Shares other than shares issuable upon exercise of warrants or
Stock Options outstanding as of the date of the Merger Agreement; amend its
Certificate of Incorporation or Bylaws; acquire or agree to acquire any
business or any corporation or other business organization or division
thereof; authorize any single capital expenditure which is in excess of
$100,000 or capital expenditures which are, in the aggregate, in excess of
$250,000; increase the compensation payable to its officers or employees,
except for increases in accordance with past practices, or grant any severance
or termination pay to, or enter into any employment or severance agreement
with any director, officer or other employee of the Company, or establish or
amend any collective bargaining, compensation, stock option, or other
arrangement for the benefit of any director, officer or employee; make any tax
election or settle or compromise any material federal, state, local or foreign
income tax liability; pay or settle any suit, claim, liability or obligation,
other than the payment, discharge or satisfaction, in the ordinary course of
business and consistent with past practice, of liabilities reflected or
reserved against in the Company's balance sheet dated as of September 30, 1998
or subsequently incurred in the ordinary course of business and consistent
with past practice; amend or modify the warranty policy of the Company;
materially revalue any of its assets; or take any action that would result in
any of the representations and warranties of the Company set forth in the
Merger Agreement becoming untrue in any material respect or in any of the
conditions to the Offer or any of the conditions to the Merger not being
satisfied.
The Company and Parent are each obligated under the Merger Agreement to give
each other prompt notice of (i) the occurrence, or non-occurrence, of any
event the occurrence, or non-occurrence, of which would be likely to cause any
representation or warranty contained in the Merger Agreement to be untrue or
inaccurate and (ii) any failure of the Company, Parent or Purchaser, as the
case may be, to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it thereunder.
Under the Merger Agreement, Parent has agreed that all rights to
indemnification existing in favor of directors, officers or employees of the
Company (the "Indemnified Persons") as provided in the Company's Certificate
of Incorporation, Bylaws or any indemnification agreements listed in the
Company Disclosure Schedule, with respect to matters occurring through the
Effective Time, shall survive the Merger and shall continue in full force and
effect for a period of not less than six years from the Effective Time.
Effective upon the Effective Time, to the fullest extent permitted by law,
Parent shall be directly bound by, and shall guarantee the Company's and the
Surviving Corporation's performance of, the Company's and the Surviving
Corporation's obligations described in the prior sentence for a period of six
years after the Effective Time. If Parent, the Surviving Corporation or any of
either of its successors or assigns (i) consolidates with or merges into any
other person and shall not be the continuing or surviving corporation or
entity of such consolidation or merger or (ii) transfers all or substantially
all of its properties and assets to any person, then and in each such case,
proper provision shall be made so that the successors and assigns of Parent
and the Surviving Corporation assume the indemnification obligations set forth
in the Merger Agreement.
Under the Merger Agreement, each of the parties thereto will use its
reasonable efforts to take, or cause to be taken, all appropriate action, and
to do, or cause to be done, all things necessary, proper or advisable under
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applicable laws and regulations to consummate and make effective the
transactions contemplated by the Merger Agreement, including, without
limitation, using its reasonable efforts to obtain all licenses, permits,
consents, approvals, authorizations, qualifications and orders of governmental
authorities and parties to contracts with the Company and its subsidiaries as
are necessary for the consummation of the transactions and to fulfill the
conditions to the Offer and the Merger.
Under the Merger Agreement, Parent and the Company agree to consult with one
another before issuing any press release or otherwise making any public
statements with respect to the Merger Agreement or the transactions
contemplated thereby. Parent and the Company further agree not to issue any
such press release or make any such public statement prior to such
consultation, except as may be required by law or any listing agreement with a
national securities exchange to which Parent or the Company is a party.
Conditions to the Merger. Under the Merger Agreement, the respective
obligations of each party to effect the Merger are subject to the satisfaction
at or prior to the Effective Time of the following conditions: (a) to the
extent required by the DGCL and the Company's Certificate of Incorporation,
the Merger Agreement and the Merger will have been approved and adopted by the
affirmative vote or consent of the stockholders of the Company, (b) no
foreign, United States or state governmental authority or other agency or
commission or foreign, United States or state court of competent jurisdiction
will have enacted, issued, promulgated, enforced or entered any law, rule,
regulation, executive order, decree, injunction or other order (whether
temporary, preliminary or permanent) which is then in effect and has the
effect of making the acquisition of Shares by Parent or the Purchaser or any
affiliate of either of them illegal or otherwise restricting, preventing or
prohibiting consummation of the transactions contemplated by the Merger
Agreement, provided, however, that each of the parties will have used its
reasonable efforts to prevent the entry of any such injunction or other order
and to appeal as promptly as practicable any injunction or other order that
may be entered, (c) the waiting period applicable to the consummation of the
Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, will have expired or been terminated, and all other required
governmental filings and consents will have been made or obtained, other than
the filing of the Certificate of Merger, (d) the Purchaser will have purchased
all Shares validly tendered and not withdrawn pursuant to the Offer, (e) the
representations and warranties of the Company, Parent and the Purchaser set
forth in the Merger Agreement will be true and correct in all material
respects as of the date of the Merger Agreement and (except to the extent such
representations and warranties speak as of an earlier date) as of the Closing
Date of the Merger ("Closing Date") as though made on and as of the Closing
Date, and (f) the Company, Parent and the Purchaser shall have performed in
all material respects all obligations required to be performed by each of them
under the Merger Agreement at or prior to the Closing Date of the Merger.
Termination; Certain Payments; Fees and Expenses. The Merger Agreement may
be terminated and the Merger may be abandoned at any time prior to the
Effective Time, notwithstanding any requisite approval of the Merger Agreement
and the transactions contemplated thereby by the stockholders of the Company
only: (a) by mutual written consent duly authorized by the Boards of Directors
of the Company, Parent and the Purchaser; (b) by either Parent or the Company
if any court of competent jurisdiction or other governmental authority will
have issued an order, decree, ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the acceptance for payment of,
or payment for, Shares (and associated Rights) pursuant to the Offer or the
Merger and such order, decree, ruling or other action will have become final
and nonappealable; (c) by either Parent or the Company if (i) the Offer will
have terminated or expired in accordance with its terms without the Purchaser
having accepted for payment any Shares (and associated Rights) pursuant to the
Offer; or (ii) the Purchaser will not have accepted for payment any Shares
(and associated Rights) pursuant to the Offer within 120 days following the
commencement of the Offer; provided, however, that the right to terminate the
Merger Agreement pursuant to this subsection (c) will not be available to any
party (or to any of its affiliates) that has failed to perform or breached in
any material respect any of its obligations under the Merger Agreement which
results in the failure of any condition set forth in Annex I of the Merger
Agreement of a representation or warranty under the Merger Agreement by such
party; (d) by Parent if (i) prior to the purchase of Shares (and associated
Rights) pursuant to the Offer, (A) the Board of Directors of the Company or
any committee thereof
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will have withdrawn or modified its approval or recommendation of the Offer,
the Merger Agreement, the Merger or any other transaction contemplated by the
Merger Agreement; (B) the Board of Directors of the Company or any committee
thereof will have recommended to the stockholders of the Company, taken no
position with respect to, or failed to recommend against, acceptance of a
Third Party Acquisition; (C) the Company will have entered into any definitive
agreement with respect to a Third Party Acquisition; (D) the Board of
Directors of the Company fails to reconfirm its recommendation of the Offer,
the Merger Agreement, the Merger and the transactions contemplated by the
Merger Agreement within five days of any written request by the Parent that
the Company's Board of Directors reconfirm its recommendation; or (E) the
Board of Directors of the Company or any committee thereof will have resolved
to do any of the foregoing; or (ii) the Company will have breached in any
material respect any of its representations, warranties, covenants or other
agreements contained in the Merger Agreement which breach cannot be or has not
been cured within 20 days after the giving of written notice to the Company,
among other things; or (e) by the Company if (i) the Board of Directors of the
Company will have withdrawn or modified in a manner adverse to the Purchaser
or Parent its approval or recommendation of the Offer, the Merger Agreement or
the Merger in order to approve the execution by the Company of a definitive
agreement providing for the transactions contemplated by a Superior Proposal,
provided that the Company will have complied with certain provisions of the
Merger Agreement, including the notice provisions therein, or (ii) Parent or
the Purchaser will have breached in any material respect any of their
respective representations, warranties, covenants or other agreements
contained in the Merger Agreement which breach cannot be or has not been cured
within 20 days after the giving of written notice to Parent or the Purchaser,
as applicable, except, in any case, for such breaches which are not reasonably
likely to affect adversely Parent's or the Purchaser's ability to complete the
Offer or the Merger.
In the event that: (i) the Merger Agreement is terminated pursuant to (d)(i)
in the paragraph above or (e)(i) in the paragraph above, then the Company
shall pay Parent fifty percent of the Termination Fee (as defined below)
within five days after the first of such events shall have occurred. The
Company shall pay the remaining fifty percent of the Termination Fee within
the earlier of (i) nine months following such event, or (ii) five days after
the consummation of a Third Party Acquisition or similar alternative
transaction with any person other than Parent or any of its affiliates. The
"Termination Fee" shall be a dollar amount equal to (A) three percent of the
amount obtained by multiplying the total number of Fully Diluted Shares
outstanding plus the total number of Excluded Shares (as defined in the Merger
Agreement) by $7.00, plus (B) an amount equal to the actual and reasonably
documented out-of-pocket fees and expenses (not to exceed $200,000) incurred
by Parent and the Purchaser in connection with the Offer, the Merger, the
Merger Agreement and the transactions contemplated hereby, which amounts shall
be payable in immediately available funds. In the event the Merger Agreement
is terminated pursuant to (c) in the paragraph above or (d)(ii) in the
paragraph above, and the Company shall have announced (and subsequently
consummates) or shall have consummated a Third Party Acquisition with any
person other than Parent or any of its affiliates before or within nine months
after the date of such termination, then the Company shall pay Parent the
entire Termination Fee within five days after the consummation of the Third
Party Acquisition. In the event that the Company shall fail to pay any amounts
owing upon termination pursuant the Merger Agreement, interest shall be paid
on such unpaid amounts, commencing on the date such amounts became due, at a
rate of six percent per annum.
Purchaser Stock Option. In connection with the execution and delivery of the
Merger Agreement, the Company granted to Parent an irrevocable option (the
"Parent Option") to purchase, for $7.00 per share in cash, newly issued shares
of Common Stock representing 19.9% of the Company's total outstanding Common
Stock (and associated Rights), which percentage shall be calculated after
taking into account the exercise in full of the Parent Option. Parent may
exercise the Parent Option, in whole or in part, at any time or from time to
time from the day (the "Exercise Commencement Date") of: (i) the occurrence of
certain termination events under the Merger Agreement; or (ii) the purchase of
fifteen percent or more of the Shares pursuant to a tender offer is
consummated by a person or entity other than Parent, the Purchaser or any
affiliate thereof, whichever is earlier, until the day (the "Option
Termination Date") which is the earlier of (i) the Effective Time, or (ii) one
year after the termination of the Merger Agreement.
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Except as set forth above and in "THE OFFER -- Fees and Expenses," all costs
and expenses incurred in connection with the Merger Agreement and the
transactions contemplated thereby will be paid by the party incurring such
fees and expenses, whether or not the transactions contemplated by the Merger
Agreement are consummated.
Limitation on Total Profits. The Total Profit (as defined below) that Parent
shall be permitted to realize in respect of the Termination Fee and the Parent
Option shall not exceed four percent of the aggregate purchase price that
would have been payable for one hundred percent of the Company's Fully Diluted
Shares and one hundred percent of the Excluded Shares (as defined in the
Merger Agreement) at $7.00 per share. In the event Parent's Total Profit would
exceed such amount, Parent shall, at its sole election, (a) reduce the number
of Shares subject to the Parent Option, (b) deliver Shares received upon an
exercise of the Parent Option to the Company for cancellation, (c) pay an
amount of cash to the Company, or (d) do any combination of the foregoing so
that Parent's actual realized Total Profit shall not exceed four percent of
the aggregate purchase price that would have been payable for one hundred
percent of the Company's Fully Diluted Shares and one hundred percent of the
Excluded Shares at $7.00 per share. "Total Profit" means the aggregate (before
taxes) of (i) any amount received pursuant to the Company's repurchase of the
Parent Option (or any portion thereof), (ii) any amount received pursuant to
the Company's repurchase of the Shares (less the purchase price for such
Shares) subject to the Parent Option, (iii) any net cash received pursuant to
the sale of Shares received by Parent in any exercise of the Parent Option to
any third party (less the purchase price of such Shares), (iv) any amounts
received on transfer of the Parent Option or any portion thereof to a third
party, (v) any equivalent amounts received with respect to the Parent Option
adjusted pursuant to Section 5.5(e) of the Merger Agreement, and (vi) the
Termination Fee.
7. INTERESTS OF CERTAIN PERSONS IN THE OFFER AND THE MERGER
In considering the recommendations of the Company Board with respect to the
Offer and the Merger and the fairness of the consideration to be received in
the Offer and the Merger, stockholders should be aware that certain officers
and directors of the Company have interests in the Offer and the Merger which
are described below and which may be in addition to their interests as
stockholders of the Company. Stockholders also should be aware that Parent and
the Purchaser have certain interests that present actual or potential
conflicts of interest in connection with the Offer and the Merger. The Company
Board was aware of these actual and potential conflicts of interest and
considered them along with the other matters described under "SPECIAL
FACTORS -- Recommendations of the Company Board; Fairness of the Offer and
the Merger."
Indemnification and Insurance. Under the DGCL, corporations incorporated
under the laws of the State of Delaware are permitted to indemnify their
current and former directors, officers, employees and agents under certain
circumstances against certain liabilities and expenses incurred by them by
reason of their serving in such capacities. The Company's Certificate of
Incorporation provides that each director and officer will be indemnified by
the Company to the fullest extent permitted under the DGCL against liabilities
and expenses incurred in connection with any threatened, pending or completed
legal action or proceeding to which he or she may be made a party or
threatened to be made a party by reason of being a director of the Company or
a predecessor company, or serving any other enterprise as a director or
officer at the request of the Company. The directors and officers of the
Company have entered into indemnification agreements with the Company for the
purpose of confirming such rights. The Company has also purchased directors'
and officers' liability insurance for the benefit of these persons. See
"SPECIAL FACTORS--The Merger Agreement."
Interests of Company Executives and Board Members. Certain members of the
Company's management and Board of Directors may have or be deemed to have
certain interests in the Merger that are in addition to their interests as
stockholders of the Company generally. The Company has informed Parent that
the Company's Board of Directors was aware of and discussed these interests in
connection with its consideration and approval of the Merger Agreement. In
considering the recommendation of the Company Board with respect to the Offer
and the Merger, stockholders of the Company should be aware of these interests
which may present actual or potential conflicts of interest.
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Stock Option Matters. Pursuant to the Merger Agreement, all options to
purchase Common Stock outstanding under the Company Stock Option Plans shall
terminate at the Effective Time and each holder of such options shall receive
in exchange for such termination a cash payment equal to the excess, if any,
of the Merger Price times the number of shares of Common Stock subject to such
option which are vested and exercisable (including shares which become vested
and exercisable as a result of the Merger) over the aggregate exercise price
of such option. The fair market value of the Common Stock on the Effective
Date shall be deemed to equal the Merger Price.
Pursuant to pre-existing arrangements with the Company, options to purchase
shares of Common Stock issued under the Company Stock Option Plans held by
certain executive officers will become fully vested and exercisable if such
persons are terminated without cause or resign for good reason within twelve
months following a change in control of the Company (such as the Merger).
Because Mr. Rosenfeld's employment is being terminated in connection with the
Merger, unvested options held by him will accelerate as a result of the Merger
and he will receive a cash payment (as described above under "Stock Option
Matters") in exchange for the termination of all such options he holds. The
amount of the cash payment Mr. Rosenfeld will receive in exchange for the
termination of the unvested portion of his stock options is approximately
$223,000. Parent has agreed to treat all unvested options held by the
executive officers other than Mr. Rosenfeld as fully vested and exercisable as
of the Effective Time and therefore all such options will be terminated in
exchange for a cash payment (calculated in the manner described above). The
amounts to be received at or immediately following the Effective Time by
Messrs. Lemont, Braverman, Phillips, Buck, Mishkin, and Lanell and by Ms.
Henrich and Ms. Mehegan, with respect to their unvested stock options (net of
exercise price) are approximately $208,806, $90,941, $86,147, $95,388,
$94,688, $93,463, $58,594 and $10,547, respectively. In addition, Parent has
agreed that each Company employee other than the executive officers who
becomes an employee of Parent following the Merger shall receive a cash
payment equal to the value of his or her unvested stock options at the
Effective Time (which options shall have terminated at the Effective Time) if
such persons remain in the employ of Parent for six months following the
Merger.
Biographical information for the above executive officers of the Company may
be found in Schedule II attached to this Offer to Purchase.
Certain non-employee directors of the Company have received options to
purchase Common Stock under the Directors Plan. All stock options granted
pursuant to the Directors Plan are fully vested and all directors holding
options under such plan have agreed that such options will terminate, to the
extent not previously exercised, as of the Effective Time.
Severance Arrangements. In June 1993, Mr. Rosenfeld entered into a
Noncompetition and Termination Agreement with the Company that provides that
if the Company terminates his employment without cause, the Company shall make
a termination payment (the "Termination Payment") equal to the sum of his
then-current annual base salary plus 80% of his then-current maximum variable
compensation amount, which Termination Payment would be paid out in equal
monthly payments over a twelve-month period. This agreement also provides
that, if terminated as described above, Mr. Rosenfeld's options would continue
vesting during the twelve-month severance period and shall become fully vested
on the first anniversary of his termination date. Mr. Rosenfeld's employment
with the Company will terminate in connection with the Merger. Parent and Mr.
Rosenfeld have agreed that Mr. Rosenfeld will be entitled to receive a one-
time Termination Payment of $392,000 immediately following the Merger.
Pursuant to pre-existing arrangements between the Company and each of
Messrs. Lemont, Braverman, Buck, Lanell, Mishkin and Phillips and Ms. Henrich
and Ms. Mehegan, each such executive officer is entitled to severance pay
equal to six months' of his or her base salary in the event he or she is
terminated other than for cause within twelve months following a change in
control of the Company, such as the Merger.
Mr. Rosenfeld's Noncompetition and Termination Agreement, as well as the
severance arrangements described above for the other executive officers
described in the preceding paragraph, will terminate upon the Closing.
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Oracle Consulting Arrangements. In connection with the Merger, Parent
entered into a Consulting Agreement with Mr. Rosenfeld whereby Mr. Rosenfeld
will become a consultant to Parent to assist with the transition of the
Company into a subsidiary of Parent and related strategic business issues for
three months following the Merger in exchange for a monthly consulting fee of
$37,000.
Oracle Employment Arrangements. In connection with the Merger, the following
executive officers of the Company entered into offer letters with Parent
whereby Parent agreed to employ such persons following the Merger in the
capacities and on the terms described below. Mr. Lemont will become a Vice
President and General Manager of Parent with an annual starting salary of
$250,000; he will be eligible to receive bonus payments during his first year
of employment totaling a maximum of $112,500 and will receive options to
purchase 30,000 shares of Parent Common Stock. Mr. Phillips will become a Vice
President and Chief Architect of Configuration Technology of Parent with an
annual starting salary of $160,000; he will be eligible to receive bonus
payments during his first year of employment totaling a maximum of $24,000 and
will receive options to purchase 25,000 shares of Parent Common Stock. Mr.
Buck will become a Vice President of Development of Parent with an annual
starting salary of $160,000; he will be eligible to receive bonus payments
during his first year of employment totaling a maximum of $24,000 and will
receive options to purchase 25,000 shares of Parent Common Stock. Mr. Mishkin
will become a Vice President of Configuration Integration of Parent with an
annual starting salary of $145,000; he will be eligible to receive bonus
payments during his first year of employment totaling a maximum of $21,750 and
will receive options to purchase 15,000 shares of Parent Common Stock. Ms.
Henrich will become a Senior Practice Director of Parent with an annual
starting salary of $130,000; she will be eligible to receive bonus payments
during her first year of employment totaling a maximum of $13,000 and will
receive options to purchase 10,000 shares of Parent Common Stock. Mr. Lanell
will become a Vice President of Product Configuration Sales of Parent with an
annual starting salary of $160,000; he will be eligible to receive bonus
payments during his first year of employment totaling a maximum of $24,000 and
will receive options to purchase 20,000 shares of Parent Common Stock. Each of
the above officers will also be eligible to receive discretionary incentive
compensation based on individual productivity and Parent's performance. In
addition, each officer, except Mr. Lemont, is entitled under the terms of his
or her offer letter to receive severance pay equal to six months' of his or
her base salary in the event he or she is terminated other than for cause or
if such person resigns as a result of a material adverse change in his or her
position or responsibility or because he or she is required to relocate in
each case within two years following the Merger. In Mr. Lemont's case, he is
entitled under the terms of his offer letter to receive severance pay equal to
$150,000 in the event his employment with Parent is terminated other than for
cause or resigns as a result of a material adverse change in his position,
responsibility or compensation or his being required to relocate at any time
following the Merger. The above severance arrangements are in exchange for the
individual's agreement to terminate all rights he or she has under existing
arrangements with the Company relating to his or her termination of
employment.
The parties expect Parent and each of Ms. Mehegan and Mr. Braverman to enter
into transition employment arrangements whereby such individuals will be
employed by Parent for three months following the Effective Time to assist
with the transition of the Company into a subsidiary of Parent.
Noncompetition Agreements. Each of the following individuals entered into a
Noncompetition Agreement with Parent whereby such person agreed for the
indicated time period following the Merger and in exchange for the cash
payment indicated not to become employed by or otherwise provide services to
an entity engaged in the development or marketing of configuration software
products: Mr. Rosenfeld: $150,000, one year; Mr. Lemont: $100,000, two years;
Mr. Braverman: $60,000, one year; Mr. Phillips: $50,000, two years; Mr. Buck:
$50,000, two years; Mr. Mishkin: $50,000, two years; Ms. Henrich: $50,000, two
years; and Mr. Lanell: $50,000, two years. In addition, each of the above
individuals agreed not to solicit employees or consultants of Parent or the
Company for two years following the Merger. The parties expect Parent and Ms.
Mehegan to enter into a customary Noncompetition Agreement for a period of one
year in exchange for a one-time cash payment of $15,000.
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THE OFFER
1.TERMS OF THE OFFER
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser will accept for payment and pay for all Shares
validly tendered on or prior to the Expiration Date and not theretofore
withdrawn in accordance with the provisions set forth under "THE OFFER --
Withdrawal Rights." The term "Expiration Date" means 12:00 midnight, New York
City time, on December 15, 1998, unless and until the Purchaser in its sole
discretion, but subject to the terms and conditions of the Merger Agreement,
will have extended the period of time during which the Offer is open, in which
event the term "Expiration Date" will mean the latest time and date at which
the Offer, as so extended by Purchaser, will expire.
The Offer is conditioned upon, among other things, satisfaction (or waiver
with approval of the Company Board) of the Minimum Share Condition and the
other conditions to the Offer set forth under "THE OFFER -- Certain
Conditions of the Offer."
Subject to the applicable rules and regulations of the SEC, the Purchaser
expressly reserves the right, in its sole discretion (but subject to the terms
and conditions of the Merger Agreement), at any time and from time to time,
upon the failure to be satisfied of any of the conditions to the Offer set
forth under "THE OFFER -- Certain Conditions of the Offer," to (i) terminate
or amend the Offer, (ii) extend the Offer and postpone acceptance for payment
of any Shares, or (iii) waive any condition (except, without the consent of
the Company Board, for the Minimum Share Condition), by giving oral or written
notice of such termination, amendment, extension or waiver to the Depositary
and by making a public announcement thereof. During any such extension, all
Shares previously tendered and not properly withdrawn will remain subject to
any such extension, and all Shares previously tendered and not properly
withdrawn will remain subject to the Offer, subject to the right of a
tendering stockholder to withdraw such stockholder's Shares. See "THE OFFER --
Withdrawal Rights." The Purchaser may (x) from time to time extend (and re-
extend) the Offer, if at the scheduled expiration date of the Offer, any of
the Offer Conditions (other than the Minimum Share Condition) shall not have
been satisfied or waived, until such time as such conditions shall be
satisfied or waived; (y) extend the Offer for any period required by any rule,
regulation, interpretation or position of the SEC or the staff thereof
applicable to the Offer; or (z) extend (and re-extend) the Offer for any
reason on one or more occasions for an aggregate period of not more than
twenty business days beyond the latest expiration date that would otherwise be
permitted under clause (x) or (y) above if on such expiration date there shall
not have been tendered at least that number of Shares (and associated Rights)
necessary to permit the Merger to be effected without a meeting of the
Company's stockholders in accordance with the DGCL. 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.
Any termination, amendment, extension or waiver will be followed as promptly
as practicable by public announcement. In the case of an extension, Rule 14e-
1(d) under the Exchange Act requires that the announcement be made no later
than 9:00 a.m., Eastern Time, on the next business day after the previously
scheduled Expiration Date in accordance with the public announcement
requirements of Rule 14d-4(c) under the Exchange Act. Subject to applicable
law (including Rules 14d-4(c) and 14d-6(d) under the Exchange Act, which
require that any material change in the information published, sent or given
to stockholders in connection with the Offer be promptly disseminated to
stockholders in a manner reasonably designed to inform stockholders of such
change), and without limiting the manner in which the Purchaser may choose to
make any public announcements, the Purchaser will not have any obligations to
publish, advertise or otherwise communicate any such public announcement other
than by issuing a press release to the Dow Jones News Service. As used herein,
a "business day" means any day other than a Saturday, Sunday or federal
holiday, and consists of the time period from 12:01 a.m. through 12:00
midnight, Eastern Time.
If the Purchaser extends the Offer or if the Purchaser (whether before or
after its acceptance for payment of the Shares) is delayed in its acceptance
for payment of or payment for any Shares validly tendered and not
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withdrawn in the Offer or the Purchaser is unable to accept for payment or pay
for such Shares pursuant to the Offer for any reason, then, without prejudice
to Purchaser's rights under the Offer, the Depositary may retain tendered
Shares on behalf of Purchaser, and such Shares may not be withdrawn except to
the extent tendering stockholders are entitled to withdrawal rights as
described in "THE OFFER -- Withdrawal Rights." The ability of the Purchaser to
delay the payment for the Shares that the Purchaser has accepted for payment,
however, 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.
If the Purchaser or Parent makes a material change in the terms of the Offer
or the information concerning the Offer or waives a material condition of the
Offer, the Purchaser will, or Parent will cause the Purchaser to, 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, or a
change in a dealer's advisory fee, will depend upon the facts and
circumstances then existing, including the relative materiality of the changed
terms or information. In the SEC's view, an offer should remain open for a
minimum of five business days from the date a material change is first
published, sent or given to security holders, and, if material changes are
made with respect to information that approaches the significance of price and
share levels, a minimum of ten business days may be required to allow for
adequate dissemination and investor response. With respect to a change in
price or, subject to certain limitations, a change in the percentage of
securities sought or a change in a dealer's solicitation fee, a minimum period
of ten business days from the date of such change is generally required under
the applicable rules and regulations of the SEC to allow for adequate
dissemination to stockholders and investor response.
The Company has provided the Purchaser with the Company's stockholder lists
and security position listings for the purpose of disseminating the Offer to
holders of Shares. This Offer to Purchase, the related Letter of Transmittal
and other relevant materials will be mailed by the Purchaser to stockholders
of record and will be furnished by the Purchaser to brokers, dealers, banks,
trust companies and similar persons whose names, or the names of whose
nominees, appear on such stockholder lists or, if applicable, who are listed
as participants in a clearing agency's security position listing, for
subsequent transmittal to beneficial owners of Shares.
2.PROCEDURE FOR ACCEPTING THE OFFER AND TENDERING SHARES
Valid Tender. For a stockholder to validly tender Shares pursuant to the
Offer, either (i) a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), together with any required signature guarantees, or an
Agent's Message (as defined below) in connection with a book-entry delivery of
Shares, and any other required documents, must be received by the Depositary
at one of its addresses set forth on the back cover of this Offer to Purchase,
and Share certificates for tendered Shares must be received by the Depositary
at one of such addresses or such Share certificates 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 on
or prior to the Expiration Date or (ii) the tendering stockholder must comply
with the guaranteed delivery procedures set forth below.
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
the Book-Entry Confirmation, which states that the Book-Entry Transfer
Facility has received an express acknowledgment from the participant in the
Book-Entry Transfer Facility tendering the Shares that such participant has
received the Letter of Transmittal and agrees to be bound by the terms of the
Letter of Transmittal and that the Purchaser may enforce such agreement
against such participant.
Book-Entry Delivery. The Depositary will establish an account with respect
to the Shares at The Depository Trust Company ("DTC") and the Philadelphia
Depositary Trust Company ("PDTC") (DTC and PDTC, each, a "Book-Entry Transfer
Facility" and, collectively, the "Book-Entry Transfer Facilities") for
purposes of the
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Offer within two business days after the date of this Offer to Purchase. Any
financial institution that is a participant in a Book-Entry Transfer Facility
may make book-entry delivery of Shares by causing the book-entry transfer
system to transfer such Shares into the Depositary's account at a Book-Entry
Transfer Facility in accordance with the Book-Entry Transfer Facility's
procedures for such transfer. 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, properly completed and duly
executed, with any required signature guarantees, or an Agent's Message in
connection with a book-entry transfer, 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 on or prior to
the Expiration Date, or the tendering stockholder must comply with the
guaranteed delivery procedures described below. The confirmation of a book-
entry transfer of Shares into the Depositary's account at a Book-Entry
Transfer Facility as described above is referred to herein as a "Book-Entry
Confirmation." DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN
ACCORDANCE WITH ITS BOOK-ENTRY PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE
DEPOSITARY.
THE METHOD OF DELIVERY OF SHARES, THE LETTER OF TRANSMITTAL AND ALL OTHER
REQUIRED DOCUMENTS IS AT THE ELECTION AND SOLE RISK OF THE TENDERING
STOCKHOLDER AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED AT
THE DEPOSITARY. IF DELIVERY IS BY MAIL, THEN INSURED OR REGISTERED MAIL WITH
RETURN RECEIPT REQUESTED 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 if (i) the Letter of Transmittal is signed by the registered
holder(s) of the Shares (which term, for purposes of this Section, includes
any participant in a Book-Entry Transfer Facility system whose name appears on
a security position listing as the owner of the Shares) tendered therewith and
such registered holder(s) has not completed either the box entitled "Special
Delivery Instructions" or the box entitled "Special Payment Instructions" on
such Letter of Transmittal or (ii) such Shares are tendered for the account of
a bank, broker, dealer, credit union, savings association or other entity that
is a member in good standing of the Securities Transfer Agents Medallion
Program (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 Share certificates
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 Share certificates not validly
tendered or not accepted for payment or not purchased are to be issued or
returned to a person other than the registered holder of the Share
certificates, the tendered Share certificates must be endorsed in blank or
accompanied by appropriate stock powers, signed exactly as the name or names
of the registered holder(s) appear on the Share certificates with the
signatures on such Share certificates or stock powers guaranteed by an
Eligible Institution. See Instructions 1 and 5 to the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's Share certificates are not immediately
available or the procedures for book-entry transfer cannot be completed on a
timely basis or time will not permit all required documents to reach the
Depositary on or prior to the Expiration Date, such Shares may nevertheless be
tendered provided that all of the following guaranteed delivery procedures are
duly complied with:
(1) such tender is made by or through an Eligible Institution;
(2) the Depositary receives (by hand, mail, telegram or facsimile
transmission) on or prior to the Expiration Date, a properly completed and
duly executed Notice of Guaranteed Delivery, substantially in the form
provided by Purchaser; and
(3) the Share certificates representing all tendered Shares, in proper
form for transfer (or a Book-Entry Confirmation with respect to such
Shares), together with a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature guarantees
(or in the case of Book-Entry Transfer, an Agent's Message) and any other
documents required by the Letter of Transmittal, are received by the
Depositary within three NASDAQ trading days after the date of execution of
such Notice of Guaranteed Delivery. A "NASDAQ trading day" is any day on
which NASDAQ is open for business.
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The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
facsimile transmission or by 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 (i) Share certificates for (or a timely Book-
Entry Confirmation with respect to) such Shares, (ii) a Letter of Transmittal
(or facsimile thereof) for such Shares, properly completed and duly executed,
with any required signature guarantees, or, in the case of Book-Entry
Transfer, an Agent's Message, and (iii) any other documents required by the
Letter of Transmittal. Accordingly, tendering stockholders may be paid at
different times depending upon when Share certificates, Book-Entry
Confirmations and such other documents are actually received by the
Depositary. Under no circumstances will interest be paid by the Purchaser on
the purchase price of the Shares to any tendering stockholders, regardless of
any extension of the Offer or any delay in making such payment.
Purchaser's acceptance for payment of Shares validly tendered pursuant to
any of the procedures described above will constitute a binding agreement
between the tendering stockholder and the Purchaser upon the terms and subject
to the conditions of the Offer.
Determination of Validity; Rejection of Shares; Waiver of Defects; No
Obligation to Give Notice of Defects. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of Shares
will be determined by 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 Purchaser's
counsel, be unlawful. The Purchaser also reserves the absolute right to waive
any of the conditions of the Offer (other than the Minimum Share Condition,
which can only be waived with the consent of the Company Board) or any defect
or irregularity in any tender with respect to any particular Shares, or with
respect to those Shares held by any particular stockholder, whether or not
similar conditions, defects or irregularities are waived in the case of other
Shares. 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
Parent, Purchaser, any of its affiliates or assigns, the Depositary, the
Information Agent, or any other person will be under any duty to give
notification of any defects or irregularities in tenders or incur any
liability for failure to give any such notification. Purchaser's
interpretation of the terms and conditions of the Offer (including the Letter
of Transmittal and the instructions thereto) will be final and binding.
Backup Withholding. In order to avoid backup withholding of Federal income
tax on payments of cash pursuant to the Offer, a stockholder tendering Shares
in the Offer must provide the Depositary with such stockholder's correct
taxpayer identification number ("TIN") on a Substitute Form W-9 and certify
under penalties of perjury that such TIN is correct and that such stockholder
is not subject to backup withholding. Certain stockholders (including, among
others, all corporations and certain foreign individuals and entities) are not
subject to backup withholding. If a stockholder does not provide its correct
TIN or fails to provide the certification described above, under Federal
income tax laws, the Depositary will be required to withhold 31% of the amount
of any payment made to such stockholder pursuant to the Offer. All
stockholders tendering Shares pursuant to the Offer should complete and sign
the Substitute Form W-9 included as part of the Letter of Transmittal to
provide the information and certification necessary to avoid backup
withholding (unless an applicable exemption exists and is provided in a manner
satisfactory to the Purchaser and the Depositary). Noncorporate foreign
stockholders should complete and sign a Form W-8, Certificate of Foreign
Status, a copy of which may be obtained from the Depositary, in order to avoid
backup withholding. See Instruction 11 to the Letter of Transmittal.
3.WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 3, tenders of Shares made
pursuant to the Offer are irrevocable. Shares tendered pursuant to the Offer
may be withdrawn pursuant to the procedures set forth below at any time
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prior to the Expiration Date, and, unless theretofore accepted for payment by
the Purchaser pursuant to the Offer, may also be withdrawn at any time after
January 15, 1999. If the Purchaser extends the Offer, is delayed in its
acceptance for payment of Shares or is unable to purchase Shares validly
tendered pursuant to the Offer for any reason, then without prejudice to
Purchaser's rights under the Offer, the Depositary may nevertheless, on behalf
of the Purchaser, retain tendered Shares and such Shares may not be withdrawn
except to the extent that tendering stockholders are entitled to withdrawal
rights as described in this section. Any such delay will be accompanied by an
extension of the Offer to the extent required by law.
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 if Share certificates have
been tendered and the name of the registered holder of the Shares to be
withdrawn as set forth on such Share certificates if different from the name
of the person who tendered the Shares. If Share certificates have been
delivered or otherwise identified to the Depositary, then, prior to the
physical release of such Share certificates, the serial numbers shown on such
Share 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
under "THE OFFER -- Procedure for Accepting the Offer and Tendering Shares,"
any notice of withdrawal must specify the name and number of the account at
the appropriate financial institution that is a member of the system of a
Book-Entry Transfer Facility to be credited with the withdrawn Shares and
otherwise comply with such Book-Entry Transfer Facility's procedures for such
withdrawal, in which case a notice of withdrawal will be effective if
delivered to the Depositary by any method of delivery described in the first
sentence of this paragraph. 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. Withdrawn Shares may be retendered
by again following one of the procedures described above under "THE OFFER --
Procedure for Accepting the Offer and Tendering Shares" at any time on or
prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
which determination will be final and binding. None of Parent, Purchaser, any
of their affiliates or assigns, 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 FOR SHARES
Upon the terms and subject to the conditions of the Offer (including, if the
Offer is extended or amended, the terms and conditions of any such extension
or amendment), the Purchaser will purchase, by accepting for payment, and will
pay for, all Shares validly tendered on or prior to the Expiration Date and
not properly withdrawn in accordance with the terms set forth under "THE
OFFER -- Withdrawal Rights" promptly after the later to occur of (i) the
Expiration Date or (ii) the satisfaction or waiver (where permissible) of the
terms and conditions set forth under "THE OFFER -- Certain Conditions of the
Offer." Any determination concerning the satisfaction or waiver of such terms
and conditions will be within the sole discretion of Purchaser, which
determination will be final and binding on all holders of Shares. See "THE
OFFER -- Terms of the Offer." Subject to applicable rules of the SEC and the
terms and conditions of the Merger Agreement, the Purchaser expressly reserves
the right, in its sole discretion, to delay acceptance for payment of or
payment for Shares in order to comply in whole or in part with any applicable
law. Any such delays will be effected in compliance with Purchaser's
obligation under Rule 14e-1(c) under the Exchange Act to pay for or return
tendered Shares promptly after the termination or withdrawal of the Offer.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) Share
certificates (or timely Book-Entry Confirmation of the book-entry transfer of
such Shares into the Depositary's account at a Book-Entry Transfer Facility
pursuant to the procedures set
23
<PAGE>
forth under "THE OFFER -- Procedure for Accepting the Offer and Tendering
Shares"), (ii) the Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, together with any required signature guarantees,
or an Agent's Message in connection with a book-entry transfer, and (iii) any
other documents required by the Letter of Transmittal.
For purposes of the Offer, the Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered to the Purchaser and
not properly withdrawn as, if and when the Purchaser gives oral or written
notice to the Depositary of Purchaser's acceptance for payment of such Shares
pursuant to the Offer. In all cases, upon the terms and subject to the
conditions of the Offer, payment for Shares accepted for payment pursuant to
the Offer will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for tendering stockholders for the purpose
of receiving payment from the Purchaser and transmitting payment to such
validly tendering stockholders. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID
BY THE PURCHASER ON THE PURCHASE PRICE OF THE SHARES TENDERED PURSUANT TO THE
OFFER, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH
PAYMENT. Upon the deposit of funds with the Depositary for the purpose of
making payments to tendering stockholders, Purchaser's obligation to make such
payments will be satisfied and tendering stockholders must thereafter look
solely to the Depositary for payment of amounts owed to them by reason of the
acceptance for payment of Shares pursuant to the Offer. The Purchaser will pay
any stock transfer taxes with respect to the transfer and sale to it or its
order pursuant to the Offer, except as otherwise provided in Instruction 6 of
the Letter of Transmittal, as well as any charges and expenses of the
Depositary and the Information Agent.
If the Purchaser is delayed in its acceptance for payment of, or payment for
tendered Shares or is unable to accept for payment or pay for such Shares
pursuant to the Offer for any reason, then, without prejudice to Purchaser's
rights under the Offer (but subject to Purchaser's obligations under Rule 14e-
1(c) under the Exchange Act to pay for or return the tendered Shares promptly
after the termination or withdrawal of the Offer), the Depositary may,
nevertheless, retain tendered Shares on behalf of Purchaser, and such Shares
may not be withdrawn except to the extent tendering stockholders are entitled
to exercise, and duly exercise, withdrawal rights as described under "THE
OFFER -- Withdrawal Rights."
If any tendered Shares are not purchased pursuant to the Offer because of an
invalid tender or for any reason, Share certificates for any such Shares will
be returned, without expense, to the tendering stockholder (or, in the case of
Shares delivered by book-entry transfer of such Shares into the Depositary's
account at a Book-Entry Transfer Facility pursuant to the procedures set forth
under "THE OFFER -- Procedure for Accepting the Offer and Tendering Shares,"
such Shares will be credited to an account maintained at the Book-Entry
Transfer Facility), as promptly as practicable after the expiration,
termination or withdrawal of the Offer.
Purchaser reserves the right to transfer or assign, in whole or from time to
time in part, to one or more of Purchaser's subsidiaries or affiliates, the
right to purchase all or any portion of the Shares tendered pursuant to the
Offer, but any such transfer or assignment will not relieve the Purchaser of
its obligations under the Offer or prejudice the rights of tendering
stockholders to receive payment for Shares validly tendered and accepted for
purchase.
5.CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The summary of Federal income tax consequences set forth below is for
general information only and is based on Purchaser's understanding of the law
as currently in effect. The tax consequences to each stockholder will depend
in part upon such stockholder's particular situation. Special tax consequences
not described herein may be applicable to particular classes of taxpayers,
such as financial institutions, broker-dealers, persons who are not citizens
or residents of the United States and stockholders who acquired their Shares
through the exercise of an employee stock option or otherwise as compensation.
ALL STOCKHOLDERS SHOULD CONSULT WITH THEIR OWN TAX ADVISORS AS TO THE
PARTICULAR TAX CONSEQUENCES OF THE OFFER AND THE MERGER TO THEM, INCLUDING THE
APPLICABILITY AND EFFECT OF THE
24
<PAGE>
ALTERNATIVE MINIMUM TAX AND ANY STATE, LOCAL OR FOREIGN INCOME AND OTHER TAX
LAWS AND OF CHANGES IN SUCH TAX LAWS.
The receipt of cash for Shares pursuant to the Offer or the Merger will be a
taxable transaction for Federal income tax purposes under the Code, and may
also be a taxable transaction under applicable state, local or foreign income
and other tax laws. Generally, for Federal income tax purposes, a tendering
stockholder will recognize gain or loss in an amount equal to the difference
between the cash received by the stockholder pursuant to the Offer or the
Merger and the stockholder's adjusted tax basis in the Shares tendered by the
stockholder and purchased pursuant to the Offer or the Merger. For Federal
income tax purposes, such gain or loss will be a capital gain or loss if the
Shares are a capital asset in the hands of the stockholder, and a long-term
capital gain or loss if the stockholder's holding period is more than one
year.
A stockholder (other than certain exempt stockholders including, among
others, all corporations and certain foreign individuals and entities) that
tenders Shares may be subject to 31% backup withholding unless the stockholder
provides its Social Security number or employer identification number ("TIN")
and certifies that such number is correct or properly certifies that it is
awaiting a TIN, or unless an exemption applies. A stockholder who does not
furnish its TIN may be subject to a penalty imposed by the Internal Revenue
Service. See "THE OFFER -- Procedure for Accepting the Offer and Tendering
Shares."
If backup withholding applies to a stockholder, the Depositary is required
to withhold 31% from payments to such stockholder. Backup withholding is not
an additional tax. Rather, the amount of the backup withholding can be
credited against the Federal income tax liability of the person subject to the
backup withholding, provided that the required information is given to the
IRS. If backup withholding results in an overpayment of tax, a refund can be
obtained by the stockholder upon filing an appropriate income tax return.
The receipt of cash by stockholders pursuant to the Merger should result in
similar Federal income tax consequences to such stockholders similar to those
described above.
6.PRICE RANGE OF THE SHARES
The Common Stock is traded over the counter on NASDAQ under the symbol CTRA.
The following table sets forth for the periods indicated the high and low sale
prices of the Common Stock as reported by NASDAQ.
<TABLE>
<CAPTION>
FISCAL 1997 LOW HIGH
- ----------- ------ ------
<S> <C> <C>
Quarter ended June 30, 1996....................................... $ 4.5 $ 7.0
Quarter ended September 30, 1996.................................. $4.563 $7.375
Quarter ended December 31, 1996................................... $ 6.25 $11.75
Quarter ended March 31, 1997...................................... $ 4.25 $15.25
<CAPTION>
FISCAL 1998 LOW HIGH
- ----------- ------ ------
<S> <C> <C>
Quarter ended June 30, 1997....................................... $ 4.5 $ 9.0
Quarter ended September 30, 1997.................................. $ 5.5 $ 7.5
Quarter ended December 31, 1997................................... $ 4.0 $ 7.25
Quarter ended March 31, 1998...................................... $3.125 $6.125
<CAPTION>
FISCAL 1999 LOW HIGH
- ----------- ------ ------
<S> <C> <C>
Quarter ended June 30, 1998....................................... $3.625 $6.125
Quarter ended September 30, 1998.................................. $2.094 $4.563
Quarter ended December 31, 1998 (through November 16, 1998)....... $ 2.5 $6.875
</TABLE>
On November 10, 1998, the last full day of trading prior to the public
announcement of the execution of the Merger Agreement, according to published
sources the reported closing sales price per Share on NASDAQ was $3.563.
STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS FOR THE SHARES.
25
<PAGE>
7.CERTAIN INFORMATION CONCERNING THE COMPANY
General. The following description of the Company's business has been taken
from the Company's Report on Form 10-K for the fiscal year ended March 31,
1998 (the "10-K"):
Concentra Corporation was incorporated under the laws of Delaware in 1984 as
ICAD, Inc. and changed its name to Concentra Corporation in 1995 with its
principal place of business at 21 North Avenue, Burlington, Massachusetts
01803-3301. Concentra develops, markets and supports software products that
automate the processes that underlie selling customizable products, services
and systems. A significant portion of the time it takes to market and sell new
products goes into gathering accurate and timely product and market packaging
information from other parts of the enterprise, and reformatting it in order
to facilitate buy decisions and win business. The Company has developed an
innovative approach to improving sales force effectiveness based on capturing
and applying product and process knowledge necessary for selling customizable
products. This new approach enables companies to capture what and how they
sell in order to generate new configurations, quotes and complete sales
proposals directly from unique and specific customer requirements. As a
result, sales and customer service productivity is improved and the time it
takes to respond to market opportunities is substantially decreased.
Available Information. The Company is subject to the information and
reporting requirements of the Exchange Act and, in accordance therewith, is
required to file periodic reports, proxy statements and other information with
the SEC relating to its business, financial condition and other matters.
Certain information as of particular dates concerning the Company's directors
and officers (including their remuneration and stock options granted to them),
Shares held by them, the principal holders of the Company's securities and any
material interest of such persons in transactions with the Company and certain
other matters is required to be disclosed in proxy statements and annual
reports distributed to the Company's stockholders and filed with the SEC. Such
reports, proxy statements and other information are available for inspection
and copying at the public reference facilities of the SEC located at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the regional offices of the SEC located in the Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661 and in Seven World Trade
Center, Suite 1300, New York, New York 10048. Copies also may be obtained, by
mail, upon payment of the SEC's customary charges by writing to the SEC's
principal office at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The SEC also maintains an Internet site on the World
Wide Web at <http://www.sec.gov> that contains reports, proxy statements and
other information. The information also should be available at The Nasdaq
Stock Market, Inc., 1735 K Street, N.W., Washington, D.C. 20006.
Directors and Officers. The name, address, principal occupation or
employment, five-year employment history, and citizenship of each director and
executive officer of the Company is set forth in Schedule II hereto.
Selected Financial Data. The selected financial information of the Company
and its subsidiaries set forth below was excerpted and derived from the
Company's 10-K, which included audited financial statements for the fiscal
year ended March 31, 1998, and the unaudited financial statements contained in
the Company's quarterly report for its fiscal quarter ended September 30,
1998, as filed by the Company with the SEC. More comprehensive financial
information is included in the 10-K (including management's discussion and
analysis of results of operations and financial position) and other documents
filed with the SEC. The following summary financial information is qualified
in its entirety by reference to such documents and all other reports and
documents filed with the SEC and all of the financial statements and related
notes contained therein. Such reports and certain other reports may be
examined and copies may be obtained at the offices of the SEC in the manner
set forth in above. Although Purchaser has no knowledge that any information
contained in the following summary of financial information is untrue,
Purchaser takes no responsibility for the accuracy or completeness of
information contained in this Offer to Purchase with respect to the Company or
the failure by the Company to disclose events which may have occurred or may
affect the significance or accuracy of any such information.
26
<PAGE>
CONCENTRA CORPORATION
SELECTED CONSOLIDATED FINANCIAL STATEMENTS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED MARCH 31,
--------------- --------------------------
1998 1997 1998 1997 1996
------- ------- -------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF OPERATIONS DATA:
Revenues........................... $15,819 $ 8,711 $ 13,770 $24,571 $20,720
Total operating expenses........... $12,782 $13,536 $ 28,777 $29,020 $21,293
Net (loss) income.................. $ 3,827 $(5,344) $(16,903) $(3,940) $ 36
Net (loss) income per common
share(1).......................... $ 0.63 $ (0.97) $ (2.94) $ (0.73) $ 0.01
</TABLE>
<TABLE>
<CAPTION>
SEPTEMBER 30, MARCH 31,
1998 1998
------------- ---------
(UNAUDITED)
<S> <C> <C>
CONSOLIDATED BALANCE SHEET DATA:
Working capital...................................... $ 1,206 $(3,781)
Total assets......................................... $11,336 $11,212
Total Stockholders' Equity........................... $ 4,389 $ 425
</TABLE>
- --------
(1) Applicable to holders of common stock.
Certain Projections. In the ordinary course of the Company's business
planning and budgeting process, the Company's management develops and presents
to the Company Board projections of the future performance of the Company.
THE PROJECTIONS SET FORTH BELOW WERE DEVELOPED FOR PLANNING PURPOSES ONLY
AND ARE NOT TO BE REGARDED AS FACTS AND SHOULD NOT BE RELIED UPON AS ACCURATE
REPRESENTATIONS OF FUTURE RESULTS. SUCH PROJECTIONS ARE BASED ON NUMEROUS
ESTIMATES AND ASSUMPTIONS WHICH THEMSELVES ARE BASED UPON EVENTS AND
CIRCUMSTANCES THAT HAVE NOT TAKEN PLACE AND ARE INHERENTLY SUBJECT TO
SIGNIFICANT FINANCIAL, MARKET, ECONOMIC AND COMPETITIVE UNCERTAINTIES AND
CONTINGENCIES WHICH ARE DIFFICULT OR IMPOSSIBLE TO PREDICT ACCURATELY AND ARE
BEYOND PARENT'S AND THE COMPANY'S CONTROL. SUCH PROJECTIONS ARE INHERENTLY
IMPRECISE AND THERE CAN BE NO ASSURANCE THAT THE PROJECTED RESULTS CAN BE
REALIZED. THEREFORE, IT IS EXPECTED THAT THERE WILL BE DIFFERENCES BETWEEN THE
ACTUAL AND PROJECTED RESULTS AND THAT THE ACTUAL RESULTS MAY BE MATERIALLY
HIGHER OR LOWER THAN THOSE PROJECTED. THE PROJECTIONS WERE NOT PREPARED IN
CONTEMPLATION OF THE OFFER OR THE MERGER AND, THEREFORE, DO NOT REFLECT ANY
BENEFITS OR COSTS THAT COULD RESULT AS A CONSEQUENCE OF CONSUMMATION OF THE
OFFER OR THE MERGER. NONE OF THE COMPANY, PURCHASER, PARENT NOR ANY OTHER
PARTY ASSUMES ANY RESPONSIBILITY FOR THE ACCURACY OF SUCH INFORMATION. THE
INCLUSION OF THE PROJECTIONS SET FORTH BELOW SHOULD NOT BE REGARDED AS A
REPRESENTATION BY PARENT OR ANY OF ITS AFFILIATES OR REPRESENTATIVES OR BY THE
COMPANY OR ANY OF ITS AFFILIATES OR REPRESENTATIVES THAT THE PROJECTED RESULTS
WILL BE ACHIEVED. THE PROJECTIONS SET FORTH BELOW WERE NOT PREPARED WITH A
VIEW TOWARDS PUBLIC DISCLOSURE OR COMPLYING WITH THE PUBLISHED GUIDELINES OF
THE SEC OR GUIDELINES ESTABLISHED BY THE AMERICAN INSTITUTE OF CERTIFIED
PUBLIC ACCOUNTANTS, AND ARE INCLUDED IN THIS OFFER TO PURCHASE ONLY BECAUSE
THEY WERE PROVIDED TO PARENT. THE PROJECTIONS HAVE NOT BEEN EXAMINED, REVIEWED
OR COMPILED BY THE COMPANY'S INDEPENDENT AUDITORS, AND, ACCORDINGLY, THEY HAVE
NOT EXPRESSED AN OPINION OR ANY OTHER ASSURANCE ON THEM.
27
<PAGE>
CONCENTRA MANAGEMENT PROJECTIONS--CONSOLIDATED
($ IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Q3 FY 1999 Q4 FY 1999 FY 2000
---------- ---------- -------
<S> <C> <C> <C>
Revenue.......................................... $6,040 $6,540 $33,242
Cost of sales.................................... $1,544 $1,496 $ 7,418
Total operating expenses......................... $2,623 $2,783 $13,848
Net income....................................... $1,566 $2,311 $10,848
Fully diluted earnings per share. ............... $ 0.24 $ 0.36 $ 1.63
</TABLE>
8.CERTAIN INFORMATION CONCERNING THE PURCHASER AND PARENT
Purchaser. The Purchaser is a Delaware corporation and has not carried on
any activities other than in connection with the Offer and the Merger. The
principal offices of the Purchaser are located at 500 Oracle Parkway, Redwood
Shores, California 94065. The Purchaser is a wholly-owned subsidiary of
Parent.
Parent. Parent is a Delaware corporation. Its principal offices are located
at 500 Oracle Parkway, Redwood Shores, California 94065. Parent and its
subsidiaries design, develop, market and support computer software products
with a variety of uses, including database management, application
development, business intelligence and business applications. For the fiscal
year ended May 31, 1998, Parent had revenues of $7.1 billion and net income of
$814 million. At May 31, 1998, Parent had total assets of $5.8 billion.
The name, citizenship, business address, principal occupation or employment
and five-year employment history and certain other information for each of the
directors and executive officers of the Purchaser and Parent are set forth in
Schedule I hereto.
As of November 10, 1998, Parent beneficially owned 2,374,318 Shares pursuant
to the Support Agreements, and was granted the right to acquire shares of the
Common Stock pursuant to the Parent Option. See "SPECIAL FACTORS--
Introduction." Except as described in this Offer to Purchase, (i) none of
Purchaser, Parent nor, to the best knowledge of the Purchaser and Parent, any
of the persons listed in Schedule I to this Offer to Purchase or any associate
or majority-owned subsidiary of Purchaser, Parent or any of the persons so
listed, beneficially owns or has any right to acquire, directly or indirectly,
any Shares and (ii) none of Purchaser, Parent nor, to the best knowledge of
the Purchaser and Parent, any of the persons or entities referred to above nor
any director, executive officer or subsidiary of any of the foregoing has
effected any transaction in the Shares during the past 60 days.
Except as provided in the Merger Agreement or as otherwise described in this
Offer to Purchase, none of Purchaser, Parent nor, to the best knowledge of the
Purchaser and Parent, any of the persons listed in Schedule I to this Offer to
Purchase, has any contract, arrangement, understanding or relationship with
any other person with respect to any securities of the Company, including, but
not limited to, any contract, arrangement, understanding or relationship
concerning the transfer or voting of such securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of loans,
guarantees against loss, guarantees of profits, division of profits or loss or
the giving or withholding of proxies. Except as set forth in this Offer to
Purchase, neither the Purchaser nor Parent nor, to the best knowledge of the
Purchaser and Parent, any of the persons listed on Schedule I hereto, has had
any business relationship or transaction with the Company or any of its
executive officers, directors or affiliates that is required to be reported
under the rules and regulations of the SEC applicable to the Offer. Except as
set forth in this Offer to Purchase, there have been no contacts, negotiations
or transactions between any of Purchaser, Parent, or any of their subsidiaries
or, to the best knowledge of the Purchaser and Parent, any of the persons
listed in Schedule I to this Offer to Purchase, on the one hand, and the
Company or its affiliates, on the other hand, concerning a merger,
consolidation or acquisition, tender offer or other acquisition of securities,
an election of directors or a sale or other transfer of a material amount of
assets.
28
<PAGE>
9.FINANCING OF THE OFFER AND THE MERGER
The total amount of funds required by the Purchaser to consummate the Offer
and the Merger and to pay related fees and expenses is estimated to be
approximately $47 million, not including certain severance arrangements and
transaction costs. The Purchaser intends to obtain all funds needed for the
Offer through a capital contribution, which will be made by Parent to the
Purchaser at the time the shares tendered pursuant to the Offer are accepted
for payment. Parent intends to use its available cash on hand to make this
capital contribution. Neither the Offer nor the Merger is conditioned on
obtaining financing.
10.INTERCOMPANY ARRANGEMENTS BETWEEN PARENT AND THE COMPANY; OTHER EXISTING
AGREEMENTS
On September 11, 1998, in connection with the proposed acquisition (the
"Proposal") of the Company by the Parent, the Company and the Parent entered
into a customary Confidential Nondisclosure Agreement. Under the agreement,
each party agreed to make available to the other certain nonpublic information
concerning its business in connection with the Proposal. In addition, the
parties agreed to maintain the confidentiality of nonpublic information
disclosed by the other.
The Company has been a member of Parent's Cooperative Applications
Initiative ("CAI") pursuant to which the Company is entitled to receive
certain software applications, application product interfaces, documentation
and consulting assistance from Parent for the purpose of integrating the
Company's products with the Parent's products using the Parent's open
interface architecture.
11. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; NASDAQ QUOTATION AND
EXCHANGE ACT REGISTRATION
The purchase of Shares by the Purchaser pursuant to the Offer will reduce
the number of Shares that might otherwise trade publicly, and will reduce the
number of holders of Shares and could thereby adversely affect the liquidity
and market value of the remaining publicly held Shares.
NASDAQ Listing. Depending upon the number of Shares purchased pursuant to
the Offer, the Shares may no longer meet the standards for continued inclusion
in NASDAQ. According to NASDAQ's published guidelines, the Shares would not be
eligible to be included for continued listing if, among other things, the
number of publicly held Shares falls below 750,000, the number of holders of
at least 100 Shares falls below 400 or the aggregate market value of such
publicly held Shares falls below $5,000,000. If these standards are not met,
the Shares might continue to be listed on The Nasdaq SmallCap Market, Inc.,
but if the number of holders of the Shares falls below 300, or if the number
of publicly held Shares falls below 500,000, or if the aggregate market value
of such publicly held Shares falls below $1,000,000 or there are not at least
two registered and active market makers (one of which may be a market maker
entering a stabilizing bid), NASDAQ rules provide that the securities would no
longer qualify for inclusion in NASDAQ and NASDAQ would cease to provide any
quotations. Shares held directly or indirectly by an officer or director of
the Company or by a beneficial owner of more than 10% of the Shares will
ordinarily not be considered as being publicly held for purposes of these
standards. In the event the Shares are no longer eligible for NASDAQ
quotation, quotations might still be available from other sources. The extent
of the public market for the Shares and the availability of such quotations
would, however, depend upon the number of holders of such Shares remaining at
such time, the interest in maintaining a market in such Shares on the part of
securities firms, the possible termination of registration of such Shares
under the Exchange Act as described below and other factors.
Purchaser has been advised by the Company that as of November 10, 1998,
there were approximately 118 holders of record of the Shares.
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 such Shares for the
purpose of buying, carrying or trading in securities ("Purpose Loans").
Depending upon factors similar to those described above regarding
29
<PAGE>
the continued listing, public trading and market quotations of the Shares, it
is possible that, following the purchase of the Shares pursuant to 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 Purpose Loans made by brokers.
Exchange Act Registration. The Shares are currently registered under the
Exchange Act. Such registration may be terminated upon application by the
Company to the SEC if the Shares are not listed on a national securities
exchange and there are fewer than 300 record holders. The termination of the
registration of the Shares under the Exchange Act would substantially reduce
the information required to be furnished by the Company to holders of Shares
and to the SEC and would make certain provisions of the Exchange Act, such as
the short-swing profit recovery provisions of Section 16(b), the requirement
of furnishing a proxy statement in connection with stockholders' meetings and
the requirements of Rule 13e-3 under the Exchange Act with respect to "going
private" transactions, no longer applicable to the Shares. In addition,
"affiliates" of the Company and persons holding "restricted securities" of the
Company may be deprived of the ability to dispose of such securities pursuant
to Rule 144 under the Securities Act. If registration of the Shares under the
Exchange Act were terminated, the Shares would no longer be "margin
securities" or be eligible for NASDAQ reporting. The Purchaser currently
intends to seek to cause the Company to terminate the registration of the
Shares under the Exchange Act as soon after consummation of the Offer as the
requirements for termination of registration are met.
12.CERTAIN CONDITIONS OF THE OFFER
Capitalized terms used in this Section 12 and not otherwise defined shall
have the meanings attributed thereto in the Merger Agreement. Any other
provision of the Offer notwithstanding, the Purchaser shall not be required to
accept for payment or pay for any Shares (and associated Rights) tendered
pursuant to the Offer, and may terminate or amend the Offer and may postpone
the acceptance for payment of and payment for Shares (and associated Rights)
tendered, if (i) the Minimum Share Condition shall not have been satisfied, or
(ii) at least 15 of the employees listed on Annex I to the Company Disclosure
Schedule to the Merger Agreement shall not have signed offer letters to become
employees of Parent, or (iii) any applicable waiting period under the HSR Act
and under any applicable antitrust laws of any foreign country shall not have
expired or been terminated prior to the expiration of the Offer, or (iv) the
amendment to the distributor agreement described in Item 20 of Schedule
4.15(a)(ii) of the Company Disclosure Schedule (which causes such distributor
to lose its exclusive status in a certain European country) shall not have
been entered into or shall not be in effect, or (v) at any time on or after
the date of the Merger Agreement and before the acceptance of such Shares (and
associated Rights) for payment or the payment therefor, any of the following
conditions exists:
(a) a preliminary or permanent injunction or other order by any federal,
state or foreign court which prevents the acceptance for payment of, or
payment for, some of or all the Shares shall have been issued and shall
remain in effect;
(b) there shall have been instituted or be pending any action or
proceeding by any Governmental Entity (i) challenging the acquisition by
the Purchaser of Shares or otherwise seeking to restrain, materially delay
or prohibit the consummation of the Offer or the Merger or seeking damages
that would make the Offer, the Merger or any other transaction contemplated
by the Merger Agreement materially more costly to Parent or the Purchaser,
(ii) seeking to prohibit or limit materially the ownership or operation by
the Purchaser or Parent of all or a material portion of the business or
assets of the Company, or to compel the Purchaser or Parent to dispose of
or hold separate all or a material portion of the business or assets of the
Company or the Purchaser or Parent, as a result of the Offer or the Merger,
(iii) seeking to impose or confirm limitations on the ability of Parent or
the Purchaser effectively to exercise full rights of ownership of the
Shares (and associated Rights), including, without limitation, the right to
vote the Shares purchased by it on all matters properly presented to the
Company's stockholders, including, without limitation, the approval and
adoption of the Merger Agreement and the transactions contemplated by the
Merger Agreement, (iv) seeking to require divestiture, or separate
ownership, by Parent, the Purchaser or any other affiliate of Parent of any
30
<PAGE>
Shares or any portion of the business or assets of Parent, Purchaser or the
Company or any of their subsidiaries, or (v) which reasonably could be
expected to result in a Material Adverse Effect;
(c) there shall have been any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable to
the Offer, the Merger or any other transaction contemplated by the Merger
Agreement, by any Governmental Entity or by any third party, except for the
waiting period provisions of the HSR Act, which is reasonably likely to
result, directly or indirectly, in any of the consequences referred to in
clauses (i) through (iv) of paragraph (b) above;
(d) any event, change or effect that, individually or in the aggregate,
is or is reasonably likely to constitute a Material Adverse Effect shall
have occurred following the date of the Merger Agreement;
(e) the Company shall have breached or failed to perform in any material
respect any of its obligations, covenants or agreements under the Merger
Agreement, which breach or failure cannot be or has not been cured prior to
the earlier of (i) 20 days after the giving of written notice to the
Company, and (ii) the expiration of the Offer;
(f) any representation or warranty of the Company in the Merger Agreement
that is qualified as to materiality shall not be true and correct or any
such representation or warranty that is not so qualified shall not be true
and correct in any material respect, in each case when made and at and as
of such time as if made at and as of such time (except that representations
and warranties made as of a specified date shall only be true and correct
as of such date);
(g) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on the Nasdaq National
Market or the over the counter market; (ii) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States; (iii) a commencement of a war or armed hostilities or other
national or international calamity directly or indirectly involving the
United States; (iv) any extraordinary material adverse change in the
financial markets in the United States; or (v) in the case of any of the
foregoing existing on the date hereof, a material acceleration or worsening
thereof;
(h) (i) it shall have been publicly disclosed or the Purchaser shall have
otherwise learned that beneficial ownership (determined for the purposes of
this paragraph as set forth in Rule 13d-3 promulgated under the Exchange
Act) of a majority of the then outstanding Shares have been acquired by any
person other than Parent or any of its affiliates, or (ii)(A) the Board of
Directors of the Company or any committee thereof shall have withdrawn or
modified the approval or recommendation of the Offer, the Merger or the
Merger Agreement, or approved or recommended any Third Party Acquisition or
any other acquisition of Shares other than the Offer and the Merger, (B)
the Company shall have entered into a definitive agreement with respect to
a Third Party Acquisition, (C) the Board of Directors of the Company fails
to reconfirm its recommendation of the Offer or the Merger within five days
of any written request by Parent or the Purchaser for such reconfirmation,
or (D) the Board of Directors of the Company or any committee thereof shall
have resolved to do any of the foregoing; or
(i) the Merger Agreement shall have been terminated in accordance with
its terms.
The foregoing conditions (other than the Minimum Share Condition) are for
the sole benefit of the Purchaser and Parent. The foregoing rights of the
Purchaser will be available regardless of the circumstances giving rise to any
such conditions (including any action or omission to act of the Purchaser) and
(other than the Minimum Share Condition) may be waived by the Purchaser or
Parent in whole or in part at any time and from time to time in their sole
discretion.
The failure by the Purchaser or Parent 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 other 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 which may be asserted at any
time and from time to time.
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13. CERTAIN LEGAL MATTERS
General. Except as described in this Section 13, based on its review of
publicly available filings of the Company with the SEC and other publicly
available information regarding the Company, the Purchaser is not aware of any
license or regulatory permit that appears to be material to the business of
the Company and its subsidiaries, taken as a whole, that might be adversely
affected by Purchaser's acquisition of Shares as contemplated herein or of any
approval or other action by or with any domestic, foreign, or international
government authority or administrative or regulatory agency that would be
required for the acquisition or ownership of the Shares by Purchaser. Should
any such approval or other action be required, the Purchaser currently
contemplates 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 13, 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
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
divested if such approvals were not obtained or such other actions were not
taken, any of which could cause the Purchaser to decline to accept for payment
or pay for any Shares tendered. Purchaser's obligations to accept for payment
or pay for the Shares tendered pursuant to the Offer is subject to certain
conditions set forth in this Offer, including the conditions set forth above
in this paragraph and with respect to litigation and governmental action as
contemplated herein. See "THE OFFER -- Certain Conditions of the Offer."
Federal Regulatory Approval. Except as otherwise noted in this Section, no
federal regulatory approval is required for the Purchaser to complete the
Offer and consummate the Merger.
State Takeover Laws. The Company is incorporated under the laws of the State
of Delaware. In general, Section 203 of the DGCL prevents an "interested
stockholder" (generally a person who owns or has the right to acquire 15% or
more of a corporation's outstanding voting stock, or an affiliate or associate
thereof) from engaging in a "business combination" (defined to include mergers
and certain other transactions) with a Delaware corporation for a period of
three years following the date such person became an interested stockholder
unless, among other things, prior to such date the board of directors of the
corporation approved either the business combination or the transaction in
which the interested stockholder became an interested stockholder. Purchaser
became an interested stockholder on November 10, 1998 (in connection with the
Merger Agreement) in a transaction approved by the Company Board of Directors.
Accordingly, Section 203 is inapplicable to the Offer and the Merger.
A number of other states have adopted laws and regulations applicable to
attempts to acquire securities of corporations which are incorporated, or have
substantial assets, stockholders, principal executive offices or principal
places of business, or whose business operations otherwise have substantial
economic effects, in such states. In 1982, in Edgar v. MITE Corp., the Supreme
Court of the United States invalidated on constitutional grounds the Illinois
Business Takeover Statute, which, as a matter of state securities law, made
takeovers of corporations meeting certain requirements more difficult. In
1987, however, in CTS Corp. v. Dynamics Corp. of America, the Supreme Court of
the United States held that the State of Indiana may, as a matter of corporate
law and, in particular, with respect to those aspects of corporate law
concerning corporate governance, constitutionally disqualify a potential
acquirer from voting on the affairs of a target corporation without the prior
approval of the remaining stockholders. The state law before the Supreme Court
was by its terms applicable only to corporations that had a substantial number
of stockholders in the state and were incorporated there.
The Purchaser has not attempted to comply with any state takeover statutes
in connection with the Offer or the Merger although, pursuant to the Merger
Agreement, the Company has represented that the Company Board has taken
appropriate action to render Section 203 of the DGCL inapplicable to the
Offer, the Merger and the transactions contemplated by the Merger Agreement.
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
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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, Purchaser might be required to file certain information with, or
to receive approvals from, the relevant state authorities, and Purchaser might
be unable to accept for payment or pay for Shares tendered pursuant to the
Offer, or be delayed in consummating the Offer or the Merger.
Antitrust. Under the Hart-Scott-Rodino Antitrust Improvements Acts of 1976
(the "HSR Act"), and the rules that have been promulgated thereunder by the
Federal Trade Commission (the "FTC"), certain transactions (including certain
transactions involving the proposed acquisition of in excess of 15%, 25% and
50% of the equity interest of a target corporation) may not be consummated
unless certain information has been furnished to the Antitrust Division of the
Department of Justice (the "Antitrust Division") and the FTC and certain
waiting period requirements have been satisfied (the "HSR Requirements"). The
acquisition of Shares pursuant to the Offer is subject to such requirements.
Purchaser expects to file a Notification and Report Form with respect to the
Offer under the HSR Act as soon as practicable following the commencement of
the Offer. The waiting period under the HSR Act with respect to the Offer will
expire at 11:59 p.m., Washington D.C. City time, on the 15th day after the
date such form is filed, unless early termination of the waiting period is
granted. In addition, the Antitrust Division or the FTC may extend such
waiting period by requesting additional information or documentary material
from Purchaser. If such a request is made with respect to the Offer, the
waiting period related to the Offer will expire at 11:59 p.m., Washington D.C.
City time, on the 10th day after substantial compliance by Purchaser with such
request. With respect to each acquisition, the Antitrust Division or the FTC
may issue only one request for additional information. 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 may
engage in negotiations with the relevant governmental agency concerning
possible means of addressing those issues and may agree to delay the
consummation of the transaction while such negotiations continue. Expiration
or termination of applicable waiting periods under the HSR Act is a condition
to the obligation to accept for payment and pay for Shares tendered pursuant
to the Offer.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of Shares
by Purchaser pursuant to the Offer. At any time before or after the purchase
of Shares pursuant to the Offer by Purchaser, the FTC or the Antitrust
Division 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 seeking the divestiture of Shares purchased
by Purchaser or the divestiture of substantial assets of Parent, the Company
or their respective subsidiaries. Private parties and state attorneys general
may also bring legal action under federal or state antitrust laws under
certain circumstances. Based upon an examination of information available to
Parent relating to the business in which Parent, the Company and their
respective subsidiaries are engaged, Parent and Purchaser believe that neither
the Offer nor the Merger will violate the antitrust laws. Nevertheless, there
can be no assurance that a challenge to the Offer on antitrust grounds will
not be made or, if such a challenge is made, what the result would be.
Foreign Approvals. According to publicly available information, the Company
conducts business in a number of other foreign countries and jurisdictions. In
connection with the acquisition of the Shares pursuant to the Offer or the
Merger, the laws of certain of those foreign countries and jurisdictions may
require the filing of information with, or the obtaining of the approval or
consent of, governmental authorities in such countries and jurisdictions. The
governments in such countries and jurisdictions might attempt to impose
additional conditions on the Company's operations conducted in such countries
and jurisdictions as a result of the acquisition of the Shares pursuant to the
Offer or the Merger. If such approvals or consents are found to be required
the parties intend to make the appropriate filings and applications. In the
event such a filing or application is made for the requisite foreign approvals
or consents, there can be no assurance that such approvals or consents will be
granted and, if such approvals or consents are received, there can be no
assurance as to the date of such approvals or consents. In addition, there can
be no assurance that the Purchaser will be able to cause the Company or its
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subsidiaries to satisfy or comply with such laws or that compliance or
noncompliance will not have adverse consequences for the Company or any
subsidiary after purchase of the Shares pursuant to the Offer or the Merger.
14. FEES AND EXPENSES
Except as set forth below, the Purchaser will not pay any fees or
commissions to any broker, dealer or other person for soliciting tenders of
Shares pursuant to the Offer.
Purchaser and Parent have retained Georgeson & Company Inc. to be the
Information Agent and BankBoston, N.A. to be the Depositary in connection with
the Offer. The Information Agent may contact holders of Shares by mail,
telephone, telecopy, telegraph and personal interview and may request banks,
brokers, dealers and other nominee stockholders to forward materials relating
to the Offer to beneficial owners.
As compensation for acting as Information Agent in connection with the
Offer, Georgeson & Company Inc. will be paid reasonable and customary
compensation for its services and will also be reimbursed for certain out-of-
pocket expenses and may be indemnified against certain liabilities and
expenses in connection with the Offer, including certain liabilities under the
federal securities laws. The Purchaser will pay the Depositary reasonable and
customary compensation for its services in connection with the Offer, plus
reimbursement for out-of-pocket expenses, and will indemnify the Depositary
against certain liabilities and expenses in connection therewith, including
certain liabilities under federal securities laws. Brokers, dealers,
commercial banks and trust companies will be reimbursed by the Purchaser for
customary handling and mailing expenses incurred by them in forwarding
material to their customers.
As compensation for acting as Information Agent in connection with the
Offer, Georgeson & Company Inc. will be paid reasonable and customary
compensation for its services and will also be reimbursed for certain out-of-
pocket expenses and may be indemnified against certain liabilities and
expenses in connection with the Offer,
The following is an estimate of expenses to be incurred by the Parent in
connection with the Offer and the Merger:
<TABLE>
<S> <C>
Legal Fees.......................................................... $300,000
Accounting Fees..................................................... 50,000
Printing and Mailing................................................ 200,000
Advertising......................................................... 80,000
Filing Fees......................................................... 12,000
Depository Fees..................................................... 10,000
Information Agent................................................... 10,000
Miscellaneous....................................................... 10,000
--------
Total............................................................. $672,000
========
</TABLE>
None of the foregoing fees will be paid by the Company.
15. MISCELLANEOUS
Purchaser is not aware of any state where the making of the Offer is
prohibited by administrative or judicial action pursuant to any valid state
statute. If Purchaser becomes aware of any valid state statute prohibiting the
making of the Offer or the acceptance of Shares pursuant thereto, Purchaser
will make a good faith effort to comply with such state statute. If, after
such good faith effort, Purchaser cannot comply with such state statute, the
Offer will not be made to (nor will tenders be accepted from or on behalf of)
the holders of Shares in such state. In any jurisdiction where the securities,
blue sky or other laws require the offer to be made by a licensed broker or
dealer, the offer shall be deemed to be made on behalf of Purchaser by one or
more registered brokers or dealers licensed under the laws of such
jurisdiction.
No person has been authorized to give any information or to make any
representation on behalf of the Purchaser not contained herein or in the
Letter of Transmittal and, if given or made, such information or
34
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representation must not be relied upon as having been authorized. Neither the
delivery of this Offer to Purchase nor any purchase pursuant to the Offer
will, under any circumstances, create any implication that there has been no
change in the affairs of the Purchaser or the Company since the date as of
which information is furnished or the date of this Offer to Purchase.
Parent and the Purchaser have filed with the SEC a Tender Offer Statement on
Schedule 14D-1, together with exhibits, pursuant to Rule 14d-3 under the
General Rules and Regulations under the Exchange Act, furnishing certain
additional information with respect to the Offer, and may file amendments
thereto. In addition, the Company has filed with the SEC a
Solicitation/Recommendation Statement Schedule 14D-9, together with exhibits,
pursuant to Rule 14d-9 under the Exchange Act, setting forth the
recommendations of the Company Board with respect to the Offer and the reasons
for such recommendations and furnishing certain additional related
information. Such Schedules and any amendments thereto, including exhibits,
may be inspected and copies may be obtained from the SEC in the manner set
forth under "THE OFFER -- Certain Information Concerning the Company" (except
that they will not be available at the regional offices of the SEC).
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SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF PARENT. The following sets forth the
name and principal occupation or employment at the present time and during the
last five years, and the name of any corporation or other organization in
which such employment is conducted or was conducted of each director and
executive officer of Parent. Except as otherwise indicated, each of Parent's
directors and officers is a citizen of the United States. The business address
of each executive officer and director of Parent is 500 Oracle Parkway,
Redwood Shores, California 94065, unless otherwise set forth below. Each
occupation set forth opposite a person's name, unless otherwise indicated,
refers to employment with Parent.
LAWRENCE J. ELLISON, 54, has been Chief Executive Officer and a director of
Parent since he co-founded Parent in May 1977, and was President of Parent
until June 1996. Mr. Ellison has been Chairman of the Board since June 1995
and was Chairman of the Board from April 1990 until September 1992. He has
been a member of the Executive Committee since 1986. Mr. Ellison is a director
of Apple Computer, Inc., a director of SuperGen, Inc., Co-Chairman of
California's Council on Information Technology, and a member of President
Clinton's Export Council.
DONALD L. LUCAS, 68, has been a director of Parent since March 1980. He has
been Chairman of the Executive Committee since 1986 and Chairman of the
Finance and Audit Committee since 1987. Mr. Lucas has been a member of the
Committee on Compensation and Management Development since 1989 and a member
of the Nominating Committee since December 1996. He was Chairman of the Board
from October 1980 through March 1990. He has been a venture capitalist since
1960. He is also a director of Cadence Design Systems, Inc., Coulter
Pharmaceutical, Inc., Macromedia, Inc., Transcend Services, Inc. and Tricord
Systems, Inc.
MICHAEL J. BOSKIN, 53, has been a director of Parent since May 1994. He has
been a member of the Finance and Audit Committee and the Nominating Committee
since July 1994 and a member of the Committee on Compensation and Management
Development since July 1995. He was appointed Chairman of the Committee on
Compensation and Management Development in July 1997. Dr. Boskin has been a
professor of economics at Stanford University since 1971 and is Chief
Executive Officer and President of Boskin & Co., a consulting firm. He was
Chairman of the President's Council of Economic Advisers from February 1989
until January 1993. Dr. Boskin is also a director of Exxon Corporation, First
Health Group, Inc. and Airtouch Communications, Inc.
RAYMOND J. LANE, 51, has been President and Chief Operating Officer since
July 1996. Mr. Lane served as Executive Vice President of Parent and President
of Worldwide Operations from October 1993 to June 1996, and has been a
director since June 1995. He served as a Senior Vice President of Parent and
President of Oracle USA from June 1992 to September 1993. Before joining
Parent, Mr. Lane served as Senior Vice President and Managing Partner of the
Worldwide Information Services Group at Booz-Allen & Hamilton from July 1986
to May 1992. He served on the Booz-Allen & Hamilton Executive Committee and
its Board of Directors from April 1987 to May 1992, and on its Board of
Directors from April 1991 to May 1992. Mr. Lane is also a member of the Board
of Trustees of Carnegie-Mellon University.
JEFFREY O. HENLEY, 54, has been Executive Vice President and Chief Financial
Officer of Parent since March 1991 and has been a director since June 1995.
Prior to joining Parent, he served as Executive Vice President and Chief
Financial Officer of Pacific Holding Company, a privately-held company with
diversified interests in manufacturing and real estate, from August 1986 to
February 1991.
JACK F. KEMP, 63, has been a director of Parent since February 1997 and
previously served as a director of Parent from February 1995 until September
1996. Mr. Kemp has been Co-Director of Empower America from 1993 to the
present. Mr. Kemp was the Secretary of Housing and Urban Development from
February 1989 until January 1992. Mr. Kemp is also a director of American
Bankers Insurance Group, Inc., Carson, Inc., Everen Capital Corporation, and
The Sports Authority, Inc.
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JEFFREY BERG, 51, has been a director of Parent since March 1997. He has
been a member of the Finance and Audit Committee since April 1997. Mr. Berg
has been an agent in the entertainment industry for over 25 years and the
Chairman and Chief Executive Officer of International Creative Management,
Inc. since 1985. Mr. Berg is also a director of Excite, Inc. He served as Co-
Chair of the California Information Technology Council and was President of
the Executive Board of the College of Letters and Sciences at the University
of California at Berkeley. Mr. Berg also serves as a director of Shaman
Pharmaceuticals Inc.
RICHARD A. MCGINN, 52, has been a director of Parent since March 1997. Mr.
McGinn has served as Chairman of the Board of Directors of Lucent
Technologies, Inc. since February 1998 and has been its Chief Executive
Officer since October 1997. Mr. McGinn served as President and Chief Operating
Officer of Lucent Technologies from February 1996 to October 1997 and a
director since April 1997. Lucent Technologies is the communications and
technology company that was spun off from AT&T in April 1996. Mr. McGinn
served as Executive Vice President of AT&T and Chief Executive Officer of AT&T
Network Systems from October 1994 to April 1996. He served as President and
Chief Operating Officer of AT&T Network Systems from August 1993 to October
1994 and as a Senior Vice President from August 1992 to August 1993. Mr.
McGinn also serves as a director of American Express Company.
GARY L. BLOOM, 37, has been the Executive Vice President of the System
Products Division since May 1997 and has held various positions, including
Senior Vice President of the Worldwide Alliances and Technologies Division
from May 1997 to October 1997, Senior Vice President of the Product and
Platform Technologies Division from May 1996 to May 1997 and Vice President of
the Mainframe and Integration Technology Division and Vice President of the
Massively Parallel Computing Division from May 1992 to May 1996. Prior to
joining Parent, Mr. Bloom worked at IBM Corporation and at Chevron Corporation
where he held various technical positions in their mainframe system areas.
DAVID J. ROUX, 41, has been Executive Vice President of Corporate
Development since March 1996, and Senior Vice President of Corporate
Development of the Parent since September 1994. Since February 1998, he also
has served as the Chief Executive Officer and President of Network Computer,
Inc., a subsidiary of Parent. Before joining Parent, Mr. Roux served as Senior
Vice President, Marketing and Business Development at Central Point Software
from April 1992 to July 1994. From October 1991 to April 1992, he served as
Senior Vice President of the Portable Computing Group at Lotus Development
Corporation and from June 1989 to October 1991, he served as Vice President of
Business Development at Lotus Development Corporation.
DANIEL COOPERMAN, 47, has been Senior Vice President, General Counsel and
Secretary of Parent since February 1997. Prior to joining Parent, Mr.
Cooperman had been associated with the law firm of McCutchen, Doyle, Brown &
Enersen since October 1977, and had served there as a partner since June 1983.
From September 1995 until February 1997, Mr. Cooperman was Chair of the law
firm's Business & Transactions Group, and from April 1989 through September
1995, he served as the Managing Partner of the law firm's San Jose Office.
KAY KOPLOVITZ, 53, has been a director of Parent since October 1998. Ms.
Koplovitz founded USA Networks in 1977 and served as its Chief Executive
Officer until April 1998. Ms. Koplovitz is also a director of Nabisco Holdings
Corporation, Inc., General Re and Liz Claiborne, Inc. She was also appointed
by President Clinton to chair the National Women's Business Council, an
advisory board for women-owned businesses.
RANDY BAKER, 54, has been Executive Vice President, Oracle Support,
Education and Business OnLine Services since October 1998. Prior to joining
Parent in 1993, Mr. Baker was Vice President of Worldwide Customer Support and
Services for Tandem Computers. He had also been with International Business
Machines for 17 years, holding positions in the systems engineering, product
management, and support divisions. Mr. Baker is a member of the President's
Cabinet at California Polytechnic State University in San Luis Obispo.
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PIER CARLO FALOTTI, 56, has been Executive Vice President of Oracle
Corporation, Oracle Europe, Middle East and Africa, since October 1998. Before
joining Parent in September 1996, Mr. Falotti was Executive Vice President of
International Operations at AT&T. Mr. Falotti has also served as President and
Chief Executive Officer of the ASK Group, a database and software company, and
spent 23 years at Digital Equipment Corporation in various roles, including
President and Chief Executive Officer of Digital Europe, Middle East. Mr.
Falotti is a director of INSEAD and IMD, two European business schools, and of
First Virtual Corporation and Logitech S.A. In addition, he is a member of the
Council for U.S. and Italy relations. Mr. Falotti is a citizen of Italy.
JENNIFER L. MINTON, 37, has served as Vice President and Corporate
Controller since November 1998. Ms. Minton served as Vice President, Corporate
Planning, Analysis and Accounting from August 1995 to October 1998, as
Assistant Corporate Controller from September 1991 to July 1995, and as
Accounting Manager from May 1989 to August 1991. Prior to joining Parent, Ms.
Minton held various positions in the Audit Division of Arthur Andersen LLP, an
international public accounting firm.
DIRECTORS AND EXECUTIVE OFFICERS OF PURCHASER. The President and Chief
Financial Officer of the Purchaser is David J. Roux, and the Vice President
and Secretary of the Purchaser is Thomas Theodores. Mr. Roux is the sole
Director of the Purchaser. The director and officers of the Purchaser were
appointed or elected on October 30, 1998. Additional information regarding Mr.
Roux is set forth on the preceding page.
THOMAS THEODORES, 48, is Vice President/Deputy General Counsel of Parent
where he manages the Corporate, International and Strategic Licensing Group.
His responsibilities include corporate and securities, international, legal
policy administration, strategic transactions and technology licensing. Mr.
Theodores joined Parent in 1986. Prior to joining Parent, he was a partner at
the Nemir Law Firm in San Francisco.
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SCHEDULE II
DIRECTORS AND EXECUTIVE OFFICERS OF THE COMPANY. The following sets forth
the name and principal occupation or employment at the present time and during
the last five years, and the name of any corporation or other organization in
which such employment is conducted or was conducted of each director and
executive officer of the Company. Each of the Company's directors and officers
is a citizen of the United States. The business address of each executive
officer and director of the Company is 21 North Avenue, Burlington,
Massachusetts 01803, unless otherwise set forth below. Each occupation set
forth opposite a person's name, unless otherwise indicated, refers to
employment with the Company.
LAWRENCE W. ROSENFELD, 46, a founder of the Company, has been Chief
Executive Officer and a director since the Company's inception in 1984,
Chairman of the Board of Directors since March 1993 and President from
inception through March 1993 and again since July 1994. From 1982 to 1984, Mr.
Rosenfeld was an independent CAD/CAM consultant. From 1974 to 1981, Mr.
Rosenfeld was employed in various positions at Hood Sailmakers, Inc.
DAVID I. LEMONT, 40, joined the Company in June 1994 as Senior Vice
President and Chief Operating Officer. From February 1992 to May 1994, Mr.
Lemont held several Vice President positions in the sales organization at
Computervision Corporation. From January 1981 to February 1992, he held
various sales and sales management positions with the Unigraphics Division of
McDonnell Douglas.
ALEX N. BRAVERMAN, 38, has been Vice President, Chief Financial Officer and
Treasurer since November 1996. From July 1994 to November 1996, he was
Corporate Controller. Mr. Braverman was Controller of Artel Communications
Corporation, a manufacturer of computer networking and video products, from
1988 until it was merged with Chipcom Corporation in February 1994, and was
employed thereafter by Chipcom Corporation until July 1994. From 1982 to 1988,
he held various financial and managerial positions with BTU Engineering and
the William Carter Company.
PETER T. LANELL, 46, has been Vice President of Worldwide Field Operations
since 1997. From April 1993 to April 1996, he was Vice President, North
American Field Operations. From April 1992 to April 1993, he was the Company's
Vice President, North American Sales. Mr. Lanell joined the Company in 1988
and has held various positions within North American Sales since that time.
Prior to joining the Company, Mr. Lanell was a salesman for Intellicorp, Inc.
from 1986 to 1988. From 1982 to 1986, he held positions in sales and technical
sales support at Calma, a division of General Electric.
ROBERT E. PHILLIPS, Ph.D., 42, has been Chief Technology Officer and Vice
President, Product Definition since November 1997. He was one of the original
employees of Concentra, then known as ICAD, from 1985-1987. Dr. Phillips spent
six years at General Electric Aircraft Engines and was responsible for
Engineering Automation activities in that Division. He returned to Concentra
in 1993 as Director, New Product Development then became Vice President of
Engineering before taking his current position. He has 20 years of advanced
computer system research, development and deployment.
NOREEN H. HENRICH, 43, has been Vice President, Worldwide Client Services
since June 1995. From June 1993 to June 1995, she was Director of Technical
Services. Ms. Henrich joined the Company in 1988 and held the position of
Director of Technical Sales Support until June 1993. Prior to joining the
Company, Ms. Henrich was employed by Computervision in various positions. Her
final position was as the director of their applied technology center. She was
employed by Computervision from 1979 to 1988.
ALBERTO DE BENEDICTIS, 46, has been a director of the Company since June
1993. He has been with Finmeccanica in various positions for over ten years.
He is currently Senior Vice President of Finmeccanica for Corporate
Development. Mr. de Benedictis serves on the Board of Directors of a number of
affiliates of Finmeccanica, including Elsag Bailey Process Automation N.V. and
Union Switch and Signal, Inc.
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DAVID M. GREENHOUSE, 38, has been a director of the Company since August
1998. Since 1992, Mr. Greenhouse has been a senior executive of the management
company that manages a number of investment funds (including Special
Situations Fund III, L.P.), several of which hold equity investments in the
Company. Prior to joining Special Situations Fund, Mr. Greenhouse was employed
by an international financial advisory firm.
A. WILLIAM BERKMAN, Jr., 55, has been a director of the Company since August
1989. Mr. Berkman works as an independent consultant and, since 1986, has
served as a consultant to Toyo Corporation, a publicly-held Japanese trading
company. Mr. Berkman is also the Chief Executive Officer of Biomation
Corporation, a manufacturer of logic analysis systems, Chairman of the Board
of Embedded Performance, Inc., a manufacturer of emulators and software for
RISC microprocessors, and President of Toyo U.S. Holdings, Inc., a wholly
owned subsidiary of Toyo Corporation.
WILLIAM E. KELLY, 46, has been a director of the Company since June 1993. He
has served as Secretary from the Company's incorporation in 1984 (except for
the period from June 1993 to September 1993). Mr. Kelly was a partner in the
law firm of Cuddy Bixby in Boston from 1988 until December 1994. Since January
1995, Mr. Kelly has been a partner in the Boston law firm of Peabody & Arnold
LLP.
STEPHEN J. CUCCHIARO, 46, has been a director of the Company since March
1993 and is President of Windward Capital, Inc., an investment management
firm. From March 1993 until March 1994, Mr. Cucchiaro was President of the
Company and, following his resignation as President, he directed special
projects for the Company until he left in September 1994 to found Windward
Capital. From April 1992 to March 1993, he was the Company's Executive Vice
President, Chief Operating Officer and Chief Financial Officer. From October
1987 until December 1989, Mr. Cucchiaro was employed by Lotus Development
Corporation as General Manager of that company's Communications and Specialty
Software divisions. Mr. Cucchiaro was President of Datext, Inc., a company he
co-founded, from June 1984 until it was acquired by Lotus Development
Corporation in October 1987.
VINCENZO CANNATELLI, 45, has been Vice Chairman of the Board of Directors of
the Company and Chairman of its Executive Committee since June 1993. Mr.
Cannatelli is the Managing Director and Chief Executive Officer of Elsag
Bailey Process Automation N.V., a company listed on the New York Stock
Exchange. He has been Group Executive Vice President of the Elsag Bailey Group
of companies, a division of Finmeccanica, since 1992. Elsag Bailey Process
Automation N.V. is owned in the majority by Finmeccanica. From 1989 to 1990,
Mr. Cannatelli was Executive Vice President of Elsag Bailey Inc. Prior to
1989, he served in several executive positions at STET and in the Elsag Bailey
Group.
MARVIN MISHKIN, 42, has been Vice President of the OEM Business Unit since
September 1998. From 1986 through August 1998, he held various positions
within the Company which included Director of the OEM Business Unit, Director
of Consulting Services and Director of Worldwide Services. Prior to joining
the Company, he held various management positions at Computervision in its
Applied Technology Center.
KAREN MEHEGAN, 47, has been Director of Human Resources since joining the
Company in February 1997. Prior to joining the Company, she was employed in a
number of human resource management and consulting roles, including Senior
Consultant for SystemSoft from 1996 to 1997, Director of Human Resources and
Administration from 1985 to 1996 for Encryption Technology and Human Resources
Manager for Financial and Insurance Times from 1982 to 1985.
RICHARD BUCK, 39, has been Vice President of Selling Point Engineering since
September 1998. From March 1997 to August 1998, he was director of Selling
Point Engineering for the Company. Prior to joining the Company, he was Vice
President of Software Development for MarketMAX from 1993 to 1996. From 1990
to 1993 he was Director of Research and Development of the new Sales Force
Automation business unit of Epsilon Data Management.
II-2
<PAGE>
The related Letter of Transmittal and Share Certificates for your Shares
should be sent or delivered by you, your broker, dealer, commercial bank or
trust company to the Depositary at its addresses set forth below. Facsimile
copies of the Letters of Transmittal will be accepted.
The Depositary for the Offer is:
BANKBOSTON, N.A.
By Mail: By Overnight Courier: By Hand:
BANKBOSTON, N.A. BANKBOSTON, N.A. STARS
Attn: Corporate Attn: Corporate Securities Transfer
Reorganization Reorganization & Reporting Services,
P.O. Box 8029 150 Royall Street Inc.
Boston, MA 02266-8029 Canton, MA 02021 c/o Boston Equiserve LP
100 William St./Galleria
NY, NY 10038
By Facsimile Transmission:
(For Eligible Institutions Only)
(781) 575-2232
Confirm by Telephone:
(781) 575-3120
---------------
Stockholders should contact the Information Agent or their broker, dealer,
commercial bank or trust company for assistance concerning the Offer. Requests
for additional copies of the Offer to Purchase and Letters of Transmittal may
also be directed to the Information Agent.
The Information Agent:
[LOGO OF GEORGESON & COMPANY INC. APPEARS HERE]
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect: (212) 440-9800
All Others Call Toll Free: (800) 223-2064
<PAGE>
Exhibit (A)(2)
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK)
OF
CONCENTRA CORPORATION
PURSUANT TO THE OFFER TO PURCHASE
DATED NOVEMBER 17, 1998
OF
KL ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF
ORACLE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, DECEMBER 15, 1998, UNLESS THE OFFER IS
EXTENDED.
The Depositary for the Offer is:
BANKBOSTON, N.A.
By Mail: By Overnight Courier: By Hand:
BANKBOSTON, N.A. BANKBOSTON, N.A. STARS
Attn: Corporate Attn: Corporate Securities Transfer &
Reorganization Reorganization Reporting Services, Inc.
P.O. Box 8029 150 Royall Street c/o Boston Equiserve LP
Boston, MA 02266-8029 Canton, MA 02021 100 William St./Galleria
NY, NY 10038
By Facsimile Transmission:
(For Eligible Institutions Only)
(781) 575-2232
Confirm by Telephone:
(781) 575-3120
---------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION OTHER THAN AS
SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS
LETTER OF TRANSMITTAL WHERE INDICATED BELOW AND COMPLETE THE SUBSTITUTE FORM
W-9 PROVIDED BELOW.
<PAGE>
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 completed by stockholders of Concentra
Corporation either if certificates evidencing Shares (as defined below) are to
be forwarded herewith or, unless an Agent's Message (as defined in the Offer
to Purchase) is utilized, if delivery of Shares is to be made by book-entry
transfer to the Depositary's account at The Depository Trust Company ("DTC")
or the Philadelphia Depository Trust Company ("PDTC") (each a "Book-Entry
Transfer Facility" and collectively, the "Book-Entry Transfer Facilities")
pursuant to the book-entry transfer procedure described in Section 2 of the
Offer to Purchase (as defined below). DELIVERY OF DOCUMENTS TO A BOOK-ENTRY
TRANSFER FACILITY DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Stockholders whose certificates evidencing Shares ("Share Certificates") are
not immediately available or who cannot deliver their Share Certificates and
all other documents required hereby to the Depositary prior to the Expiration
Date (as defined in the Introduction to the Offer to Purchase) or who cannot
complete the procedure for delivery by book-entry transfer on a timely basis
and who wish to tender their Shares must do so pursuant to the guaranteed
delivery procedure described in "THE OFFER--Procedure for Accepting the Offer
and Tendering Shares" in the Offer to Purchase. See Instruction 2 below.
[_]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 applicable Book-Entry Transfer Facility and provide Account
Number and Transaction Code Number:
[_]The Depository Trust Company Account ____________________________
[_]Philadelphia Depository Transaction Code Number ____________
Trust Company
[_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY (PLEASE INCLUDE A
PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY) AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s): ___________________________________________
Window Ticket Number (if any): _____________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution that Guaranteed Delivery _______________________________
If delivery is by book-entry transfer, check box by Book-Entry Transfer
Facility and provide Account Number and Transaction Code Number:
[_]The Depository Trust Company Account Number _____________________
[_]Philadelphia Depositary Transaction Code Number ____________
Trust Company
2
<PAGE>
LADIES AND GENTLEMEN:
The undersigned hereby tenders to KL Acquisition Corporation, a corporation
organized and existing under the laws of the State of Delaware ("Purchaser")
and a wholly-owned subsidiary of Oracle Corporation, a corporation organized
and existing under the laws of the State of Delaware, the above-described
shares of Common Stock, par value $0.00001 per share (the "Common Stock"), of
Concentra Corporation, a corporation organized and existing under the laws of
the State of Delaware (the "Company"), and the associated rights to purchase
shares of Preferred Stock (the "Rights") issued pursuant to the Rights
Agreement between the Company and First National Bank of Boston, as Rights
agent, dated April 24, 1997, as amended November 10, 1998 (the Rights and
Common Stock are referred to herein collectively as the "Shares"), pursuant to
Purchaser's offer to purchase all Shares, at $7.00 per Share, net to the
seller in cash, without interest thereon, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated November 17, 1998 (the
"Offer to Purchase"), receipt of which is hereby acknowledged, and in this
Letter of Transmittal (which, with the Offer to Purchase, together constitute
the "Offer"). The undersigned understands that Purchaser reserves the right to
transfer or assign, in whole or from time to time in part, to one or more of
its affiliates, the right to purchase all or any portion of the Shares
tendered pursuant to the Offer.
Subject to, and effective upon, acceptance for payment of 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, Purchaser all
right, title and interest in and to all the Shares that are being tendered
hereby and all dividends, distributions (including, without limitation,
distributions of additional Shares) and rights declared, paid or distributed
in respect of such Shares on or after November 10, 1998 (collectively,
"Distributions") and irrevocably appoints the Depositary the true and lawful
agent and attorney-in-fact of the undersigned with respect to such Shares and
all Distributions, with full power of substitution (such power of attorney
being deemed to be an irrevocable power coupled with an interest), to (i)
deliver Share Certificates evidencing such Shares and all Distributions, or
transfer ownership of such Shares and all Distributions on the account books
maintained by a Book-Entry Transfer Facility, together, in either case, with
all accompanying evidences of transfer and authenticity, to or upon the order
of Purchaser, (ii) present such Shares and all Distributions for transfer on
the books of the Company, and (iii) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Shares and all
Distributions, all in accordance with the terms of the Offer.
The undersigned hereby irrevocably appoints David J. Roux and Daniel
Cooperman, and each of them, as the attorneys and proxies of the undersigned,
each with full power of substitution, to vote in such manner as each such
attorney and proxy or his or her substitute shall, in his or her sole
discretion, deem proper and otherwise act (by written consent or otherwise)
with respect to all the Shares tendered hereby which have been accepted for
payment by Purchaser prior to the time of such vote or other action and all
Shares and other securities issued in Distributions in respect of such Shares,
which the undersigned is entitled to vote at any meeting of stockholders of
the Company (whether annual or special and whether or not an adjourned or
postponed meeting) or consent in lieu of any such meeting or otherwise. This
proxy and power of attorney is coupled with an interest in the Shares tendered
hereby, is irrevocable and is granted in consideration of, and is effective
upon, the acceptance for payment of such Shares by Purchaser in accordance
with other terms of the Offer. Such acceptance for payment shall revoke all
other proxies and powers of attorney granted by the undersigned at any time
with respect to such Shares (and all Shares and other securities issued in
Distributions in respect of such Shares), and no subsequent proxy or power of
attorney shall be given or written consent executed (and if given or executed,
shall not be effective) by the undersigned with respect thereto. The
undersigned understands that, in order for Shares to be deemed validly
tendered, immediately upon Purchaser's acceptance of such Shares for payment,
Purchaser must be able to exercise full voting and other rights with respect
to such Shares and all Distributions, including, without limitation, voting at
any meeting of the Company's stockholders then scheduled.
3
<PAGE>
The undersigned hereby represents and warrants that the undersigned has full
power and authority to tender, sell, assign and transfer the Shares tendered
hereby and all Distributions, and that when such Shares are accepted for
payment by Purchaser, Purchaser will acquire good, marketable and unencumbered
title thereto and to all Distributions, free and clear of all liens,
restrictions, charges and encumbrances, and that none of such Shares and
Distributions will be subject to any adverse claim. The undersigned, upon
request, shall execute and deliver all additional documents deemed by the
Depositary or Purchaser to be necessary or desirable to complete the sale,
assignment and transfer of the Shares tendered hereby and all Distributions.
In addition, the undersigned shall remit and transfer promptly to the
Depositary for the account of Purchaser all Distributions in respect of the
Shares tendered hereby, accompanied by appropriate documentation of transfer,
and, pending such remittance and transfer or appropriate assurance thereof,
Purchaser shall be entitled to all rights and privileges as owner of each such
Distribution and may withhold the entire purchase price of the Shares tendered
hereby, or deduct from such purchase price, the amount or value of such
Distribution as determined by Purchaser in its sole discretion.
No authority herein conferred or agreed to be conferred shall be affected
by, and all such authority shall survive, the death or incapacity of the
undersigned. All obligations of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned. Except as stated in the Offer to Purchase, this tender is
irrevocable. See "THE OFFER--Withdrawal Rights" in the Offer to Purchase. The
undersigned understands that tenders of Shares pursuant to any one of the
procedures described in "THE OFFER--Procedure for Accepting the Offer and
Tendering Shares" in the Offer to Purchase and in the instructions hereto will
constitute the undersigned's acceptance of the terms and conditions of the
Offer. Purchaser's acceptance of such Shares for payment will constitute a
binding agreement between the undersigned and Purchaser upon the terms and
subject to the conditions of the Offer. Unless otherwise indicated herein in
the box entitled "Special Payment Instructions," please issue the check for
the purchase price of all Shares purchased, and return all Share Certificates
evidencing Shares not purchased or not tendered in the name(s) of the
registered holder(s) appearing above under "Description of Shares Tendered."
Similarly, unless otherwise indicated in the box entitled "Special Delivery
Instructions," please mail the check for the purchase price of all Shares
purchased and all Share Certificates evidencing Shares not tendered or not
purchased (and accompanying documents, as appropriate) to the address(s) of
the registered holder(s) appearing above under "Description of Shares
Tendered." In the event that the boxes entitled "Special Payment Instructions"
and "Special Delivery Instructions" are both completed, please issue the check
for the purchase price of all Shares purchased and return all Share
Certificates evidencing Shares not purchased or not tendered in the name(s)
of, and mail such check and Share Certificates to, the person(s) so indicated.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please credit any Shares tendered hereby and delivered by book-
entry transfer, but which are not purchased by crediting the account at the
Book-Entry Transfer Facility designated above. The undersigned recognizes that
Purchaser has no obligation, pursuant to the Special Payment Instructions, to
transfer any Shares from the name of the registered holder(s) thereof if
Purchaser does not purchase any of the Shares tendered hereby. Without
limiting the foregoing, if the price to be paid in the Offer is amended in
accordance with the Offer, the price to be paid to the undersigned will be the
amended price notwithstanding the fact that a different price is stated in
this Letter of Transmittal. The undersigned recognizes that under certain
circumstances set forth in the Offer to Purchase, Purchaser may not be
required to accept for payment any of the Shares tendered hereby.
The undersigned understands that Purchaser reserves the right to transfer or
assign, in whole at any time, or in part from time to time, to one or more of
its affiliates, the right to purchase all or any portion of the Shares
tendered pursuant to the Offer, but any such transfer or assignment will not
relieve Purchaser of its obligations under the Offer and will in no way
prejudice the rights of tendering stockholders to receive payment for Shares
validly tendered and accepted for payment pursuant to the Offer.
[_]CHECK HERE IF ANY OF THE CERTIFICATES REPRESENTING SHARES THAT YOU OWN HAVE
BEEN LOST OR DESTROYED AND SEE INSTRUCTION 9.
Number of Shares represented by the lost or destroyed certificates: ________
4
<PAGE>
SPECIAL PAYMENT INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7) (SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if Share To be completed ONLY if Share
Certificates not tendered or not Certificates not tendered or not
accepted for payment and/or the accepted for payment and/or the
check for the purchase price of check for the purchase price of
Shares accepted for payment are Shares accepted for payment are
to be issued in the name of some- to be sent to someone other than
one other than the undersigned, the undersigned, or to the under-
or if Shares delivered by book- signed at an address other than
entry transfer that are not ac- that above.
cepted for payment are to be re-
turned by credit to an account
maintained at a Book-Entry Trans-
fer Facility other than the ac-
count indicated above.
Issue [_] check, and/or Issue: [_] check, and/or
[_] Share Certificates [_] Share Certificates
To: To:
__________________________________ __________________________________
NAME (PLEASE PRINT) NAME (PLEASE PRINT)
__________________________________ __________________________________
ADDRESS ADDRESS
__________________________________ __________________________________
ZIP CODE ZIP CODE
__________________________________ __________________________________
EMPLOYER IDENTIFICATION OR SOCIAL EMPLOYER IDENTIFICATION OR SOCIAL
SECURITY NO. SECURITY NO.
(ALSO COMPLETE SUBSTITUTE
FORM W-9 BELOW)
Check box of applicable Book-
Entry Transfer Facility:
[_]The Depository Trust Company
[_]Philadelphia Depository Trust
Company
__________________________________
ACCOUNT NUMBER
5
<PAGE>
SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
X ___________________________________________________________________________
X ___________________________________________________________________________
SIGNATURE(S) OF STOCKHOLDER(S)
Dated:________________________________
(Must be signed by registered holder(s) exactly as name(s) appear(s) on
Share Certificates 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 trustee, executor, administrator,
guardian, attorney-in-fact, agent, officer of a corporation or other person
acting in a fiduciary or representative capacity, please provide the
following information and see Instruction 5.)
-----------------------------------------------------------------------------
NAME(S): (PLEASE PRINT)
-----------------------------------------------------------------------------
CAPACITY (FULL TITLE)
-----------------------------------------------------------------------------
ADDRESS
-----------------------------------------------------------------------------
(ZIP CODE)
------------------------------------- -------------------------------------
DAYTIME AREA CODE AND TELEPHONE NO. TAX IDENTIFICATION OR SOCIAL
SECURITY NO.
GUARANTEE OF SIGNATURE(S)
(IF REQUIRED--SEE INSTRUCTIONS 1 AND 5)
-----------------------------------------------------------------------------
AUTHORIZED SIGNATURE
-----------------------------------------------------------------------------
NAME (PLEASE PRINT)
------------------------------------- -------------------------------------
TITLE NAME OF FIRM
-----------------------------------------------------------------------------
ADDRESS
-----------------------------------------------------------------------------
(ZIP CODE)
--------------------------------------
AREA CODE AND TELEPHONE NO.
DATED: _______________________________
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
To complete the Letter of Transmittal, you must do the following:
. Fill in the box entitled "Description of Shares Being Tendered."
. Sign and date the Letter of Transmittal in the box entitled "Sign
Here."
. Fill in and sign in the box entitled "Substitute Form W-9."
In completing the Letter of Transmittal, you may (but are not required
to) also do the following:
. If you want the payment for any Shares purchased issued in the name
of another person, complete the box entitled "Special Payment
Instructions."
. If you want any certificate for Shares not tendered or Shares not
purchased issued in the name of another person, complete the box
entitled "Special Payment Instructions."
. If you want any payment for Shares or certificate for Shares not
tendered or purchased delivered to an address other than that
appearing under your signature, complete the box entitled "Special
Delivery Instructions."
If you complete the box entitled "Special Payment Instructions" or
"Special Delivery Instructions," you must have your signature guaranteed
by an Eligible Institution (as defined in Instruction 1 below) unless the
Letter of Transmittal is signed by an Eligible Institution.
1. GUARANTEE OF SIGNATURES. All signatures on this Letter of Transmittal
must be medallion guaranteed by a firm which is a member of the Medallion
Signature Guarantee Program, or by any other "eligible guarantor institution,"
as such term is defined in Rule 17Ad-15 under the Securities Exchange Act of
1934, as amended, (each of the foregoing being referred to as an "Eligible
Institution") unless (i) this Letter of Transmittal is signed by the
registered holder(s) of the Shares (which term, for purposes of this document,
shall include any participant in a Book-Entry Transfer Facility whose name
appears on a security position listing as the owner of Shares) tendered hereby
and such holder(s) has (have) completed neither the box entitled "Special
Payment Instructions" nor the box entitled "Special Delivery Instructions" on
the reverse hereof or (ii) such Shares are tendered for the account of an
Eligible Institution. See Instruction 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SHARE CERTIFICATES. This Letter of
Transmittal is to be used either if Share Certificates are to be forwarded
herewith or, unless an Agent's Message (as defined below) is utilized, if
Shares are to be delivered by book-entry transfer pursuant to the procedure
set forth in "THE OFFER--Procedure for Accepting the Offer and Tendering
Shares" in the Offer to Purchase. Share Certificates evidencing all physically
tendered Shares, or a confirmation of a book-entry transfer into the
Depositary's account at a Book-Entry Transfer Facility of all Shares delivered
by book-entry transfer as well as a properly completed and duly executed
Letter of Transmittal (or facsimile thereof), with any required signature
guarantees, or an Agent's Message in the case of a book-entry delivery, and
any other documents required by this Letter of Transmittal, must be received
by the Depositary at one of its addresses set forth on the reverse hereof
prior to the Expiration Date (as defined in Section 1 of the Offer to
Purchase). If Share Certificates are forwarded to the Depositary in multiple
deliveries, a properly completed and duly executed Letter of Transmittal must
accompany each such delivery. Stockholders whose Share Certificates are not
immediately available, who cannot deliver their Share Certificates and all
other required documents to the Depositary prior to the Expiration Date or who
cannot complete the procedure for delivery by book-entry transfer on a timely
basis may tender their Shares pursuant to the guaranteed delivery procedure
described in "THE OFFER--Procedure for Accepting the Offer and Tendering
Shares" in the Offer to Purchase. Pursuant to such procedure (i) such tender
must be made by or through an Eligible Institution; (ii) a properly completed
and duly executed Notice of Guaranteed Delivery, substantially in the form
made available by Purchaser, must be received by the Depositary prior to the
Expiration Date; and (iii) the Share Certificates evidencing all physically
delivered Shares in
7
<PAGE>
proper form for transfer by delivery, or a confirmation of a book-entry
transfer into the Depositary's account at a Book-Entry Transfer Facility of
all Shares delivered by book-entry transfer, in each case together with a
Letter of Transmittal (or a facsimile thereof), properly completed and duly
executed, with any required signature guarantees (or, in the case of book-
entry delivery, an Agent's Message), and any other documents required by this
Letter of Transmittal, must be received by the Depositary within three Nasdaq
National Market trading days after the date of execution of such Notice of
Guaranteed Delivery, all as described in "THE OFFER--Procedure for Accepting
the Offer and Tendering Shares" in the Offer to Purchase.
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
the Book-Entry Confirmation, which states that the Book-Entry Transfer
Facility has received an express acknowledgment from the participants in the
Book-Entry Transfer Facility tendering the Shares that such participant has
received this Letter of Transmittal and agrees to be bound by the terms of
this Letter of Transmittal and that Purchaser may enforce such agreement
against such participant.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SHARE CERTIFICATES AND
ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY
TRANSFER FACILITY, IS AT THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND
THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
DEPOSITARY. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. By execution of this Letter of
Transmittal (or a facsimile hereof), all tendering stockholders waive any
right to receive any notice of the acceptance of their Shares for payment.
3. INADEQUATE SPACE. If the space provided herein under "Description of
Shares Tendered" is inadequate, the Share Certificate numbers, the number of
Shares evidenced by such Share Certificates and the number of Shares tendered
should be listed on a separate schedule and attached hereto.
4. PARTIAL TENDERS (NOT APPLICABLE TO STOCKHOLDERS WHO TENDER BY BOOK-ENTRY
TRANSFER). If fewer than all the Shares evidenced by any Share Certificate
delivered to the Depositary herewith are to be tendered hereby, fill in the
number of Shares which are to be tendered in the box entitled "Number of
Shares Tendered." In such cases, new Share Certificate(s) evidencing the
remainder of the Shares that were evidenced by the Share Certificates
delivered to the Depositary herewith will be sent to the person(s) signing
this Letter of Transmittal, unless otherwise provided in the box entitled
"Special Delivery Instructions" on the reverse hereof, as soon as practicable
after the expiration or termination of the Offer. All Shares evidenced by
Share Certificates delivered to the Depositary will be deemed to have been
tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL; STOCK POWERS AND ENDORSEMENTS. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature(s) must correspond with the name(s) as written
on the face of the Share Certificates evidencing such Shares without
alteration, enlargement or any other change whatsoever.
If any Share tendered hereby is owned of record by two or more persons, all
such persons must sign this Letter of Transmittal.
If any of the Shares tendered hereby are registered in the names of
different holders, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal as there are different registrations of such
Shares.
If this Letter of Transmittal is signed by the registered holder(s) of the
Shares tendered hereby, no endorsements of Share Certificates or separate
stock powers are required, unless payment is to be made to, or Share
Certificates evidencing Shares not tendered or not purchased are to be issued
in the name of, a person other than the registered holder(s), in which case,
the Share Certificate(s) evidencing the Shares tendered hereby must be
endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear(s) on such Share
Certificate(s). Signatures on such Share Certificate(s) and stock powers must
be guaranteed by an Eligible Institution.
8
<PAGE>
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Shares tendered hereby, the Share Certificate(s)
evidencing the Shares tendered hereby must be endorsed or accompanied by
appropriate stock powers, in either case signed exactly as the name(s) of the
registered holder(s) appear(s) on such Share Certificate(s). Signatures on
such Share Certificate(s) and stock powers must be guaranteed by an Eligible
Institution.
If this Letter of Transmittal or any Share Certificate or stock power is
signed by a trustee, executor, administrator, guardian, attorney-in-fact,
officer of a corporation or other person acting in a fiduciary or
representative capacity, such person should so indicate when signing, and
proper evidence satisfactory to Purchaser of such person's authority to so act
must be submitted.
6. STOCK TRANSFER TAXES. Except as otherwise provided in this Instruction 6,
Purchaser will pay all stock transfer taxes with respect to the sale and
transfer of any Shares to it or its order pursuant to the Offer. If, however,
payment of the purchase price of any Shares purchased is to be made to, or
Share Certificate(s) evidencing Shares not tendered or not purchased are to be
issued in the name of, a person other than the registered holder(s), the
amount of any stock transfer taxes (whether imposed on the registered
holder(s), such other person or otherwise) payable on account of the transfer
to such other person will be deducted from the purchase price of such Shares
purchased, unless evidence satisfactory to Purchaser of the payment of such
taxes, or exemption therefrom, is submitted. Except as provided in this
Instruction 6, it will not be necessary for transfer tax stamps to be affixed
to the Share Certificates evidencing the Shares tendered hereby.
7. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If a check for the purchase
price of any Shares tendered hereby is to be issued, or Share Certificate(s)
evidencing Shares not tendered or not purchased are to be issued, in the name
of a person other than the person(s) signing this Letter of Transmittal or if
such check or any such Share Certificate is to be sent to someone other than
the person(s) signing this Letter of Transmittal or to the person(s) signing
this Letter of Transmittal but at an address other than that shown in the box
entitled "Description of Shares Tendered" on the reverse hereof, the
appropriate boxes on the reverse of this Letter of Transmittal must be
completed. Stockholders delivering Shares tendered hereby by book-entry
transfer may request that Shares not purchased be credited to such account
maintained at a Book-Entry Transfer Facility as such stockholder may designate
in the box entitled "Special Payment Instructions" on the reverse hereof. If
no such instructions are given, all such Shares not purchased will be returned
by crediting the account at the Book-Entry Transfer Facility designated on the
reverse hereof as the account from which such Shares were delivered.
8. WAIVER OF CONDITIONS. The conditions of the Offer may be waived, in whole
or in part, by Purchaser, in its sole discretion (other than the Minimum Share
Condition (as defined in the Offer to Purchase)), which may not be waived
without the consent of the Company at any time and from time to time, in the
case of any Shares tendered. See "THE OFFER--Certain Conditions of the Offer"
in the Offer to Purchase.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any Share Certificate(s) have
been lost, destroyed or stolen, the stockholder should promptly notify the
Depositary by checking the box immediately preceding the Special
Payment/Special Delivery Instructions, indicating the number of Shares lost
and delivering the Letter of Transmittal. The stockholder will then be
contacted and provided with instructions as to the procedures for replacing
the Share Certificate(s). This Letter of Transmittal and related documents
cannot be processed until the procedures for replacing lost, destroyed or
stolen certificates have been followed.
10. QUESTIONS AND REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions
and requests for assistance may be directed to the Information Agent at its
address or telephone number set forth below. Additional copies of the Offer to
Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and
the Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 may be obtained from the Information Agent or from
brokers, dealers, commercial banks or trust companies.
9
<PAGE>
11. SUBSTITUTE FORM W-9. Each tendering stockholder is required to provide
the Depositary with a correct Taxpayer Identification Number ("TIN") on the
Substitute Form W-9 which is provided under "Important Tax Information" below,
and to certify whether such stockholder is subject to backup withholding of
federal income tax. If a tendering stockholder has been notified by the
Internal Revenue Service that such stockholder is subject to backup
withholding, such stockholder must cross out item (2) of the Certification box
of the Substitute Form W-9, unless such stockholder has since been notified by
the Internal Revenue Service that such stockholder is no longer subject to
backup withholding. Failure to provide the information on the Substitute Form
W-9 may subject the tendering stockholder to 31% federal income tax
withholding on the payment of the purchase price of all Shares purchased from
such stockholder. If the tendering stockholder has not been issued a TIN and
has applied for one or intends to apply for one in the near future, such
stockholder should write "Applied For" in the space provided for the TIN in
Part I of the Substitute Form W-9, and sign and date the Substitute Form W-9.
If "Applied For" is written in Part I and the Depositary is not provided with
a TIN within 60 days, the Depositary will withhold 31% on all payments of the
purchase price to such stockholder until a TIN is provided to the Depositary.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE HEREOF), PROPERLY
COMPLETED AND DULY EXECUTED (TOGETHER WITH ANY REQUIRED SIGNATURE GUARANTEES,
OR AN AGENT'S MESSAGE IN THE CASE OF BOOK-ENTRY DELIVERY, AND SHARE
CERTIFICATES OR CONFIRMATION OF BOOK-ENTRY TRANSFER AND ALL OTHER REQUIRED
DOCUMENTS) OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED
DELIVERY MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE (AS
DEFINED IN THE OFFER TO PURCHASE).
10
<PAGE>
IMPORTANT TAX INFORMATION
Under the federal income tax law, a stockholder whose tendered Shares are
accepted for payment is required by law to provide the Depositary (as payer)
with such stockholder's correct TIN on Substitute Form W-9 below. If such
stockholder is an individual, the TIN is such stockholder's social security
number. If the Depositary is not provided with the correct TIN, the
stockholder may be subject to a penalty imposed by the Internal Revenue
Service. In addition, payments that are made to such stockholder with respect
to Shares purchased pursuant to the Offer may be subject to backup withholding
of 31%.
Certain stockholders (including, among others, all corporations and certain
foreign individuals) are not subject to these backup withholding and reporting
requirements. In order for a foreign individual to qualify as an exempt
recipient, such individual must submit an Internal Revenue Form W-8, signed
under penalties of perjury, attesting to such individual's exempt status. A
Form W-8 may be obtained from the Depositary. See the enclosed Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9 for
additional instructions.
If backup withholding applies, the Depositary is required to withhold 31% of
any payments made to the stockholder. Backup withholding is not an additional
tax. Rather, the tax liability of persons subject to backup withholding will
be reduced by the amount of tax withheld. If withholding results in an
overpayment of taxes, a refund may be obtained from the Internal Revenue
Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments that are made to a stockholder
with respect to Shares purchased pursuant to the Offer, the stockholder is
required to notify the Depositary of such stockholder's correct TIN by
completing the form below certifying that the TIN provided on Substitute Form
W-9 is correct (or that such stockholder is awaiting a TIN), and that (i) such
stockholder has not been notified by the Internal Revenue Service that he or
she is subject to backup withholding as a result of a failure to report all
interest or dividends or (ii) the Internal Revenue Service has notified such
stockholder that such stockholder is no longer subject to backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The stockholder is required to give the Depositary the social security
number or employer identification number of the record holder of the Shares
tendered hereby. If the Shares are in more than one name or are not in the
name of the actual owner, consult the enclosed Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 for additional guidance
on which number to report. If the tendering stockholder has not been issued a
TIN and has applied for a number or intends to apply for a number in the near
future, the stockholder should write "Applied For" in the space provided for
the TIN in Part I, and sign and date the Substitute Form W-9. If "Applied For"
is written in Part I and the Depositary is not provided with a TIN within 60
days, the Depositary will withhold 31% of all payments of the purchase price
to such stockholder until a TIN is provided to the Depositary.
11
<PAGE>
PAYOR'S NAME:
PART 1--PLEASE PROVIDE YOUR
SUBSTITUTE TAXPAYER IDENTIFICATION ----------------------
FORM W-9 NUMBER ("TIN") IN THE BOX Social Security Number
AT RIGHT AND CERTIFY BY
SIGNING AND DATING BELOW or
----------------------
DEPARTMENT OF Employer Identification
THE TREASURY Number(s)
INTERNAL
REVENUE --------------------------------------------------------
SERVICE PART 2--Certification--Under penalties of perjury, I
certify that:
(1) the number shown on this form is my correct
Taxpayer Identification Number (or I am waiting
PAYER'S REQUEST for a number to be issued to me) and
FOR TAXPAYER
IDENTIFICATION (2) I am not subject to backup withholding because
NUMBER (TIN) (a) I am exempt from backup withholding or (b) I
have not been notified by the Internal Revenue
Service (the "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 PART 3--
cross out item (2) in Part 2 above if
you have been notified by the IRS Awaiting
that you are subject to backup with- TIN [_]
holding because of under reporting -----------
interest or dividends on your tax re-
turns. However, if after being noti- PART 4--
fied by the IRS that you were subject
to backup withholding you received Exempt
another notification from the IRS TIN [_]
stating that you are no longer sub-
ject to backup withholding, do not
cross out such item (2). If you are
exempt from backup withholding, check
the box in Part 4 above.
Signature: ___________________________
NOTE: FAILURE TO COMPETE 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.
YOU MUST COMPETE 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 reported payments made to me will be withheld, but
will be refunded if I provided a certified taxpayer identification number
within sixty (60) days.
Signature _____________________________________________ Date: _____________
12
<PAGE>
Questions or requests for assistance may be directed to the Information Agent
at its address and
telephone number listed below. Additional copies to this Offer to Purchase,
the Letter of Transmittal and the Notice of Guaranteed Delivery may be
obtained from the Information Agent. A stockholder may also contact
brokers, dealers, commercial banks or trust companies
for assistance concerning the Offer.
THE INFORMATION AGENT FOR THE OFFER IS:
[LOGO OF GEORGESON & COMPANY INC. APPEARS HERE]
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect: (212) 440-9800
All Others Call Toll Free: (800) 223-2064
---------------
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
DESCRIPTION OF SHARES TENDERED
(SEE INSTRUCTIONS)
<TABLE>
- --------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(S) OF REGISTERED OWNER(S)
(PLEASE FILL IN EXACTLY AS NAME(S) APPEAR(S) ON SHARE SHARES TENDERED
CERTIFICATE(S)) (ATTACH ADDITIONAL LIST IF NECESSARY)
- --------------------------------------------------------------------------------------------------------------
TOTAL NUMBER
SHARE OF SHARES NUMBER OF
CERTIFICATE REPRESENTED BY SHARES
NUMBER(S)* CERTIFICATES(S) TENDERED**
-------------------------------------------------------
<S> <C> <C> <C>
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
-------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------
</TABLE>
* Need to be completed by Book-Entry Stockholders.
** Unless otherwise indicated, it will be assumed that all Shares described
herein are being tendered. See Instruction 4.
<PAGE>
Exhibit (A)(3)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK)
OF
CONCENTRA CORPORATION
PURSUANT TO THE OFFER TO PURCHASE
DATED NOVEMBER 17, 1998
OF
KL ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF
ORACLE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, DECEMBER 15, 1998, UNLESS THE OFFER IS EXTENDED.
November 17, 1998
To Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
We have been appointed by KL Acquisition Corporation, a corporation
organized and existing under the laws of the State of Delaware ("Purchaser")
and a wholly-owned subsidiary of Oracle Corporation, a corporation organized
and existing under the laws of the State of Delaware ("Parent"), to act as
Information Agent in connection with Purchaser's offer to purchase all
outstanding shares of common stock, par value $0.00001 per share (the "Common
Stock"), of Concentra Corporation, a corporation organized and existing under
the laws of the State of Delaware (the "Company"), and the associated rights
to purchase shares of Preferred Stock (the "Rights") issued pursuant to the
Rights Agreement between the Company and First National Bank of Boston, as
Rights agent, dated April 24, 1997, as amended November 10, 1998, (the Rights
and Common Stock are referred to herein collectively as the "Shares"), at a
price of $7.00 per Share, net to the seller in cash, without interest thereon,
upon the terms and subject to the conditions set forth in Purchaser's Offer to
Purchase, dated November 17, 1998 (the "Offer to Purchase"), and the related
Letter of Transmittal (which together constitute the "Offer") enclosed
herewith. Please furnish copies of the enclosed materials to those of your
clients for whose accounts you hold Shares registered in your name or in the
name of your nominee.
The Offer is conditioned upon, among other things, (i) that number of
Shares, when added to the number of Shares already owned by Parent, the
Purchaser or any direct or indirect wholly-owned subsidiary of Parent, as
shall constitute fifty-one (51%) of the Company's fully diluted shares being
validly tendered prior to the expiration or termination of the Offer and not
withdrawn, and (ii) any applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and under any applicable
antitrust laws of any foreign country shall have expired or been terminated
prior to the expiration of the Offer. This Offer is also subject to the
conditions set forth in the Offer to Purchase.
Enclosed for your information and forwarding to your clients are copies of
the following documents:
1. Offer to Purchase, dated November 17, 1998;
2. Letter of Transmittal to be used by holders of Shares in accepting the
Offer and tendering Shares;
3. Notice of Guaranteed Delivery to be used to accept the Offer if the
Shares and all other required documents are not immediately available or
cannot be delivered to BankBoston, N.A. (the "Depositary") by the
Expiration Date (as defined in the Offer to Purchase) or if the procedure
for book-entry transfer cannot be completed by the Expiration Date;
<PAGE>
4. A Solicitation/Recommendation Statement on Schedule 14D-9 filed with
the Securities and Exchange Commission by the Company;
5. A letter which may be sent to your clients for whose accounts you hold
Shares registered in your name or in the name of your nominee, with space
provided for obtaining such clients' instructions with regard to the Offer;
6. Guidelines of the Internal Revenue Service for Certification of
Taxpayer Identification Number on Substitute Form W-9; and
7. Return envelope addressed to the Depositary.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE
THAT THE OFFER AND WITHDRAWAL RIGHTS EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, DECEMBER 15, 1998, UNLESS THE OFFER IS EXTENDED.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by the Depositary of (i) certificates
evidencing such Shares (or a confirmation of a book-entry transfer of such
Shares into the Depositary's account at one of the Book-Entry Transfer
Facilities (as defined in the Offer to Purchase)), (ii) a Letter of
Transmittal (or facsimile thereof) properly completed and duly executed, with
any required signature guarantees, or an Agent's Message (as defined in the
Offer to Purchase) in connection with a book-entry delivery of Shares and
(iii) any other documents required by the Letter of Transmittal.
If a holder of Shares wishes to tender Shares, but cannot deliver such
holder's certificates or other required documents, or cannot comply with the
procedure for book-entry transfer, prior to the expiration of the Offer, a
tender may be effected by following the guaranteed delivery procedure
described in "THE OFFER--Procedure for Accepting the Offer and Tendering
Shares" of the Offer to Purchase.
Purchaser will not pay any fees or commissions to any broker, dealer or
other person (other than the Depositary and the Information Agent as described
in the Offer) in connection with the solicitation of tenders of Shares
pursuant to the Offer. However, Purchaser will reimburse you for customary
mailing and handling expenses incurred by you in forwarding any of the
enclosed materials to your clients. Purchaser will pay or cause to be paid any
stock transfer taxes payable with respect to the transfer of Shares to it,
except as otherwise provided in Instruction 6 of the Letter of Transmittal.
Any inquiries you may have with respect to the Offer should be addressed to
us at our address and telephone number set forth on the back cover page of the
Offer to Purchase.
Additional copies of the enclosed material may be obtained from the
Information Agent, at the address and telephone number set forth on the back
cover page of the Offer to Purchase.
Very truly yours,
Georgeson & Company Inc.
as Information Agent
Wall Street Plaza
New York, New York 10005
(800) 223-2064 (Toll Free)
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL AUTHORIZE YOU
OR ANY OTHER PERSON TO ACT ON BEHALF OF OR AS THE AGENT OF PARENT, THE
PURCHASER, THE COMPANY, THE INFORMATION AGENT OR THE DEPOSITARY, OR OF ANY
AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY
DOCUMENT OR TO MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION
WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS
CONTAINED THEREIN.
2
<PAGE>
Exhibit (A)(4)
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK)
OF
CONCENTRA CORPORATION
PURSUANT TO THE OFFER TO PURCHASE
DATED NOVEMBER 17, 1998
OF
KL ACQUISITION CORPORATION
A WHOLLY-OWNED SUBSIDIARY OF
ORACLE CORPORATION
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, TUESDAY, DECEMBER 15, 1998, UNLESS THE OFFER IS EXTENDED.
To Our Clients:
Enclosed for your consideration are an Offer to Purchase, dated November 17,
1998 (the "Offer to Purchase"), and a related Letter of Transmittal in
connection with the offer by KL Acquisition Corporation, a corporation
organized and existing under the laws of the State of Delaware ("Purchaser")
and a wholly-owned subsidiary of Oracle Corporation, a corporation organized
and existing under the laws of the State of Delaware ("Parent"), to purchase
all outstanding shares of common stock, par value $0.00001 per share (the
"Common Stock"), of Concentra Corporation, a corporation organized and
existing under the laws of the State of Delaware (the "Company"), and the
associated rights to purchase shares of Preferred Stock (the "Rights") issued
pursuant to the Rights Agreement between the Company and First National Bank
of Boston, as Rights agent, dated April 24, 1997, as amended November 10, 1998
(the Rights and Common Stock are referred to herein collectively as the
"Shares"), at a price of $7.00 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions set forth in
the Offer to Purchase and the related Letter of Transmittal (which together
constitute the "Offer").
WE ARE (OR OUR NOMINEE IS) THE HOLDER OF RECORD OF SHARES HELD BY US FOR
YOUR ACCOUNT. A TENDER OF SUCH SHARES CAN BE MADE ONLY BY US AND THE HOLDER OF
RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS
FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER
SHARES HELD BY US FOR YOUR ACCOUNT.
We request instructions as to whether you wish to have us tender on your
behalf any or all of the Shares held by us for your account, upon the terms
and subject to the conditions set forth in the Offer.
Your attention is invited to the following:
1. The tender price is $7.00 per Share, net to you in cash, without
interest thereon, upon the terms and subject to the conditions set forth in
the Offer.
2. The Offer is being made for all outstanding Shares.
3. The Board of Directors of the Company has determined that each of the
Offer and the Merger is fair to, and in the best interests of, the
stockholders of the Company, and recommends that stockholders accept the
Offer and tender all of their Shares pursuant to the Offer.
4. The Offer and withdrawal rights will expire at 12:00 Midnight, New York
City time, on Tuesday, December 15, 1998, unless the Offer is extended.
<PAGE>
5. The Offer is conditioned upon, among other things, (i) that number of
Shares, when added to the number of Shares already owned by Parent, the
Purchaser or any direct or indirect wholly-owned subsidiary of Parent, as
shall constitute fifty-one (51%) of the Company's fully diluted shares being
validly tendered prior to the expiration or termination of the Offer and not
withdrawn, and (ii) any applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and under any applicable
antitrust laws of any foreign country shall have expired or been terminated
prior to the expiration of the Offer. The Offer is also subject to the
conditions set forth in the Offer to Purchase.
6. Tendering stockholders will not be obligated to pay brokerage fees or
commissions or, except as otherwise provided in Instruction 6 of the Letter of
Transmittal, stock transfer taxes with respect to the purchase of Shares by
Purchaser pursuant to the Offer.
7. Payment for Shares purchased pursuant to the Offer will in all cases be
made only after timely receipt by BankBoston, N.A. (the "Depositary") of (a)
Share certificates or timely confirmation of the book-entry transfer of such
Shares into the account maintained by the Depositary at The Depository Trust
Company or Philadelphia Depository Trust Company (collectively, the "Book-
Entry Transfer Facilities"), pursuant to the procedures set forth in "THE
OFFER -- Procedure for Accepting the Offer and Tendering Shares" of the Offer
to Purchase, (b) the Letter of Transmittal (or a facsimile thereof), properly
completed and duly executed, with any required signature guarantees or an
Agent's Message (as defined in the Offer to Purchase), in connection with a
book-entry delivery, and (c) any other documents required by the Letter of
Transmittal. Accordingly, payment may not be made to all tendering
stockholders at the same time depending upon when certificates for or
confirmations of book-entry transfer of such Shares into the Depositary's
account at a Book-Entry Transfer Facility are actually received by the
Depositary.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing and returning to us the instruction form contained
in this letter. An envelope in which 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 in your instructions. YOUR INSTRUCTIONS
SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO SUBMIT A TENDER ON
YOUR BEHALF PRIOR TO THE EXPIRATION OF THE OFFER.
The Offer is made solely by the Offer to Purchase and the related Letter of
Transmittal and is being made to all holders of Shares. Purchaser is not aware
of any jurisdiction where the making of the Offer is prohibited by
administrative or judicial action pursuant to any valid state statute. If
Purchaser becomes aware of any valid state statute prohibiting the making of
the Offer or the acceptance of Shares pursuant thereto, Purchaser will make a
good faith effort to comply with such state statute. If, after such good faith
effort, Purchaser cannot comply with such state statute, the Offer will not be
made to (nor will tenders be accepted from or on behalf of) the holders of
Shares in such state. In any jurisdiction where the securities, blue sky or
other laws require the Offer to be made by a licensed broker or dealer, the
Offer shall be deemed to be made on behalf of Purchaser by one or more
registered brokers or dealers licensed under the laws of such jurisdiction.
2
<PAGE>
INSTRUCTIONS WITH RESPECT TO
THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK)
OF
CONCENTRA CORPORATION BY KL ACQUISITION CORPORATION,
A WHOLLY-OWNED SUBSIDIARY OF ORACLE CORPORATION
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase, dated November 17, 1998, and the related Letter of Transmittal
(which together constitute the "Offer") in connection with the offer by KL
Acquisition Corporation, a corporation organized and existing under the laws
of the State of Delaware and a wholly-owned subsidiary of Oracle Corporation,
a corporation organized and existing under the laws of the State of Delaware
(the "Parent"), to purchase all outstanding shares of common stock, par value
$0.00001 per share (the "Common Stock"), of Concentra Corporation, a
corporation organized and existing under the laws of the State of Delaware
(the "Company"), and the associated rights to purchase shares of Preferred
Stock (the "Rights") issued pursuant to the Rights Agreement between the
Company and First National Bank of Boston, as Rights agent, dated April 24,
1997, as amended November 10, 1998 (the Rights and Common Stock are referred
to herein collectively as the "Shares"), at a price of $7.00 per Share, net to
the seller in cash, without interest thereon, upon the terms and subject to
the conditions set forth in the Offer.
This will instruct you to tender the number of Shares indicated below (or,
if no number is indicated below, all Shares) that are held by you for the
account of the undersigned, upon the terms and subject to the conditions set
forth in the Offer.
Dated: ____________________________________________________________________
NUMBER OF SHARES TO BE TENDERED:*
____________ Shares
* UNLESS OTHERWISE INDICATED, IT WILL BE ASSUMED THAT ALL SHARES HELD BY
US FOR YOUR ACCOUNT ARE TO BE TENDERED.
SIGN HERE
X
--------------------------------------------------------------------------
X
--------------------------------------------------------------------------
(AUTHORIZED SIGNATURES)
---------------------------------------------------------------------------
(PRINT NAMES)
---------------------------------------------------------------------------
(PRINT ADDRESSES, INCLUDING ZIP CODE)
----------------------------------- -----------------------------------
(AREA CODE AND TELEPHONE NUMBER) (TAXPAYER IDENTIFICATION AND
SOCIAL SECURITY NUMBERS)
DATED: ____________________________
3
<PAGE>
Exhibit (A)(5)
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK)
OF
CONCENTRA CORPORATION
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This Notice of Guaranteed Delivery, or one substantially in the form hereof,
must be used to accept the Offer (as defined below) (i) if certificates
("Share Certificates") evidencing shares of common stock, par value $0.00001
per share (including the associated rights to purchase preferred stock) (the
"Shares"), of Concentra Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Company"), are not immediately
available, (ii) if Share Certificates and all other required documents cannot
be delivered to BankBoston, N.A. as Depositary (the "Depositary") prior to the
Expiration Date (as defined in the Introduction to the Offer to Purchase (as
defined below)), or (iii) if the procedure for delivery by book-entry transfer
cannot be completed on a timely basis. This Notice of Guaranteed Delivery may
be delivered by hand or mail or transmitted by telegram or facsimile
transmission to the Depositary. See "THE OFFER--Procedure for Accepting the
Offer and Tendering Shares" of the Offer to Purchase.
The Depositary For The Offer Is:
BANKBOSTON, N.A.
<TABLE>
<C> <S> <C>
By Mail: By Overnight Courier: By Hand:
BANKBOSTON, N.A. BANKBOSTON, N.A. STARS
ATTN: CORPORATE REORGANIZATION ATTN: CORPORATE SECURITIES TRANSFER &
P.O. BOX 8029 REORGANIZATION REPORTING
BOSTON, MA 02266-8029 150 ROYAL STREET SERVICES, INC.
CANTON, MA 02021 C/O BOSTON EQUISERVE LP
100 WILLIAM STREET/GALLERIA
NEW YORK, NY 10038
</TABLE>
By Facsimile Transmission:
(For Eligible Institutions Only)
(781) 575-2232
Confirm by Telephone:
(781) 575-3120
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION
OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY.
This Notice of Guaranteed Delivery 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 KL Acquisition Corporation, a corporation
organized and existing under the laws of the State of Delaware and a wholly-
owned subsidiary of Oracle Corporation, a corporation organized and existing
under the laws of the State of Delaware, upon the terms and subject to the
conditions set forth in the Offer to Purchase, dated November 17, 1998 (the
"Offer to Purchase"), and the related Letter of Transmittal (which together
constitute the "Offer"), receipt of each of which is hereby acknowledged, the
number of Shares specified below pursuant to the guaranteed delivery procedure
described in "THE OFFER--Procedure for Accepting the Offer and Tendering
Shares" of the Offer to Purchase.
SIGNATURE(S) OF HOLDER(S) __________________________
------------------------------------ ------------------------------------
NAME(S) OF RECORD HOLDER(S) NUMBER OF SHARES
------------------------------------ ------------------------------------
(PLEASE PRINT) SHARE CERTIFICATE NOS. (IF
------------------------------------ AVAILABLE)
------------------------------------
ADDRESS(ES) Check ONE box if Shares will be
------------------------------------ tendered by book entry transfer:
ZIP CODE [_] The Depository Trust Company
[_] Philadelphia Depository Trust
Company
------------------------------------
AREA CODE AND TELEPHONE NO.
------------------------------------ ------------------------------------
ACCOUNT NUMBER
------------------------------------ ------------------------------------
SIGNATURE(S) NAME OF TENDERING INSTITUTION
Dated: _____________________________
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm which is a member of a registered national
securities exchange or of the National Association of Securities Dealers,
Inc. or which is a commercial bank or trust company having an office or
correspondent in the United States, guarantees to deliver to the Depositary,
at one of its addresses set forth above, Share Certificates evidencing the
Shares tendered hereby, in proper form for transfer, or confirmation of
book-entry transfer of such Shares into the Depositary's account at the
Depository Trust Company or the Philadelphia Depository Trust Company, in
each case with delivery of a Letter of Transmittal (or facsimile thereof)
properly completed and duly executed, with any required signature guarantees
or an Agent's Message (as defined in the Offer to Purchase) in the case of a
book-entry delivery, and any other required documents, all within three
Nasdaq National Market trading days of the date hereof.
------------------------------------ ------------------------------------
NAME OF FIRM AUTHORIZED SIGNATURE
------------------------------------ ------------------------------------
ADDRESS NAME (PLEASE PRINT)
------------------------------------ ------------------------------------
ZIP CODE TITLE
------------------------------------ ------------------------------------
AREA CODE AND TELEPHONE NO. DATED
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE; CERTIFICATES FOR
SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
2
<PAGE>
EXHIBIT (a)(6)
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
Social security numbers have nine digits separated by two hyphens: i.e. 000-
00-0000. Employer identification numbers have nine digits separated by only
one hyphen: i.e. 00-0000000. The table below will help determine the number to
give the payer.
<TABLE>
- --------------------------------------------- ----------------------------------------------
<CAPTION>
GIVE THE GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY FOR THIS TYPE OF ACCOUNT: IDENTIFICATION
NUMBER OF-- NUMBER OF--
- --------------------------------------------- ----------------------------------------------
<S> <C> <C> <C>
1. An individual's account The individual 9. A valid trust, estate The legal entity
2. Two or more individuals The actual owner or pension trust (Do not furnish
(joint account) of the account the identifying
or, if combined number of the
funds, any one personal
of the representative
individuals(1) or trustee
3. Husband and wife (joint The actual owner unless the legal
account) of the account entity itself is
or, if joint not designated
funds, either in the account
person(1) title.)(5)
4. Custodian account of a The minor(2) 10. Corporate account The corporation
minor (Uniform Gift to 11. Religious, charitable, The organization
Minors Act) or educational
5. Adult and minor (joint The adult or, if organization account
account) the minor is the 12. Partnership account The partnership
only held in the name of
contributor, the the business
minor(1) 13. Association, club, or The organization
6. Account in the name of The ward, minor, other tax-exempt
guardian or committee or incompetent organization
for a designated ward, person(3) 14. A broker or registered The broker or
minor, or incompetent nominee nominee
person 15. Account with the The public
7. a. The usual revocable The grantor- Department of entity
savings trust trustee(1) Agriculture in the
account (grantor name of a public
is also trustee) entity (such as a
b. So-called trust The actual State or local
account that is owner(1) government, school
not a legal or district, or prison)
valid trust under that receives
State Law agricultural program
8. Sole proprietorship The owner(4) payments
account
- --------------------------------------------- ----------------------------------------------
</TABLE>
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE:If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or
Form SS-4, Application for Employer Identification Number, at the local office
of the Social Security Administration or the Internal Revenue Service (the
"IRS") and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments including
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 non-resident partner.
. Payments of patronage dividends where the amount received is not paid in
money.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
. Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
. Payments of tax-exempt interest (including the exempt-interest dividends
under section 852).
. Payments described in section 6049(b)(5) to non-resident aliens.
. Payments on tax-free covenant bonds under section 1451.
. Payments made by certain foreign organizations.
. Payments made to a nominee.
Exempt payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM, AND RETURN IT
TO THE PAYER, IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS,
ALSO SIGN AND DATE THE FORM.
Certain payments other than interest, dividends, and patronage dividends that
are not subject to information reporting are also not subject to backup with-
holding. For details, see the regulations under sections 6041, 6041A(a), 6045,
6050A.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to 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. Beginning January 1, 1984, payers
must generally withhold 20% of taxable interest, dividend, and certain other
payments to a payee who does not furnish a taxpayer identification number to a
payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you
fail to furnish your taxpayer identification number to a payer, you are
subject to a penalty of $50 for each such failure unless your failure is due
to reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being due
to negligence and will be subject to a penalty of 5% on any portion of an
under-payment attributable to that failure unless there is clear and
convincing evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
<PAGE>
Exhibit (a)(7)
THIS ANNOUNCEMENT IS NEITHER AN OFFER TO PURCHASE NOR A SOLICITATION OF AN OFFER
TO SELL SHARES (AS DEFINED BELOW). THE OFFER (AS DEFINED BELOW) IS MADE SOLELY
BY THE OFFER TO PURCHASE DATED NOVEMBER 17, 1998 AND THE RELATED LETTER OF
TRANSMITTAL, AND IS BEING MADE TO ALL HOLDERS OF SHARES. PURCHASER IS NOT AWARE
OF ANY STATE WHERE THE MAKING OF THE OFFER IS PROHIBITED BY ADMINISTRATIVE OR
JUDICIAL ACTION PURSUANT TO ANY VALID STATE STATUTE. IF PURCHASER BECOMES AWARE
OF ANY VALID STATE STATUTE PROHIBITING THE MAKING OF THE OFFER OR THE ACCEPTANCE
OF SHARES PURSUANT THERETO, PURCHASER WILL MAKE A GOOD FAITH EFFORT TO COMPLY
WITH SUCH STATE STATUTE. IF, AFTER SUCH GOOD FAITH EFFORT, PURCHASER CANNOT
COMPLY WITH SUCH STATE STATUTE, THE OFFER WILL NOT BE MADE TO (NOR WILL TENDERS
BE ACCEPTED FROM OR ON BEHALF OF) THE HOLDERS OF SHARES IN SUCH STATE. IN ANY
JURISDICTION WHERE THE SECURITIES, BLUE SKY OR OTHER LAWS REQUIRE THE OFFER TO
BE MADE BY A LICENSED BROKER OR DEALER, THE OFFER SHALL BE DEEMED TO BE MADE ON
BEHALF OF PURCHASER BY ONE OR MORE REGISTERED BROKERS OR DEALERS LICENSED UNDER
THE LAWS OF SUCH JURISDICTION.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING ASSOCIATED RIGHTS TO PURCHASE PREFERRED STOCK)
of
CONCENTRA CORPORATION
at
$7.00 Net Per Share
by
KL Acquisition Corporation
a wholly-owned subsidiary of
ORACLE CORPORATION
KL Acquisition Corporation, a Delaware corporation ("Purchaser") and a
wholly-owned subsidiary of Oracle Corporation, a Delaware corporation
("Parent"), is offering to purchase all outstanding shares of common stock,
$0.00001 par value (the "Common Stock"), of Concentra Corporation, a Delaware
corporation (the "Company"), and the associated Series A Participating
Cumulative Preferred Stock purchase rights (collectively, the "Rights") issued
pursuant to the Rights Agreement between the Company and First National Bank of
Boston, as Rights agent, dated April 24, 1997, as amended November 10, 1998 (the
"Rights Agreement") (the Rights and the Common Stock are referred to herein
collectively as the "Shares"), at a price of $7.00 per Share, net to the seller
in cash, without interest (the "Offer Price"), upon the terms and subject to the
conditions set forth in the Offer to Purchase dated November 17, 1998 (the
"Offer to Purchase") and the related Letter of Transmittal. The Offer to
Purchase and the related Letter of Transmittal, together with any amendments or
supplements hereto or thereto, collectively constitute the "Offer." Following
the Offer, Purchaser intends to effect the Merger (as defined below).
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME, ON MONDAY, DECEMBER 15, 1998, UNLESS THE OFFER IS EXTENDED.
The Offer is conditioned upon, among other things, (i) that number of
Shares, when added to the number of Shares already owned by Parent, the
Purchaser or any direct or indirect wholly-owned subsidiary of Parent, as shall
constitute fifty-one (51%) of the Company's fully diluted shares being validly
tendered prior to the expiration or termination of the Offer and not withdrawn,
and (ii) any applicable waiting period under the Hart-Scott-Rodino
-1-
<PAGE>
Antitrust Improvements Act of 1976, as amended, and under any applicable
antitrust laws of any foreign country shall have expired or been terminated
prior to the expiration of the Offer.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of November 10, 1998 (the "Merger Agreement"), among Parent, Purchaser and
----------------
the Company. The Merger Agreement provides that, among other things, as soon as
practicable after the purchase of Shares pursuant to the Offer and the
satisfaction of the other conditions set forth in the Merger Agreement and in
accordance with relevant provisions of the General Corporation Law of the State
of Delaware ("Delaware Law"), Purchaser will be merged with and into the Company
------------
(the "Merger"). Following consummation of the Merger, the Company will continue
------
as the surviving corporation (the "Surviving Corporation") and will become a
---------------------
direct wholly-owned subsidiary of Parent. At the effective time of the Merger
(the "Effective Time"), each Share issued and outstanding immediately prior to
--------------
the Effective Time (other than Shares owned by Purchaser, Parent or any direct
or indirect wholly-owned subsidiary of Parent or the Company, and other than
Shares held by stockholders who shall have demanded and perfected appraisal
rights, if any, under Delaware Law) will be canceled and converted automatically
into the right to receive $7.00 in cash, without interest.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED AND FOUND
ADVISABLE THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY AND
DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE
BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY, AND RECOMMENDS THAT
STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER.
In connection with the execution and delivery of the Merger Agreement,
Parent and certain stockholders of the Company, each in his or its capacity as a
stockholder of the Company (each, a "Seller Stockholder"), entered into support
------------------
agreements dated November 10, 1998 (the "Support Agreements"), pursuant to which
------------------
each Seller Stockholder agreed to: (i) tender pursuant to the Offer all Shares
owned or thereafter acquired prior to the termination of the Offer by such
Seller Stockholder and (ii) use his or its best efforts to assist in the tender
offer process so as to achieve as large an amount of tendered shares as
possible. In addition, each Seller Stockholder has irrevocably granted and
appointed certain officers of Parent as proxy and attorney-in-fact for such
Seller Stockholder to vote his or its Shares in favor of the Merger. The Shares
owned by the Seller Stockholders and subject to the Support Agreements
constituted approximately 38.9% of the Shares represented by the Company to be
outstanding as of November 10, 1998.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment (and thereby purchased) Shares validly tendered and not properly
withdrawn as, if and when Purchaser gives oral or written notice to BankBoston,
N.A. (the "Depositary") of Purchaser's acceptance for payment of such Shares
----------
pursuant to the Offer. Upon the terms and subject to the conditions of the
Offer, payment for Shares accepted for payment pursuant to the Offer will be
made by deposit of the purchase price therefor with the Depositary, which will
act as agent for tendering stockholders for the purpose of receiving payments
from Purchaser and transmitting such payments to tendering stockholders whose
Shares have been accepted for payment. Under no circumstances will interest on
the purchase price for Shares be paid, regardless of any delay in making such
payment. In all cases, payment for Shares tendered and accepted for payment
pursuant to the Offer will be made only after timely receipt by the Depositary
of (i) the certificates evidencing such Shares (the "Share Certificates") or
------------------
timely confirmation of a book-entry transfer of such Shares into the
Depositary's account at one of the Book-Entry Transfer Facilities (as defined in
the Offer to Purchase) pursuant to the procedure set forth in the Offer to
Purchase, (ii) the Letter of Transmittal (or a 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) in lieu of the Letter of Transmittal, and (iii) any other documents
required under the Letter of Transmittal.
Subject to the applicable rules and regulations of the Securities and
Exchange Commission ("SEC"), Purchaser expressly reserves the right, in its sole
---
discretion (but subject to the terms and conditions of the Merger Agreement), at
any time and from time to time, to (i) terminate or amend the Offer, (ii) extend
the Offer and postpone acceptance for payment of any Shares, or (iii) waive any
condition (except, without the consent of the Company, for the Minimum Share
Condition) by giving oral or written notice of such termination, amendment,
extension or waiver to the Depositary and by making a public announcement
thereof. In the case of an extension, such public announcement will be made no
later than 9:00 a.m., New York City time, on the next business day after the
previously scheduled expiration of the Offer. During any such extension, all
Shares previously tendered and not properly withdrawn will remain subject to the
Offer, subject to the right of a tendering stockholder to withdraw such
-2-
<PAGE>
stockholder's Shares. Purchaser may (x) from time to time extend (and re-extend)
the Offer, if at the scheduled expiration date of the Offer any of the
conditions of the Offer (other than the Minimum Share Condition) have not been
satisfied or waived, until such time as such conditions have been satisfied or
waived, (y) extend the Offer for any period required by any rule, regulation,
interpretation or position of the SEC or the staff thereof applicable to the
Offer, or (z) extend (and re-extend) the Offer for any reason on one or more
occasions for an aggregate period of not more than 20 business days beyond the
latest expiration date that would otherwise be permitted under clause (x) or (y)
above, if on such expiration date there shall not have been tendered at least
that number of Shares necessary to permit the Merger to be effected without a
meeting of the Company's stockholders in accordance with Delaware Law.
Tenders of Shares made pursuant to the Offer are irrevocable except that
such Shares may be withdrawn at any time prior to 12:00 Midnight, New York City
time, on December 15, 1998 (or the latest time and date at which the Offer, if
extended by Purchaser, shall expire) and, unless theretofore accepted for
payment by Purchaser pursuant to the Offer, may also be withdrawn at any time
after January 15, 1999. For the 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
page of the Offer to Purchase. Any such notice of withdrawal must specify the
name of the person who tendered the Shares to be withdrawn, the number of Shares
to be withdrawn and the name of the registered holder of such Shares, if
different from that of the person who tendered such Shares. If Share
Certificates to be withdrawn have been delivered or otherwise identified to the
Depositary, then, prior to the physical release of such Share Certificates, the
serial numbers shown on such Share Certificates must be submitted to the
Depositary and the signature(s) on the notice of withdrawal must be guaranteed
by an Eligible Institution (as defined in the Offer to Purchase), unless such
Shares have been tendered for the account of an Eligible Institution. If Shares
have been tendered pursuant to the procedure for book-entry transfer (as set
forth in the Offer to Purchase), any notice of withdrawal must specify the name
and number of the account at the Book-Entry Transfer Facility to be credited
with the withdrawn Shares and otherwise comply with such Book-Entry Transfer
Facility's procedures for such withdrawal. All questions as to the form and
validity (including the time of receipt) of any notice of withdrawal will be
determined by Purchaser, in its sole discretion, whose determination will be
final and binding.
The information required to be disclosed by Rule 14d-6(e)(1)(vii) of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended, is contained in the Offer to Purchase and is incorporated herein by
reference.
The Company has provided Purchaser with the Company's stockholder list and
security position listings for the purpose of disseminating the Offer to holders
of Shares. The Offer to Purchase and the related Letter of Transmittal will be
mailed to record holders of Shares whose names appear on the Company's
stockholder list and will be furnished to brokers, dealers, commercial banks,
trust companies and similar persons whose names, or the names of whose nominees,
appear on the stockholder list or, if applicable, who are listed as participants
in a clearing agency's security position listing for subsequent transmittal to
beneficial owners of Shares.
THE OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
Questions and requests for assistance or for additional copies of the Offer
to Purchase and the related 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 Purchaser's expense. No fees or
commissions will be paid to brokers, dealers or other persons (other than the
Information Agent and Depositary, as set forth in the Offer to Purchase) for
soliciting tenders of Shares pursuant to the Offer. Additional copies of the
Offer to Purchase, the Letter of Transmittal and all other tender offer
materials may be obtained from the Information Agent or from brokers, dealers,
commercial banks and trust companies, and will be furnished promptly at
Purchaser's expense.
THE INFORMATION AGENT FOR THE OFFER IS:
-3-
<PAGE>
Georgeson & Company Inc.
Wall Street Plaza
New York, New York 10005
Banks and Brokers Call Collect: (212) 440-9800
All Others Call Toll Free: (800) 223-2064
November 17, 1998
-4-
<PAGE>
Exhibit (a)(8)
Tuesday November 10, 8:09 pm Eastern Time
Company Press Release
SOURCE: Oracle Corp.
Oracle(R) Agrees to Acquire Concentra Corporation,
Leading Configurator Software Provider
Enables Internet Electronic Commerce for Complex Products
REDWOOD SHORES, Calif., Nov. 10 /PRNewswire/ -- Oracle Corp. (Nasdaq: ORCL -
----
news) and Concentra Corporation (Nasdaq: CTRA - news), a leading provider of
- ---- ---- ----
advanced configuration software, today announced they have signed a definitive
agreement calling for Oracle to make, a cash tender offer for all outstanding
shares of Concentra at a purchase price of $7.00 per share and aggregate
consideration of approximately $43 million. The closing of the tender offer is
subject to Oracle acquiring at least 51% of Concentra's stock and regulatory
approvals and will be followed by a cash merger (at the same $7.00 price per
share) through which Oracle will become the sole stockholder of Concentra. The
parties anticipate closing the transaction near the end of the year.
This acquisition will give Oracle the industry's most powerful configurator
engine, which Oracle will use as a core technology for its electronic commerce,
sales automation and unassisted selling in manufacturing businesses ranging from
simple assembly to complex engineer-to-order products. The configurator will
allow anyone -- including customers themselves -- to customize even the most
complex quotes and orders. For example, an airplane manufacturer could use this
technology to allow its airline customers to custom configure cabin requirements
for their airplane purchases. Similarly, a consumer electronics manufacturer
could use this technology to allow customers to tailor their own orders over the
Web.
Oracle will use Concentra's configurator in both its front office and
manufacturing product lines. Concentra's flagship product, SellingPoint, will be
available immediately from Oracle, will be completely integrated into Oracle
Applications, and will also continue to be available on a standalone basis.
Concentra will bring a strong customer base as well as strong development and
consulting organizations that will provide Oracle with additional capacity and
domain expertise. Concentra will become Oracle's center for configurator
technology development. Concentra's customers include: Airbus Industrie, Alstom,
BOC Gases, Caradon-Everest, Clopay, Cummins Engines, Dayco, Elsag Bailey,
Fujitsu, General Signal HBO and Company, HK Systems, Nokia, Pride Healthcare,
Teradyne, US Steel, and Yuba.
"Enabling unassisted selling for even the most complex products is vital for
leading manufacturers and distributors," said Ron Wohl, senior vice president,
applications development at Oracle. "Oracle's
<PAGE>
integrated front office and manufacturing products already provide quote-to-
delivery automation. Now with the addition of Concentra's world-class
configurator, Oracle will extend this capability to companies with complex
products. Combining this powerful configurator, integrated front office, and
flow manufacturing will fulfill our vision for efficient mass customization."
Oracle Corporation is the world's leading supplier of software for information
management, and the world's second largest software company. With annual
revenues of more than $7.5 billion, the company offers its database, application
server, tools and application products, along with related consulting, education
and support services, in more than 140 countries around the world.
For more information about Oracle, please call 650-506-7000. Oracle's World Wide
Web address is (URL) http://www.oracle.com.
---------------------
Trademarks
Oracle is a registered trademark and Oracle Applications is a registered
trademark or trademark of Oracle Corporation. All other products, or company
names mentioned are used for identification purposes only, and may be trademarks
of their respective owners.
. Safe Harbor Statement under the Private Securities Litigation Reform Act
. of 1995: Oracle Corporation
. Statements in this Press Release regarding Oracle Corporation's business
which are not historical facts are "forward-looking statements" that involve
risks and uncertainties. For a discussion of such risks and uncertainties,
which could cause actual results to differ from those contained in the
forward-looking statements see "Risk Factors" in the Company's Annual Report
on Form 10-K for the most recently ended fiscal year.
. Safe Harbor Statement under the Private Securities Litigation Reform Act
. of 1995: Concentra Corporation
. The statements in this press release about the Company's prospects,
including those relating to the anticipated timing and benefits of the
Company's product strategies, are forward-looking statements based on
assumptions that may not be realized for various reasons. Any such statements
are subject to risks that could cause the actual results or needs to vary
materially. These risks include, but are not limited to, Concentra's history
of financial losses, the need for additional liquidity to finance continuing
operations, the Company's dependence on SellingPoint, its principal product
the competition and technology demands of the sales force automation market,
the performance of the LoanData subsidiary and the loss of ICAD business
customers and personnel. The Company discusses such risks in detail in its
proxy statement filed with the Securities and Exchange Commission on
May 12, 1998 and its 10-K filed June 26, 1998.
SOURCE: Oracle Corp.
<PAGE>
Exhibit (c)(1)
AGREEMENT AND PLAN OF MERGER
----------------------------
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of November
---------
10, 1998, is entered into by and among Oracle Corporation, a Delaware
corporation ("Parent"), KL Acquisition Corporation, a Delaware corporation and a
------
wholly owned subsidiary of Parent (the "Purchaser"), and Concentra Corporation,
---------
a Delaware corporation (the "Company").
-------
RECITALS
--------
A. The respective Boards of Directors of the Company, Parent and the
Purchaser have approved the acquisition of the Company by the Purchaser and, in
furtherance of such acquisition, Parent proposes to cause the Purchaser to make
a cash tender offer (the "Offer") for all of the outstanding shares (the
-----
"Shares") of Common Stock of the Company, par value $0.00001 per share (the
------
"Company Common Stock"), on the terms specified herein.
- ---------------------
B. The Board of Directors of the Company has approved the Offer and
recommended that it be accepted by the stockholders of the Company.
C. The Boards of Directors of the Company and the Purchaser deem it
advisable and in the best interests of the stockholders of such corporations to
effect the merger (the "Merger") of the Purchaser with and into the Company
------
following the consummation of the Offer, all pursuant to this Agreement and in
accordance with the Delaware General Corporation Law (the "DGCL").
----
D. As a condition and inducement to Parent's and the Purchaser's
willingness to enter into this Agreement, upon the execution and delivery of
this Agreement (i) San Giorgio S.A., Special Situations Fund III, L.P., Special
Situations Private Equity Fund, L.P., Special Situations Cayman Fund, L.P.,
Special Situations Technology Fund, L.P., Lawrence W. Rosenfeld (individually
and as trustee), Toyo Corporation, and Stephen J. Cucchiaro are simultaneously
entering into and delivering support agreements (the "Support Agreements") in
------------------
the form attached hereto as Annex II, and (ii) directors with options under the
1994 Directors' Stock Option Plan are simultaneously entering into and
delivering option termination agreements (the "Director Option Termination
---------------------------
Agreements") in the form attached hereto as Annex III.
- ----------
The parties hereby agree as follows:
ARTICLE I
THE OFFER
1.1 The Offer.
---------
(a) Subject to the provisions of this Agreement and provided that
nothing shall have occurred that would result in a failure to satisfy any of the
conditions set forth
<PAGE>
in Annex I hereto (the "Offer Conditions"), Parent shall cause the Purchaser
-------
to, as promptly as reasonably practicable after the date hereof, but in no
event later than five (5) business days following the initial public
announcement of the Purchaser's intention to commence the Offer, commence
(within the meaning of Rule 14d-2(a) under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), the Offer for all of the outstanding Shares
------------
and the associated Series A Participating Cumulative Preferred Stock purchase
rights (collectively, the "Rights") issued pursuant to the Rights Agreement
------
between the Company and First National Bank of Boston, as Rights agent, dated as
of April 24, 1997 (the "Rights Agreement"), at a price of $7.00 per Share (and
----------------
associated Rights), net to the seller in cash. The obligation of the Purchaser
to accept for payment and to pay for any Shares (and associated Rights) tendered
shall be subject only (i) to such number of Shares, when added to the number of
Shares already owned by Parent, the Purchaser or any direct or indirect wholly
owned subsidiary of Parent, as shall constitute fifty-one percent (51%) of the
Company's Fully Diluted Shares (as defined in Section 4.2) being validly
tendered prior to the expiration or termination of the Offer and not withdrawn
(the "Minimum Share Condition") and (ii) to the other Offer Conditions. The
-----------------------
Purchaser may at any time transfer or assign to one or more corporations
directly or indirectly wholly owned by Parent the right to purchase all or any
portion of the Shares (and associated Rights) tendered pursuant to the Offer
(the "Tendered Shares"), but no such assignment shall relieve the Purchaser of
---------------
its obligations hereunder. The Purchaser expressly reserves the right to waive
any of the Offer Conditions (but not the Minimum Share Condition) and to modify
the terms of the Offer; provided, however, that, without the prior written
-------- -------
consent of the Company, the Purchaser shall not amend or modify the terms of the
Offer to (i) reduce the cash price to be paid pursuant to the Offer, (ii) reduce
the number of Shares (and associated Rights) as to which the Offer is made,
(iii) change the form of consideration to be paid in the Offer, or (iv) impose
conditions to the Offer in addition to the Offer Conditions or modify the Offer
Conditions (other than to waive any Offer Condition to the extent permitted by
this Agreement), or (v) make any other change or modification in any of the
terms of the Offer in any manner that is adverse to holders of the Shares.
Subject to the terms and conditions thereof, the Offer shall expire at midnight,
New York City time, on the date that shall be 20 business days after the date on
which the Offer shall be commenced. The Offer may not be extended without the
Company's prior written consent; provided, however, that the Purchaser may (x)
-------- -------
from time to time extend (and re-extend) the Offer, if at the scheduled
expiration date of the Offer any of the Offer Conditions (other than the Minimum
Share Condition) shall not have been satisfied or waived, until such time as
such conditions shall be satisfied or waived; (y) 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; or (z) extend (and re-extend) the Offer for any reason on one or
more occasions for an aggregate period of not more than twenty (20) business
days beyond the latest expiration date that would otherwise be permitted under
clause (x) or (y) above if on such expiration date there shall not have been
tendered at least that number of Shares (and associated Rights) necessary to
permit the Merger to be effected without a meeting of the Company's stockholders
in accordance with the DGCL.
(b) As soon as reasonably practicable on the date of commencement of
the Offer, the Purchaser shall file with the SEC a Tender Offer Statement on
Schedule 14D-1 (together with all amendments and supplements thereto, the
"Schedule 14D-1") with respect to
- ---------------
-2-
<PAGE>
the Offer. The Schedule 14D-1 shall contain or shall incorporate by reference
an offer to purchase and a related letter of transmittal and summary
advertisement (such Schedule 14D-1 and Offer to Purchase and the documents
included therein or incorporated therein by reference pursuant to which the
Offer shall be made, together with any supplements or amendments thereto, the
"Offer Documents"). Parent and the Purchaser agree that the Offer Documents
---------------
shall comply as to form in all material respects with 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
stockholders, 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 is made by Parent or
the Purchaser with respect to information supplied by the Company or any of its
representatives which is included in the Offer Documents. Each of Parent, the
Purchaser and the Company agrees to correct promptly 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 each of
Parent and the Purchaser further agrees to take all steps necessary to amend or
supplement the Offer Documents and to cause the Offer Documents as so amended or
supplemented to be filed with the SEC and to be disseminated to the Company's
stockholders, in each case as and to the extent required by applicable federal
securities laws. The Company and its counsel shall be given a reasonable
opportunity to review the Offer Documents and all amendments and supplements
thereto prior to their filing with the SEC or dissemination to stockholders of
the Company. Parent and the Purchaser agree to provide the Company and its
counsel any comments Parent, the Purchaser 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) Subject to the terms and conditions of the Offer and of this
Agreement, the Purchaser shall, and the Parent shall cause the Purchaser to,
accept for payment and pay for all Shares (and associated Rights) which have
been validly tendered and not withdrawn pursuant to the Offer as promptly as
practicable following expiration of the Offer.
1.2 Company Action.
--------------
(a) The Company hereby approves of and consents to the Offer and
represents that at a meeting duly called and held the Board of Directors of the
Company has (i) by unanimous vote of all directors present and voting, approved
and adopted this Agreement and the transactions contemplated hereby and
determined that the Offer and the Merger are in the best interests of the
Company and its stockholders and on terms that are fair to such stockholders,
(ii) by unanimous vote of all directors present and voting, amended the Rights
Agreement to make the Rights Agreement inapplicable to the Offer, the Merger,
the Company Stock Option (as defined in Section 5.5), this Agreement, the
Support Agreements, the Director Option Termination Agreements and any other
transaction contemplated hereby and thereby, and determined that such amendment
to the Rights Agreement is in the best interests of the Company and its
stockholders, and (iii) recommended that the Company's stockholders accept the
Offer and tender all of their Shares (and associated Rights) in connection
therewith and, if required under the DGCL, approve this Agreement and the
transactions contemplated hereby (it being
-3-
<PAGE>
understood that, notwithstanding anything in this Agreement to the contrary, if
the Company's Board of Directors modifies or withdraws its recommendation in
accordance with the terms of Section 5.3(b), such modification or withdrawal
shall not constitute a breach of this Agreement). The Company represents that
its Board of Directors has received the written opinion of Volpe Brown Whelan &
Company LLC (its "Financial Advisor") that the consideration to be received
-----------------
by the holders (other than Parent and the Purchaser) of Shares (and associated
Rights) pursuant to each of the Offer and the Merger is fair to such holders
from a financial point of view, and that a complete and correct signed copy of
such opinion has been delivered on or prior to the date hereof by the Company
to Parent. The Company hereby consents to the inclusion in the Offer Documents
of the recommendation of the Company's Board of Directors described in the
immediately preceding sentence (subject to the right of the Board of Directors
to modify or withdraw such recommendation in accordance with Section 5.3(b)).
The Company represents that it has been authorized by its Financial Advisor to
permit, subject to the prior review by its Financial Advisor, the inclusion of
the fairness opinion (and a description thereof) in the Offer Documents, the
Schedule 14D-9 (as defined in Section 1.2(b)) and the Proxy Statement (as
defined in Section 4.6).
(b) As soon as reasonably practicable on the date of commencement of
the Offer, the Company shall file with the SEC a Solicitation/Recommendation
Statement on Schedule 14D-9 with respect to the Offer (together with all
amendments and supplements thereto, the "Schedule 14D-9") containing the
--------------
recommendation of the Company's Board of Directors described above in Section
1.2(a) (subject to the right of the Board of Directors to modify or withdraw
such recommendation in accordance with Section 5.3(b)) and shall mail the
Schedule 14D-9 to the stockholders of the Company. The Company agrees that 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 stockholders, 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 is made by the Company with respect to information supplied by
Parent or the Purchaser or any of their respective representatives which is
included in the Schedule 14D-9. Each of the Company, Parent and the Purchaser
agrees to correct promptly 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 stockholders, in each case as and to the extent
required by applicable federal securities laws. Parent and its counsel shall be
given a reasonable opportunity to review the Schedule 14D-9 and all amendments
and supplements thereto prior to their filing with the SEC or dissemination to
stockholders of the Company. The Company agrees to provide Parent and its
counsel with 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.
-4-
<PAGE>
(c) In connection with the Offer, the Company shall, or shall cause
its transfer agent to, furnish the Purchaser promptly with mailing labels
containing the names and addresses of the record holders of Company Common Stock
as of a recent date and of those persons becoming record holders subsequent to
such date, together with copies of all lists of stockholders, security position
listings and computer files and all other information in the Company's
possession or control regarding the beneficial owners of Company Common Stock,
and shall furnish to the Purchaser such information and assistance (including
updated lists of stockholders, security position listings and computer files) as
the Purchaser may reasonably request in communicating the Offer to the Company's
stockholders. Subject to the requirements of applicable law, and except for
such steps as are necessary to disseminate the Offer Documents and any other
documents necessary to consummate the Offer or the Merger, Parent and the
Purchaser and their agents shall hold in confidence the information contained in
any such labels, listings and files, will use such information only in
connection with the Offer and the other transactions contemplated hereby and, if
this Agreement shall be terminated, will deliver, and will use their reasonable
efforts to cause their agents to deliver, to the Company all copies of such
information then in their possession or control.
1.3 Directors.
---------
(a) Promptly upon the purchase by the Purchaser of Shares (and
associated Rights) in the Offer, and from time to time thereafter, the Purchaser
shall be entitled to designate that number of directors, rounded up to the next
whole number, on the Company's Board of Directors that equals the product of (i)
the total number of directors on the Company's Board of Directors (giving effect
to the election of any additional directors pursuant to this Section 1.3) and
(ii) the percentage that the number of Shares owned by the Purchaser, Parent and
any direct or indirect wholly owned subsidiary of Parent (including Shares (and
associated Rights) purchased in the Offer) bears to the total number of Shares
(and associated Rights) outstanding at such time, and to effect the foregoing
the Company shall upon request by the Purchaser, at the Company's election,
either increase the number of directors comprising the Company's Board of
Directors or obtain and accept resignations of incumbent directors. The first
date on which designees of the Purchaser shall constitute a majority of the
Company's Board of Directors is referred to in this Agreement as the "Cut-Off
-------
Date." At such time, the Company will cause individuals designated by the
- ----
Purchaser to constitute the same percentage as such individuals represent on the
Company's Board of Directors of (x) each committee of the Board, (y) if
requested by Purchaser, each board of directors or other governing body of each
Subsidiary of the Company, and (z) if requested by Purchaser, each committee of
each such board or governing body.
(b) The Company shall promptly take all actions required pursuant to
Section 14(f) and Rule 14f-1 of the Exchange Act in order to fulfill its
obligations under this Section 1.3 and shall include in the Schedule 14D-9 such
information with respect to the Company and its officers and directors as is
required under Section 14(f) and Rule 14f-1 to fulfill such obligations. The
Purchaser will supply to the Company any information with respect to itself and
its nominees, officers, directors and affiliates required by Section 14(f) and
Rule 14f-1.
-5-
<PAGE>
(c) Following the Cut-Off Date and prior to the Effective Time (as
defined below), if the Company shall have at least one director who is neither
an employee of the Company or any of its Subsidiaries nor otherwise affiliated
with the Purchaser (one or more of such directors, the "Independent Directors"),
---------------------
any amendment of this Agreement or the Certificate of Incorporation or Bylaws of
the Company or any of its Subsidiaries, any termination or amendment of this
Agreement by the Company, any extension by the Company of the time for the
performance of any of the obligations or other acts of Parent or the Purchaser
or any exercise or waiver of any of the Company's rights hereunder, will require
the concurrence of a majority of the Independent Directors.
ARTICLE II
THE MERGER
2.1 Merger.
------
(a) At the Effective Time (as defined in Section 2.1(b) below) and
subject to the terms and conditions hereof and the provisions of the DGCL, the
Purchaser will be merged with and into the Company in accordance with the DGCL,
the separate existence of the Purchaser shall thereupon cease and the Company
shall continue as the surviving corporation (the "Surviving Corporation"). The
---------------------
Purchaser and the Company are sometimes hereinafter referred to collectively as
the "Constituent Corporations."
------------------------
(b) Subject to the terms and conditions hereof, the Merger shall be
consummated as promptly as practicable after the completion of the Offer and the
Stockholders' Meeting (as defined in Section 5.2), if any, by duly filing a
certificate of merger, in such form as is required by, and executed in
accordance with, the relevant provisions of the DGCL. The Merger shall be
effective at such time as the certificate of merger is duly filed with the
Secretary of State of the State of Delaware in accordance with the DGCL or at
such later time as is specified in the certificate of merger (the "Effective
---------
Time"). Prior to such filing, a closing shall take place at the offices of
- ----
Venture Law Group, A Professional Corporation, 2800 Sand Hill Road, Menlo Park,
California, or at such other place as the parties shall agree, for the purpose
of confirming the satisfaction or waiver of the conditions contained in Article
VII hereof. The date on which such closing shall occur is referred to herein as
the "Closing Date."
------------
(c) The separate corporate existence of the Company, as the Surviving
Corporation, with all its purposes, objects, rights, privileges, powers,
certificates and franchises, shall continue unimpaired by the Merger. The
Surviving Corporation shall succeed to all the properties and assets of the
Constituent Corporations and to all debts, choses in action and other interests
due or belonging to the Constituent Corporations and shall be subject to and
responsible for all the debts, liabilities and duties of the Constituent
Corporations with the effect set forth in Section 259 of the DGCL.
2.2 Conversion of Shares. At the Effective Time and by virtue of the
--------------------
Merger and without any action on the part of the holders of the capital stock
of the Constituent Corporations:
-6-
<PAGE>
(a) Each Share (and associated Rights) issued and outstanding
immediately prior to the Effective Time (other than (i) Shares to be canceled
pursuant to Section 2.2(b) below, and (ii) Dissenting Shares (as defined in
Section 2.4)) shall be converted into the right to receive in cash an amount per
Share equal to the highest price paid per Share pursuant to the Offer (the
"Merger Price");
- -------------
(b) Each Share (and associated Rights) held in the treasury of the
Company and each Share (and associated Rights) owned by Parent, the Purchaser or
the Company, or by any direct or indirect wholly owned subsidiary of any of
them, shall be canceled and retired without payment of any consideration
therefor; and
(c) Each share of common stock, par value $0.001 per share, of the
Purchaser issued and outstanding immediately prior to the Effective Time shall
be converted into one validly issued, fully paid and nonassessable share of
common stock, par value $0.00001 per share, of the Surviving Corporation.
2.3 Exchange of Certificates.
------------------------
(a) From and after the Effective Time, a bank or trust company to be
designated by Parent shall act as exchange agent (the "Exchange Agent") in
--------------
effecting the exchange of the Merger Price for certificates which prior to the
Effective Time represented Shares (and associated Rights) and which as of the
Effective Time represent the right to receive the Merger Price (the
"Certificates"). Promptly after the Effective Time, the Exchange Agent shall
- -------------
mail to each record holder of Certificates a form of letter of transmittal and
instructions for use in surrendering such Certificates and receiving the Merger
Price therefor in a form approved by Parent and the Company. At or prior to the
Effective Time, the Purchaser shall deposit in trust with the Exchange Agent
immediately available funds in an amount sufficient to pay the Merger Price for
all such Shares (and associated Rights) to the Company's stockholders as
contemplated by this Section 2.3. Upon the surrender of each Certificate and
the issuance and delivery by the Exchange Agent of the Merger Price for the
Shares (and associated Rights) represented thereby in exchange therefor, the
Certificate shall forthwith be canceled. Until so surrendered and exchanged,
each Certificate shall represent solely the right to receive the Merger Price
for the Shares (and associated Rights) represented thereby, without any interest
thereon. Upon the surrender and exchange of such an outstanding Certificate,
the holder thereof shall receive the Merger Price multiplied by the number of
Shares (and associated Rights) represented by such Certificate, without any
interest thereon. If any cash is to be paid to a name other than that in which
the Certificate surrendered in exchange therefor is registered, it shall be a
condition to such payment or exchange that the person requesting such payment or
exchange shall pay to the Exchange Agent any transfer or other taxes required by
reason of the payment of such cash to a name other than that of the registered
holder of the Certificate surrendered, or such person shall establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Notwithstanding the foregoing, neither the Exchange Agent nor any
party hereto shall be liable to a holder of Certificates for any part of the
Merger Price payments made to a public official pursuant to applicable abandoned
property, escheat or similar laws.
-7-
<PAGE>
(b) Promptly following the sixth month after the Effective Time, the
Exchange Agent shall return to the Surviving Corporation all cash relating to
the transactions described in this Agreement, and the Exchange Agent's duties
shall terminate. Thereafter, each holder of a Certificate may surrender such
Certificate to the Surviving Corporation and (subject to applicable abandoned
property, escheat and similar laws) receive in exchange therefor the Merger
Price for such Shares (and associated Rights), without any interest thereon, but
shall have no greater rights against the Surviving Corporation than may be
accorded to general creditors of the Surviving Corporation under applicable law.
At and after the Effective Time, holders of Certificates shall cease to have any
rights as stockholders of the Company except for the right to surrender such
Certificates in exchange for the Merger Price for such Shares (and associated
Rights) or to perfect their right of appraisal with respect to their Shares (and
associated Rights) pursuant to the applicable provisions of the DGCL and Section
2.4 below, and there shall be no transfers on the stock transfer books of the
Company or the Surviving Corporation of any Shares (and associated Rights) that
were outstanding immediately prior to the Merger.
2.4 Dissenting Shares.
-----------------
(a) Notwithstanding the provisions of Section 2.2 or any other
provision of this Agreement to the contrary, Shares (and associated Rights) that
are issued and outstanding immediately prior to the Effective Time and are held
by stockholders who shall have properly demanded appraisal of such Shares (and
associated Rights) in accordance with the DGCL ("Dissenting Shares") shall not
-----------------
be converted into the right to receive the Merger Price at the Effective Time,
unless and until the holder of such Dissenting Shares shall have failed to
perfect or shall have effectively withdrawn or lost such right to appraisal and
payment under the DGCL. If a holder of Dissenting Shares (a "Dissenting
----------
Stockholder") shall have so failed to perfect or shall have effectively
- -----------
withdrawn or lost such right to appraisal and payment, then, as of the Effective
Time or the occurrence of such event, whichever last occurs, such Dissenting
Shares shall be converted into and represent solely the right to receive the
Merger Price, without any interest thereon, as provided in Section 2.2.
(b) The Company shall give Parent (i) prompt notice of any written
demands for appraisal, withdrawals of demands for appraisal and any other
instruments served pursuant to Section 262 of the DGCL and received by the
Company, and (ii) the opportunity to control all negotiations and proceedings
with respect to such demands for appraisal. The Company shall not, except with
the prior written consent of Parent, make any payment with respect to any
demands for appraisal or settle or offer to settle any such demands.
2.5 Certificate of Incorporation and Bylaws of the Surviving Corporation.
--------------------------------------------------------------------
(a) At the Effective Time the Certificate of Incorporation of the
Purchaser, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law and such Certificate of Incorporation; provided,
--------
however, that Article I of the Certificate of Incorporation of the Surviving
- -------
Corporation shall be amended to read as follows: "The name of the corporation
is Concentra Corporation."
-8-
<PAGE>
(b) At the Effective Time the Bylaws of the Purchaser, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the Surviving
Corporation until thereafter amended as provided by law, the Certificate of
Incorporation of the Surviving Corporation or such Bylaws.
2.6 Directors and Officers of the Surviving Corporation. At the Effective
---------------------------------------------------
Time, the directors of the Purchaser immediately prior to the Effective Time
shall become the directors of the Surviving Corporation, each of such directors
to hold office, subject to the applicable provisions of the Certificate of
Incorporation and Bylaws of the Surviving Corporation, until the next annual
stockholders' meeting of the Surviving Corporation and until their successors
shall be duly elected or appointed and qualified. At the Effective Time, the
officers of the Purchaser immediately prior to the Effective Time shall become
the officers of the Surviving Corporation until their respective successors are
duly elected or appointed and qualified.
2.7 Warrants. Parent shall not assume or continue any outstanding
--------
warrants to purchase shares of Company Common Stock (the "Warrants"). The
--------
parties hereto shall take all appropriate action to provide that, at and
following the Effective Time, each holder of an outstanding Warrant shall be
entitled to receive an amount in cash equal to the product of (i) the excess,
if any, of the Merger Price over the per share exercise price of such Warrant
and (ii) the number of Shares subject to such Warrant which are exercisable
immediately prior to the Effective Time.
2.8 Options. The Company common stock options shall be treated as set
-------
forth in Section 6.5.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF PARENT AND THE PURCHASER
Parent and the Purchaser hereby jointly and severally represent and warrant
to the Company that, except as and to the extent set forth in a Disclosure
Schedule (the "Parent Disclosure Schedule") delivered to the Company on or prior
--------------------------
to the date hereof setting forth additional exceptions specified therein to the
representations and warranties contained in this Article III, which Disclosure
Schedule shall identify exceptions by specific Section references:
3.1 Corporate Organization.
----------------------
(a) Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
(b) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Purchaser has
not engaged in any business since it was incorporated other than in connection
with the transactions contemplated by this Agreement. Parent owns all of the
outstanding capital stock of the Purchaser.
-9-
<PAGE>
3.2 Authority. Each of Parent and the Purchaser has the full corporate
---------
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly approved by the respective
Boards of Directors of Parent and the Purchaser and no other corporate
proceedings on the part of Parent or the Purchaser are necessary to consummate
the transactions so contemplated (other than, with respect to the Merger, the
filing and recordation of the appropriate merger documents as required by the
DGCL). This Agreement has been duly executed and delivered by each of Parent
and the Purchaser and, assuming the due authorization, execution and delivery
thereof by the Company, constitutes a valid and binding obligation of each of
Parent and the Purchaser, enforceable against such parties in accordance with
its terms.
3.3 Consents and Approvals; No Violation. Neither the execution and
------------------------------------
delivery of this Agreement by Parent and the Purchaser nor the consummation
by Parent and the Purchaser of the transactions contemplated hereby will (i)
conflict with or result in any breach of any provision of their respective
charter documents, or (ii) assuming compliance with the matters referred to in
clause (iii) below, constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) under, or give rise to a
right of termination, cancellation or acceleration of any obligation contained
in or to the loss of a benefit under, or result in the creation of any lien or
other encumbrance upon any of the properties or assets of Parent or the
Purchaser under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease agreement or other agreement,
instrument, obligation, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to Parent or the
Purchaser, or to which either of them or any of their respective properties or
assets may be subject, except for such violations, conflicts, breaches,
defaults, terminations, accelerations or creations of liens or other
encumbrances, which, individually or in the aggregate, will not have a material
adverse effect on Parent and its subsidiaries taken as a whole or prevent or
materially delay consummation of the Offer or the Merger, or (iii) require any
consent, approval, authorization or permit of, or filing with or notification
to, any court, administrative agency, commission or other governmental or
regulatory authority or instrumentality, domestic or foreign (a "Governmental
------------
Entity"), except (A) pursuant to the Exchange Act, (B) filing of a certificate
- ------
of merger pursuant to the DGCL, (C) filings required under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and the
-------
termination or expiration of the waiting periods thereunder, (D) filings
required under applicable antitrust laws of any foreign country, (E) filings
necessary to comply with state securities or "blue sky" laws, or (F) consents,
approvals, authorizations, permits, filings or notifications which if not
obtained or made will not, individually or in the aggregate, have a material
adverse effect on Parent and its subsidiaries taken as a whole or prevent or
materially delay consummation of the Offer or the Merger.
3.4 Brokers and Finders. Neither Parent nor the Purchaser has employed
-------------------
any broker or finder or incurred any liability for any fee or commission to any
broker, finder or intermediary in connection with the transactions contemplated
hereby.
-10-
<PAGE>
3.5 Financing. The Purchaser has or will have, prior to the expiration
---------
of the Offer and the Effective Time of the Merger, sufficient cash or
cash-equivalent funds available to purchase all of the Shares (and associated
Rights) outstanding in the Offer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company hereby represents and warrants to Parent and the Purchaser
that, except as and to the extent set forth in a Disclosure Schedule (the
"Company Disclosure Schedule") delivered to Parent on or prior to the date
- -----------------------------
hereof setting forth additional exceptions specified therein to the
representations and warranties contained in this Article IV, which Disclosure
Schedule shall identify exceptions by specific Section references:
4.1 Corporate Organization. Each of the Company and its Subsidiaries
----------------------
(as defined in Section 4.3) is a corporation duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
organization, has all requisite corporate power and authority and all necessary
governmental approvals to own or lease and operate its properties and assets
and to carry on its business as it is now being conducted, and is duly
qualified or licensed as a foreign corporation to do business and in good
standing in each jurisdiction in which the nature of the business conducted by
it or the character or location of the properties owned or leased by it makes
such qualification or licensing necessary, except where the failure to be so
organized, existing, in good standing, qualified or licensed would not have a
Material Adverse Effect. As used in this Agreement, the term "Material Adverse
----------------
Effect" means any change, event or effect that, individually or when taken
- ------
together with all other such changes or effects that have occurred prior to the
date of determination of the occurrence of the Material Adverse Effect, is or is
reasonably likely to be materially adverse to the business, assets (including
intangible assets), condition (financial or otherwise), prospects or results of
operations of the Company and its Subsidiaries taken as a whole. None of the
following shall be deemed to constitute a Material Adverse Effect with respect
to any party: (a) any change in the market price or trading volume of the
Shares of the Company (it being understood that the underlying causes of such
change will not be excluded from the definition of Material Adverse Effect
except as otherwise provided in this definition); (b) any adverse effect on the
bookings of the Company or cancellation of the Company's existing orders (and
any resulting adverse effect on revenues and earnings) following the execution
of this Agreement which is reasonably attributable to the announcement of the
execution of this Agreement and the transactions contemplated thereby; (c) the
failure, in and of itself, to meet analysts' expectations (it being understood
that the underlying causes of such failure will not be excluded from the
definition of Material Adverse Effect except as otherwise provided in this
definition), or (d) employee attrition (provided, that the Offer Conditions
shall have been satisfied and provided that a sufficient number of employees
remain such that the business of the Company may continue to be operated
substantially consistent with past practice). The Company has made available to
Parent a complete and correct copy of the Company's and its Subsidiaries'
certificates of incorporation and bylaws (or comparable governing documents),
each as amended to the date hereof. The Company's and its Subsidiaries'
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<PAGE>
certificates of incorporation and bylaws (or comparable governing documents)
made available are in full force and effect. Neither the Company nor any of its
Subsidiaries is in violation of any of the provisions of its Certificate of
Incorporation or Bylaws (or comparable governing documents).
4.2 Capitalization. The authorized capital stock of the Company consists
--------------
of 40,000,000 shares of Company Common Stock and 4,000,000 shares of preferred
stock, par value $0.01 per share ("Preferred Stock"). As of the close of
---------------
business on November 6, 1998, (i) 6,103,944 shares of Company Common Stock were
issued and outstanding, (ii) no shares of Preferred Stock were issued and
outstanding, (iii) 1,330,582 shares of Company Common Stock were reserved for
issuance upon the exercise of outstanding options to acquire shares of Company
Common Stock ("Stock Options"), and (iv) no shares of Company Common Stock were
-------------
held by the Company in its treasury. As of November 6, 1998, no shares of
Company Common Stock were available for issuance under the Company's 1987 Stock
Plan, 852,940 shares of Company Common Stock were available for issuance
under the Company's 1993 Stock Plan, and 112,500 shares of Company Common Stock
were available for issuance under the Company's 1994 Non-Employee Directors'
Stock Option Plan (the foregoing Stock Option Plans are referred to,
collectively, as the "Company Stock Option Plans"). As of November 6, 1998,
--------------------------
363,622 shares of Company Common Stock were available for issuance under the
Company's 1995 Employee Stock Purchase Plan, and the Company is obligated to
issue 20,769 shares of Company Common Stock under such Plan for the current
period ending March 31, 1999, assuming continued participation by all current
participants through the date of termination of the plan (the "Current ESPP
------------
Shares"). The number of issued and outstanding shares of Company Common Stock
- ------
at any time taken together with the number of Current ESPP Shares and the
number of shares of Company Common Stock reserved for issuance upon the
exercise or conversion of outstanding Stock Options (other than the option
granted to the Purchaser under Section 5.5 and other than options first
becoming vested after June 30, 1999, but including any options that become
vested as a result of this Agreement, the Offer or the Merger) at such time is
referred to herein as the "Fully Diluted Shares." The number of shares of
--------------------
Company Common Stock subject to options being excluded from the calculation of
Fully Diluted Shares, other than the option granted to Purchaser under Section
5.5, are referred to herein as the "Excluded Shares." All of the issued and
---------------
outstanding shares of Company Common Stock are duly authorized, validly issued,
fully paid and nonassessable and are not subject to preemptive rights created
by statute, the Certificate of Incorporation or Bylaws of the Company or any
agreement to which the Company is a party or by which the Company or its assets
is bound. Each of the outstanding shares of Capital Stock or other securities
of each of the Company's Subsidiaries directly or indirectly owned by the
Company is duly authorized, validly issued, fully paid and nonassessable and
owned by the Company or by a direct or indirect Subsidiary of the Company, free
and clear of any limitation or restriction (including any restriction on the
right to vote or sell the same except as may be provided as a matter of law).
There are no shares of capital stock of the Company issued or outstanding, and
except for the Stock Options and the Rights, there are no outstanding
subscriptions, options, warrants, rights, convertible securities or other
agreements or commitments of any character (including, without limitation,
rights which will or could become exercisable as a result of this Agreement or
any transaction contemplated hereby) relating to the issued or unissued capital
stock or other securities of the Company obligating the Company to
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<PAGE>
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock of the Company or obligating the Company to grant,
extend or enter into any subscription, option, warrant, right, convertible
security or other similar agreement or commitment. There are no voting trusts
or other agreements or understandings to which the Company is a party with
respect to the voting of the capital stock of the Company. All payments with
respect to Stock Options pursuant to Section 6.5 hereof shall not exceed
$1,800,000, including payments due to any acceleration of vesting resulting
from a change of control.
4.3 Subsidiaries. Schedule 4.3 of the Company Disclosure Schedule
------------
contains a correct and complete list of each of the Company's Subsidiaries, the
jurisdiction where each of such Subsidiaries is organized and the percentage of
outstanding capital stock of each of such Subsidiaries that is directly or
indirectly owned by the Company. The Company or another Subsidiary of the
Company owns its shares of the Capital Stock of each Subsidiary of the Company
free and clear of all liens, claims and encumbrances. Schedule 4.3 of the
Company Disclosure Schedule sets forth a true and complete list of each equity
investment in an amount of $250,000 or more or which represents a 5% or greater
ownership interest in the subject of such investment made by the Company or any
of its Subsidiaries in any other Person other than the Company's Subsidiaries
("Other Interests"). The Other Interests are owned by the Company, by one or
---------------
more of the Company's Subsidiaries or by the Company and one or more of its
Subsidiaries, in each case free and clear of all liens, claims and
encumbrances. For purposes of this Agreement, (i) the term "Subsidiary" shall
----------
mean any corporation, partnership, limited liability company, association,
trust, unincorporated association or other legal entity of which the Company,
either alone or through or together with any other Subsidiary, owns, directly
or indirectly, 50% or more of the capital stock, partnership interests, member
interests or other ownership interests, the holders of which are generally
entitled to vote for the election of the Board of Directors or other governing
body of such corporation or other legal entity, and (ii) "Capital Stock" shall
-------------
mean common stock, preferred stock, partnership interests, limited liability
company interests or other ownership interests entitling the holder thereof to
vote with respect to matters involving the issuer thereof, and (iii) the term
"Person" shall mean an individual, corporation (including not-for-profit),
------
partnership, limited liability company, association, trust, unincorporated
organization, joint venture, estate, Governmental Entity or other legal entity.
4.4 Authority. The Company has the full corporate power and authority
---------
to enter into this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby
have been duly approved by the Board of Directors of the Company and no other
corporate proceedings on the part of the Company are necessary to authorize
this Agreement or to consummate the transactions so contemplated (other than,
with respect to the Merger, the approval and adoption of this Agreement by the
stockholders of the Company if and to the extent required by applicable law,
and the filing and recordation of the appropriate merger documents as required
by the DGCL). This Agreement has been duly executed and delivered by, and,
assuming the due authorization, execution and delivery thereof by Parent and
the Purchaser, constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. The only action
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<PAGE>
required to be taken by stockholders of the Company in order to consummate the
Merger is the affirmative vote of a majority of the outstanding shares of
Common Stock of the Company.
4.5 Consents and Approvals; No Violation. Neither the execution and
------------------------------------
delivery 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 or violation of any provision of the Certificate of Incorporation or
Bylaws of the Company or any of its Subsidiaries, or (ii) constitute a default
(or an event which, with notice or lapse of time or both, would constitute a
default) under, or give rise to a right of termination, consent, approval,
cancellation or acceleration of any obligation contained in or to the loss of a
benefit under, or result in the creation of any lien or other encumbrance upon
any of the properties or assets of the Company or any of its Subsidiaries
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the Company or any of
its Subsidiaries or to which the Company, its Subsidiaries or any of their
properties or assets may be subject, or (iii) require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity, except (A) pursuant to the Exchange Act, (B) filing of a certificate of
merger pursuant to the DGCL, (C) filings under the HSR Act and the termination
or expiration of the waiting periods thereunder, (D) filings required under
applicable antitrust laws of any foreign country, or (E) filings necessary to
comply with state securities or "blue sky" laws.
4.6 Proxy or Information Statement. If a Stockholders' Meeting (as
------------------------------
defined in Section 5.2 below) is convened in connection with the Merger, the
proxy statement to be provided to stockholders of the Company in connection
with the Stockholders' Meeting (together with the amendments and supplements
thereto, the "Proxy Statement") and all amendments thereof and supplements
---------------
thereto shall, and if no Stockholders' Meeting is convened in connection with
the Merger, the information statement to be provided to stockholders of the
Company in connection with the Merger, if any (together with the amendments and
supplements thereto, the "Information Statement") shall, comply as to form in
---------------------
all material respects with the applicable requirements of the Exchange Act and
the rules and regulations promulgated thereunder, and shall not, at the time of
(i) first mailing thereof or (ii) in the case of the Proxy Statement, the
Stockholders' Meeting to be held in connection with the Merger, 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 is made by the Company with respect to information
supplied by the Purchaser, Parent or any affiliates or representatives of
Parent or the Purchaser for inclusion in the Proxy Statement or Information
Statement, as the case may be.
4.7 Conduct of Business.
-------------------
(a) The business of the Company and its Subsidiaries, as presently
conducted, is not being conducted in default or violation of any term, condition
or provision of (i) their respective charter or bylaws, or (ii) any note, bond,
mortgage, indenture, deed of trust, lease, agreement or other instrument or
obligation of any kind to which the Company or any of
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<PAGE>
its Subsidiaries is a party or by which the Company or its Subsidiaries or any
of their properties or assets may be bound, or (iii) any federal, state, local
or foreign statute, law, ordinance, rule, regulation, judgment, decree, order,
concession, grant, franchise, permit or license or other governmental
authorization or approval applicable to the Company or its Subsidiaries,
excluding from the foregoing clauses (ii) and (iii) defaults or violations that
could not reasonably be expected to have a Material Adverse Effect.
(b) The Company and its Subsidiaries have all licenses, permits,
orders or approvals of, and has made all required registrations with, all
Governmental Entities that are material to the conduct of the business of the
Company and its Subsidiaries (collectively, "Permits"). All Permits are in full
-------
force and effect, no material violations are or have been recorded in respect of
any Permit, and no proceeding is pending or threatened to revoke or limit any
Permit.
4.8 SEC Documents; Financial Statements.
-----------------------------------
(a) The Company has filed all required reports, schedules, forms,
statements and other documents with the SEC since January 1, 1995 (the "SEC
---
Documents"). As of their respective dates, the SEC Documents complied in all
- ---------
material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), or the Exchange Act, as the case may be, and the
--------------
rules and regulations of the SEC promulgated thereunder applicable to such SEC
Documents, and, at the time of filing, none of the SEC Documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Documents (the "SEC
---
Financial Statements") comply as to form in all material respects with
- --------------------
applicable accounting requirements and the published rules and regulations of
the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the periods
involved and fairly present the financial position of the Company as of the
dates thereof and its statements of operations, stockholders' equity and cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal and recurring year-end audit adjustments which are not material). The
Company has heretofore delivered to Parent complete and correct copies of all of
the SEC Documents and all amendments and modifications thereto, as well as, to
the extent any shall exist, all amendments and modifications that have not been
filed by the Company with the SEC to all agreements, documents and other
instruments that previously had been filed by the Company with the SEC and are
currently in effect.
(b) The Company has delivered to Parent an unaudited balance sheet as
at September 30, 1998, and unaudited statements of income as of and for the six
months then ended (the "Interim Financial Statements," and together with the SEC
----------------------------
Financial Statements, the "Company Financial Statements").
----------------------------
(c) Except as and to the extent set forth on the balance sheet of the
Company as at September 30, 1998, including the notes thereto, the Company has
no liability or
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<PAGE>
obligation of any nature (whether accrued, absolute, contingent or otherwise)
which would be required to be reflected on a balance sheet, or in the notes
thereto, prepared in accordance with generally accepted accounting principles,
except for liabilities and obligations incurred in the ordinary course of
business consistent with past practice since September 30, 1998 which could not
reasonably be expected to have a Material Adverse Effect.
4.9 Litigation.
----------
(a) There is no suit, action or proceeding pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries. No Governmental Entity has at any time challenged or questioned
in a writing delivered to the Company or any of its Subsidiaries the legal right
of the Company or any of its Subsidiaries to design, manufacture, offer or sell
any of their respective products in the present manner or style thereof.
(b) Neither the Company nor any of its Subsidiaries has ever been
notified in writing that it has been subject to an audit, compliance review,
investigation or like contract review by the office of the Inspector General of
the U.S. General Services Administration or any other Governmental Entity or
agent thereof in connection with any government contract (a "Government Audit").
----------------
To the Company's knowledge, no Government Audit is threatened, and in the event
of any such Government Audit, to the knowledge of the Company, no basis exists
for a finding of material noncompliance with any provision of any government
contract or for a refund of any amounts paid or owed to the Company or any of
its Subsidiaries by any Governmental Entity pursuant to such government
contract. For any item disclosed in the Company Disclosure Schedule pursuant to
this Section 4.9, a true and complete copy of all material correspondence and
documentation with respect thereto has been made available to Parent.
4.10 Labor Agreements and Actions.
----------------------------
(a) Neither the Company nor any of its Subsidiaries is bound by or
subject to (and none of their respective assets or properties are bound by or
subject to) any written or oral, express or implied, contract, commitment or
arrangement with any labor union, and no labor union has requested or, to the
knowledge of the Company, has sought to represent any of the employees,
representatives or agents of the Company or any of its Subsidiaries. There is
no strike, unfair labor practice complaint or other labor dispute involving the
Company or any of its Subsidiaries pending, or to the knowledge of the Company
threatened, which is reasonably likely to have a Material Adverse Effect, nor is
the Company aware of any labor organization activity involving its or any of its
Subsidiaries' employees. Neither the Company nor any of its Subsidiaries is
engaged in any unfair labor practice and neither the Company nor any of its
Subsidiaries is in material violation of any applicable laws respecting
employment and employment practices, terms and conditions of employment, and
wages and hours. Neither the Company nor any of its Subsidiaries has
experienced any material work stoppage or other material labor difficulty.
(b) The employment of each officer and employee of the Company and
each of its Subsidiaries is terminable at the will of the Company or such
Subsidiaries, as the
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<PAGE>
case may be, and neither the Company nor any of its Subsidiaries has entered
into any oral or written agreements with any of their respective officers or
employees that provide for severance or termination pay or acceleration of
vesting on stock options or restricted stock. Neither the Company nor any of
its Subsidiaries is a party to any agreement, contract or arrangement with any
officer or employee the benefits of which are contingent, or the terms of which
are materially altered, upon the occurrence of a transaction involving the
Company or such Subsidiaries, as the case may be, of the nature of any of the
transactions contemplated by this Agreement.
(c) The Company and each of its Subsidiaries has complied in all
material respects with all applicable state and federal equal employment
opportunity laws and with other laws related to employment. The Company and
each of its Subsidiaries has conducted all employee terminations and reductions
in force in accordance with company policy and in compliance with all applicable
laws, including but not limited to the Worker Adjustment and Retraining
Notification Act ("WARN"). There is no, and has not been any, claim against the
----
Company or any of its Subsidiaries, or to the Company's knowledge, threatened
against the Company or any of its Subsidiaries, based on actual or alleged race,
age, sex, disability or other harassment or discrimination, or similar tortious
conduct, nor to the knowledge of the Company, is there any basis for any such
claim. There are no pending claims against the Company or any of its
Subsidiaries under any workers' compensation plan or policy or for long term
disability. There are no pending or threatened wage claims against the Company
or any of its Subsidiaries, and there are no other proceedings pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries, by any employee or former employee.
(d) The Company is not aware that any officer of the Company or any of
its Subsidiaries, or any employee whose technical knowledge is of significant
importance for the development of products of the Company or any of its
Subsidiaries (including, but not limited to, the employees listed on Annex I to
the Company Disclosure Schedule), or that any group of officers or such
employees of the Company or any of its Subsidiaries, intends to terminate such
officer's or such employee's employment with the Company or its Subsidiaries, as
the case may be, nor does the Company or any of its Subsidiaries have any
present intention to terminate the employment of any officer or any such
employee. To the knowledge of the Company, each officer and each such employee
of the Company and its Subsidiaries is currently devoting 100% of his or her
business time attending to the affairs of the Company or its Subsidiaries, as
the case may be.
4.11 Certain Agreements and Employee Benefit Plans.
---------------------------------------------
(a) Schedule 4.11(a) of the Company Disclosure Schedule contains a
true and complete summary or list of, or otherwise describes, (i) all employee
benefit plans (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) which are maintained,
-----
contributed to or sponsored by the Company or any trade or business (whether or
not incorporated) which is treated as a single employer with the Company (an
"ERISA Affiliate") within the meaning of Section 414(b), (c), (m) or (o) of the
- ----------------
Internal Revenue Code of 1986, as amended (the "Code"), for the benefit of any
----
current or former employee, officer or director of the Company or an ERISA
Affiliate, (ii) each loan to a
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<PAGE>
non-officer employee and loans to officers and directors of the Company or any
of its Subsidiaries, (iii) all bonus, stock option, stock purchase, restricted
stock, phantom stock, or stock appreciation right plans, programs or
arrangements, (iv) all incentive, deferred compensation, supplemental
retirement, savings, profit sharing, or severance plans, programs or
arrangements, (v) all sabbatical, employee relocation, vacation, cafeteria
benefit (Code Section 125), dependent care benefit (Code Section 129), life or
accident insurance, disability, medical, dental, vision or any other fringe or
benefit plans, programs or arrangements, and (vi) any current or former
employment or executive compensation or severance agreements, written or
otherwise, for the benefit of, or relating to, any present or former employee,
consultant or director of the Company or any of its Subsidiaries, as to which
(with respect to any of items (i) through (vi) above) any obligation or
potential liability is borne by the Company or any of its Subsidiaries
(together, the "Company Employee Plans").
----------------------
(b) The Company has delivered to Parent a copy of each of the Company
Employee Plans and related plan documents (including trust documents, insurance
policies or contracts, employee booklets, summary plan descriptions and other
authorizing documents, and, to the extent still in its possession, any material
employee communications relating thereto) and has, with respect to each Company
Employee Plan which is subject to ERISA reporting requirements, provided copies
of any Form 5500 reports filed for the last three plan years. Any Company
Employee Plan intended to be qualified under Section 401(a) of the Code has
either obtained from the Internal Revenue Service a favorable determination
letter as to its qualified status under the Code, including all amendments to
the Code effected by the Tax Reform Act of 1986 and subsequent legislation, or
has applied to the Internal Revenue Service for such a determination letter
prior to the requisite period under applicable Treasury Regulations or Internal
Revenue Service pronouncements in which to apply for a determination letter and
to make any amendments necessary to obtain a favorable determination. The
Company has also furnished Parent with the most recent Internal Revenue Service
determination letter issued with respect to each such Company Employee Plan, and
nothing has occurred since the issuance of each such letter which could
reasonably be expected to cause the loss of the tax-qualified status of any
Company Employee Plan subject to Code Section 401(a).
(c) With respect to each Company Employee Plan, (i) there has been no
"prohibited transaction," as such term is defined in Section 406 of ERISA and
Section 4975 of the Code, (ii) each Company Employee Plan has been administered
in accordance with its terms and in compliance with the requirements prescribed
by any and all statutes, rules and regulations (including ERISA and the Code),
(iii) the Company (or, as appropriate, an ERISA Affiliate) has prepared in good
faith and timely filed all requisite governmental reports (which were true and
correct as of the date filed) and has properly and timely filed and distributed
or posted all notices and reports to participants and beneficiaries required to
be filed, distributed or posted, (iv) no suit, administrative proceeding, action
or other litigation has been brought, or to the knowledge of the Company is
threatened against such Company Employee Plan, including any audit or inquiry by
the Internal Revenue Service or United States Department of Labor, (v) the
Company and each ERISA Affiliate have performed all material obligations
required to be performed by them and are not in any material respect in default
under or in violation of, and have no knowledge of any material default or
violation of, such Company Employee Plan, (vi)
-18-
<PAGE>
neither the Company nor any ERISA Affiliate is subject to any liability or
penalty under Sections 4976 through 4980 of the Code or Title I of ERISA, (vii)
all contributions required to be made by the Company or any ERISA Affiliate
have been made on or before their due dates, (viii) no "reportable event"
within the meaning of Section 4043 of ERISA (excluding any such event for which
the thirty (30) day notice requirement has been waived under the regulations to
Section 4043 of ERISA) nor any event described in Section 4062, 4063 or 4041 of
ERISA has occurred, (ix) such Company Employee Plan is not covered by, and
neither the Company nor any ERISA Affiliate has incurred or expects to incur
any material liability under, Title IV of ERISA or Section 412 of the Code, and
(x) neither the Company nor any ERISA Affiliate is a party to, or has made any
contribution to or otherwise incurred any obligation under, any "multi-employer
plan" as defined in Section 3(37) of ERISA.
(d) With respect to each Company Employee Plan, the Company has
complied with (i) the applicable health care continuation and notice provisions
of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the
-----
proposed regulations thereunder, (ii) the applicable requirements of the Family
and Medical Leave Act of 1993 ("FMLA") and the regulations thereunder, and (iii)
----
the applicable requirements of the Health Insurance Portability and
Accountability Act of 1996 ("HIPAA") and the temporary regulations thereunder.
-----
The Company has no material obligations under COBRA with respect to any former
employees or qualifying beneficiaries thereunder.
(e) With respect to each Company Employee Plan, there has been no
amendment to, written interpretation or announcement (whether or not written) by
the Company or other ERISA Affiliate relating to, or change in participation or
coverage under, such Company Employee Plan which would materially increase the
expense of maintaining such Plan above the level of expense incurred with
respect to that Plan for the most recent fiscal year included in the Company
Financial Statements.
(f) Schedule 4.11(f) of the Company Disclosure Schedule contains a
true and correct list of each person who holds any stock option as of the date
hereof, together with (i) the number of shares of Company Common Stock subject
to such stock option, (ii) the date of grant of such stock option, (iii) the
extent to which such stock option is currently vested and, to the extent such
stock option is unvested, the vesting schedule, (iv) the exercise price of such
stock option, (v) whether such stock option is intended to qualify as an
incentive stock option within the meaning of Section 422(b) of the Code (an
"ISO"), and (vi) the expiration date of such stock option. Schedule 4.11(f) of
---
the Company Disclosure Schedule also sets forth the aggregate number of ISO's
and nonqualified stock options outstanding as of the date hereof.
(g) Neither the Company nor any of its Subsidiaries is a party to any
agreement or plan, including, without limitation, any stock option plan, stock
appreciation right plan or stock purchase plan, any of the benefits of which
will be increased, or the vesting of benefits of which will be accelerated, by
the occurrence of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which will be calculated on the basis of any of
the transactions contemplated by this Agreement.
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<PAGE>
(h) All options under the Company's 1995 Employee Stock Purchase Plan
shall terminate as of December 15, 1998 and all actions have been taken such
that the termination of the options is in full and complete compliance with the
terms of such plan.
4.12 Taxes.
-----
(a) The Company and each of its Subsidiaries (i) has filed when due
(taking into account extensions) with the appropriate federal, state, local,
foreign and other governmental agencies, all tax returns, estimates and reports
required to be filed by it, (ii) either paid when due and payable or established
adequate reserves or otherwise accrued all requisite federal, state, local or
foreign taxes, levies, imposts, duties, licenses and registration fees and
charges of any nature whatsoever, and unemployment and social security taxes and
income tax withholding, including interest and penalties thereon ("Taxes"), and
-----
(iii) has established or will establish in accordance with its normal accounting
practices and procedures accruals and reserves that, in the aggregate, are
adequate for the payment of all Taxes not yet due and payable and attributable
to any period preceding the Effective Time.
(b) No deficiencies for Taxes have been threatened or claimed by any
taxing authority in respect of any tax returns filed by the Company or any of
its Subsidiaries (or any predecessor corporations). Neither the Company nor any
of its Subsidiaries (nor any predecessor corporation of any of such entities)
has executed or filed with any taxing authority any agreement or other document
extending, or having the effect of extending, the period of assessment or
collection of any Taxes. Neither the Company nor any of its Subsidiaries is
currently being audited by any taxing authority nor have any of them received
notice of a proposed audit pertaining to Taxes. There are no tax liens on any
assets of the Company, any of its Subsidiaries or any affiliate, except for
Taxes not yet due and payable. The accruals and reserves for taxes reflected in
the balance sheet of the Company as at September 30, 1998 are in all material
respects adequate to cover all Taxes accruable through the date thereof
(including interest and penalties, if any, thereon and Taxes being contested) in
accordance with generally accepted accounting principles.
(c) Neither the Company nor any of its Subsidiaries is a party to, is
bound by, or has any obligation under any tax sharing or similar agreement.
(d) Neither the Company nor any of its Subsidiaries is required to
include in income (i) any amount in respect of any adjustment under Section 481
of the Code, (ii) any deferred intercompany transaction, or (iii) any
installment sale gain, where the inclusion in income would result in a Tax
liability materially in excess of the reserves therefor. Neither the Company
nor any of its Subsidiaries has given a consent under Section 341(f) of the
Code. Neither the Company nor any of its Subsidiaries is, nor has it been at
any time, a "United States real property holding corporation" within the meaning
of Section 897(c)(2) of the Code. Neither the Company nor any of its
Subsidiaries owns any property of a character which would give rise to any
documentary, stamp or other transfer tax as a result of the transactions
contemplated by this Agreement.
-20-
<PAGE>
(e) Neither the Company nor any of its Subsidiaries is a party to any
agreement, contract or arrangement that may result, separately or in the
aggregate, in the payment of any "excess parachute payment" within the meaning
of Section 280G of the Code, determined without regard to Section 280G(b)(4) of
the Code, or under which any person may receive payments subject to the tax
imposed by Section 4999 of the Code, by reason of the transactions contemplated
by this Agreement.
(f) All independent contractors and consultants of the Company and
each of its Subsidiaries have been properly classified as independent
contractors for the purposes of federal and applicable state laws and laws
applicable to employee benefits and other applicable law.
4.13 Absence of Certain Changes or Events. Since September 30, 1998,
------------------------------------
except as contemplated by this Agreement, the Company and each of its
Subsidiaries has conducted its business only in the ordinary course consistent
with past practice, and there has not been (i) any damage, destruction or loss,
whether covered by insurance or not, having or which, insofar as reasonably can
be foreseen, in the future would have a Material Adverse Effect, (ii) any
declaration, setting aside or payment of any dividend (whether in cash, stock
or property) with respect to Company Common Stock, or any redemption, purchase
or other acquisition of any of its securities, (iii) any event or change in the
business, operations, properties, prospects, condition (financial or
otherwise), assets or liabilities (including, without limitation, contingent
liabilities) of the Company or any of its Subsidiaries having, or which,
insofar as reasonably can be foreseen, in the future would have a Material
Adverse Effect, (iv) any labor dispute, other than routine matters, none of
which is material to the Company or any of its Subsidiaries, (v) any entry into
any material commitment or transaction (including, without limitation, any
borrowing or capital expenditure) other than in the ordinary course of business
consistent with past practice, (vi) any material change by the Company in its
accounting methods, principles or practices, (vii) any revaluation by the
Company of any asset (including, without limitation, any writing down of the
value of inventory or writing off of notes or accounts receivable), (viii) any
increase in or establishment of any bonus, insurance, severance, deferred
compensation, pension, retirement, profit sharing, stock option (including,
without limitation, the granting of stock options, stock appreciation rights,
performance awards, or restricted stock awards), stock purchase or other
employee benefit plan, or any other increase in the compensation payable or to
become payable to any officers or key employees of the Company or any of its
Subsidiaries, or (ix) entry by the Company or any of its Subsidiaries into any
licensing or other agreement with regard to the acquisition or disposition of
any material Intellectual Property other than nonexclusive licenses granted in
the ordinary course of business consistent with past practice.
-21-
<PAGE>
4.14 Title to Properties; Absence of Liens and Encumbrances; Condition of
--------------------------------------------------------------------
Equipment.
- ---------
(a) Neither the Company nor any of its Subsidiaries owns any real
property.
(b) All of the existing real property leases to which the Company or
any of its Subsidiaries is a party have been previously delivered to Parent.
Schedule 4.14(b) of the Company Disclosure Schedule sets forth a complete and
accurate list of all real property leased by the Company or any of its
Subsidiaries. All such leases are in full force and effect, are valid and
effective in accordance with their respective terms, and there is not, under any
of such leases, any existing default (by the Company or any of its Subsidiaries
or, to the knowledge of the Company, any other party) or event of default (or
event which with notice or lapse of time, or both, would constitute a default)
that would give rise to a material claim against the Company or any of its
Subsidiaries or, to the knowledge of the Company, any other party.
(c) The Company and each of its Subsidiaries owns or has valid
leasehold interests in all of its tangible properties and assets (real, personal
and mixed) used in its business, free and clear of any liens (other than liens
for Taxes that are not yet delinquent), charges, pledges, security interests or
other encumbrances, except as reflected in the Company Financial Statements and
except for such imperfections of title and encumbrances, if any, that are not
substantial in character, amount or extent, and that do not and are not
reasonably likely to materially detract from the value, or interfere with the
use of the property subject thereto or affected thereby. The Company has
delivered to Parent correct and complete copies of each lease identified in
Schedule 4.14(b) of the Company Disclosure Schedule and each such lease is valid
and enforceable by the Company or a Subsidiary in accordance with its terms.
Neither the Company nor any Subsidiary has received notice that, and, to the
Company's knowledge, no circumstance exists which, with the passage of time or
the giving of notice or both, could constitute a default under any such lease.
(d) Each item of machinery and equipment owned or leased by the
Company or any of its Subsidiaries is (i) adequate for the conduct of the
business of the Company consistent with its past practice, (ii) suitable for the
uses to which it is currently employed, (iii) in good operating condition,
ordinary wear and tear excepted, and (iv) regularly and properly maintained.
-22-
<PAGE>
4.15 Intellectual Property.
---------------------
(a) The Company and each of its Subsidiaries owns all patents,
trademarks, trade names, service marks, copyrights and any applications for such
patents, trademarks, trade names, service marks and copyrights, and all patent
rights, trade secrets, schematics, technology, know-how, computer software,
documentation and tangible or intangible proprietary information or material and
other intellectual property or proprietary rights (collectively, "Intellectual
------------
Property") used in the conduct of its business as currently conducted, including
- --------
without limitation all copyrights registered in the name of the Company or any
of its Subsidiaries ("Company Intellectual Property"). The Company and each of
-----------------------------
its Subsidiaries has taken reasonable measures to protect the proprietary nature
of each item of Company Intellectual Property that it considers confidential,
and to maintain in confidence all trade secrets and confidential information
that it presently owns or uses.
(i) Section 4.15(a)(i) of the Company Disclosure Schedule lists,
as of the date hereof, all patents and patent applications and all trademarks,
registered copyrights, trade names and service marks owned by, or licensed to,
the Company or any of its Subsidiaries and which are currently used in
connection with the business of the Company or its Subsidiaries, including the
jurisdictions in which each item of such Company Intellectual Property has been
issued or registered or in which any such application for such issuance or
registration has been filed.
(ii) Section 4.15(a)(ii) of the Company Disclosure Schedule
lists, as of the date hereof, all written licenses, sublicenses and other
agreements to which Company or any of its Subsidiaries is a party and pursuant
to which any person is authorized to use any Company Intellectual Property
rights, excluding object code, nonexclusive end-user licenses granted to
end-users in the ordinary course of business that permit use of software
products without a right to modify, distribute or sublicense the same
("End-User Licenses"), and excluding any such licenses relating solely to the
-----------------
business of Knowledge Technologies International ("KTI") that have been
---
assigned to KTI and reflected in the schedules to the Transition Agreement
between the Company and KTI. Section 4.15(a)(ii) separately lists all End-User
Licenses other than those relating solely to the business of KTI.
(iii) Section 4.15(a)(iii) of the Company Disclosure Schedule
lists, as of the date hereof, all written licenses, sublicenses and other
agreements to which the Company or any of its Subsidiaries is a party and
pursuant to which the Company or any such Subsidiary is authorized to use any
third party Intellectual Property ("Third Party Intellectual Property") which
---------------------------------
is incorporated ("Embedded Third Party Intellectual Property") in any existing
------------------------------------------
software, hardware, product or service of the Company or any of its
Subsidiaries, or any software, hardware, product or service currently under
development ("Products").
--------
(iv) Section 4.15(a)(iv) of the Company Disclosure Schedule
lists, as of the date hereof, all written agreements or other arrangements
under which the Company or any of its Subsidiaries has provided or agreed to
provide source code of any product of the Company or any of its Subsidiaries to
any third party.
-23-
<PAGE>
The Company has made available to Parent correct and complete copies
of all patents, registrations, applications (owned by the Company or any of its
Subsidiaries), and all licenses, sublicenses and agreements referred to in this
Section 4.15(a), each as amended to date. Except for retail purchases of
software, neither the Company nor any of its Subsidiaries is a party to any oral
license, sublicense or agreement which, if reduced to written form, would be
required to be listed in Section 4.15 of the Company Disclosure Schedule under
the terms of this Section 4.15(a).
(b) With respect to each item of Company Intellectual Property that
the Company or any of its Subsidiaries owns, (i) the Company or its Subsidiaries
possess all right, title and interest in and to such item; and (ii) such item is
not subject to any outstanding judgment, order, decree, stipulation or
injunction.
(c) With respect to each item of Third Party Intellectual Property
listed in Section 4.15(a)(iii): (i) the license, sublicense or other agreement
covering such item is legal, valid, binding, enforceable and in full force and
effect with respect to the Company or such Subsidiary, and, to the Company's
knowledge, is legal, valid, binding, enforceable and in full force and effect
with respect to each other party thereto; (ii) neither the Company nor any of
its Subsidiaries is in material breach or default thereunder, and, to the
Company's knowledge, no other party to such license, sublicense or other
agreement is in material breach or default thereunder, and, to the Company's
knowledge, no event has occurred which with notice or lapse of time would
constitute a material breach or default by the Company or any of its
Subsidiaries or permit termination, modification or acceleration thereunder by
the other party thereto; (iii) to the Company's knowledge, the underlying item
of Third Party Intellectual Property is not subject to any outstanding judgment,
order, decree, stipulation or injunction to which the Company or any of is
Subsidiaries is a party or has been specifically named that interferes with the
conduct of the Company's or any of its Subsidiaries' business as currently
conducted, nor, to the Company's knowledge, subject to any other outstanding
judgment, order, decree, stipulation or injunction that interferes with the
conduct of the Company's or any of its Subsidiaries' business as currently
conducted.
(d) Neither the Company nor any of its Subsidiaries has (i) been named
in any suit, action or proceeding as to which it has been served with process
which involves a claim of infringement or misappropriation of any Intellectual
Property right of any third party or (ii) received any written notice alleging
any such claim of infringement or misappropriation. The Company has made
available to Parent correct and complete copies of all such suits, actions or
proceedings or written notices. The manufacturing, marketing, licensing, use or
sale of the products or the performance of the services offered by the Company
and its Subsidiaries do not currently infringe, and have not infringed, any
Intellectual Property right of any third party; and, to the knowledge of the
Company, none of the Company Intellectual Property rights are being infringed by
activities, products or services of any third party.
(e) The execution and delivery of this Agreement by the Company, and
the consummation of the transactions contemplated hereby, will neither cause the
Company nor any of its Subsidiaries to be in violation or default under any
license, sublicense or other
-24-
<PAGE>
agreement relating to Intellectual Property, nor terminate nor modify nor
entitle any other party to any such license, sublicense or agreement to
terminate or modify such license, sublicense or agreement, nor limit in any way
the Company's or any of its Subsidiaries' ability to conduct its business or
use or provide the use of Company Intellectual Property or any Intellectual
Property rights of others.
(f) Except for Embedded Third Party Intellectual Property for which
the Company has valid non-exclusive licenses and which are adequate for each of
the Company's and its Subsidiaries' businesses as presently conducted, and
except for usual and customary rights retained by the United States government
with respect to Intellectual Property developed under research contracts with
the Federal government (the "Retained Fed Rights"), the Company is the sole and
-------------------
exclusive owner or the licensee of, with all right, title and interest in and to
all Company Intellectual Property (free and clear of any liens or encumbrances),
and has sole and exclusive rights (and is not contractually obligated to pay any
compensation to any third party in respect thereof) to the use and distribution
thereof or the material covered thereby in connection with the services or
products in respect of which Company Intellectual Property is being used. To
the Company's knowledge, the United States government has never exercised, and
the Company has no notice that the government intends to exercise, its rights to
use or provide to others the use of the Retained Fed Rights with respect to any
Company Intellectual Property in a manner that would be material to the
Company's non-governmental business. The Retained Fed Rights do not materially
interfere with the conduct of the Company's business.
(g) The Company has made available to Parent copies of the Company's
and each of its Subsidiaries' standard forms of End-User Licenses. Section 4.15
of the Company Disclosure Schedule describes the material variations from the
standard form of End-User License, and as of the date hereof, neither the
Company nor any of its Subsidiaries has entered into any End-User Licenses which
contain terms materially different than as set forth in the standard forms of
such agreements made available to Parent.
(h) The Company and each of its Subsidiaries has taken reasonable
security measures to safeguard and maintain the secrecy, confidentiality and
value of, and its property rights in, all Company Intellectual Property. All
officers, employees and consultants of the Company or any of its Subsidiaries
who have access to proprietary information or Company Intellectual Property have
executed and delivered to the Company or such Subsidiary an agreement regarding
the protection of proprietary information and the assignment to the Company or
any of its Subsidiaries of all Intellectual Property arising from the services
performed for the Company or any of its Subsidiaries by such persons. No
current or prior officers, employees or consultants of the Company or any of its
Subsidiaries claim any ownership interest in any Company Intellectual Property
as a result of having been involved in the development of such property while
employed by or consulting to the Company or any of its Subsidiaries, or
otherwise. Except for the Embedded Third Party Intellectual Property, all
Company Intellectual Property has been developed by employees of the Company or
its Subsidiaries, within the course and scope of their employment.
-25-
<PAGE>
(i) To the Company's knowledge, there are no material defects in the
Company's or any of its Subsidiaries' Products, and there are no errors in any
documentation, specifications, manuals, user guides, promotional material,
internal notes and memos, technical documentation, drawings, flow charts,
diagrams, source language statements, demo disks, benchmark test results, and
other written materials related to, associated with or used or produced in the
development of the Company's or any of its Subsidiaries' Products (collectively,
the "Design Documentation"), which defects or errors would reasonably be
--------------------
expected to have, individually or in the aggregate, a Material Adverse Effect on
the Company. The occurrence in or use by (i) the computer software currently
sold by the Company or any of its Subsidiaries (excluding third party software
not currently incorporated into the Products), or developed or modified by the
Company or any of its Subsidiaries on behalf of others, or (ii) to the Company's
knowledge, third party software not currently incorporated into the Products, of
dates on or after January 1, 2000 (the "Millennial Dates") will not adversely
----------------
affect the performance of the software with respect to date dependent data,
computations, output or other functions (including without limitation,
calculating, computing and sequencing) and such software will create, sort and
generate output data related to or including Millennial Dates without errors or
omissions.
(j) No government funding or university or college facilities were
used in the development of the Company's or any of its Subsidiaries' Products
and such Products were not developed pursuant to any contract or other agreement
with any person or entity.
(k) Section 4.15 of the Company Disclosure Schedule lists all warranty
claims (including any pending claims) related to the Company's or any of its
Subsidiaries' Products and the nature of such claims, except for customary
product support and maintenance claims that are not material to the Company or
any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has
made any material oral or written representations or warranties with respect to
its Products.
(l) The Company and its Subsidiaries have been and are in compliance
with the Export Administration Act of 1979, as amended, and all regulations
promulgated thereunder.
(m) As part of the Company Disclosure Schedule, the Company has
provided Parent a list (including names, addresses, contact names, telephone
numbers as well as the termination date and next renewal date of the agreement),
which is complete in all material respects, of all agreements or other
arrangements pursuant to which the Company or any Subsidiary is obligated to
provide support services (such agreements, as supplemented below, are referred
to collectively as the "Maintenance Agreements"). Except for any nonstandard
----------------------
maintenance agreements specified in Section 4.15(m) of the Company Disclosure
Schedule (the "Nonstandard Maintenance Agreements"), all of the Maintenance
----------------------------------
Agreements are in all material respects in the form of the license agreement
identified as the Standard Maintenance Agreement set forth in the Company
Disclosure Schedule (the "Standard Maintenance Agreement"). The versions of the
------------------------------
products currently supported by the Company or any Subsidiary are set forth in
the Company Disclosure Schedule. Prior to the Closing, the Company will
supplement the Company Disclosure Schedule with any addresses, contact names and
telephone numbers
-26-
<PAGE>
omitted from the initial Company Disclosure Schedule to include: (i) all
Standard Maintenance Agreements entered into between the date hereof and the
Closing, and (ii) all Nonstandard Maintenance Agreements that were entered into
between the date hereof and the Closing with the written consent of the Parent.
Section 4.15(m) of the Company Disclosure Schedule sets forth and indicates the
agreements with source code escrow provisions relative to the Company's
Products.
4.16 Agreements, Contracts and Commitments. As of the date hereof,
-------------------------------------
neither the Company nor any of its Subsidiaries is a party to or is bound by:
(a) any oral or written plan, contract or arrangement which requires
aggregate payments by the Company or any of its Subsidiaries in excess of
$50,000, which provides for bonuses, pensions, deferred compensation, severance
pay or benefits, retirement payments, profit-sharing, or the like;
(b) any oral or written consulting agreement, contract or commitment
with any independent contractor or consultant other than those that are
terminable by the Company or any of its Subsidiaries on no more than thirty (30)
days' notice without liability or financial obligation, or any oral or written
consulting agreement, contract or commitment with any independent contractor or
consultant under which any benefits of which are contingent upon the occurrence
of a transaction involving the Company of the nature of any of the transactions
contemplated by this Agreement;
(c) any joint marketing agreement, joint development agreement, joint
venture contract or agreement, or any other agreement currently in force under
which the Company or any of its Subsidiaries have continuing obligations to
jointly market any product, technology or service and which may not be canceled
without penalty upon notice of thirty (30) days or less, or any agreement
pursuant to which the Company or any of its Subsidiaries have continuing
obligations to jointly develop any intellectual property that will not be owned,
in whole or in part, by the Company or any of its Subsidiaries and which may not
be canceled without penalty upon notice of thirty (30) days or less, or which
has involved, or is expected to involve, a sharing of profits with other
persons;
(d) any existing OEM agreement, VAR agreement, distribution agreement,
volume purchase agreement, or other similar agreement in which the annual amount
involved in 1997 exceeded, or is expected to exceed in 1998, $50,000 in
aggregate amount or pursuant to which the Company or any of its Subsidiaries has
granted or received most favored customer provisions or exclusive marketing
rights related to any product, group of products or territory;
(e) any agreement, contract, mortgage, indenture, lease, instrument,
license, franchise, permit, concession, arrangement, commitment or authorization
which may be, by its terms, terminated or breached by reason of the execution of
this Agreement, the Merger, or the consummation of the transactions contemplated
hereby or thereby;
-27-
<PAGE>
(f) except for trade indebtedness incurred in the ordinary course of
business, any loan, note, indenture, or other instrument evidencing or related
in any way to indebtedness in excess of $50,000 incurred in the acquisition of
companies or other entities, or any indebtedness in excess of $50,000 for
borrowed money by way of direct loan, sale of debt securities, purchase money
obligation, conditional sale, guarantee, indemnification or otherwise;
(g) any agreement, contract, or commitment containing covenants
purporting to limit the Company's freedom or that of any of its Subsidiaries to
(i) engage in any line of business, (ii) compete in any geographic area or with
any third party, or (iii) grant any exclusive distribution rights;
(h) any agreement of indemnification or any guaranty other than any
agreement of indemnification entered into in connection with the sale or license
of software products in the ordinary course of business;
(i) any license agreement, either as licensor or licensee, excluding
End-User Licenses, or any agreement, contract or commitment currently in force
to license any third party to manufacture or reproduce any Company product,
service or technology except as a distributor in the normal course of business;
(j) any agreement, contract or commitment relating to capital
expenditures and involving future obligations in excess of $100,000;
(k) any agreement, contract or commitment currently in force relating
to the disposition or acquisition by the Company or any of its Subsidiaries
after the date of this Agreement of a material amount of assets not in the
ordinary course of business or pursuant to which the Company has any material
ownership interest in any corporation, partnership, joint venture or other
business enterprise other than the Company's Subsidiaries;
(l) any other agreement, contract or commitment that is material
to the Company or to any of its Subsidiaries.
Neither the Company nor any of its Subsidiaries, nor to the Company's
knowledge any other party to any of the agreements, contracts or commitments to
which the Company or any of its Subsidiaries is a party or by which any of them
are bound that are required to be disclosed in the Company Disclosure Schedule
pursuant to Section 4.15 or this Section 4.16 ("Company Contracts") is, as of
-----------------
the date hereof, in breach, violation or default under, any Company Contract,
except for breaches, violations or defaults that in the aggregate would not have
a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has
received written notice that it has breached, violated or defaulted under, any
of the material terms or conditions of any Company Contract in such a manner as
would permit any other party to cancel or terminate such Company Contract, or
would permit any other party to seek material damages or other remedies (for any
or all of such breaches, violations or defaults, in the aggregate).
-28-
<PAGE>
4.17 Proprietary Information and Inventions Agreements. Each current
-------------------------------------------------
and former employee, consultant and officer of the Company and each of its
Subsidiaries has executed an agreement with the Company or a Subsidiary
regarding confidentiality and proprietary information substantially in the form
or forms delivered to Parent. The Company, after reasonable investigation, is
not aware that any of its employees or consultants is in violation thereof, and
the Company and each of its Subsidiaries will use its best efforts to prevent
any such violation. All consultants to or vendors of the Company and each of
its Subsidiaries with access to confidential information of the Company or any
of its Subsidiaries are parties to a written agreement substantially in the
form or forms provided to Parent under which, among other things, each such
consultant or vendor is obligated to maintain the confidentiality of
confidential information of the Company and its Subsidiaries. The Company,
after reasonable investigation, is not aware that any of its consultants or
vendors are in violation thereof, and the Company will use its best efforts to
prevent any such violation.
4.18 No Conflict of Interest. Except as expressly disclosed in the
-----------------------
SEC Documents, neither the Company nor any of its Subsidiaries is indebted,
directly or indirectly, to any of its officers or directors or to their
respective spouses or children, in any amount whatsoever other than in
connection with expenses or advances of expenses incurred in the ordinary course
of business or relocation expenses of employees. To the Company's knowledge,
none of the officers or directors of the Company or any of its Subsidiaries, or
any members of their immediate families, directly or indirectly, are indebted to
the Company or any of its Subsidiaries or have any direct or indirect ownership
interest in any firm or corporation with which the Company or any of its
Subsidiaries is affiliated or with which the Company or any of its Subsidiaries
has a business relationship, or any firm or corporation which competes with the
Company or any of its Subsidiaries, except that officers, directors and/or
stockholders of the Company and its Subsidiaries may own stock in (but not
exceeding two percent of the outstanding capital stock of) publicly traded
companies that compete with the Company and its Subsidiaries. To the Company's
knowledge, none of the officers or directors of the Company or any of its
Subsidiaries or any member of their immediate families is, directly or
indirectly, interested in any material contract with the Company or any of its
Subsidiaries. Neither the Company nor any of its Subsidiaries is a guarantor or
indemnitor of any indebtedness of any other person, firm or corporation.
4.19 Takeover Statutes Inapplicable. No "fair price," "moratorium,"
------------------------------
"control share acquisition" or other similar anti-takeover statute or
regulation (each a "Takeover Statute") is applicable to the Company, any
----------------
Subsidiary of the Company, the Shares (and associated Rights), the Offer, the
Merger or any of the other transactions contemplated by this Agreement. The
Company has heretofore delivered to Parent a complete and correct copy of the
resolutions of the Board of Directors of the Company approving the Offer, the
Merger and this Agreement, and such approval is sufficient to render
inapplicable to the Offer, the Merger, this Agreement and the transactions
contemplated by this Agreement the provisions of Section 203 of the DGCL.
4.20 Brokers and Finders. Except for the Financial Advisor and the fees
-------------------
payable by the Company to such firm described in an engagement letter dated
October 5, 1998, a complete and correct copy of which has been provided to
Parent on or prior to the date hereof,
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<PAGE>
neither the Company nor any of its Subsidiaries has employed any broker or
finder or incurred any liability for any fee or commission to any broker,
finder or intermediary in connection with the transactions contemplated hereby.
4.21 Environmental Laws.
------------------
(a) The operations of the Company and its Subsidiaries comply in all
material respects with all applicable federal, state and local environmental
laws, statutes and regulations.
(b) To the Company's knowledge, the operations of the Company and its
Subsidiaries are not the subject of any judicial or administrative proceeding
alleging the violation of any federal, state or local environmental law, statute
or regulation.
(c) The Company and its Subsidiaries have not been notified that their
operations are the subject of any federal or state investigation pursuant to
which the Company or any Subsidiary has been ordered to respond to a release of
any hazardous or toxic waste or substance into the environment in violation of
law.
(d) Each of the Company and its Subsidiaries has not filed any notice
under federal or state law indicating past or present treatment, storage or
disposal requiring a Part B permit or designation of "interim status" as defined
under 40 C.F.R. Parts 260-270 or any state equivalent of a hazardous or toxic
waste or substance as defined therein or reporting a spill or release of a
hazardous or toxic waste or substance into the environment except in accordance
with applicable law.
(e) Each of the Company and its Subsidiaries has not released, as
defined in the Comprehensive Environmental Response Compensation and Liability
Act (42 U.S.C. (S)9601 et seq.), any hazardous substance as defined therein into
-- ---
the environment, except where such release could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
Company and its Subsidiaries, taken as a whole;
(f) None of the operations of the Company or any Subsidiary involve
the generation, transportation, treatment or disposal as defined under 40 C.F.R.
Parts 260-270 or any state equivalent of hazardous waste as defined therein
requiring a Part B permit or designation of "interim status".
(g) No underground storage tanks are on the premises of the
Company or any Subsidiary.
(h) To the Company's knowledge, no lien in favor of any governmental
authority for (i) any liability under federal or state environmental laws or
regulations, or (ii) damages arising from or costs incurred by such governmental
authority in response to a release of a hazardous or toxic waste or substance
into the environment has been filed or attached to the premises currently owned
or leased by the Company or any Subsidiary.
-30-
<PAGE>
(i) All material permits necessary for the continued conduct of the
business of the Company and its Subsidiaries for the transportation, transfer,
recycling, storage, use, treatment, manufacture, investigation or removal of any
hazardous or toxic waste or substance have been obtained by the Company or any
Subsidiary. All such permits are valid and in full force and effect. Each of
the Company and the its Subsidiaries has complied in all material respects with
all covenants and conditions of such permits and no circumstances exist which
could cause any permit to be revoked, modified or rendered non-renewable upon
the payment of the permit fee or, to the best of the Company's knowledge, which
could impose upon the Company, any of the Company's Subsidiaries or the
Surviving Corporation the obligation to obtain any additional permits for such
activities, absent a change in operations.
(j) Neither the Company nor any Subsidiary has exposed any persons in
a material manner to, nor received notice of any claim of injury due to exposure
of any person to, hazardous or toxic wastes or substances manufactured, stored,
used, distributed, disposed of, released or controlled by the Company or any
Subsidiary.
(k) No hazardous or toxic wastes or substances are present on any
property which has been owned, leased or occupied by the Company or any
Subsidiary, for the conduct of its business which could reasonably be expected
to result in a Material Adverse Effect on the Company and its Subsidiaries taken
as a whole.
(l) No claim, complaint, or administrative proceeding has been brought
or is currently pending against the Company or any Subsidiary relating to any
liability of the Company or any Subsidiary existing or threatened with respect
to the release of hazardous or toxic wastes or substances or as to the
investigation or remediation of hazardous or toxic wastes or substances.
As used herein "federal, state and local environmental laws, statutes
-----------------------------------------------------
or regulations" means any and all applicable laws, rules, regulations, orders,
- --------------
treaties, statutes and codes promulgated by any local, state, federal or
international governmental authority or agency which has jurisdiction over the
environment and any portion of the current operations of the Company and its
Subsidiaries, and which prohibits, regulates or controls any hazardous material
or the transportation, storage, transfer, recycling, use, treatment,
manufacture, investigation, removal, remediation, release, sale or distribution
of hazardous materials including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. (S)9601 et
--
seq.), the Hazardous Material Transportation Act (49 U.S.C. (S)1801 et seq.),
- --- -- ---
the Resource Conservation and Recovery Act (42 U.S.C. (S)6901 et seq.), the
-- ---
Federal Water Pollution Control Act (33 U.S.C. (S)1251 et seq.), the Clean Air
-- ---
Act (42 U.S.C. (S)7401 et seq.), the Toxic Substances Control Act, as amended
-- ---
(15 U.S.C. (S)2601 et seq.), as these laws have been amended or supplemented to
-- ---
date and any analogous state or local statutes and the regulations promulgated
to date pursuant thereto.
As used herein, "hazardous or toxic waste or substance" means those
-------------------------------------
substances which are regulated by or form the basis of liability under any
federal, state and local environmental laws, statutes or regulations because
they are radioactive, toxic or hazardous,
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including, without limitation: (a) asbestos, (b) oil and petroleum products,
(c) explosives, (d) radioactive substances, pollutants or wastes, (e) urea
formaldehyde-containing building materials, (f) polychlorinated biphenyls, (g)
radon gas, and (h) ultra-hazardous or toxic substances, pollutants or wastes.
4.22 Rights Agreement. The Rights Agreement has been amended to render
-----------------
the Rights Agreement inapplicable to the Offer, the Merger, the Company
Stock Option, this Agreement, the Support Agreements, the Director Option
Termination Agreements and any transaction contemplated hereby or thereby
between the Company, Parent, Purchaser, and any such stockholders. Such
amendment to the Rights Agreement is attached to the Company Disclosure
Schedule.
4.23 Disclosure. The Company has provided or made available to Parent
----------
copies of all documents and information requested by Parent on Parent's
diligence request lists dated September 16, 1998 and October 15, 1998, to the
extent the items on such lists are applicable to the Company or any of its
Subsidiaries. The Company has made available to Parent true and correct copies
of all minutes of meetings or actions by written consent of the boards of
directors (including without limitation all committees thereof) and
stockholders of the Company and its Subsidiaries, which minutes and actions by
written consent reflect all actions taken by the boards of directors (including
without limitation all committees thereof ) and stockholders of the Company and
its Subsidiaries.
SECTION V
COVENANTS OF THE COMPANY AND PARENT
5.1 Conduct of Business of the Company. Except as contemplated by this
----------------------------------
Agreement, during the period commencing on the date of this Agreement and
continuing until the first to occur of the Cut-Off Date or the termination of
this Agreement in accordance with its terms, the Company and each of its
Subsidiaries shall conduct its operations in the ordinary and usual course
consistent with past practice, and the Company and each of its Subsidiaries will
endeavor to preserve intact its business organization, to keep available the
services of its officers and employees and to maintain satisfactory relations
with suppliers, contractors, distributors, licensors, licensees, customers and
others having business relationships with it. Without limiting the generality
of the foregoing and except as provided in this Agreement, prior to the Cut-Off
Date, the Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly do, or propose to do, any of the following, without the
prior written consent of Parent (which consent shall not be unreasonably
withheld):
(a) Declare or pay any dividends on or make any other distribution in
respect of any of its capital stock;
(b) Split, combine or reclassify any of its capital stock or issue or
authorize any other securities in respect of, in lieu of or in substitution for,
shares of its capital stock, or repurchase, redeem or otherwise acquire any
shares of its capital stock;
-32-
<PAGE>
(c) Issue, deliver, encumber, sell or purchase any shares of its
capital stock or any securities convertible into, or warrants, options or other
rights of any kind to acquire, any such shares of capital stock, or any other
ownership interest (including, without limitation, any phantom interest) (other
than the issuance of Company Common Stock upon the exercise of outstanding Stock
Options and Warrants);
(d) Amend or otherwise change its Certificate of Incorporation or
Bylaws (or other comparable organizational document);
(e) Acquire or agree to acquire by merging or consolidating with, or
by purchasing a substantial portion of the assets of, or by any other manner,
any business or any corporation, partnership, association or other business
organization or division thereof;
(f) Sell, lease, license or otherwise dispose of any of its assets
(including the Company Intellectual Property), other than End-User Licenses on
terms consistent with the Standard License Agreement in the ordinary course of
business consistent with its past practice and other than insignificant amounts
of assets that are not Company Intellectual Property;
(g) Incur, assume or pre-pay any indebtedness for borrowed money,
guarantee any indebtedness or obligation of another person, issue or sell any
debt securities or options, warrants, calls or other rights to acquire any debt
securities, enter into any "keep well" or other agreement to maintain any
financial statement condition or enter into any arrangement having the economic
effect of any of the foregoing other than (i) in connection with the financing
of ordinary course trade payables consistent with past practice, or (ii) as
contemplated by this Agreement;
(h) Enter into or amend any contract or agreement other than in the
ordinary course of business consistent with past practice;
(i) Authorize any single capital expenditure which is in excess of
$100,000 or capital expenditures which are, in the aggregate, in excess of
$250,000 for the Company and its Subsidiaries taken as a whole;
(j) Increase the compensation payable or to become payable to its
officers or employees, except for increases in accordance with past practice in
salaries or wages of employees of the Company or its Subsidiaries who are not
officers of the Company or its Subsidiaries, or grant any severance or
termination pay to, or enter into any employment or severance agreement with,
any director, officer or other employee of the Company or any of its
Subsidiaries, or establish, adopt, enter into or amend any collective
bargaining, bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation, employment,
termination, severance or other plan, agreement, trust, fund, policy or
arrangement for the benefit of any director, officer or employee of the Company
or any of its Subsidiaries;
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<PAGE>
(k) Take any action, other than reasonable and usual actions in the
ordinary course of business and consistent with past practice, with respect to
accounting policies or procedures (including, without limitation, procedures
with respect to cash management, the payment of accounts payable and the
collection of accounts receivable);
(l) Make any tax election or settle or compromise any material
federal, state, local or foreign income tax liability, or execute or file with
the IRS or any other taxing authority any agreement or other document extending,
or having the effect of extending, the period of assessment or collection of any
taxes;
(m) Amend or modify the warranty policy of the Company or any
Subsidiary;
(n) Pay, discharge, satisfy, settle or compromise any suit, claim,
liability or obligation (absolute, accrued, asserted or unasserted, contingent
or otherwise), other than the payment, discharge or satisfaction, in the
ordinary course of business and consistent with past practice, of liabilities
reflected or reserved against in the Company's balance sheet dated as of
September 30, 1998 or subsequently incurred in the ordinary course of business
and consistent with past practice;
(o) Take any action that would result in any of the representations
and warranties of the Company set forth in this Agreement becoming untrue in any
material respect or that would be reasonably likely to result in any of the
conditions to the Offer or any of the conditions to the Merger set forth in
Article VII not being satisfied (provided, however, that the Board of Directors
shall retain the right to modify or withdraw its recommendation with respect to
the Offer and the Merger pursuant to Section 5.3(b));
(p) Enter into, amend or extend any contracts, agreements, or
obligations relating to the distribution, sale, sublicense or marketing by third
parties of the Company's or any Subsidiary's products or products licensed by
the Company or any Subsidiary, other than agreements, extensions or amendments
that grant non-exclusive rights to such third parties and provide for
termination by the Company or any Subsidiary for convenience on not more than 60
days' notice;
(q) Materially revalue any of its assets (other than the booking of
reserves in the ordinary course of business and consistent with past practices)
or, except as required by a change in law or in generally accepted accounting
principles or the rules of the SEC, make any change in accounting methods,
principles or practices, including inventory accounting practices;
(r) Materially accelerate or delay collection of any notes or accounts
receivable in advance of or beyond their regular due dates or the dates when the
same would have been collected in the ordinary course of business;
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<PAGE>
(s) Materially delay or accelerate payment of any account payable
beyond or in advance of its due date or the date such liability would have been
paid in the ordinary course of business; or
(t) Cancel or terminate any material insurance policy naming it as a
beneficiary or a loss payable payee or permit any such policy to lapse (it being
understood that the Company and any Subsidiary may renew any insurance policy in
effect as of the date of this Agreement).
5.2 Stockholder Meeting; Proxy Material; Information Statement.
----------------------------------------------------------
(a) If this Agreement is required by the DGCL to be approved by the
Company's stockholders, then the Company shall cause a meeting of its
stockholders (the "Stockholders' Meeting") to be duly called and held as soon as
---------------------
reasonably practicable for the purpose of voting on the approval and adoption of
this Agreement and the transactions contemplated hereby. The Board of Directors
of the Company shall, subject to the terms of Section 5.3(b), recommend approval
and adoption of this Agreement and the Merger by the Company's stockholders. In
connection with such meeting, the Company (i) shall promptly prepare and file
with the SEC, use all reasonable efforts to have cleared by the SEC and
thereafter mail to its stockholders as promptly as practicable the Proxy
Statement and all other proxy materials for such meeting, (ii) shall notify
Parent of the receipt of any comments of the SEC with respect to the Proxy
Statement and of any requests by the SEC for any amendment or supplement thereto
or for additional information and shall provide to Parent promptly copies of all
correspondence between the Company or any representative of the Company and the
SEC, (iii) shall give Parent and its counsel the opportunity to review the Proxy
Statement prior to its being filed with the SEC and shall give Parent and its
counsel the opportunity to review all amendments and supplements to the Proxy
Statement and all responses to requests for additional information and replies
to comments prior to their being filed with, or sent to, the SEC, (iv) shall,
subject to the fiduciary duties of its Board of Directors as advised by counsel,
use all reasonable efforts to obtain the necessary approvals by its stockholders
of this Agreement and the transactions contemplated hereby and (v) shall
otherwise comply with all legal requirements applicable to such meeting.
(b) Notwithstanding the foregoing, in the event that Purchaser shall
acquire at least 90% of the then outstanding Shares (and associated Rights), the
parties hereto agree, at the request of Purchaser, subject to the provisions of
Article VII, to take all necessary and appropriate action, including the
preparation and mailing of the Information Statement if the Purchaser determines
that such an Information Statement is appropriate or required, to cause the
Merger to become effective, in accordance with Section 253 of the DGCL, as soon
as reasonably practicable after such acquisition, without a meeting of the
stockholders of the Company.
5.3 Third Party Acquisitions.
------------------------
(a) The Company agrees that neither it, nor any of its Subsidiaries,
nor any of the employees, officers or directors of the Company or any of its
Subsidiaries, nor the stockholders who have executed the Support Agreements (the
"Supporting Stockholders") shall,
-----------------------
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<PAGE>
and the Company shall direct and cause the agents and representatives
(including its Financial Advisor or any other investment banker and any
attorney or accountant retained by it (collectively, "Company Advisors")) of it
----------------
and each of its Subsidiaries not to, directly or indirectly, initiate, solicit,
encourage or otherwise facilitate the making of any inquiries in respect of, or
the making of any proposal for, a Third Party Acquisition (as defined in
Section 5.3(b) below). The Company further agrees that neither it, nor any of
its Subsidiaries, nor any of the employees, officers or directors of the
Company or any of its Subsidiaries, nor the Supporting Stockholders shall, and
the Company shall direct and cause all Company Advisors not to, directly or
indirectly, engage in any negotiations concerning, or provide any information
or data to, or have any discussions with, any Third Party (as defined in
Section 5.3(b) below) relating to the proposal of a Third Party Acquisition, or
otherwise facilitate any effort or attempt to make or implement a Third Party
Acquisition; provided, however, that if at any time prior to the acceptance
-------- -------
by Purchaser for payment of Shares (and associated Rights) pursuant to the
Offer, the Board of Directors of the Company determines in good faith, after
consultation with outside counsel, that it is necessary to do so in order to
comply with its fiduciary duties to the Company's stockholders under applicable
law, the Company may, in response to an inquiry, proposal or offer for a Third
Party Acquisition which was not solicited subsequent to the date hereof and
that does not result from a breach of this Section 5.3, (x) furnish only such
information with respect to the Company and its Subsidiaries to any such person
pursuant to a customary confidentiality agreement as was delivered to Parent
prior to the execution of this Agreement and (y) participate in the discussions
and negotiations regarding such inquiry, proposal or offer. The Company shall
immediately cease and cause to be terminated any existing activities,
discussions or negotiations with any Third Parties conducted heretofore with
respect to any of the foregoing, and to promptly request each Third Party that
has heretofore executed a confidentiality agreement in connection with its
consideration of acquiring the Company or any of its Subsidiaries, if any, to
return to the Company all confidential information heretofore furnished to such
Third Party by or on behalf of the Company. The Company shall take the
necessary steps to promptly inform all Company Advisors of the obligations
undertaken in this Section 5.3(a). The Company agrees to notify Parent
promptly (and in any event within 24 hours) if (i) any inquiries relating to or
proposals for a Third Party Acquisition are received by the Company, any of its
Subsidiaries or any of the Company Advisors, (ii) any information about the
Company or its Subsidiaries is requested from the Company, its Subsidiaries or
any of the Company Advisors, or (iii) any negotiations or discussions in
connection with a possible Third Party Acquisition are sought to be initiated
or continued with the Company or any of the Company Advisors indicating, in
each such case, in connection with such notice, the principal terms and
conditions of any proposals or offers, including the identity of the offering
party, and thereafter shall keep Parent informed in writing, on a reasonably
current basis, on the status and terms of any such proposals or offers and the
status of any such negotiations or discussions.
(b) Except as permitted by this Section 5.3(b), the Board of Directors
of the Company shall not withdraw its recommendation of the Offer or the Merger
and other transactions contemplated hereby or approve or recommend, or cause the
Company or any of its Subsidiaries to enter into any agreement with respect to,
any Third Party Acquisition. Notwithstanding the preceding sentence, if the
Board of Directors of the Company determines in its good faith judgment, after
consultation with outside counsel, that it is necessary to do so in
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<PAGE>
order to comply with its fiduciary duties to the Company's stockholders under
applicable law, the Board of Directors may withdraw or alter its recommendation
of the Offer or the Merger and the other transactions contemplated hereby, or
approve or recommend or cause the Company to enter into an agreement with
respect to a Superior Proposal (as defined below), but in each case only (i)
after providing written notice to Parent (a "Notice of Superior Proposal")
---------------------------
advising Parent that the Board of Directors has received a Superior Proposal,
specifying the material terms and conditions of such Superior Proposal and
identifying the person or entity making such Superior Proposal and (ii) if
Parent does not, within five (5) business days (or within two (2) business days
with respect to any amendment to any Superior Proposal which was noticed at
least five (5) business days prior to such amendment) after Parent's receipt of
the Notice of Superior Proposal, make an offer which the Board of Directors of
the Company determines in its good faith judgment (based on the advice of its
Financial Advisor or another financial adviser of nationally recognized
reputation) to be as favorable to the Company's stockholders as such Superior
Proposal; provided, however, that the Company shall not be entitled to enter
-------- -------
into any agreement with respect to a Superior Proposal unless this Agreement is
concurrently terminated by its terms pursuant to Section 8.1(e)(i).
(c) For purposes of this Agreement, "Third Party Acquisition" means
-----------------------
the occurrence of any of the following events: (i) the acquisition of the
Company by merger or otherwise by any person or entity (which includes a
"person" as such term is defined in Section 13(d)(3) of the Exchange Act) other
than Parent, the Purchaser or any affiliate thereof (a "Third Party"); (ii) the
-----------
acquisition by a Third Party of 20% or more of the total assets of the Company
(other than the purchase of the Company's products in the ordinary course of
business); (iii) the acquisition by a Third Party of 20% or more of the
outstanding Shares; (iv) the adoption by the Company of a plan of partial or
complete liquidation or the declaration or payment of an extraordinary dividend;
(v) the repurchase by the Company of 20% or more of the outstanding Shares; or
(vi) the acquisition by the Company by merger, purchase of stock or assets,
joint venture or otherwise of a direct or indirect ownership interest or
investment in any business whose annual revenues, net income or assets is equal
to or greater than 20% of the annual revenues, net income or assets of the
Company. For purposes of this Agreement, a "Superior Proposal" means any bona
-----------------
fide proposal to acquire directly or indirectly, for consideration consisting of
cash and/or securities, 100% of the Shares then outstanding or all or
substantially all the assets of the Company and otherwise on terms which the
Board of Directors of the Company by a majority vote determines in its good
faith judgment (based on consultation with its Financial Advisor or another
financial adviser of nationally recognized reputation) to be reasonably capable
of being completed (taking into account all legal, financial, regulatory and
other aspects of the proposal and the person or entity making the proposal,
including the availability of financing therefor) and more favorable to the
Company's stockholders than the Offer and the Merger.
(d) The Company shall not be prohibited from disclosing to its
stockholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under
the Exchange Act to the extent such position is arrived at in compliance with
this Section 5.3.
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<PAGE>
5.4 Section 203 of the DGCL. From and after the date of this Agreement
-----------------------
until the earlier of the termination of this Agreement pursuant to its terms or
the Effective Time, the Company will not approve any acquisition of shares of
Company Common Stock by any person (other than Parent, the Purchaser or their
respective affiliates) which would result in such person becoming an
"interested stockholder" (as such term is defined in Section 203 of the DGCL)
or otherwise become subject to Section 203 of the DGCL, unless such acquisition
is related to a Superior Proposal and the Company has complied with Section 5.3
and, if applicable, Section 8.3.
5.5 Company Stock Option.
--------------------
(a) Grant of Company Stock Option. Subject to Section 8.4, the Company
-----------------------------
hereby grants to Parent an irrevocable option (the "Company Stock Option")
--------------------
to purchase, for $7.00 per share in cash, newly issued shares of Company Common
Stock representing 19.9% of the Company's total outstanding Company Common
Stock (and associated Rights), which percentage shall be calculated after
taking into account the exercise in full of the Company Stock Option.
(b) Term of Company Stock Option. Parent may exercise the Company Stock
----------------------------
Option, in whole or in part, at any time or from time to time from the day (the
"Exercise Commencement Date") on which either an event described in Section
--------------------------
8.3(a) or (b) has occurred or a tender offer to purchase fifteen percent (15%)
or more of the Shares is consummated by a Third Party, whichever is earlier,
until the day (the "Option Termination Date") which is the earlier of (i) the
-----------------------
Effective Time, or (ii) one (1) year after the termination of this Agreement.
(c) Exercise of Company Stock Option. If Parent wishes to exercise the
--------------------------------
Company Stock Option, it shall do so by giving the Company notice to such
effect, specifying the number of shares of Company Common Stock to be purchased
and a place and date not earlier than one (1) business day nor later than ten
(10) business days from the date such notice is given for the closing of the
purchase. If any such closing cannot be consummated on the date specified by
Parent in its notice of election to exercise the Company Stock Option as a
result of any restriction arising under any applicable law or regulation, the
date for such closing shall be on such date within five (5) days following the
cessation of all such restrictions as Parent may specify.
(d) Payment and Delivery of Company Common Stock. At any closing in
--------------------------------------------
connection with the Company Stock Option, (i) Parent shall make payment to the
Company of the aggregate purchase price for the shares of Company Common Stock
to be purchased by delivery to the Company of a certified, cashier's or bank
check payable to the order of the Company or, if mutually agreed, by wire
transfer of funds to an account designated by the Company, and (ii) the Company
shall deliver to Parent a certificate or certificates representing the shares of
Company Common Stock so purchased, registered in the name of Parent or its
designee.
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<PAGE>
(e) Certain Adjustments. In the event of any change in the Company's
-------------------
capital stock by reason of stock dividends, stock splits, mergers,
consolidations, recapitalizations, combinations, conversions, exchanges of
Shares, extraordinary or liquidating dividends, or other changes in the
corporate or capital structure of the Company which would have the effect of
diluting or changing Parent's rights hereunder, the number and kind of capital
stock subject to the Company Stock Option and the purchase price per share (but
not the total purchase price) shall be appropriately and equitably adjusted so
that Parent shall receive upon exercise of the Company Stock Option the number
and class of capital stock or other securities or property that Parent would
have received in respect of the shares of Company Common Stock purchasable upon
exercise of the Company Stock Option if the Company Stock Option had been
exercised immediately prior to such event.
(f) Exercise Commencement Date. At any time or from time to time after the
--------------------------
Exercise Commencement Date, Parent may, at its election, upon two (2) days'
notice to the Company, surrender all or a part of the Company Stock Option to
the Company, in which event the Company shall pay to Parent, on the day of each
such surrender and in consideration thereof, against tender by Parent of an
instrument evidencing such surrender, an amount in cash per share of Company
Common Stock (the rights to which are surrendered) equal to the excess of (i)
the greater of (x) the closing price of the Company's Common Stock on The Nasdaq
Stock Market on the date of surrender (or the closing price as reported by any
other applicable securities exchange if not listed on The Nasdaq Stock Market,
or if not actively traded, the fair market value as determined by investment
bankers chosen by the Parent) and (y) the price per Share to be paid in the
Third Party Acquisition or tender offer which created the Exercise Commencement
Date, if any, over (ii) the Merger Price. If all or a portion of the price per
Share to be paid in such Third Party Acquisition or tender offer consists of
non-cash consideration, then the price per Share referred to in clause (i) above
shall be the cash consideration per Share, if any, plus the fair market value of
the non-cash consideration per Share as set forth in such Third Party
Acquisition or tender offer or, if not so set forth, as determined by investment
bankers chosen by the Parent. Upon exercise of its right to surrender the
Company Stock Option or any portion thereof and the receipt by Parent of cash
pursuant to this Section 5.5(f), any and all rights of Parent to purchase shares
of Company Common Stock with respect to the portion of the Company Stock Option
surrendered pursuant to this Section 5.5(f) shall be terminated.
(g) Listing and Reservation of Company Common Stock; Notification of Record
-----------------------------------------------------------------------
Dates.
- -----
(i) Promptly after the date hereof, and from time to time thereafter if
necessary, the Company will apply to list all of the Company Common Stock
subject to the Company Stock Option on the Nasdaq National Market and will use
its best efforts to obtain approval of such listing as soon as practicable.
(ii) The Company has taken all necessary corporate and other action to
authorize, reserve, and permit it to issue, and at all times from the date
hereof until such time as the obligation to deliver Company Common Stock upon
the exercise of the Company Stock Option terminates, will have reserved for
issuance, upon any exercise of the Company
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<PAGE>
Stock Option, the number of Company Common Stock subject to the Company Stock
Option (less the number of shares of Company Common Stock previously issued
upon any partial exercise of the Company Stock Option or as to which the
Company Stock Option may no longer be exercised).
(iii) The Company shall give Parent at least ten (10) days' prior written
notice before setting the record date for determining the holders of record of
Company Common Stock entitled to notice of, or to vote on, any matter, to
receive any dividend or distribution or to participate in any rights offering or
other matter, or to receive any other benefit or right, with respect to Company
Common Stock.
(h) Registration of the Company Common Stock.
----------------------------------------
(i) If Parent requests the Company in writing to register under the
Securities Act any of the shares of Company Common Stock owned by Parent, the
Company will use its best efforts to cause the offering of the shares of Company
Common Stock so specified in such request to be registered a soon as practicable
so as to permit the sale or other distribution by Parent of the shares of
Company Common Stock specified in its request (and to keep such registration in
effect for a period of at least ninety (90) days), and in connection therewith
prepare and file as promptly as reasonably possible (but in no event later than
sixty (60) days from receipt of Parent's request) a registration statement under
the Securities Act to effect such registration on an appropriate form, which
would permit the sale of the shares of Company Common Stock by Parent in the
manner specified by Parent in its request. The Company shall not be obligated
to make effective more than three (3) registration statements pursuant to the
foregoing sentence. Upon written notice to Parent, the Company may postpone
effecting a registration pursuant to this Section 5.5 on one occasion during any
period of twelve (12) consecutive months for a reasonable time specified in the
notice but not exceeding ninety (90) days (which period may not be extended or
renewed), if (A) an investment banking firm of recognized national standing
shall advise the Company and Parent in writing that effecting the registration
would materially and adversely affect an offering of securities of the Company
the preparation of which had then been commenced, or (B) the Company is in
possession of material non-public information the disclosure of which during the
period specified in such notice the Company believes, in its reasonable
judgment, would not be in the best interests of the Company.
(ii) The Company shall notify Parent in writing not less than ten (10) days
prior to filing a registration statement under the Securities Act (other than a
filing on Form S-4 or S-8) with respect to any shares of Company Common Stock of
the Company's intention so to file. If Parent wishes to have any portion of its
shares of Company Common Stock included in such registration statement, it shall
advise the Company in writing to that effect within two (2) business days
following receipt of such notice, and the Company will thereupon include the
number of shares of Company Common Stock indicated by Parent under such
registration statement. If such registration involves an underwritten public
offering and the managing underwriter shall advise the Company and Parent that
in its view the number of shares of Company Common Stock requested to be
included in such registration (including any
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<PAGE>
securities which the Company proposes to be included) exceeds the largest
number of shares which can be sold without having an adverse effect on such
offering, including the price at which such shares can be sold (the "Maximum
-------
Offering Size"), the Company will include in such registration, up to the
- -------------
Maximum Offering Size: first, all securities proposed to be registered by the
Company, and second, shares of Company Common Stock requested to be registered
by Parent.
(iii) The Company shall pay all fees and expenses in connection with any
registration pursuant to this Section 5.5 other than underwriting discounts and
commissions to brokers or dealers and shall indemnify Parent, its officers,
directors, agents, other controlling persons and any underwriters retained by
Parent in connection with such sale of such shares of Company Common Stock in
the customary way, and agree to customary contribution provisions with such
persons, with respect to claims, damages, losses and liabilities (and any
expenses relating thereto) arising (or to which Parent, its officers, directors,
agents, other controlling persons or underwriters may be subject) in connection
with any such offer or sale under the federal securities laws or otherwise,
except for information furnished in writing by Parent or its underwriters to the
Company. Parent and its underwriters, respectively, shall indemnify the Company
to the same extent with respect to information furnished in writing to the
Company by Parent and such underwriters.
5.6 SEC Reports. From and after the date of this Agreement until the
-----------
earlier of the termination of this Agreement pursuant to its terms or the
Effective Time, the Company will timely file all reports required to be filed by
it under the Exchange Act.
5.7 Indemnification. Parent agrees that all rights to indemnification
---------------
existing in favor of directors, officers or employees of the Company (the
"Indemnified Persons") as provided in the Company's Certificate of
-------------------
Incorporation, Bylaws or any indemnification agreements listed in Section 5.7 of
the Company Disclosure Schedule, with respect to matters occurring through the
Effective Time, shall survive the Merger and shall continue in full force and
effect for a period of not less than six (6) years from the Effective Time.
Effective upon the Effective Time, to the fullest extent permitted by law,
Parent shall be directly bound by, and shall guarantee the Company's and the
Surviving Corporation's performance of, the Company's and the Surviving
Corporation's obligations described in the prior sentence for a period of six
(6) years after the Effective Time. If Parent, the Surviving Corporation or any
of either of its successors or assigns (i) consolidates with or merges into any
other person and shall not be the continuing or surviving corporation or entity
of such consolidation or merger or (ii) transfers all or substantially all of
its properties and assets to any person, none of which actions are restricted by
this Section 5.7, then and in each such case, proper provision shall be made so
that the successors and assigns of Parent and the Surviving Corporation assume
the obligations set forth in this Section 5.7.
5.8 Rights Agreement. The Company shall take all necessary action to
-----------------
render the Rights Agreement inapplicable to the Offer, the Merger, the Company
Stock Option, this Agreement, the Support Agreements, the Director Option
Termination Agreements and any other transaction contemplated hereby and
thereby.
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ARTICLE VI
ADDITIONAL AGREEMENTS
6.1 Access to Information. Between the date of this Agreement and
---------------------
the Cut-Off Date, the Company will afford to Parent and its authorized
representatives for the transactions contemplated hereby reasonable access at
all reasonable times to the officers, employees, agents, properties, offices and
all other facilities, books and records of the Company as Parent may reasonably
request. Additionally, the Company will permit Parent and its authorized
representatives for the transactions contemplated hereby to make such
inspections of the Company, each of its Subsidiaries and each of their
operations at all reasonable times as it may reasonably require and will cause
its officers, employees and agents to furnish Parent with such financial and
operating data and other information with respect to the business and properties
of the Company and each of its Subsidiaries as Parent may from time to time
reasonably request. No investigation pursuant to this Section 6.1 shall affect
any representation or warranty in this Agreement of any party hereto or any
condition to the obligations of the parties hereto.
6.2 Legal Conditions to Offer and Merger.
------------------------------------
(a) Prior to the Effective Time, the parties shall take, or cause to
be taken, all such actions as may be necessary or appropriate in order to
effectuate, as expeditiously as practicable, the Offer and the Merger and the
other transactions contemplated by this Agreement, including any necessary
consents and waivers.
(b) Without limiting the foregoing, the Company will take, and will
cause each of its Subsidiaries to take, all reasonable actions necessary to
comply promptly with all legal requirements which may be imposed on the Company
or any of its Subsidiaries with respect to the Offer and the Merger (including
furnishing all information required under the HSR Act and under applicable
antitrust laws of any foreign country) and will take, and will cause each of its
Subsidiaries to take, all reasonable actions necessary to cooperate promptly
with and furnish information to the Purchaser or Parent in connection with any
such requirements imposed upon the Purchaser or Parent in connection with the
Offer and the Merger. The Company will take, and will cause each of its
Subsidiaries to take, all reasonable actions necessary to obtain (and will take
and cause to be taken all reasonable actions necessary to cooperate promptly
with the Purchaser and Parent in obtaining) any consent, authorization, order or
approval of, or any exemption by, any Governmental Entity, or other third party,
required to be obtained or made by the Company or any Subsidiary (or by the
Purchaser or Parent) in connection with the Offer or the Merger or the taking of
any action contemplated thereby or by this Agreement.
(c) Without limiting the foregoing, the Purchaser and Parent will take
all reasonable actions necessary to comply promptly with all legal requirements
which may be imposed on them with respect to the Offer and the Merger (including
furnishing all information required under the HSR Act and under applicable
antitrust laws of any foreign country) and will take all reasonable actions
necessary to cooperate promptly with and furnish information to the Company in
connection with any such requirements imposed upon the Company or any of its
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Subsidiaries in connection with the Offer and the Merger. The Purchaser and
Parent will take all reasonable actions necessary to obtain (and will take all
reasonable actions necessary to cooperate promptly with the Company in
obtaining) any consent, authorization, order or approval of, or exemption by,
any Governmental Entity, or other third party, required to be obtained or made
by the Purchaser or Parent (or by the Company or any of its Subsidiaries) in
connection with the Offer or the Merger or the taking of any action contemplated
thereby or by this Agreement.
(d) Notwithstanding anything to the contrary in this Agreement,
including without limitation Section 6.2(c), as a result of filings made with
Governmental Entities pursuant to this Agreement, neither Parent nor any of its
subsidiaries, nor the Company nor any of its Subsidiaries, shall be required to
divest any of their respective businesses, product lines or assets, or agree to
any other limitation with respect to its business.
6.3 Confidentiality Agreement. The Company and Parent acknowledge that
-------------------------
the existing confidentiality agreement between such parties (the
"Confidentiality Agreement") shall remain in full force and effect at all times
prior to the Effective Time and after any termination of this Agreement, and
such parties agree to comply with the terms of such Agreement.
6.4 Public Announcements. The Purchaser, Parent and the Company will
--------------------
consult with each other before issuing any press release or otherwise making
any public statements with respect to the Offer, the Merger or any transaction
contemplated hereby and shall not issue any such press release or make any such
public statement except as they may mutually agree unless required so to do by
law or by obligations pursuant to any listing agreement with any national
securities exchange or the National Association of Securities Dealers, Inc. The
Company and Parent have agreed as to the form of joint press release announcing
execution of this Agreement.
6.5 Company Stock Plans.
-------------------
(a) At the Effective Time, each outstanding Stock Option to purchase
shares of Company Common Stock under the Company Stock Option Plans shall
terminate and each holder thereof shall receive in exchange for such termination
a cash payment equal to, subject to Section 6.5(f) below, the excess, if any, of
(i) the Merger Price times the number of shares of Company Common Stock subject
to such option which are vested and exercisable (including such number of shares
that become vested and exercisable by its terms as a result of the transactions
contemplated by this Agreement), over (ii) the aggregate exercise price of such
option. The fair market value of the Company Common Stock on the Effective Date
shall be deemed to equal the Merger Price.
(b) Prior to the Effective Time, the Company shall take all actions
(including if appropriate amending the terms of the Company Stock Option Plans
or obtaining the consent of holders of Stock Options) that are necessary to give
effect to the transactions contemplated by Section 6.5(a).
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(c) The Company shall take all steps required to terminate the Company
Stock Option Plans immediately after the Effective Time.
(d) The Company shall take all actions reasonably necessary to cause
the last day of the then-current "offering," as such term is defined in the
Company's 1995 Employee Stock Purchase Plan (the "Purchase Plan"), to be
-------------
December 15, 1998 (the "Final Purchase Date"), and shall apply on the Final
-------------------
Purchase Date the funds within each participant's accumulated payroll account as
of such date to the purchase of whole shares of Company Common Stock in
accordance with the terms of the Purchase Plan. No new offering shall commence
under the Purchase Plan following the Final Purchase Date.
(e) The Company shall take all steps required to terminate the
Purchase Plan immediately after the Effective Time.
(f) Payments pursuant to Section 6.5(a) above shall be subject to any
applicable tax withholding required under the Code, the rules and regulations
thereunder or any provision of state, local or foreign tax law. To the extent
that amounts are so withheld, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the Stock
Options.
6.6 Certain Employee Benefits Matters. Employees of the Company at the
---------------------------------
Effective Time will be provided with employee benefit plans by the Surviving
Corporation or Parent, except with respect to such Company Benefit Plans Parent
determines that it will continue in effect, which employee benefits will in the
aggregate be reasonably equivalent to the employee benefits generally offered to
Parent's employees of like position and responsibility.
6.7 Notice of Certain Events. The Company shall notify Parent, and
------------------------
Parent shall promptly notify the Company, of:
(i) receipt of any notice or other communication from any person
alleging that the consent of such person is or may be required in connection
with the transactions contemplated by this Agreement;
(ii) receipt of any notice or other communication from any
Governmental Entity in connection with the transactions contemplated by this
Agreement;
(iii) receipt of notice that any actions, suits, claims,
investigations or proceedings have been commenced or, to the knowledge of the
Company, threatened, against or involving the Company, any of its Subsidiaries
or Parent, as applicable, which, if pending on the date of this Agreement, would
have been required to have been disclosed pursuant to Section 4.9 or which
relate to the consummation of the transactions contemplated by this Agreement;
(iv) the occurrence or non-occurrence of any event the occurrence or
non-occurrence of which would be likely to cause any representation or warranty
of it (and, in the case of Parent, of the Purchaser) contained in this Agreement
to be untrue or inaccurate; and
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(v) any failure of the Company, Parent or the Purchaser, as the case
may be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the delivery
-------- -------
of any notice pursuant to this Section 6.7 shall not limit or otherwise affect
the remedies available hereunder to the party receiving such notice.
6.8 Obligations of Purchaser. Parent will take all action necessary to
------------------------
cause the Purchaser to perform its obligations under this Agreement and to
consummate the Merger on the terms and conditions set forth in this Agreement.
6.9 Voting of Shares. Parent agrees (i) to cause the Purchaser and
----------------
any other Person controlled by Parent to vote all Shares beneficially owned by
it in favor of adoption of this Agreement and the Merger at the Stockholders'
Meeting, if any such meeting shall be required by the DGCL, and (ii) if no
Stockholders' Meeting shall be required by the DGCL, to cause the Purchaser to
file a certificate of merger providing for the Merger of the Purchaser with and
into the Company as soon as reasonably practicable under applicable regulatory
requirements and law.
6.10 Expenses. Except as otherwise provided in Section 8.3, whether or
--------
not the Merger shall be consummated, all costs and expenses incurred in
connection with this Agreement and the Merger and the other transactions
contemplated hereby shall be paid by the party incurring such cost or expense.
6.11 Takeover Statutes. If any Takeover Statute is or may become
-----------------
applicable to the Offer, the Merger or the other transactions contemplated by
this Agreement, each of Parent and the Company and their respective Boards of
Directors shall grant such approvals and take such lawful actions as are
necessary to ensure that such transactions may be consummated as promptly as
practicable on the terms contemplated by this Agreement and otherwise act to
eliminate or minimize the effects of such statute and any regulations
promulgated thereunder on such transactions.
ARTICLE VII
CONDITIONS
7.1 Conditions of Each Party's Obligation to Effect the Merger. The
----------------------------------------------------------
respective obligation of each party to effect the Merger is subject to the
satisfaction prior to the Closing Date of the following conditions:
(a) Stockholder Approval. This Agreement and the Merger shall have
--------------------
been approved and adopted by the affirmative vote or consent of the stockholders
of the Company to the extent required by the DGCL and the Certificate of
Incorporation of the Company.
(b) No Injunctions or Restraints. No temporary restraining order,
----------------------------
preliminary or permanent injunction or other order issued by any Governmental
Entity of
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competent jurisdiction nor any statute, rule, regulation or executive
order promulgated or enacted by any Governmental Entity, nor other legal
restriction, restraint or prohibition arising under the authority of any
Governmental Entity, preventing the consummation of the Merger shall be in
effect; provided, however, that each of the parties shall have used reasonable
-------- -------
efforts to prevent the entry of any such injunction or other order and to appeal
as promptly as practicable any injunction or other order that may be entered.
(c) Regulatory Consents. The waiting period applicable to the
--------------------
consummation of the Merger under the HSR Act and under any applicable foreign
antitrust laws shall have expired or been terminated.
(d) The Offer. The Purchaser shall have accepted for payment and paid
---------
for Shares (and associated Rights) pursuant to the Offer in accordance with the
terms hereof.
7.2 Conditions to Obligations of Parent and the Purchaser. The
------------------------------------------------------
obligations of Parent and the Purchaser to effect the Merger are also subject to
the satisfaction or waiver by Parent prior to the Effective Time of the
following conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of the Company set forth in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date.
(b) Performance of Obligations of the Company. The Company shall have
-----------------------------------------
performed in all material respects all obligations required to be performed by
it under this Agreement at or prior to the Closing Date.
7.3 Conditions to Obligations of the Company. The obligations of the
----------------------------------------
Company to effect the Merger are also subject to the satisfaction or waiver by
the Company prior to the Effective Time of the following conditions:
(a) Representations and Warranties. The representations and
------------------------------
warranties of Parent and the Purchaser set forth in this Agreement shall be true
and correct in all material respects as of the date of this Agreement and as of
the Closing Date as though made on and as of the Closing Date.
(b) Performance of Obligations of Parent and the Purchaser. Each of
------------------------------------------------------
Parent and the Purchaser shall have performed in all material respects all
obligations required to be performed by it under this Agreement at or prior to
the Closing Date.
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ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated and the Merger may
-----------
be abandoned at any time prior to the Effective Time, notwithstanding any
requisite approval of this Agreement and the transactions contemplated hereby by
the stockholders of the Company, only:
(a) by mutual written consent duly authorized by the Boards of
Directors of the Company, Parent and the Purchaser;
(b) by either Parent or the Company if any Governmental Entity shall
have issued an order, decree, ruling or taken any other action permanently
restraining, enjoining or otherwise prohibiting the acceptance for payment of,
or payment for, Shares (and associated Rights) pursuant to the Offer or the
Merger and such order, decree, ruling or other action shall have become final
and nonappealable;
(c) by either Parent or the Company if (i) the Offer shall have
terminated or expired in accordance with its terms without the Purchaser having
accepted for payment any Shares (and associated Rights) pursuant to the Offer;
or (ii) the Purchaser shall not have accepted for payment any Shares (and
associated Rights) pursuant to the Offer within one hundred twenty (120) days
following the commencement of the Offer; provided, however, that the right to
-------- --------
terminate this Agreement pursuant to this Section 8.1(c) shall not be available
to any party (or to any of its affiliates) that has failed to perform or
breached in any material respect any of its obligations under this Agreement,
which results in the failure of any condition set forth in Annex I or a material
------
breach of a representation or warranty under this Agreement by such party;
(d) by Parent if (i) prior to the purchase of Shares (and associated
Rights) pursuant to the Offer, (A) the Board of Directors of the Company or any
committee thereof shall have withdrawn or modified its approval or
recommendation of the Offer, this Agreement, the Merger or any other transaction
contemplated by this Agreement; (B) the Board of Directors of the Company or any
committee thereof shall have recommended to the stockholders of the Company,
taken no position with respect to, or failed to recommend against acceptance of,
a Third Party Acquisition; (C) the Company shall have entered into any
definitive agreement with respect to a Third Party Acquisition; (D) the Board of
Directors of the Company fails to reconfirm its recommendation of the Offer,
this Agreement, the Merger and transactions contemplated by this Agreement
within five days of any written request by Parent that the Company's Board of
Directors reconfirm its recommendation; or (E) the Board of Directors of the
Company or any committee thereof shall have resolved to do any of the foregoing;
or (ii) the Company shall have breached in any material respect any of its
representations, warranties, covenants or other agreements contained in this
Agreement which breach cannot be or has not been cured within 20 days after the
giving of written notice to the Company or shall have breached Section 5.3; or
(e) by the Company if (i) the Board of Directors of the Company shall
have withdrawn or modified in a manner adverse to the Purchaser or Parent its
approval or
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recommendation of the Offer, this Agreement or the Merger in order to approve
the execution by the Company of a definitive agreement providing for the
transactions contemplated by a Superior Proposal, provided that the Company
--------
shall have complied with the provisions of Section 5.3, including the notice
provisions therein; or (ii) Parent or the Purchaser shall have breached in any
material respect any of their respective representations, warranties, covenants
or other agreements contained in this Agreement which breach cannot be or has
not been cured within 20 days after the giving of written notice to Parent or
the Purchaser, as applicable, except, in any case, for such breaches which are
not reasonably likely to affect adversely Parent's or the Purchaser's ability to
complete the Offer or the Merger.
8.2 Effect of Termination. If this Agreement is terminated pursuant to
---------------------
Section 8.1, this Agreement shall become void and of no effect with no
liability on the part of any party hereto, except for breach of any provision
of this Agreement, and except that the agreements contained in Sections 5.5,
6.3, 6.10, 8.3 and in Article IX shall survive the termination hereof.
8.3 Certain Payments.
----------------
(a) In the event that this Agreement is terminated pursuant to Section
8.1(d)(i) or Section 8.1(e)(i), then, in any such event, the Company shall pay
Parent fifty percent (50%) of the Termination Fee (as defined below) within five
(5) days after the first of such events shall have occurred. The Company shall
pay Parent the remaining fifty percent (50%) of the Termination Fee within the
earlier of (i) nine (9) months following such event, or (ii) five (5) days after
the consummation of a Third Party Acquisition or similar alternative transaction
with any person other than Parent or any of its affiliates. For purposes of
this Section 8.3, the "Termination Fee" shall be a dollar amount equal to (A)
---------------
three percent (3%) of the amount obtained by multiplying the total number of
Fully Diluted Shares outstanding plus the total number of Excluded Shares by
$7.00, plus (B) an amount equal to Parent's actual and reasonably documented
----
out-of-pocket fees and expenses (not to exceed $200,000) incurred by Parent and
the Purchaser in connection with the Offer, the Merger, this Agreement and the
transactions contemplated hereby, which amounts shall be payable in immediately
available funds.
(b) In the event that this Agreement is terminated pursuant to Section
8.1(c) or 8.1(d)(ii), and the Company shall have announced (and subsequently
consummates) or shall have consummated a Third Party Acquisition with any person
other than Parent or any of its affiliates before or within nine (9) months
after the date of such termination, the Company shall pay Parent the entire
Termination Fee within five (5) days after the consummation of the Third Party
Acquisition.
(c) In the event that the Company shall fail to pay any amounts owing
pursuant to Section 8.3(a) or 8.3(b) when due, interest shall be paid on such
unpaid amounts, commencing on the date such amounts became due, at a rate of six
percent (6%) per annum. The Company acknowledges that the agreement contained
in this Section 8.3 is an integral part of the transactions contemplated by this
Agreement, and that, without these agreements, Parent would not enter into this
Agreement; accordingly, if the Company fails promptly to pay any amount due
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pursuant to this Section 8.3, and, in order to obtain such payment, Parent
commences a suit which results in a judgment against the Company for the amounts
set forth in this Section 8.3, the Company shall pay to Parent its reasonable
costs and expenses (including attorneys' fees and expenses) in connection with
such suit, together with interest on the amounts set forth in this Section 8.3.
(d) The Termination Fee shall not be deemed to be liquidated damages,
and the right to the payment of the Termination Fee shall be in addition to (and
not a maximum payment in respect of) any other damages or remedies at law or in
equity to which Parent or the Purchaser may be entitled as a result of the
breach of any term or provision of this Agreement or any Support Agreement.
8.4 Limitation on Total Profits. Notwithstanding any provision of this
---------------------------
Agreement to the contrary, the Total Profit (as hereinafter defined) that Parent
shall be permitted to realize in respect of the Termination Fee and the Company
Stock Option shall not exceed four percent (4%) of the aggregate purchase price
that would have been payable for one hundred percent (100%) of the Company's
Fully Diluted Shares and one hundred percent (100%) of the Excluded Shares at
$7.00 per share. In the event Parent's Total Profit would exceed such amount,
Parent shall, at its sole election, (a) reduce the number of Shares subject to
the Company Stock Option, (b) deliver Shares received upon an exercise of the
Company Stock Option to the Company for cancellation, (c) pay an amount of cash
to the Company, or (d) do any combination of the foregoing so that Parent's
actual realized Total Profit shall not exceed four percent (4%) of the aggregate
purchase price that would have been payable for one hundred percent (100%) of
the Company's Fully Diluted Shares and one hundred percent (100%) of the
Excluded Shares at $7.00 per share. "Total Profit" shall mean the aggregate
------------
(before taxes) of (i) any amount received pursuant to the Company's repurchase
of the Company Stock Option (or any portion thereof), (ii) any amount received
pursuant to the Company's repurchase of the Shares (less the purchase price for
such Shares) subject to the Company Stock Option, (iii) any net cash received
pursuant to the sale of Shares received by Parent in any exercise of the Company
Stock Option to any third party (less the purchase price of such Shares), (iv)
any amounts received on transfer of the Company Stock Option or any portion
thereof to a third party, (v) any equivalent amounts received with respect to
the Option adjusted pursuant to Section 5.5(e), and (vi) the Termination Fee.
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ARTICLE IX
GENERAL PROVISIONS
9.1 Nonsurvival of Representations, Warranties and Agreements. All
---------------------------------------------------------
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall not survive the Merger,
except for the agreements contained in Sections 5.7, 6.6, 6.10 and this Article
IX of this Agreement, each of which shall survive the Merger.
9.2 Amendments and Waivers. Any term of this Agreement may be amended
----------------------
or waived only with the written consent of the parties. Any amendment or
waiver effected in accordance with this Section 9.2 shall be binding upon the
parties and their respective successors and assigns.
9.3 Severability. The provisions of this Agreement shall be deemed
------------
severable and the invalidity or unenforceability of any provision hereof shall
not affect the validity or enforceability of any of the other provisions hereof.
If any provision of this Agreement, or the application thereof to any person or
any circumstance, is illegal, invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provisions to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, and
the application thereof, in any other jurisdiction.
9.4 Interpretation.
--------------
(a) The Article, Section and subsection headings herein are for
convenience of reference only, do not constitute a part of this Agreement and
shall not be deemed to limit or otherwise affect any of the provisions hereof.
Where a reference in this Agreement is made to a Section, Schedule, Annex or
Exhibit, such reference shall be to a Section of, or Schedule, Annex or Exhibit
to, this Agreement, unless otherwise indicated. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." All terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such term. Any agreement, instrument or statute
defined or referred to herein means such agreement, instrument or statute as
from time to time amended, modified or supplemented, including (in the case of
agreements or instruments) by waiver or consent and (in the case of statutes) by
succession of comparable successor statues and references to all attachments
thereto and instruments incorporated therein. References to a person are also
to its permitted successors and assigns and, in the case of an individual, to
his or her heirs and estate, as applicable.
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(b) This Agreement has been negotiated at arm's length by and between
persons sophisticated and knowledgeable in the matters addressed in this
Agreement. Each of the parties has been represented by experienced and
knowledgeable legal counsel. Accordingly, any rule of law (including California
Civil Code Section 1564) or legal decision that would require interpretation of
any ambiguities in this Agreement against the party that has drafted it is not
applicable and is waived. The provisions of this Agreement shall be interpreted
in a reasonable manner to effect the purpose of the parties and this Agreement.
9.5 Assignment. Except as set forth in Section 1.1(a), this Agreement
----------
shall not be assignable by operation of law or otherwise and any attempted
assignment of this Agreement in violation of this sentence shall be void;
provided, however, that this Agreement shall be assignable by any party after
- -------- -------
the Effective Time.
9.6 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
9.7 Notices. Any notice required or permitted by this Agreement shall be
-------
in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address or facsimile number as set forth
below, or as subsequently modified by written notice in accordance with this
Section 9.7:
(a) If to Parent or the Purchaser:
Oracle Corporation
500 Oracle Parkway
Redwood City, CA 94065
Attn: Daniel S. Cooperman, Senior
Vice President, General Counsel
and Secretary
with a copy to:
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
Attn: Donald M. Keller, Jr.
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(b) If to the Company:
Concentra Corporation
21 North Avenue
Burlington, MA 01803
Attn: Lawrence W. Rosenfeld,
Chairman and Chief Executive Officer
with a copy to:
Peabody & Arnold LLP
50 Rowes Wharf
Boston, MA 02110
Attn: William E. Kelly
9.8 Entire Agreement. This Agreement (including the Schedules and
----------------
Exhibits), together with the Confidentiality Agreement, are the product of all
of the parties hereto, and constitute the entire agreement between such parties
pertaining to the subject matter hereof, and merge all prior negotiations and
drafts of the parties with regard to the transactions contemplated herein. Any
and all other written or oral agreements existing between the parties hereto
regarding such transactions are expressly canceled.
9.9 No Third Party Beneficiaries. This Agreement is not intended to
----------------------------
confer upon any Person other than the parties hereto any rights or remedies
hereunder, except that the provisions of Section 5.7 are intended for the
benefit of the Indemnified Persons, who shall be entitled to enforce the
provisions thereof.
9.10 Governing Law.
-------------
(a) EXCEPT TO THE EXTENT THAT THE LAW OF THE STATE OF DELAWARE SHALL
BE MANDATORILY APPLICABLE TO THE MERGER AND THE RIGHTS OF THE STOCKHOLDERS OF
THE COMPANY, THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH LAW OF
THE STATE OF CALIFORNIA WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
(b) The parties agree that irreparable damage would occur and that the
parties would not have any adequate remedy at law 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.
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The parties have caused this Agreement and Plan of Merger to be signed by
their respective duly authorized officers, all as of the date first written
above.
ORACLE CORPORATION
By: /s/ David J. Roux
Name: David J. Roux
Title: Executive Vice President, Corporate Development
KL ACQUISITION CORPORATION
By: /s/ David J. Roux
Name: David J. Roux
Title: President, Chief Executive Officer
CONCENTRA CORPORATION
By: /s/ Lawrence W. Rosenfeld
Name: Lawrence W. Rosenfeld
Title: President, Chief Executive Officer
SIGNATURE PAGE TO
AGREEMENT AND PLAN OF MERGER
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ANNEX I
-------
CONDITIONS OF THE OFFER
Defined Terms. Capitalized terms used in this Annex I and not otherwise
defined shall have the meanings attributed thereto in the Agreement and Plan of
Merger, dated as of November 10, 1998 (the "Merger Agreement"), by and among
----------------
Parent, the Purchaser and the Company.
Conditions of the Offer. Subject to the terms of the Offer and the Merger
Agreement, the Purchaser shall not be required to accept for payment or pay for
any Shares (and associated Rights) tendered pursuant to the Offer, and may
terminate or amend the Offer and may postpone the acceptance for payment of and
payment for Shares (and associated Rights) tendered, if (i) the Minimum Share
Condition shall not have been satisfied, or (ii) at least fifteen (15) of the
employees listed on Annex I to the Company Disclosure Schedule shall not have
signed offer letters to become employees of Parent, or (iii) any applicable
waiting period under the HSR Act and under any applicable antitrust laws of any
foreign country shall not have expired or been terminated prior to the
expiration of the Offer, or (iv) the amendment to the agreement described in
Item 20 of Schedule 4.15(a)(ii) of the Company Disclosure Schedule shall not
have been entered into or shall not be in effect, or (v) at any time on or after
the date of the Merger Agreement and before the acceptance of such Shares (and
associated Rights) for payment or the payment therefor, any of the following
conditions exists:
(a) a preliminary or permanent injunction or other order by any
federal, state or foreign court which prevents the acceptance for payment of, or
payment for, some of or all the Shares shall have been issued and shall remain
in effect;
(b) there shall have been instituted or be pending any action or
proceeding by any Governmental Entity (i) challenging the acquisition by the
Purchaser of Shares or otherwise seeking to restrain, materially delay or
prohibit the consummation of the Offer or the Merger or seeking damages that
would make the Offer, the Merger or any other transaction contemplated by the
Merger Agreement materially more costly to Parent or the Purchaser, (ii) seeking
to prohibit or limit materially the ownership or operation by the Purchaser or
Parent of all or a material portion of the business or assets of the Company, or
to compel the Purchaser or Parent to dispose of or hold separate all or a
material portion of the business or assets of the Company or the Purchaser or
Parent, as a result of the Offer or the Merger, (iii) seeking to impose or
confirm limitations on the ability of Parent or the Purchaser effectively to
exercise full rights of ownership of the Shares (and associated Rights),
including, without limitation, the right to vote the Shares purchased by it on
all matters properly presented to the Company's stockholders, including, without
limitation, the approval and adoption of the Merger Agreement and the
transactions contemplated by the Merger Agreement, (iv) seeking to require
divestiture, or separate ownership, by Parent, the Purchaser or any other
affiliate of Parent of any Shares or any portion of the business or assets of
Parent, Purchaser or the Company or any of their subsidiaries, or (v) which
reasonably could be expected to result in a Material Adverse Effect;
<PAGE>
(c) there shall have been any action taken, or any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable to the
Offer, the Merger or any other transaction contemplated by the Merger Agreement,
by any Governmental Entity or by any third party, except for the waiting period
provisions of the HSR Act, which is reasonably likely to result, directly or
indirectly, in any of the consequences referred to in clauses (i) through (iv)
of paragraph (b) above;
(d) any event, change or effect that, individually or in the
aggregate, is or is reasonably likely to constitute a Material Adverse Effect
shall have occurred following the date of the Merger Agreement;
(e) the Company shall have breached or failed to perform in any
material respect any of its obligations, covenants or agreements under the
Merger Agreement, which breach or failure cannot be or has not been cured prior
to the earlier of (i) 20 days after the giving of written notice to the Company,
and (ii) the expiration of the Offer;
(f) any representation or warranty of the Company in the Merger
Agreement that is qualified as to materiality shall not be true and correct or
any such representation or warranty that is not so qualified shall not be true
and correct in any material respect, in each case when made and at and as of
such time as if made at and as of such time (except that representations and
warranties made as of a specified date shall only be true and correct as of such
date);
(g) there shall have occurred (i) any general suspension of, or
limitation on prices for, trading in securities on the Nasdaq National Market or
the over the counter market; (ii) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States; (iii) a
commencement of a war or armed hostilities or other national or international
calamity directly or indirectly involving the United States; (iv) any
extraordinary material adverse change in the financial markets in the United
States; or (v) in the case of any of the foregoing existing on the date hereof,
a material acceleration or worsening thereof;
(h) (i) it shall have been publicly disclosed or the Purchaser shall
have otherwise learned that beneficial ownership (determined for the purposes of
this paragraph as set forth in Rule 13d-3 promulgated under the Exchange Act) of
a majority of the then outstanding Shares have been acquired by any person other
than Parent or any of its affiliates, or (ii)(A) the Board of Directors of the
Company or any committee thereof shall have withdrawn or modified the approval
or recommendation of the Offer, the Merger or the Merger Agreement, or approved
or recommended any Third Party Acquisition or any other acquisition of Shares
other than the Offer and the Merger, (B) the Company shall have entered into a
definitive agreement with respect to a Third Party Acquisition, (C) the Board of
Directors of the Company fails to reconfirm its recommendation of the Offer or
the Merger within five (5) days of any written request by Parent or the
Purchaser for such reconfirmation, or (D) the Board of Directors of the Company
or any committee thereof shall have resolved to do any of the foregoing; or
(i) the Merger Agreement shall have been terminated in accordance with
its terms.
-2-
<PAGE>
The foregoing conditions (other than the Minimum Share Condition) are
for the sole benefit of the Purchaser and Parent. The foregoing rights of the
Purchaser shall be available regardless of the circumstances giving rise to any
such conditions (including any action or omission to act of the Purchaser) and,
subject to Section 1.1(a) of the Merger Agreement, may be waived by the
Purchaser or Parent in whole or in part at any time and from time to time in
their sole discretion.
The failure by the Purchaser or Parent 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 other 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 which may be asserted at any
time and from time to time.
-3-
<PAGE>
Exhibit (c)(2)
--------------
FORM OF SUPPORT AGREEMENT
THIS SUPPORT AGREEMENT (this "Agreement") is made and entered into as of
November 10, 1998, by and between Oracle Corporation, a Delaware corporation
("Parent"), and ________________ ("Seller").
RECITALS
A. Concurrently with the execution and delivery of this Agreement, Parent,
KL Acquisition Corporation (the "Purchaser"), a Delaware corporation and a
---------
wholly owned subsidiary of Parent, and Concentra Corporation, a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
-------
of even date herewith (the "Merger Agreement"), pursuant to which the Purchaser
----------------
agrees to make a tender offer (the "Offer") for all outstanding shares (the
"Shares") of Common Stock of the Company, par value $0.00001 per share (the
- -------
"Company Common Stock"), and the associated Series A Participating Cumulative
- ---------------------
Preferred Stock purchase rights (collectively, the "Rights") issued pursuant to
------
the Rights Agreement between the Company and First National Bank of Boston, as
Rights agent, dated as of April 24, 1997 (the "Rights Agreement"), at a price of
----------------
$7.00 per Share (the "Offer Price") net to the seller in cash, to be followed by
-----------
a merger (the "Merger") of the Purchaser with and into the Company (capitalized
terms used but not defined herein shall have the meanings set forth in the
Merger Agreement);
B. As of the date hereof, Seller beneficially owns directly __________
Shares and their associated Rights (the "Owned Shares"); and
------------
C. As a condition to their willingness to enter into the Merger Agreement
and make the Offer, Parent and the Purchaser have required that Seller agree,
and, in order to facilitate the Offer and the Merger, Seller is willing to
agree, (i) to tender pursuant to the Offer the Owned Shares, together with any
Shares (and associated Rights) acquired after the date hereof and prior to the
termination of the Offer, whether upon the exercise of options, conversion of
convertible securities or otherwise (collectively, the "Tender Shares"), on the
terms and subject to the conditions provided for in this Agreement, and (ii) to
enter into the other agreements set forth herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Agreement to Tender and Vote.
----------------------------
1.1 Tender. Seller hereby agrees to use its best efforts to assist
------
in the tender offer process so as to achieve as large an amount of tendered
shares as possible (provided, however, that Seller shall not be required to
expend significant funds in connection with such
<PAGE>
assistance), including, without limitation, to validly tender (or cause the
record owner of such shares to validly tender) the Tender Shares pursuant to
and in accordance with the terms of the Offer, as soon as practicable after
commencement of the Offer (but in no event later than five business days after
the filing of the Offer Documents with the SEC, in the case of the Owned
Shares, or the first business day following their acquisition, in the case of
any other Tender Shares), by physical delivery of the certificates therefor and
to not withdraw such Tender Shares, except following termination of this
Agreement pursuant to Section 2 hereof. Seller hereby acknowledges and agrees
that Parent's and the Purchaser's obligation to accept for payment and pay for
the Tender Shares is subject to the terms and conditions of the Offer. Seller
hereby agrees to permit Parent and the Purchaser to publish and disclose in the
Offer Documents and, if approval of the Company's stockholders is required
under applicable law, the Proxy Statement (including all related documents and
schedules filed with the SEC) his identity and ownership of the Tender Shares
and the nature of his commitments, arrangements and understandings under this
Agreement.
1.2 Voting. Seller hereby agrees that, during the time this
------
Agreement is in effect, at any meeting of the stockholders of the Company,
however called, Seller shall (a) vote the Tender Shares in favor of the Merger;
(b) vote the Tender Shares against any action or agreement that would result in
a breach of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and (c) vote the Tender
Shares against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede, interfere with, delay,
postpone or attempt to discourage the Merger or the Offer, including, but not
limited to: (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
Subsidiaries; (ii) a sale or transfer of a material amount of assets of the
Company or any of its Subsidiaries, or a reorganization, recapitalization or
liquidation of the Company and its Subsidiaries; (iii) any change in the
management or Board of Directors of the Company, except as otherwise agreed to
in writing by Parent; (iv) any material change in the present capitalization or
dividend policy of the Company; or (v) any other material change in the
Company's corporate structure or business.
1.3 Grant of Irrevocable Proxy; Appointment of Proxy.
------------------------------------------------
(a) Seller hereby irrevocably grants to, and appoints David J. Roux
and Daniel Cooperman, or either of them, in their respective capacities as
officers of Parent, and any individual who shall hereafter succeed to any such
office of Parent, and each of them individually, Seller's proxy and attorney-in-
fact (with full power of substitution), for and in the name, place and stead of
Seller, to vote the Tender Shares in favor of the Merger and otherwise as
contemplated by Section 1.2.
(b) Seller represents that any proxies heretofore given in respect of
the Tender Shares are not irrevocable, and that any such proxies are hereby
revoked.
(c) Seller understands and acknowledges that Parent is entering into
the Merger Agreement in reliance, among other things, upon Seller's execution
and delivery of
-2-
<PAGE>
this Agreement. Seller hereby affirms that the irrevocable proxy set forth in
this Section 1.3 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance
of the duties of Seller under this Agreement. Seller hereby further affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. Seller hereby ratifies and confirms all that such
proxies and attorneys-in-fact 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 212(e) of the Delaware General
Corporation Law.
1.4 No Inconsistent Arrangements. Seller hereby covenants and agrees
----------------------------
that, except as contemplated by this Agreement and the Merger Agreement, it
shall not:
(a) transfer (which term shall include, without limitation, any sale,
gift, pledge or other disposition), or consent to any transfer of, any or all of
the Tender Shares or any interest therein; provided, however, that Seller may
-------- -------
transfer (i) the Tender Shares by will or intestacy, and (ii) up to 10% of the
Tender Shares as a bona fide gift or gifts, provided that prior to any such
permitted transfer, each transferee shall agree in writing (in a form
satisfactory to Parent) that such transferee will receive and hold such Tender
Shares subject to the provisions of this Agreement;
(b) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Tender Shares or
any interest therein;
(c) grant any proxy, power-of-attorney or other authorization in
or with respect to any or all of the Tender Shares;
(d) deposit the Tender Shares into a voting trust or enter into a
voting agreement or arrangement with respect to the Tender Shares; or
(e) take any other action that would make any representation or
warranty of Seller hereunder untrue or incorrect.
1.5 Waiver of Appraisal Rights. Seller hereby waives any rights of
--------------------------
appraisal or rights to dissent from the Merger that he may have under applicable
law.
2. Expiration. This Agreement and Seller's obligation to tender and vote
----------
as provided herein shall terminate on the earlier of the payment for the Tender
Shares pursuant to the Offer and the termination of the Merger Agreement in
accordance with its terms.
3. Representation and Warranties. Seller hereby represents and warrants
-----------------------------
to Parent as follows:
3.1 Title. Seller has good and valid title to the Owned Shares and,
-----
upon the acquisition thereof, will have good and valid title to any other Tender
Shares, in each case, free and clear of any lien, pledge, charge, encumbrance or
claim of whatever nature and, upon the
-3-
<PAGE>
purchase of the Tender Shares by the Purchaser, Seller will deliver good and
valid title to the Tender Shares, free and clear of any lien, charge,
encumbrance or claim of whatever nature.
3.2 Ownership of Shares. On the date hereof, the Owned Shares are
-------------------
owned of record or beneficially by Seller and, on the date hereof, the Owned
Shares constitute all of the Shares (and associated Rights) owned of record or
beneficially by Seller. Seller has sole voting power and sole power of
disposition with respect to all of the Owned Shares, with no restrictions,
subject to applicable federal securities laws, on Seller's rights of disposition
pertaining thereto.
3.3 Power; Binding Agreement. Seller has the legal capacity, power
------------------------
and authority to enter into and perform all of his obligations under this
Agreement. The execution, delivery and performance of this Agreement by Seller
will not violate any other agreement to which Seller is a party including,
without limitation, any voting agreement, stockholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered by
Seller and constitutes a valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms.
3.4 No Conflicts. Other than in connection with or in compliance
------------
with the provisions of the Exchange Act and the HSR Act, no authorization,
consent or approval of, or filing with, any court or any public body or
authority is necessary for the consummation by Seller of the transactions
contemplated by this Agreement. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
constitute a breach, violation or default (or any event which, with notice or
lapse of time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or result in a right
of termination or acceleration under, or result in the creation of any lien,
encumbrance, pledge, charge or claim upon any of the properties or assets of
Seller under, any note, bond, mortgage, indenture, deed of trust, license,
lease, agreement or other instrument to which Seller is a party or by which his
or her properties or assets are bound.
4. Additional Shares. Seller hereby agrees, while this Agreement is in
-----------------
effect, to promptly notify Parent of the number of any Shares (and associated
Rights) acquired by Seller after the date hereof.
5. Further Assurances. From time to time, at Parent's request and without
------------------
further consideration, Seller shall execute and deliver such additional
documents and take all such further action as may be reasonably necessary or
desirable to consummate and make effective the transactions contemplated by
Section 1 of this Agreement.
6. Miscellaneous.
-------------
6.1 Survival of Representations. The representations and warranties
---------------------------
made herein shall survive the sale of the Tender Shares and the termination of
this Agreement.
6.2 Entire Agreement; Assignment. This Agreement (a) constitutes the
----------------------------
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to
-4-
<PAGE>
the subject matter hereof and (b) shall not be assigned by operation of law or
otherwise, provided that Parent may assign its rights and obligations hereunder
to any direct or indirect wholly owned subsidiary of Parent, but no such
assignment shall relieve Parent of its obligations hereunder if such assignee
does not perform such obligations.
6.3 Amendments. This Agreement may not be modified, amended, altered
----------
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
6.4 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given by hand delivery
or telecopy or by any courier service, such as Federal Express, providing proof
of delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Seller:
[address]
copy to:
Peabody & Arnold LLP
50 Rowes Wharf
Boston, MA 02110
Attn: William E. Kelly
If to Parent:
Oracle Corporation
500 Oracle Parkway
Redwood City, CA 94065
Attn: Daniel S. Cooperman,
Senior Vice President, General
Counsel and Secretary
copy to:
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, CA 94025
Attn: Donald M. Keller, Jr.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
-5-
<PAGE>
6.5 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
6.6 Specific Performance. Seller recognizes and acknowledges that a
--------------------
breach by him or her of any covenants or agreements contained in this Agreement
will cause Parent to sustain damages for which it would not have an adequate
remedy at law for money damages, and therefore Seller agrees that in the event
of any such breach, Parent shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
6.7 Counterparts. This Agreement may be executed in two
------------
counterparts, each of which shall be deemed to be an original, but both of which
shall constitute one and the same Agreement.
6.8 Descriptive Headings. The descriptive headings used herein are
--------------------
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
6.9 Severability. Whenever possible, each provision or portion of
------------
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
6.10 Seller Capacity. By executing this Agreement no person who is
---------------
or becomes during the term hereof a director or officer of the Company makes any
agreement or understanding in his or her capacity as such officer or director.
Seller signs solely in his or its capacity as a shareholder and nothing in this
Agreement shall limit or affect any actions taken by Seller in his or its
capacity as an officer or director of the Company or as an entity employing or
otherwise controlling one or more officers or directors of the Company.
-6-
<PAGE>
IN WITNESS WHEREOF, Parent and Seller have caused this Agreement to be duly
executed as of the day and year first above written.
PARENT:
By: __________________________
Name: ________________________
Date: ________________________
SELLER:
By: __________________________
Name: ________________________
Date: ________________________
<PAGE>
Exhibit (c)(3)
ORACLE(R)
NONDISCLOSURE AGREEMENT FOR STRATEGIC MATTERS
Effective Date: September 11, 1998.
---------------------------
This Confidential Disclosure Agreement ("Agreement") is entered into by Oracle
Corporation ("Oracle") located at 500 Oracle Parkway, Redwood City, California,
94065 and Concentra Corp. ("Company") located at 21 North Avenue, Burlington, MA
01803-3301.
Oracle and the Company are entering into discussions concerning a possible
strategic transaction (the "Transaction"). Oracle and the Company expect to
make available to one another certain nonpublic information concerning their
respective business prospects and plans, financial condition, operations, assets
and liabilities. As a condition to such information being furnished to each
party and the directors, officers, employees, agents or advisors of such party
or its subsidiaries (including, without limitation, attorneys, accountants,
consultants, bankers and financial advisors) (collectively, "Representatives"),
each party agrees to treat any nonpublic information concerning the other party
or its subsidiaries, which is furnished hereunder to a party or to its
Representatives now or in the future by or on behalf of the disclosing party
(collectively, the "Evaluation Material"), under the terms of this Agreement.
1. Evaluation Material. The term "Evaluation Material" also shall be deemed to
-------------------
include all notes, analyses, compilations, studies, plans, interpretations or
other documents prepared by each party or its Representatives which contain,
reflect or are based upon, in whole or in part, the information furnished to
such party or its Representatives pursuant hereto which is not available to the
general public. The term "Evaluation Material" does not include information
which (i) is or becomes generally available to the public other than as a result
of a breach of this Agreement by the receiving party or its Representatives,
(ii) was within the receiving party's possession prior to its being furnished to
the receiving party by or on behalf of the disclosing party, provided that the
source of such information was not known by the receiving party to be bound by a
confidentiality agreement with the disclosing party, (iii) is or becomes
available to the receiving party on a non-confidential basis from a source other
than the disclosing party or any of its Representatives, provided that such
source was not known by the receiving party to be bound by a confidentiality
agreement with the disclosing party with respect to such information, (iv) is
disclosed by the disclosing party to a third party without a duty of
confidentiality, (v) is independently developed by the recipient without use of
Evaluation Material, or (vi) is disclosed under operation of law.
2. Non-Disclosure. In addition, each party agrees that, without the prior
--------------
written consent of the other party, its Representatives will not disclose to any
other person the other party's Evaluation Material, that any Evaluation Material
has been made available hereunder, that discussions or negotiations between the
parties are taking place concerning the Transaction or any of the terms,
conditions or other facts with respect thereto (including the status thereof).
However, a party may make such disclosure if in the written opinion of a party's
outside counsel, such disclosure is necessary to avoid committing a violation of
law. In such event, the disclosing party shall use its best efforts to give
advance notice to the other party.
3. Residuals. Each party may freely use the "residuals" from the Evaluation
---------
Material of the other party, provided that each party shall maintain the
confidentiality of the other party's Evaluation Material as required herein.
The term "residuals" shall mean the Evaluation Material in nontangible form
(i.e., not written or other documentary form, including tape or disk), which may
be retained by employees of either party who have had access to the Evaluation
Material, including ideas, know-how, or techniques contained therein, but not as
a result of any deliberate effort to memorize the information. Each party shall
have no obligation to limit or restrict the assignment of its employees or to
pay royalties to the other party for any work resulting from the use of
residuals.
4. Independent Development. Nothing in this Agreement shall be construed to
-----------------------
preclude either party from developing, using, marketing, licensing, and/or
selling any independently developed software or data processing material that is
similar or related to the Evaluation Material.
5. Required Disclosure. In the event that a party or its Representatives are
-------------------
requested or required (by oral questions, interrogatories, requests for
information or documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any of the other party's Evaluation
Material, the party requested or required to make the disclosure shall provide
the other party with prompt notice of any such request or requirement so that
the other party may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. If, in the absence of a
protective order or other remedy or the receipt of a waiver by such other party,
the party requested or required to make the disclosure or any of its
Representatives are nonetheless, in the opinion of counsel, legally compelled to
disclose the other party's Evaluation Material to any governmental authority,
the party requested or required to make the disclosure or its Representative
may, without liability hereunder, disclose to such governmental authority only
that portion of the other party's Evaluation Material which such counsel advises
is legally required to be disclosed, provided that the party requested or
required to make the disclosure exercises its reasonable efforts to preserve the
confidentiality of the other party's Evaluation Material, including, without
limitation, by cooperating with the other party to obtain an appropriate
protective order or other reliable assurance that confidential treatment will be
accorded the other party's Evaluation Material by such governmental authority.
6. Termination of Discussions. If either party decides that it does not wish to
--------------------------
proceed with the Transaction with the other party, the party so deciding will
promptly inform the other party of that decision by giving a written notice of
termination. In that case, each receiving party will promptly deliver to the
disclosing party or destroy all written Evaluation Material (and all copies
thereof and extracts therefrom) furnished to the receiving party or its
Representatives by or on behalf of the disclosing party pursuant hereto. In the
event of such a decision, all other Evaluation Material prepared by the
disclosing party shall be destroyed and no copy thereof shall be retained, and
in no event shall either party be obligated to disclose or provide the
Evaluation Material prepared by it or its Representatives to the other party.
Notwithstanding the return or destruction of the Evaluation Material, each party
and its Representatives will continue to be bound by its obligations of
confidentiality and other obligations hereunder.
7. No Representation of Accuracy. Each party understands and acknowledges that
-----------------------------
neither party nor any of its Representatives makes any representation or
warranty, express or implied, as to the accuracy or completeness of the
Evaluation Material made available by it or to it. Each party agrees that
neither party nor any of its Representatives shall have any liability to the
other party or to any of its Representatives relating to or resulting from the
use of or reliance upon such other party's Evaluation Material or any errors
therein or omissions therefrom. Only those representations or warranties which
are made in a final definitive agreement regarding the Transaction, when, as and
if executed by both parties, and subject to such limitations and restrictions as
may be specified therein, will have any legal effect.
8. Definitive Agreements. Each party understands and agrees that no contract or
---------------------
agreement providing for any Transaction involving the parties shall be deemed to
exist between the parties unless and until a final definitive agreement has been
executed and delivered. Each party also agrees that unless and until a final
definitive agreement regarding the Transaction between the parties has been
executed and delivered, neither party will be under any legal obligation of any
kind whatsoever with respect to such transaction by virtue of this Agreement
except for the matters specifically agreed to herein. For purposes of this
paragraph, the term "definitive agreement" does not include an executed letter
of intent or any other preliminary written agreement. Both parties further
acknowledge and agree that each party reserves the right, in its sole
discretion, to provide or not provide Evaluation Material to the receiving party
under this Agreement, to reject any and all proposals made by the other party or
any of its
<PAGE>
Representatives with regard to the Transaction between the parties, and to
terminate discussions and negotiations at any time.
9. Miscellaneous. Each party agrees to be responsible for any breach of this
-------------
Agreement by any of its Representatives. No failure or delay by the Company or
any of its Representatives in exercising any right, power or privilege under
this agreement shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise of any right, power or
privilege hereunder. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions of the Agreement shall not in any way be affected or
impaired thereby.
10. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of California applicable to agreements
made and to be performed within such state.
ORACLE CORPORATION
By: /s/ David Roux
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Name: David Roux
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Title: Executive VP of Corporate Development
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COMPANY
By: /s/ Lawrence Rosenfeld
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Name: Lawrence Rosenfeld
----------------------------------------------------------
Title: Chairman and CEO
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- ----------------------------------------------------------------
Name of Representative,
Acting as the representative of the Company (if applicable)
By:
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Name:
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Title:
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2
