<PAGE>
Exhibit (a)(1)(A)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
BeautiControl, Inc.
at
$7.00 Net Per Share
by
B-C Merger Corporation
a wholly owned subsidiary of
Tupperware Corporation
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY
TIME, ON TUESDAY, OCTOBER 17, 2000, UNLESS THE OFFER IS EXTENDED
The Offer is being made pursuant to the terms of an agreement and plan of
merger (the "Merger Agreement") dated as of September 13, 2000 among
BeautiControl, Tupperware and B-C Merger Corporation. The Offer is conditioned
upon, among other things, there being validly tendered and not withdrawn prior
to the expiration of the Offer such number of Shares that would constitute at
least a majority of the Shares that in the aggregate are outstanding determined
on a fully diluted basis (assuming the exercise of all options to purchase
Shares, and the conversion or exchange of all securities convertible or
exchangeable into Shares outstanding at the expiration date of the Offer), and
any waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, applicable to the purchase of Shares pursuant to the Offer
having expired or having been terminated prior to the expiration of the Offer.
The Offer is also subject to the other terms and conditions contained in this
Offer to Purchase. Please read Sections 1 and 14 which set forth in full the
conditions to the Offer.
The Board of Directors of BeautiControl has by a unanimous vote approved the
Merger Agreement, the Offer and the Merger, has determined that the terms of
the Offer and the Merger are fair to, and in the best interests of,
BeautiControl's stockholders, and recommends that stockholders of BeautiControl
accept the Offer and tender their Shares pursuant to the Offer.
A summary of the principal terms of the Offer appears on pages (ii) and (iii).
You should read this entire document carefully before deciding whether to
tender your shares.
--------------
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should either (i) complete and sign the Letter of Transmittal, or a
manually signed facsimile thereof, in accordance with the instructions in the
Letter of Transmittal, have such stockholder's signature thereon guaranteed if
required by Instruction 1 to the Letter of Transmittal, mail or deliver the
Letter of Transmittal, or such facsimile, and any other required documents to
the Depositary and either deliver the certificates for such Shares to the
Depositary along with the Letter of Transmittal or facsimile or deliver such
Shares pursuant to the procedure for book-entry transfer set forth in Section 2
prior to the expiration of the Offer, or (ii) request such stockholder's
broker, dealer, commercial bank, trust company or other nominee to effect the
transaction for such stockholder. A stockholder having Shares registered in the
name of a broker, dealer, commercial bank, trust company or other nominee must
contact such broker, dealer, commercial bank, trust company or other nominee if
such stockholder desires to tender such Shares.
A stockholder who desires to tender Shares and whose certificates for such
Shares are not immediately available or who cannot comply in a timely manner
with the procedure for book-entry transfer described herein, or who cannot
deliver all required documents to the Depositary prior to the expiration of the
Offer, may tender such Shares by following the procedure for guaranteed
delivery set forth in Section 3.
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and
all other tender offer materials may be directed to the Information Agent or
the Dealer Manager at their addresses and telephone numbers set forth on the
back cover of this Offer to Purchase.
--------------
The Information Agent for the Offer is:
[GEORGESON LOGO]
The Dealer Manager for the Offer is:
Lazard
September 20, 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<C> <S> <C>
Summary Term Sheet...................................................... ii
Introduction............................................................ 1
1.Terms of the Offer................................................ 2
2.Acceptance for Payment and Payment for Shares..................... 4
3.Procedures for Accepting the Offer and Tendering Shares........... 5
4.Withdrawal Rights................................................. 7
5.Material Federal Income Tax Consequences.......................... 8
6.Price Range of the Shares; Dividends.............................. 8
7.Possible Effects of the Offer on the Market for the Shares; Nasdaq
Listing; Exchange Act Registration; Margin Regulations............ 9
8.Certain Information Concerning BeautiControl...................... 10
9.Certain Information Concerning Tupperware and Purchaser........... 11
10.Background of the Offer; Contacts with BeautiControl.............. 13
11.Purpose of the Offer and the Merger; The Merger Agreement; The
Stockholder Agreements; The Employment Agreements; Statutory
Requirements; Appraisal Rights; Plans for BeautiControl........... 15
12.Source and Amount of Funds........................................ 30
13.Dividends and Distributions....................................... 30
14.Conditions of the Offer........................................... 31
15.Legal Matters; Required Regulatory Approvals...................... 32
16.Fees and Expenses................................................. 34
17.Miscellaneous..................................................... 35
Schedule I Directors and Executive Officers of Tupperware and Purchaser
Annex A Excerpts from the General Corporation Law of the State of
Delaware relating to the Rights of Dissenting Stockholders
pursuant to Section 262 thereof
</TABLE>
i
<PAGE>
SUMMARY TERM SHEET
This summary term sheet highlights selected information from this Offer to
Purchase, and may not contain all of the information that is important to you.
To better understand our offer to you and for a complete description of the
terms of the offer, you should read this entire Offer to Purchase and the
accompanying Letter of Transmittal carefully. Questions or requests for
assistance may be directed to the Information Agent at its address and
telephone number listed on the last page of this Offer to Purchase.
Principal Terms
. Tupperware Corporation, through its wholly owned subsidiary, is offering
to buy all of the outstanding shares of common stock of BeautiControl,
Inc. The tender price for the common stock is $7.00 per share, in cash.
Tendering stockholders will not have to pay brokerage fees or
commissions.
. The offer is the first step in our plan to acquire all of the outstanding
shares of BeautiControl common stock, as provided in our merger agreement
with BeautiControl. If the offer is successful, we will acquire each
remaining share of BeautiControl common stock in a later merger for $7.00
per share in cash. BeautiControl stockholders will not have appraisal
rights in the tender offer; however, they will have appraisal rights in
the merger.
. The offer will expire at 12:00 midnight, New York City time, on Tuesday,
October 17, 2000, unless we extend the offer.
. If we decide to extend the offer, we will issue a press release giving
the new expiration date no later than 9:00 a.m., New York City time, on
the first business day after the previously scheduled expiration of the
offer.
BeautiControl Board Recommendation
. By a unanimous vote of all directors, the BeautiControl board of
directors has approved the merger agreement, the offer and the merger and
determined that the terms of the offer and the merger are fair to, and in
the best interests of, BeautiControl stockholders. The BeautiControl
board recommends that stockholders of BeautiControl accept the offer and
tender their shares in the offer.
Conditions
We are not required to complete the offer unless:
. the number of shares of common stock validly tendered and not withdrawn
prior to the expiration of the offer equals at least a majority of the
outstanding shares of BeautiControl common stock, assuming the exercise
of all options to purchase shares of common stock and the conversion or
exchange of all securities convertible or exchangeable into shares of
common stock, and
. we receive U.S. federal antitrust clearance for the acquisition of
shares.
Other conditions to the offer are described on pages 31 and 32. The offer is
not conditioned on our obtaining financing.
Stockholder and Employment Agreements
. We have entered into stockholder agreements with certain stockholders of
BeautiControl. Pursuant to those agreements, those stockholders have
agreed to tender a total of 2,848,774 shares of BeautiControl common
stock in the offer, constituting approximately 39.4% of the total number
of shares of BeautiControl common stock issued and outstanding as of
September 11, 2000. The stockholders have also agreed that they will not
transfer BeautiControl shares subject to the agreements prior to the
termination of the stockholder agreements and that they will vote those
shares in favor of the merger and against certain competing transactions.
You can find a more complete description of the stockholder agreements on
pages 24 and 25. In addition, BeautiControl has advised us that
stockholders owning an additional 621,828 shares of common stock of
BeautiControl, constituting an additional approximately 8.6% of the total
number of shares of BeautiControl common stock issued and outstanding as
of September 11, 2000, have agreed to tender their shares in the offer.
. Richard W. Heath, the Chief Executive Officer of BeautiControl and Jinger
L. Heath, the Chairman of the Board of Directors of BeautiControl, have
agreed to enter into employment agreements whereby they will continue to
be employed by BeautiControl after the completion of the merger. The
employment agreements are described on pages 25 and 26. In addition, Mr.
and Mrs. Heath each have agreed to purchase shares of Tupperware
following the merger.
ii
<PAGE>
Procedures for Tendering
If you wish to accept the offer, this is what you must do:
. If you are a record holder of BeautiControl shares (i.e., a stock
certificate has been issued to you), you must complete and sign the
enclosed letter of transmittal and send it with your stock certificate to
the depositary for the offer or follow the procedures described in the
offer for book-entry transfer. These materials must reach the depositary
before the offer expires. Detailed instructions are contained in the
letter of transmittal and on pages 5 through 7.
. If you are a record holder but your stock certificate is not available or
you cannot deliver it to the depositary before the offer expires, you may
be able to tender your shares using the enclosed notice of guaranteed
delivery. Please call our information agent, Georgeson Shareholder
Communications at (800) 223-2064 for assistance. See page 6 for further
details.
. If you hold your shares through a broker or bank, you should contact your
broker or bank and give instructions that your shares be tendered.
Withdrawal Rights
. If, after tendering your shares in the offer, you decide that you do NOT
want to accept the offer, you can withdraw your shares by instructing the
depositary before the offer expires. If you tendered by giving
instructions to a broker or bank, you must instruct the broker or bank to
arrange for the withdrawal of your shares. See pages 7 and 8 for further
details.
Recent BeautiControl Trading Prices; Subsequent Trading
. The last sale price for BeautiControl common stock was:
$3.75 on September 12, 2000, the last day on which there was a reported
trade of BeautiControl common stock before we announced the execution
of the merger agreement with BeautiControl, and
$6.9063 on September 19, 2000, the last trading day before the
commencement of the offer.
Before deciding whether to tender, you should obtain a current market
quotation for the shares.
. If the offer is successful, we expect BeautiControl common stock to be
traded on the Nasdaq National Market until the time of the merger,
although we expect trading volume to be below its pre-offer level.
Further Information
If you have questions about the offer, you can call:
Our Information Agent:
[GEORGESON LOGO]
17 State Street, 10th Floor
New York, New York 10004
Banks and Brokers Call Collect:
(212) 440-9800
All Others Call Toll-Free:
(800) 223-2064
Our Dealer Manager:
Lazard
30 Rockefeller Plaza
New York, New York 10020
iii
<PAGE>
To: All holders of shares of common stock of BeautiControl, Inc.:
INTRODUCTION
B-C Merger Corporation, a Delaware corporation ("Purchaser") and a wholly
owned subsidiary of Tupperware Corporation, a Delaware corporation
("Tupperware"), is offering to purchase all of the outstanding shares (the
"Shares") of common stock, $.10 par value per share, of BeautiControl, Inc., a
Delaware corporation ("BeautiControl"), at a purchase price of $7.00 per share,
net to the seller in cash, without interest thereon (the "Offer Price"), on the
terms and subject to the conditions set forth in this Offer to Purchase and in
the related Letter of Transmittal (which, as amended or supplemented from time
to time, collectively constitute the "Offer"). As used herein, "we" or "our"
refers to Tupperware and Purchaser.
You will not be required to pay brokerage fees or commissions or, except as
described in Instruction 6 of the Letter of Transmittal, stock transfer taxes
on the purchase of Shares in the Offer. However, if you do not complete and
sign the Substitute Form W-9 that is included in the Letter of Transmittal, you
may be subject to a required backup federal income tax withholding of 31% of
the gross proceeds payable to you. See Section 3. We will pay all charges and
expenses of Lazard Freres & Co. LLC, as Dealer Manager, ChaseMellon Shareholder
Services, L.L.C., as Depositary, and Georgeson Shareholder Communications,
Inc., as Information Agent, incurred in connection with the Offer. See Section
16.
The Board of Directors of BeautiControl (the "BeautiControl Board") has by a
unanimous vote approved the Merger Agreement (as defined below), the Offer and
the Merger (as defined below), has determined that the terms of the Offer and
the Merger are fair to, and in the best interests of, BeautiControl's
stockholders, and recommends that stockholders of BeautiControl accept the
Offer and tender their Shares pursuant to the Offer.
We are not required to purchase any Shares unless there shall have been
validly tendered and not withdrawn prior to the expiration of the Offer such
number of Shares that would constitute at least a majority of the Shares that
in the aggregate are outstanding determined on a fully diluted basis (assuming
the exercise of all options to purchase Shares and the conversion or exchange
of all securities convertible or exchangeable into Shares outstanding at the
expiration date of the Offer) (the "Minimum Condition"). We reserve the right
(subject to the applicable rules and regulations of the Securities and Exchange
Commission (the "SEC") and to the prior written consent of BeautiControl),
which we presently have no intention of exercising, to waive or reduce the
Minimum Condition and to elect to purchase a smaller number of Shares. The
Offer is also subject to certain other terms and conditions. See Sections 1,
14, and 15 below.
We are making the Offer under the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of September 13, 2000, among BeautiControl, Tupperware
and Purchaser. Following the consummation of the Offer and the satisfaction or
waiver of certain conditions, Purchaser will merge with and into BeautiControl
(the "Merger"), with BeautiControl continuing as the surviving corporation (the
"Surviving Corporation"). In the Merger, each Share issued and outstanding
immediately prior to the Effective Time (as defined herein) (other than any
Shares that are held in the treasury of BeautiControl or by any wholly owned
subsidiary of BeautiControl and any Shares owned by Tupperware or any wholly
owned subsidiary of Tupperware and other than Shares held by stockholders who
properly perfect appraisal rights under the Delaware General Corporation Law
(the "DGCL")) will be converted into the right to receive $7.00 in cash (the
"Merger Consideration"). Section 11 below contains a more detailed description
of the Merger Agreement. Section 5 below describes the material federal income
tax consequences of the sale or exchange of Shares in the Offer and the Merger.
Hoak Breedlove Wesneski & Co. ("HBW"), BeautiControl's financial advisor,
has delivered to the BeautiControl Board a written opinion that, as of the date
of the opinion, the $7.00 per Share consideration in cash to be received by the
holders of Shares in the Offer and the Merger was fair from a financial point
of view to such holders. A copy of the HBW opinion is included with
BeautiControl's Solicitation/Recommendation
1
<PAGE>
Statement on Schedule 14D-9, which is being mailed with this Offer to Purchase.
Stockholders are urged to read the opinion in its entirety for a description of
the assumptions made, matters considered and limitations of the review
undertaken by HBW.
The approval and adoption of the Merger Agreement by BeautiControl requires
the affirmative vote of holders of a majority of the outstanding Shares. As a
result, if the Minimum Condition and the other conditions to the Offer are
satisfied and the Offer is completed, Tupperware and its subsidiaries will own
a sufficient number of Shares to ensure that the Merger Agreement will be
approved by BeautiControl's stockholders.
BeautiControl has informed us that, as of September 11, 2000, there were (a)
7,231,448 Shares issued and outstanding, and (b) 1,637,600 Shares subject to
issuance under outstanding options. If Purchaser acquires at least 4,434,525
Shares in the Offer, Purchaser would own a majority of such Shares and would
own a sufficient number of Shares to approve the Merger without the affirmative
vote of any other stockholder.
Stockholders of BeautiControl owning a total of 2,848,774 Shares,
constituting approximately 39.4% of the total number of Shares outstanding as
of September 11, 2000, have entered into stockholder agreements pursuant to
which they have agreed to tender those shares pursuant to the Offer. See
Section 11 below. BeautiControl has advised us that each of its directors and
each of its executive officers who had knowledge of the transaction prior to
the execution of the Merger Agreement intends to tender all Shares that he or
she owns in the Offer. BeautiControl has advised us that, in addition to the
shareholders who have entered into stockholder agreements and those directors
and executive officers, stockholders owning an additional 621,828 Shares,
constituting approximately 8.6% of the total number of Shares outstanding at
September 11, 2000, have agreed to tender their Shares in the Offer.
Richard W. Heath, the Chief Executive Officer of BeautiControl, and Jinger
L. Heath, the Chairman of the Board of Directors of BeautiControl, have agreed
to enter into employment agreements with Purchaser and have agreed to purchase
shares of Tupperware following the merger. See Section 11 below.
The Offer is conditioned upon the fulfillment of the conditions described in
Section 14 below. The Offer will expire at 12:00 midnight, New York City time,
on Tuesday, October 17, 2000, unless we extend it.
This Offer to Purchase and the related Letter of Transmittal contain
important information which you should read carefully before you make any
decision with respect to 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 extension or
amendment), we will purchase all Shares validly tendered and not withdrawn in
accordance with the procedures set forth in Section 3 of this Offer to Purchase
on or prior to the Expiration Date. The term "Expiration Date" means 12:00
midnight, New York City time, on Tuesday, October 17, 2000. We may terminate or
withdraw the Offer or extend the offer from time to time if, at the then-
scheduled expiration date of the Offer, the conditions to the Offer shall have
not been satisfied or earlier waived. We may also extend the Offer for any
period required by applicable rules, regulations, interpretations or positions
of the SEC or its staff applicable to the Offer or on one or more occasions for
an aggregate period of not more than fifteen business days. If we extend the
Offer under any of these circumstances, the term "Expiration Date" will mean
the time and date at which the Offer, as so extended, will expire.
Upon the terms and subject to the conditions of the Offer, we will purchase,
as soon as permitted under the terms of the Offer, all Shares validly tendered
and not withdrawn prior to the expiration of the Offer. If, at the Expiration
Date, the conditions to the Offer described in Section 14 have not been
satisfied or earlier waived, then, subject to the provisions of the Merger
Agreement, we may extend the Expiration Date for an additional period or
periods of time by giving oral or written notice of the extension to the
Depositary. During any such extension, all Shares previously tendered and not
withdrawn will remain subject to the Offer and subject to your right to
withdraw Shares. See Section 4.
2
<PAGE>
Subject to the applicable regulations of the SEC and the terms of the Merger
Agreement, we also reserve the right, in our sole discretion, at any time or
from time to time, to: (a) delay purchase of or, regardless of whether we
previously purchased any Shares, payment for any Shares pending receipt of any
regulatory or governmental approvals or expiration of the applicable regulatory
or governmental waiting period specified in Section 15; (b) terminate the Offer
(whether or not any Shares have previously been purchased) if any condition
referred to in Section 14 has not been satisfied or upon the occurrence of any
event specified in Section 14; and (c) except as set forth in the Merger
Agreement, waive any condition or otherwise amend the Offer in any respect, in
each case, by giving oral or written notice of the delay, termination, waiver
or amendment to the Depositary and, other than in the case of any waiver, by
making a public announcement thereof. We acknowledge (a) that Rule 14e-1(c)
under the Exchange Act requires us to pay the consideration offered or return
the Shares tendered promptly after the termination or withdrawal of the Offer
and (b) that we may not delay purchase of, or payment for (except as provided
in clause (a) of the preceding sentence), any Shares upon the occurrence of any
event specified in Section 14 without extending the period of time during which
the Offer is open.
The rights we reserve in the preceding paragraph are in addition to our
rights described in Section 14. Any extension, delay, termination or amendment
of the Offer will be followed as promptly as practicable by a public
announcement. An announcement in the case of an extension will be made no later
than 9:00 a.m., New York City time, on the next business day after the
previously scheduled Expiration Date. Without limiting the manner in which we
may choose to make any public announcement, subject to applicable law
(including Rules14d-4(d) and 14d-6(c) under the Exchange Act, which require
that material changes be promptly disseminated to holders of Shares), we will
have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by issuing a release to the Dow Jones News
Service.
In the Merger Agreement, we have agreed that, without the prior written
consent of BeautiControl, we will not (a) reduce the number of Shares subject
to the Offer, (b) reduce the Offer Price, (c) impose conditions to the Offer
other than those set forth in Section 14, or modify the conditions to the Offer
(other than to waive any condition to the Offer to the extent permitted by the
Merger Agreement), (d) except as provided in the Merger Agreement, extend the
Offer or (e) change the form of consideration payable in the Offer.
If we make a material change in the terms of the Offer, or if we waive a
material condition to the Offer, we will extend the Offer and disseminate
additional tender offer materials to the extent required by Rules14d-4(d), 14d-
6(c) and 14e-1 under the Exchange Act. The minimum period during which a tender
offer must remain open following material changes in the terms of the offer,
other than a change in price or a change in percentage of securities sought,
depends upon the facts and circumstances, including the materiality of the
changes. In the SEC's view, an offer should remain open for a minimum of five
business days from the date the material change is first published, sent or
given to stockholders, and, if material changes are made with respect to
information that approaches the significance of price and the percentage of
securities sought, a minimum of 10 business days may be required to allow for
adequate dissemination and investor response. With respect to a change in
price, a minimum 10 business-day period from the date of the change is
generally required to allow for adequate dissemination to stockholders.
Accordingly, if prior to the Expiration Date, we decrease the number of Shares
being sought, or increase or decrease the consideration offered pursuant to the
Offer, and if the Offer is scheduled to expire at any time earlier than the
period ending on the tenth business day from the date that notice of the
increase or decrease is first published, sent or given to holders of Shares, we
will extend the Offer at least until the expiration of such period of ten
business days. For purposes of the Offer, a "business day" means any day other
than a Saturday, Sunday or a federal holiday and consists of the time period
from 12:01 a.m. through 12:00 midnight, New York City time.
The Offer is conditioned upon, among other things, the satisfaction of the
Minimum Condition.
Consummation of the Offer is also conditioned upon expiration or termination
of all waiting periods imposed by the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and the regulations
3
<PAGE>
thereunder (the "HSR Act"), and the other conditions set forth in Section 14.
We reserve the right (but are not obligated), in accordance with applicable
rules and regulations of the SEC and with the Merger Agreement, to waive any or
all of those conditions. If, by the Expiration Date, any or all of those
conditions have not been satisfied, we may, without the consent of
BeautiControl, elect to (a) extend the Offer and, subject to applicable
withdrawal rights, retain all tendered Shares until the expiration of the
Offer, as extended, subject to the terms of the Offer and the Merger Agreement;
(b) waive all of the unsatisfied conditions (other than the Minimum Condition)
and, subject to complying with applicable rules and regulations of the SEC,
accept for payment all Shares so tendered; or (c) terminate the Offer and not
accept for payment any Shares and return all tendered Shares to tendering
stockholders. In the event that we waive any condition set forth in Section 14,
the SEC may, if the waiver is deemed to constitute a material change to the
information previously provided to the stockholders, require that the Offer
remain open for an additional period of time and/or that we disseminate
information concerning such waiver.
There will not be a subsequent offering period after the expiration of the
Offer.
BeautiControl has provided us with its stockholder lists and security
position listings for the purpose of disseminating the Offer to holders of
Shares. We will mail this Offer to Purchase, the related Letter of Transmittal
and other relevant materials to record holders of Shares and we will furnish
the materials to brokers, dealers, commercial banks, trust companies and
similar persons whose names, or the names of whose nominees, appear on the
securityholder lists or, if applicable, who are listed as participants in a
clearing agency's security position listing, for forwarding to beneficial
owners of Shares.
2. Acceptance for Payment and Payment for Shares.
Upon the terms and subject to the conditions of the Offer (including, if we
extend or amend the Offer, the terms and conditions of the Offer as so extended
or amended), we will purchase, by accepting for payment, and will pay for, all
Shares validly tendered and not withdrawn (as permitted by Section 4) prior to
the Expiration Date promptly after the later of (a) the Expiration Date and (b)
the satisfaction or waiver of the conditions to the Offer set forth in Section
14. In addition, subject to applicable rules of the SEC, we reserve the right
to delay acceptance for payment of, or payment for, Shares pending receipt of
any regulatory or governmental approvals specified in Section 15.
For information with respect to regulatory approvals that we are required to
obtain prior to the completion of the Offer, see Section 15.
In all cases, we will pay for Shares purchased in the Offer only after
timely receipt by the Depositary of (a) certificates representing the Shares
("Share Certificates") or timely confirmation (a "Book-Entry Confirmation") of
the book-entry transfer of the Shares into the Depositary's account at The
Depository Trust Company (the "Book-Entry Transfer Facility") pursuant to the
procedures set forth in Section 3; (b) the appropriate Letter of Transmittal
(or a facsimile), properly completed and duly executed, with any required
signature guarantees or an Agent's Message (as defined below) in connection
with a book-entry transfer; and (c) any other documents that the Letter of
Transmittal requires.
The term "Agent's Message" means a message transmitted by the Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
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 which are the subject of the Book-Entry
Confirmation that the participant has received and agrees to be bound by the
terms of the Letter of Transmittal and that we may enforce that agreement
against the participant.
For purposes of the Offer, we will be deemed to have accepted for payment,
and purchased, Shares validly tendered and not withdrawn if, as and when we
give oral or written notice to the Depositary of our acceptance of the Shares
for payment pursuant to the Offer. In all cases, upon the terms and subject to
the conditions of the Offer, payment for Shares purchased pursuant to the Offer
will be made by deposit of the purchase price for the Shares with the
Depositary, which will act as agent for tendering stockholders for the purpose
of receiving payment from us and transmitting payment to validly tendering
stockholders.
4
<PAGE>
Under no circumstances will we pay interest on the purchase price for
Shares, regardless of any extension of the Offer or any delay in making such
payment.
If we do not purchase any tendered Shares pursuant to the Offer for any
reason, or if you submit Share Certificates representing more Shares than you
wish to tender, we will return Share Certificates representing unpurchased or
untendered Shares, without expense to you (or, in the case of Shares delivered
by book-entry transfer into the Depositary's account at the Book-Entry Transfer
Facility pursuant to the procedures set forth in Section 3, the Shares will be
credited to an account maintained within the Book-Entry Transfer Facility), as
promptly as practicable following the expiration, termination or withdrawal of
the Offer.
If, prior to the Expiration Date, we increase the price offered to holders
of Shares in the Offer, we will pay the increased price to all holders of
Shares that we purchase in the Offer, whether or not the Shares were tendered
before the increase in price.
We reserve the right, subject to the provisions of the Merger Agreement, to
transfer or assign, in whole or from time to time in part, to one or more of
our wholly owned subsidiaries the right to purchase all or any portion of the
Shares tendered in the Offer, but any such transfer or assignment will not
relieve us of our obligations under the Offer or prejudice your rights to
receive payment for Shares validly tendered and accepted for payment in the
Offer.
3. Procedures for Accepting the Offer and Tendering Shares.
Valid Tender of Shares. Except as set forth below, in order for you to
tender Shares in the Offer, the Depositary must receive the Letter of
Transmittal (or a facsimile), properly completed and signed, together with any
required signature guarantees or an Agent's Message in connection with a book-
entry delivery of Shares and any other documents that the Letter of Transmittal
requires at one of its addresses set forth on the back cover of this Offer to
Purchase on or prior to the Expiration Date and either (a) you must deliver
Share Certificates representing tendered Shares to the Depositary or you must
cause your Shares to be tendered pursuant to the procedure for book-entry
transfer set forth below and the Depositary must receive Book-Entry
Confirmation, in each case on or prior to the Expiration Date, or (b) you must
comply with the guaranteed delivery procedures set forth below.
The method of delivery of Share Certificates, the Letter of Transmittal and
all other required documents, including delivery through the Book-Entry
Transfer Facility, is at your option and sole risk, and delivery will be
considered made only when the Depositary actually receives the Share
Certificates. If delivery is by mail, registered mail with return receipt
requested, properly insured, is recommended. In all cases, you should allow
sufficient time to ensure timely delivery.
Book-Entry Transfer. The Depositary will make a request to establish an
account with respect to the Shares at the Book-Entry Transfer Facility for
purposes of the Offer within two business days after the date of this Offer to
Purchase. Any financial institution that is a participant in the system of the
Book-Entry Transfer Facility may make book-entry delivery of Shares by causing
the Book-Entry Transfer Facility to transfer the Shares into the Depositary's
account at the Book-Entry Transfer Facility in accordance with the Book-Entry
Transfer Facility's procedures. However, although Shares may be delivered
through book-entry transfer into the Depositary's account at the Book-Entry
Transfer Facility, the Depositary must receive the Letter of Transmittal (or
facsimile), properly completed and signed, with any required signature
guarantees, or an Agent's Message in connection with a book-entry transfer, and
any other required documents, at one of its addresses set forth on the back
cover of this Offer to Purchase on or before the Expiration Date, or you must
comply with the guaranteed delivery procedure set forth below.
Delivery of documents to the Book-Entry Transfer Facility in accordance with
the Book-Entry Transfer Facility's procedures does not constitute delivery to
the Depositary.
5
<PAGE>
Signature Guarantees. A bank, broker, dealer, credit union, savings
association or other entity which is a member in good standing of the
Securities Transfer Agents Medallion Program (an "Eligible Institution") must
guarantee signatures on all Letters of Transmittal, unless the Shares tendered
are tendered (a) by a registered holder of Shares who has not completed either
the box labeled "Special Payment Instructions" or the box labeled "Special
Delivery Instructions" on the Letter of Transmittal or (b) for the account of
an Eligible Institution. See Instruction 1 of 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 to, or
Share Certificates for unpurchased Shares are to be issued or returned to, a
person other than the registered holder, then the tendered certificates must be
endorsed or accompanied by appropriate stock powers, signed exactly as the name
or names of the registered holder or holders appear on the certificates, with
the signatures on the certificates or stock powers guaranteed by an Eligible
Institution as provided in the Letter of Transmittal. See Instructions 1 and 5
of the Letter of Transmittal.
If the Share Certificates are forwarded separately to the Depositary, a
properly completed and duly executed Letter of Transmittal (or facsimile) must
accompany each delivery of Share Certificates.
Guaranteed Delivery. If you want to tender Shares in the Offer and your
Share Certificates are not immediately available or time will not permit all
required documents to reach the Depositary on or before the Expiration Date or
the procedures for book-entry transfer cannot be completed on time, your Shares
may nevertheless be tendered if you comply with all of the following guaranteed
delivery procedures:
(a) your tender is made by or through an Eligible Institution;
(b) the Depositary receives, as described below, a properly completed
and signed Notice of Guaranteed Delivery, substantially in the form made
available by us, on or before the Expiration Date; and
(c) the Depositary receives the Share Certificates (or a Book-Entry
Confirmation) representing all tendered Shares, in proper form for transfer
together with a properly completed and duly executed Letter of Transmittal
(or facsimile), with any required signature guarantees (or, in the case of
a book-entry transfer, an Agent's Message) and any other documents required
by the Letter of Transmittal within three trading days after the date of
execution of the Notice of Guaranteed Delivery. A "trading day" is any day
on which the New York Stock Exchange is open for business.
You may deliver the Notice of Guaranteed Delivery by hand, mail or facsimile
transmission to the Depositary. The Notice of Guaranteed Delivery must include
a guarantee by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery.
Notwithstanding any other provision of the Offer, we will pay for Shares
only after timely receipt by the Depositary of Share Certificates for, or of
Book-Entry Confirmation with respect to, the Shares, a properly completed and
duly executed Letter of Transmittal (or facsimile thereof), together with any
required signature guarantees (or, in the case of a book-entry transfer, an
Agent's Message) and any other documents required by the appropriate Letter of
Transmittal. Accordingly, payment might not be made to all tendering
stockholders at the same time, and will depend upon when the Depositary
receives Share Certificates or Book-Entry Confirmation that the Shares have
been transferred into the Depositary's account at the Book-Entry Transfer
Facility.
Backup Federal Income Tax Withholding. Under the backup federal income tax
withholding laws applicable to certain stockholders (other than certain exempt
stockholders, including, among others, all corporations and certain foreign
individuals), the Depositary may be required to withhold 31% of the amount of
any payments made to those stockholders pursuant to the Offer. To prevent
backup federal income tax withholding, you must provide the Depositary with
your correct taxpayer identification number and certify that you are not
subject to backup federal income tax withholding by completing the Substitute
Form W-9 included in the Letter of Transmittal. See Instruction 8 of the Letter
of Transmittal.
6
<PAGE>
Appointment as Proxy. By executing the Letter of Transmittal, you
irrevocably appoint our designees, and each of them, as your agents, attorneys-
in-fact and proxies, with full power of substitution, in the manner set forth
in the Letter of Transmittal, to the full extent of your rights with respect to
the Shares that you tender and that we accept for payment and with respect to
any and all other Shares and other securities or rights issued or issuable in
respect of those Shares on or after the date of this Offer to Purchase. All
such powers of attorney and proxies will be considered irrevocable and coupled
with an interest in the tendered Shares. This appointment will be effective
when we accept your Shares for payment in accordance with the terms of the
Offer. Upon such acceptance for payment, all other powers of attorney and
proxies given by you with respect to your Shares and such other securities or
rights prior to such payment will be revoked, without further action, and no
subsequent powers of attorney and proxies may be given by you (and, if given,
will not be deemed effective). Our designees will, with respect to the Shares
and such other securities and rights for which the appointment is effective, be
empowered to exercise all your voting and other rights as they in their sole
discretion may deem proper at any annual or special meeting of BeautiControl's
stockholders, or any adjournment or postponement thereof, or by consent in lieu
of any such meeting or otherwise. In order for Shares to be deemed validly
tendered, immediately upon the acceptance for payment of such Shares, we or our
designee must be able to exercise full voting, consent and other rights with
respect to such Shares and other securities, including voting at any meeting of
stockholders.
Determination of Validity. All questions as to the form of documents and the
validity, eligibility (including time of receipt) and acceptance for payment of
any tender of Shares will be determined by us, in our sole discretion, which
determination will be final and binding on all parties. We reserve the absolute
right to reject any or all tenders determined by us not to be in proper form or
the acceptance of or payment for which may, in the opinion of our counsel, be
unlawful. We also reserve the absolute right to waive any of the conditions of
the Offer (subject, in the case of the Minimum Condition, to the prior written
consent of BeautiControl) or any defect or irregularity in any tender of Shares
of any particular stockholder whether or not similar defects or irregularities
are waived in the case of other stockholders.
Our interpretation of the terms and conditions of the Offer will be final
and binding. No tender of Shares will be deemed to have been validly made until
all defects and irregularities with respect to the tender have been cured or
waived by us. None of BeautiControl, Purchaser or any of their affiliates or
assigns, the Dealer Manager, the Depositary, the Information Agent or any other
person or entity will be under any duty to give any notification of any defects
or irregularities in tenders or incur any liability for failure to give any
such notification.
Our acceptance for payment of Shares tendered pursuant to any of the
procedures described above will constitute a binding agreement between us and
you upon the terms and subject to the conditions of the Offer.
4. Withdrawal Rights.
Except as described in this Section 4, tenders of Shares made in the Offer
are irrevocable. You may withdraw Shares that you have previously tendered in
the Offer at any time on or before the Expiration Date and, unless theretofore
accepted for payment as provided herein, may also be withdrawn at any time
after November 20, 2000.
If, for any reason, acceptance for payment of any Shares tendered in the
Offer is delayed, or we are unable to accept for payment or pay for Shares
tendered in the Offer, then, without prejudice to our rights set forth in this
document, the Depositary may, nevertheless, on our behalf, retain Shares that
you have tendered, and you may not withdraw your Shares except to the extent
that you are entitled to and duly exercise withdrawal rights as described in
this Section 4. Any such delay will be by an extension of the Offer to the
extent required by law.
In order for your withdrawal to be effective, you must deliver a written or
facsimile transmission notice of withdrawal to the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase. Any
7
<PAGE>
such notice of withdrawal must specify your name, the number of Shares that you
want to withdraw, and (if Share Certificates have been tendered) the name of
the registered holder of the Shares as shown on the Share Certificate, if
different from your name. If Share Certificates have been delivered or
otherwise identified to the Depositary, then prior to the physical release of
such certificates, you must submit the serial numbers shown on the particular
certificates evidencing the Shares to be withdrawn and an Eligible Institution
must guarantee the signature on the notice of withdrawal, except in the case of
Shares tendered for the account of an Eligible Institution. If Shares have been
tendered pursuant to the procedures for book-entry transfer set forth in
Section 3, the notice of withdrawal must also specify the name and number of
the account at the appropriate Book-Entry Transfer Facility to be credited with
the withdrawn Shares, 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. You may not rescind a withdrawal of Shares. Any
Shares that you withdraw will be considered not validly tendered for purposes
of the Offer, but you may tender your Shares again at any time before the
Expiration Date by following any of the procedures described in Section 3.
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by us, in our sole discretion, which
determination will be final and binding. None of BeautiControl, Purchaser or
any of their affiliates or assigns, the Dealer Manager, the Depositary, the
Information Agent or any other person or entity will be under any duty to give
any notification of any defects or irregularities in any notice of withdrawal
or incur any liability for failure to give any such notification.
5. Material Federal Income Tax Consequences.
Your receipt of cash for Shares in the Offer or the Merger will be a taxable
transaction for federal income tax purposes and may also be a taxable
transaction under applicable state, local, foreign and other tax laws. For
federal income tax purposes, if you sell or exchange your Shares for cash in
the Offer or the Merger, you would generally recognize gain or loss equal to
the difference between the amount of cash received and your tax basis for the
Shares that you sold or exchanged. That gain or loss will be capital gain or
loss (assuming you hold your Shares as a capital asset) and any such capital
gain or loss will be long term if, as of the date of sale or exchange, you have
held the Shares for more than one year or will be short term if, as of such
date, you have held the Shares for one year or less.
The discussion above may not be applicable to certain types of stockholders,
including stockholders who acquired Shares through the exercise of employee
stock options or otherwise as compensation, individuals who are not citizens or
residents of the United States, foreign corporations, or entities that are
otherwise subject to special tax treatment under the Internal Revenue Code
(such as insurance companies, tax-exempt entities and regulated investment
companies).
The federal income tax discussion set forth above is included for general
information only. You are urged to consult your tax advisor with respect to the
specific tax consequences to you of the Offer and Merger, including federal,
state, local and foreign tax consequences.
6. Price Range of the Shares; Dividends
According to BeautiControl's Annual Report on Form 10-K for the fiscal year
ended November 30, 1999, the Shares are principally traded on the Nasdaq
National Market ("Nasdaq") under the symbol "BUTI." The following table sets
forth, for the periods indicated, the reported high and low sale prices for the
Shares on Nasdaq, as reported in BeautiControl's Form 10-K with respect to
periods occurring in fiscal 1999 and 1998 and published financial sources, with
respect to periods occurring in the current fiscal year.
<TABLE>
<CAPTION>
Fiscal 2000 Fiscal 1999 Fiscal 1998
----------------- ------------- --------------
High Low High Low High Low
-------- -------- ------ ------ ------- ------
<S> <C> <C> <C> <C> <C> <C>
First Quarter.............. $ 3.1875 $ 1.7500 $6.625 $5.500 $ 8.625 $7.125
Second Quarter............. 4.3750 1.8750 6.000 4.313 10.250 8.125
Third Quarter*............. 7.0000 3.0000 4.875 3.625 10.000 6.125
Fourth Quarter............. 5.250 2.750 8.000 5.375
</TABLE>
--------
*Through September 19, 2000
8
<PAGE>
During fiscal 1999, cash dividends were paid at a rate of $.105 per Share
for the first and second fiscal quarters and $.015 per Share for the third
fiscal quarter. No cash dividends were paid for the fourth fiscal quarter of
1999 or for any quarter in fiscal 2000. Cash dividends were paid in each fiscal
quarter of 1998 at a rate of $.105 per Share.
Under the terms of the Merger Agreement, BeautiControl is not permitted to
declare or pay dividends with respect to the Shares without the prior written
consent of Tupperware.
On September 12, 2000, the last day on which there was a reported trade of
Shares prior to the announcement of the execution of the Merger Agreement, the
reported closing price per Share on Nasdaq was $3.75. On September 19, 2000,
the last full day of trading prior to the commencement of the Offer, the
reported closing price per Share on Nasdaq was $6.9063.
Stockholders are urged to obtain current market quotations for the Shares.
7. Possible Effects of the Offer on the Market for the Shares; Nasdaq Listing;
Exchange Act Registration; Margin Regulations.
Possible Effects of the Offer on the Market for the Shares. The purchase of
Shares pursuant to the Offer will reduce the number of Shares that might
otherwise trade publicly and could adversely affect the liquidity and market
value of the remaining Shares held by the public. The purchase of Shares
pursuant to the Offer can also be expected to reduce the number of holders of
Shares. We cannot predict whether the reduction in the number of Shares that
might otherwise trade publicly would have an adverse or beneficial effect on
the market price for, or marketability of, the Shares or whether it would cause
future market prices to be greater or less than the Offer Price.
Nasdaq Quotation. Depending upon the number of Shares purchased pursuant to
the Offer, the Shares may no longer meet the standards for continued inclusion
in Nasdaq, which requires that an issuer either (i) have at least 750,000
publicly held shares, held by at least 400 round lot stockholders, with a
market value of at least $5,000,000, have at least two market makers, have net
tangible assets of at least $4 million, and have a minimum bid price of $1 or
(ii) have at least 1,100,000 publicly held shares, held by at least 400 round
lot stockholders, with a market value of at least $15,000,000, have a minimum
bid price of $5, have at least 4 market makers and have either (A) a market
capitalization of at least $50,000,000 or (B) total assets and revenues each of
at least $50,000,000.
If 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. We cannot predict whether the reduction in
the number of Shares that might otherwise trade publicly would have an adverse
or beneficial effect on the market price for or marketability of the Shares or
whether it would cause future market prices to be greater or less than the
Offer Price.
Exchange Act Registration. The Shares are currently registered under the
Exchange Act. The purchase of the shares pursuant to the Offer may result in
the Shares becoming eligible for deregistration under the Exchange Act.
Registration of the Shares may be terminated upon application by BeautiControl
to the SEC if the Shares are not listed on a "national securities exchange" and
there are fewer than 300 record holders of Shares. Termination of registration
of the Shares under the Exchange Act would substantially reduce the information
that BeautiControl would be required to furnish to its stockholders and the SEC
and would make certain provisions of the Exchange Act, such as the short-swing
profit recovery provisions of Section 16(b) and the requirements of furnishing
a proxy statement in connection with stockholders' meetings pursuant to Section
14(a) or 14(c) and the related requirement of an annual report, no longer
applicable to BeautiControl. If the
9
<PAGE>
Shares are no longer registered under the Exchange Act, the requirements of
Rule 13e-3 under the Exchange Act with respect to "going private" transactions
would no longer be applicable to BeautiControl. In addition, the ability of
"affiliates" of BeautiControl and persons holding "restricted securities" of
BeautiControl to dispose of such securities pursuant to Rule 144 promulgated
under the Securities Act, may be impaired or, with respect to certain persons,
eliminated. If registration of the shares of Common Stock under the Exchange
Act were terminated, the Shares would no longer be eligible for stock exchange
listing or Nasdaq reporting. We believe that the purchase of the Shares
pursuant to the Offer may result in the Shares becoming eligible for
deregistration under the Exchange Act, and it would be our intention to cause
BeautiControl to make an application for termination of registration of the
shares of Common Stock as soon as possible after successful completion of the
Offer if the Shares are then eligible for such termination.
If registration of the Shares is not terminated prior to the Merger, then
the registration of the Shares under the Exchange Act and the listing of the
Shares on the Nasdaq will be terminated following the completion of the Merger.
Margin Regulations. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System, which have
the effect, among other things, of allowing brokers to extend credit on the
collateral of the Shares for the purpose of buying, carrying or trading in
securities ("Purpose Loans"). Depending upon factors such as the number of
record holders of the Shares and the number and market value of publicly held
Shares, following the purchase of Shares pursuant to the Offer, the Shares
might no longer constitute "margin securities" for purposes of the Federal
Reserve Board's margin regulations and, therefore, could no longer be used as
collateral for Purpose Loans made by brokers. In addition, if registration of
the Shares under the Exchange Act were terminated, the Shares would no longer
constitute "margin securities."
8. Certain Information Concerning BeautiControl
BeautiControl's principal executive offices are located at 2121 Midway Road,
Carrollton, Texas 75006. Its telephone number at such offices is (972) 458-
0601. The following description of BeautiControl and its business has been
taken from BeautiControl's Annual Report on Form 10-K for the fiscal year ended
November 30, 1999 and is qualified in its entirety by reference to
BeautiControl's Form 10-K:
BeautiControl is a manufacturer and direct seller of skin care, cosmetics,
nutritional supplements, nail care, toiletries, fragrances, beauty supplements
and related products. BeautiControl sells its products through independent
sales persons called "Consultants" (or "Distributors"), who purchase the
products from BeautiControl and then sell them directly to consumers in the
home or workplace. BeautiControl also sells its products over the Internet.
Products and image services are provided to clients via an independent sales
force in the United States, Taiwan, Hong Kong, Canada and Puerto Rico.
BeautiControl's three primary geographic operating segments consist of the
following: North America which includes the United States and Canada, Asia
Pacific which includes Taiwan and Hong Kong and Eventus International which
currently operates in the United States.
BeautiControl files annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy any reports,
statements or other information filed at the SEC's public reference room at 450
Fifth Street, N.W., Washington, D.C. 20549, or at the SEC's public reference
rooms in New York, New York and Chicago, Illinois. Please call the SEC at 1-
800-SEC-0330 for further information on the public reference rooms.
BeautiControl's SEC filings are also available to the public from commercial
document retrieval services and at the Internet world wide web site maintained
by the SEC at http://www.sec.gov.
Although we have no knowledge that any such information is untrue, we take
no responsibility for the accuracy or completeness of information contained in
this Offer to Purchase with respect to BeautiControl or any of its affiliates
or for any failure by BeautiControl to disclose events which may have occurred
or may affect the significance or accuracy of any such information.
10
<PAGE>
Projections. BeautiControl does not, as a matter of course, make public
forecasts or projections as to future revenues, earnings or other income
statement data. However, certain projections (the "Projections") were provided
to the BeautiControl Board, as well as to Tupperware and its advisers in
connection with the negotiation of the Merger Agreement.
The Projections were prepared by BeautiControl solely for internal use and
not for publication. The Projections were not prepared with a view to complying
with the published guidelines of the SEC regarding projections or with the
American Institute of Certified Public Accountants Guide to Prospective
Financial Statements. Neither BeautiControl's independent auditors, nor any
other independent accountants, have compiled, examined or performed any
procedures with respect to the prospective financial information contained in
the Projections. The Projections do not reflect any of the effects of the
Offer, the Merger or other changes that in the future may be deemed appropriate
in light of the circumstances then existing.
The Projections necessarily are based upon numerous estimates and
assumptions that, although considered reasonable by BeautiControl, are
inherently subject to significant economic, industry and competitive risks,
uncertainties and contingencies, including industry performance, general
business and economic conditions, and other matters, all of which are difficult
to predict and many of which are beyond the control of BeautiControl.
Accordingly, there can be no assurance that the projected results would be
realized or that actual results would not be significantly higher, or lower,
than those projected. The inclusion of this forward-looking information should
not be regarded as fact or an indication that Tupperware, Purchaser or
BeautiControl or anyone who received this information considered in a reliable
predictor of future results, and this information should not be relied on as
such. None of Tupperware, Purchaser or BeautiControl assumes any responsibility
for the validity, reasonableness, accuracy or completeness of the forecasts.
BeautiControl does not intend to update or revise the Projections.
The following are the Projections:
<TABLE>
<CAPTION>
Fiscal Quarter Ending Fiscal Quarter Ending Fiscal Year Ending
August 31, 2000 November 30, 2000 November 30, 2000
--------------------- --------------------- ------------------
<S> <C> <C> <C>
Net Sales............... $14,941,306 $16,945,104 $65,063,361
Cost of Goods Sold...... 3,576,626 4,151,863 15,538,294
----------- ----------- -----------
Gross Margin on Sales... 11,364,680 12,793,241 49,525,067
Operating Expenses:
Sales & Marketing
Expenses............... 6,006,927 6,623,142 25,973,779
Administrative Expenses. 5,368,180 5,372,118 21,646,927
----------- ----------- -----------
Total Operating
Expenses............... 11,375,107 11,995,260 47,620,706
----------- ----------- -----------
Net Operating Income.... (10,426) 797,981 1,904,361
Other Income and
Expenses
Interest Income......... 76,366 66,000 350,141
Other Income Expense.... 25,757 (283,133) (524,315)
----------- ----------- -----------
Net Other Income and
Expense................ 102,123 (217,133) (174,174)
----------- ----------- -----------
Net Income Before
Federal Income Tax..... 91,697 580,848 1,730,187
Federal Income Tax...... -- -- --
----------- ----------- -----------
Net Income.......... $ 91,697 $ 580,848 $ 1,730,187
=========== =========== ===========
Weighted Average Basic
Shares Outstanding..... 7,231,448 7,250,000 7,250,000
Basic Income Per Share.. $ 0.01 $ 0.08 $ 0.24
With Gain on Sale of
Plane.................. $ 0.01 $ 0.08 $ 0.37
</TABLE>
11
<PAGE>
9. Certain Information Concerning Tupperware and Purchaser
Purchaser is a newly incorporated Delaware corporation organized in
connection with the Offer and the Merger and has not carried on any activities
other than in connection with the Offer and the Merger. Purchaser is a wholly
owned subsidiary of Tupperware.
Until immediately prior to the time that Purchaser will purchase Shares
pursuant to the Offer, it is not anticipated that Purchaser will have any
significant assets or liabilities or engage in activities other than those
incident to its formation and capitalization and the transactions contemplated
by the Offer and the Merger. Because and Purchaser is newly formed and has
minimal assets and capitalization and no operating history, no meaningful
financial information regarding Purchaser is available.
Tupperware is a worldwide direct selling consumer products company engaged
in the manufacture and sale of Tupperware* products.
Tupperware conducts its business through a single business segment,
manufacturing and marketing a broad line of high-quality consumer products for
the home. The core of Tupperware's product line consists of food storage,
preparation and serving containers that preserve freshness through the well-
known Tupperware seals. Tupperware also has an established line of children's
educational toys, serving products and gifts. The line of products has expanded
over the years into kitchen, home storage and organizing uses with products
such as Modular Mates* containers, Fridge Stackables* containers, One Touch*
canisters, the Rock 'N Serve* line, Ultraplus* and OvenWorks* line,
Expressions* line, Legacy* Serving line and TupperMagic* line, and many
specialized containers.
In recent years, Tupperware has expanded its offerings in the food
preparation and servicing areas through the addition of a number of products,
including double colanders, tumblers and mugs, mixing and serving bowls,
serving centers, microwaveable cooking and serving products, and kitchen
utensils. Tupperware continues to introduce new designs and colors in its
product lines, and to extend existing products into new markets around the
world. The development of new products varies in different markets in order to
address differences in cultures, lifestyles, tastes and needs of the markets.
New products introduced in 1999 included a wide range of products in all four
geographic areas, including many using Disney movie and cartoon characters
under a license. Some of the new products are the Fridgesmart* line, Royal
Crest* line, Vitalic* stainless steel cookware line, Santoku Knives, Healthy
Baster, Air Filter, Sandwich Keepers, and Cake Servers. New product development
and introduction will continue to be an important part of Tupperware's
strategy. Products sold by Tupperware are primarily produced by Tupperware in
its manufacturing facilities around the world. (Words followed by * are
Trademarks of the Registrant.)
The common stock of Tupperware is listed and traded on the New York Stock
Exchange.
The principal offices of Tupperware and Purchaser are located at 14901 S.
Orange Blossom Trail, Orlando, Florida 32837, and the telephone number for both
Tupperware and Purchaser is (407) 826-5050.
The name, citizenship, business address, business telephone number,
principal occupation or employment and five-year business history of each of
the directors and executive officers of Tupperware and Purchaser are described
in Schedule I hereto. None of Tupperware, Purchaser nor, to our knowledge, any
of the persons listed on Schedule I to this Offer to Purchase has during the
last five years (a) been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or (b) been a party to any judicial or
administrative proceeding (except for matters that were dismissed without
sanction or settlement) that resulted in a judgment, decree or final order
enjoining the person from future violations of, or prohibiting activities
subject to, federal or state securities laws or finding any violation of such
laws.
Except as set forth elsewhere in this Offer to Purchase or Schedule I to
this Offer to Purchase: (a) neither Tupperware, Purchaser nor, to our
knowledge, any of the persons listed in Schedule I to this Offer to Purchase
12
<PAGE>
or any associate or majority-owned subsidiary of ours or of any of the persons
so listed, beneficially owns or has a right to acquire any Shares or any other
equity securities of BeautiControl; (b) neither Tupperware, Purchaser nor, to
our knowledge, any of the persons or entities referred to in clause (a) above
nor any of their executive officers, directors or subsidiaries has effected any
transaction in the Shares or any other equity securities of BeautiControl
during the past 60 days; (c) neither Tupperware, Purchaser nor, to our
knowledge, 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 BeautiControl (including, but not
limited to, any contract, arrangement, understanding or relationship concerning
the transfer or the voting of any such securities, joint ventures, loan or
option arrangements, puts or calls, guaranties of loans, guaranties against
loss or the giving or withholding of proxies, consents or authorizations); (d)
since January 1, 1998, there have been no transactions which would require
reporting under the rules and regulations of the SEC between Tupperware,
Purchaser or any of our subsidiaries or, to our knowledge, any of the persons
listed in Schedule I hereto, on the one hand, and BeautiControl or any of its
executive officers, directors or affiliates, on the other hand; and (e) since
January 1, 1998, there have been no contracts, negotiations or transactions
between Tupperware, Purchaser or any of our subsidiaries or, to our knowledge,
any of the persons listed in Schedule I hereto, on the other hand, and
BeautiControl or any of its affiliates, on the other hand, concerning a merger,
consolidation or acquisition, a tender offer or other acquisition of
securities, an election of directors or a sale or other transfer of a material
amount of assets.
10. Background of the Offer; Contacts with BeautiControl.
On July 17, 2000 Alan D. Kennedy, President of Tupperware, initiated a
telephone call with Richard W. Heath, the Chief Executive Officer of
BeautiControl, in which Mr. Kennedy stated that he and E.V. Goings, the
Chairman of the Board and Chief Executive Officer of Tupperware, proposed to
meet with Mr. Heath to discuss a possible relationship between Tupperware and
BeautiControl that would be mutually beneficial. A meeting was scheduled in
Dallas, Texas on August 2, 2000.
On August 2, 2000, Messrs. Heath, Goings and Kennedy met for dinner in
Dallas, Texas. The parties discussed in general terms various possibilities
concerning a merger or other type of business alliance between BeautiControl
and Tupperware. The parties concluded the meeting by expressing a mutual
interest in continuing the discussions at the headquarters of Tupperware in
Orlando, Florida at a date to be determined later.
On August 17, 2000, Mr. and Ms. Heath met at Tupperware's headquarters with
Mr. Goings. The meeting consisted primarily of a tour of Tupperware's facility.
That evening at dinner, discussions of a broad, general nature took place.
On August 18, 2000, Mr. Heath and Mr. Goings met at Tupperware's offices and
executed confidentiality agreements between Tupperware and BeautiControl. Paul
B. Van Sickle, Tupperware's Executive Vice President and Chief Financial
Officer, joined the meeting and general discussions took place regarding a
friendly combination of the two companies. Mr. Van Sickle stated that
Tupperware was prepared to make an offer of $6.00 per Share. According to Mr.
Van Sickle, a $6.00 per Share purchase price was based on financial models of
BeautiControl prepared by Tupperware and its financial advisor, Lazard Freres &
Co. LLC ("Lazard"). In response to the proposal, Mr. Heath emphasized
BeautiControl's improving operating performance in recent months and also made
suggestions and estimates of how operating expenses might be reduced in the
future. At that point, Messrs. Goings and Van Sickle left the room to privately
discuss the matter, and then Mr. Van Sickle made an oral offer to Mr. Heath of
$7.00 per Share, which he stated was Tupperware's final offer. Mr. Goings also
expressed his general desire that senior management remain with BeautiControl,
but no specific discussion of personnel or compensation took place. At the
conclusion of the meeting, Mr. Goings emphasized that Tupperware would be
prepared to move quickly, and that Tupperware's offer would not be subject to a
financing contingency. He further emphasized that if the offer were to become
publicly known, the offer would in all likelihood be withdrawn. He also
emphasized that if BeautiControl
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engaged in any auction process, whether public or private, the offer would be
withdrawn. Mr. Heath agreed to present the $7.00 per Share offer to the
BeautiControl Board. Thomas M. Roehlk, Tupperware's Senior Vice President,
General Counsel and Secretary, joined the meeting and presented a timetable for
moving forward. At that meeting and at subsequent meetings, various forms of
consideration were discussed.
On August 24, 2000, Messrs. Heath and Roehlk further discussed a proposed
timetable for the transaction, and general matters relating the transaction.
On August 25, 2000, representatives of BeautiControl met in Dallas with
representatives of Tupperware and Lazard to conduct due diligence.
On August 27, 2000, Mr. Heath and Mr. Goings had a telephone conversation in
which Mr. Goings stated that it was Tupperware's desire that current management
of BeautiControl remain in place after any transaction with Tupperware.
On August 28, 2000, Mr. Roehlk called Mr. Heath and discussed the broad
outline of a merger with Tupperware. That day, Tupperware sent BeautiControl a
preliminary term sheet for the transaction, setting forth the material terms of
the transaction, including consideration in the form of cash. That evening,
members of Tupperware's senior management met with BeautiControl's management
and toured BeautiControl's facilities.
On August 29, 2000, BeautiControl, Tupperware and their respective legal
counsel negotiated certain points in the preliminary term sheet, and the term
sheet was revised. Throughout that day, senior management of Tupperware
interviewed members of BeautiControl's senior management.
On August 31, 2000, Mr. Heath and Mr. Roehlk discussed certain proposed
compensation arrangements for BeautiControl's senior management in an attempt
to make sure that BeautiControl's executives could be compensated within the
framework of Tupperware's current executive compensation parameters.
Discussions also included which members of BeautiControl's current management
team might continue with BeautiControl after a merger.
On September 1, 2000, BeautiControl received from Tupperware's counsel the
first draft of the Merger Agreement and the Stockholder Agreement.
On September 5, 2000, Mr. Roehlk informed Mr. Heath that Tupperware's Board
of Directors had approved the terms of the transaction.
On September 6, 2000, BeautiControl management and legal counsel for
BeautiControl met with Tupperware and its legal counsel to negotiate the terms
of the Merger Agreement and Stockholder Agreement. Tupperware also continued to
interview members of BeautiControl's management.
During the period from September 6, 2000 to September 9, 2000, the parties
conducted negotiations with respect to the Merger Agreement and the Stockholder
Agreements and related business issues, including the amount of the termination
fee and the circumstances under which it would be payable, the ability of
BeautiControl's directors to terminate the Merger Agreement under certain
circumstances, the ability of those stockholders of BeautiControl who were
being asked by Tupperware to enter into a Stockholder Agreement to withdraw
shares tendered pursuant to the Offer if a competing offer arose, and certain
other aspects of the Offer and the Merger.
On September 7, 2000, Mr. Heath and Mr. Roehlk discussed the proposed
compensation of Mr. and Ms. Heath, and certain other matters relating to the
Merger, including how a public announcement of the Merger would be made.
Between September 10, 2000 and September 13, 2000, officers of BeautiControl
and Tupperware finalized the Merger Agreement and related agreements.
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Following the completion of the final terms of the Merger Agreement on
September 13, 2000, Tupperware, Purchaser and BeautiControl executed and
delivered the Merger Agreement, and Tupperware and certain stockholders of
BeautiControl executed and delivered the Stockholder Agreements. On September
13, 2000, BeautiControl and Tupperware each issued a press release announcing
the execution of the Merger Agreement and the transactions contemplated
thereby.
On September 20, 2000, pursuant to the terms of the Merger Agreement,
Purchaser commenced the Offer.
11. Purpose of the Offer and the Merger; The Merger Agreement; The Stockholder
Agreements; The Employment Agreements; Statutory Requirements; Appraisal
Rights; Plans for BeautiControl.
Purpose. The purpose of the Offer and the Merger is for Tupperware and its
subsidiaries to acquire all of the outstanding Shares of BeautiControl. Upon
the consummation of the Merger, BeautiControl will become a wholly owned
subsidiary of Tupperware. The acquisition of Shares has been structured as a
cash tender offer followed by a cash merger in order to effect a prompt and
orderly transfer of ownership of BeautiControl from the public stockholders to
Tupperware and provide stockholders with cash for all of their Shares.
Proceeding with the Offer and the Merger at this time would also afford
BeautiControl's stockholders an opportunity to dispose of their shares at a
premium over pre-announcement market prices.
The Merger Agreement.
The following summary description of the Merger Agreement is qualified in
its entirety by reference to the agreement itself, which we have filed as an
exhibit to the Schedule TO that we filed with the SEC, which you may examine
and copy as set forth in Section 8 above (except that it will not be available
at the regional offices of the SEC).
The Offer. The Merger Agreement provides for the commencement of the Offer
by Purchaser. The obligation of Purchaser to accept for payment and pay for
Shares validly tendered pursuant to the Offer is subject to the prior
satisfaction or waiver by Purchaser of the conditions to the Offer set forth
in Section 14 hereof. The Merger Agreement provides that, without the prior
written consent of BeautiControl, Purchaser will not (a) reduce the number of
Shares subject to the Offer, (b) reduce the Offer Price; (c) impose any other
conditions to the Offer other than the conditions set forth in Section 14 (the
"Offer Conditions") or modify the Offer Conditions (other than to waive any
Offer conditions to the extent permitted by the Merger Agreement), (d) except
as described in the next paragraph, extend the Offer, or (e) change the form
of consideration payable in the Offer.
We have agreed with BeautiControl that we will not extend the Offer without
the consent of BeautiControl; provided, however, that without the consent of
BeautiControl, we may extend the Offer (a) if, at the scheduled or extended
expiration date of the Offer any of the Offer Conditions are not satisfied or
waived, until such time as such conditions are satisfied or waived, (b) for
any period required by any rule, regulation, interpretation or position of the
SEC or the staff thereof applicable to the Offer and (c) for any reason on one
or more occasions for an aggregate period of not more than fifteen business
days beyond the latest expiration date that would otherwise be permitted under
the terms, described in clauses (a) or (b) of this sentence, in each case
subject to the right of Tupperware, Purchaser or BeautiControl to terminate
the Merger Agreement pursuant to its terms.
The Merger. The Merger Agreement provides that Purchaser will be merged
with and into BeautiControl following the satisfaction or waiver of the
conditions to the Merger contained in the Merger Agreement upon the filing and
effectiveness of a certificate of merger. As a result of the Merger, the
separate corporate existence of Purchaser will cease and BeautiControl will
continue as the Surviving Corporation.
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At the effective time of the Merger (the "Effective Time"), (i) the Restated
Certificate of Incorporation of BeautiControl shall be amended and restated as
set forth in Exhibit C of the Merger Agreement, (ii) the Bylaws of Purchaser
shall become the Bylaws of BeautiControl, (iii) the directors of Purchaser
shall become the directors of the Surviving Corporation and (iv) the officers
of BeautiControl shall become the officers of the Surviving Corporation.
The Merger Agreement provides that BeautiControl will, if required by
Delaware law in order to consummate the Merger, duly call, give notice of,
convene and hold a meeting of its stockholders as soon as practicable following
the purchase of Shares pursuant to the Offer for the purpose of considering the
approval of the Merger Agreement. BeautiControl has agreed that it will,
through the BeautiControl Board, recommend to its stockholders the approval of
the Merger Agreement and that it will not withdraw or modify such
recommendation. BeautiControl has agreed that it will submit the Merger
Agreement to its stockholders for approval whether or not the BeautiControl
Board determines at any time subsequent to the date of the Merger Agreement
that the Merger Agreement is no longer advisable and recommends that the
BeautiControl stockholders reject it. Tupperware has agreed to cause all Shares
purchased pursuant to the Offer and all other Shares owned by Tupperware or any
subsidiary of Tupperware to be voted in favor of approval of the Merger.
BeautiControl has agreed in the Merger Agreement that it will, at
Tupperware's request, as soon as practicable following the expiration of the
Offer, prepare and file with the SEC a proxy statement relating to the Merger
and use its reasonable best efforts to respond to any comments of the SEC or
its staff and to cause the proxy statement to be mailed to BeautiControl's
stockholders as promptly as practicable after responding to all such comments
to the satisfaction of the staff. The Merger Agreement provides that if
Purchaser or any other direct or indirect subsidiary of Tupperware owns at
least 90% of the outstanding Shares, Tupperware, Purchaser and BeautiControl
shall take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after expiration of the Offer without a
meeting of the stockholders of BeautiControl, in accordance with Section 253 of
the DGCL.
Conversion of Securities. As of the Effective Time, by virtue of the Merger
and without any action on the part of Purchaser, BeautiControl or the holders
of any securities of Purchaser or BeautiControl, each Share (other than Shares
owned by BeautiControl, any wholly owned subsidiary of BeautiControl,
Tupperware or any wholly owned subsidiary of Tupperware, and other than Shares
owned by stockholders, if any, who are entitled to and who properly exercise
dissenter's rights under the DGCL) shall be converted into the right to receive
from the Surviving Corporation, in cash, without interest, the Merger
Consideration. Each share of stock of Purchaser issued and outstanding
immediately prior to the Effective Time shall, at the Effective Time, by virtue
of the Merger and without any action on the part of Purchaser, BeautiControl or
the holders of any securities of Purchaser or BeautiControl, be converted into
one fully paid and nonassessable share of common stock of the Surviving
Corporation.
The Merger Agreement provides that Tupperware 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
as Tupperware or such paying agent is required to deduct and withhold with
respect to the making of such payment under the Internal Revenue Code or the
rules and regulations promulgated thereunder or any provision of state, local
or foreign tax law.
Representations and Warranties. In the Merger Agreement, BeautiControl has
made representations and warranties to Tupperware and Purchaser. The
representations and warranties of BeautiControl relate, among other things, to
its organization, good standing and corporate power; capital structure;
authority to enter into the Merger Agreement and to consummate the transactions
contemplated thereby; required consents and approvals and no material
violations of its agreements or organizational documents; filings made by
BeautiControl with the SEC under the Securities Act of 1933, as amended (the
"Securities Act"), and the Securities Exchange Act of 1934 (the "Exchange Act")
(including financial statements included in the documents filed by
BeautiControl under these acts); information supplied by BeautiControl; the
absence of certain events since December 1,
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1999; permits and compliance with laws; tax matters; actions and proceedings;
certain agreements; benefit plans and employees and employment practices;
liabilities; labor matters; intellectual property matters; title to assets;
state takeover statutes; required votes; transactions with affiliates; brokers;
compliance with worker safety laws; product liability and recalls; opinion of
financial advisor; accounts receivable; inventories; material agreements;
environmental matters; and regulatory compliance.
Purchaser and Tupperware have also made representations and warranties to
BeautiControl. The representations and warranties of Purchaser and Tupperware
relate, among other things, to: their organization, good standing and corporate
power; authority to enter into the Merger Agreement and to consummate the
transactions contemplated thereby; required consents and approvals and no
violations of their agreements or organizational documents; information
supplied; operations of Purchaser; brokers; and financing.
Covenants Relating to the Conduct of Business. During the period from the
date of the Merger Agreement through the Effective Time, BeautiControl has
agreed that, except as otherwise expressly contemplated by the Merger Agreement
or except to the extent Tupperware shall otherwise consent in writing,
BeautiControl and each of its subsidiaries shall in all material respects carry
on its business in the ordinary course as currently conducted and, to the
extent consistent therewith, use reasonable best efforts to preserve intact its
current business organizations, keep available the services of its current
officers and employees and preserve its relationships with customers, suppliers
and others having business dealings with it to the end that its goodwill and
ongoing business shall be unimpaired at the Effective Time. BeautiControl has
also agreed that during such period, except as otherwise expressly contemplated
by the Merger Agreement, BeautiControl will not, and will not permit any of its
subsidiaries to, without the prior written consent of Tupperware:
(a) subject to certain limited exceptions, (i) declare, set aside or pay
any dividends on, or make any other actual, constructive or deemed
distributions in respect of, any of its capital stock, or otherwise make
any payments to its stockholders in their capacity as such, (ii) split,
combine or reclassify any of its capital stock or issue or authorize the
issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock or (iii) purchase, redeem or
otherwise acquire any shares of capital stock of BeautiControl or any other
securities thereof or any rights, warrants or options to acquire any such
shares or other securities;
(b) issue, deliver, sell, pledge, dispose of or otherwise encumber any
shares of its capital stock, any other voting securities or equity
equivalent or any securities convertible into, or any rights, warrants or
options (including options under BeautiControl's stock option plans) to
acquire any such shares, voting securities, equity equivalent or
convertible securities, other than the issuance of Shares upon the exercise
of stock options to purchase Shares outstanding on the date of the Merger
Agreement in accordance with their current terms;
(c) amend its charter or bylaws;
(d) acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial portion of the assets of or equity in, or by any
other manner, any business or any corporation, limited liability company,
partnership, association or other business organization or division thereof
or, except in the ordinary course of business consistent with past
practice, otherwise acquire or agree to acquire any assets;
(e) sell, lease or otherwise dispose of, or agree to sell, lease or
otherwise dispose of, any of its assets other than in the ordinary course
of business consistent with past practice;
(f) incur any indebtedness for borrowed money, guarantee any such
indebtedness or make any loans, advances or capital contributions to, or
other investments in, any other person, other than (i) in the ordinary
course of business consistent with past practices and (ii) intra-company
indebtedness incurred in the ordinary course of business consistent with
past practices;
(g) alter (through merger, liquidation, reorganization, restructuring or
in any other fashion) the corporate structure or ownership of BeautiControl
or any subsidiary;
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(h) except as provided in the Merger Agreement or as required by
applicable law, enter into or adopt any, or amend any existing, severance
plan, agreement or arrangement or enter into or amend any Company Plan (as
defined in the Merger Agreement) or employment or consulting agreement;
(i) increase the compensation payable or to become payable to its
directors, officers or employees (except for increases in the ordinary
course of business consistent with past practice in salaries or wages of
employees of BeautiControl or its subsidiaries who are not officers of
BeautiControl or its subsidiaries) or grant any severance or termination
pay to, or enter into any employment or severance agreement with, any
director or officer of BeautiControl, or establish, adopt, enter into, or,
except as may be required to comply with applicable law, amend in any
material respect or take action to enhance in any material respect or
accelerate any rights or benefits under, any labor, 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;
(j) knowingly violate or knowingly fail to perform any obligation or duty
imposed upon it or any subsidiary by any applicable material federal, state
or local law, rule, regulation, guideline or ordinance;
(k) make any change to accounting policies or procedures (other than
actions required to be taken by generally accepted accounting principles);
(l) prepare or file any tax return inconsistent with past practice or, on
any such tax return, take any position, make any election, or adopt any
method that is inconsistent with positions taken, elections made or methods
used in preparing or filing similar tax returns in prior periods;
(m) settle or compromise any tax liability in excess of $10,000;
(n) settle or compromise any claims or litigation in excess of $10,000 or
commence any litigation or proceedings;
(o) enter into or amend any agreement or contract (i) having a term in
excess of twelve months and that is not terminable by BeautiControl or a
subsidiary without penalty or premium by notice of 60 days or less or (ii)
which involves or is expected to involve payments of $50,000 or more during
the term thereof; (iii) enter into, amend or terminate any other agreement
or contract material to BeautiControl and its subsidiaries, taken as a
whole; or (iv) purchase any real property, or make or agree to make any new
capital expenditure or expenditures (other than the purchase of real
property) which in the aggregate are in excess of $50,000;
(p) pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise), other
than the payment, discharge or satisfaction of any such claims, liabilities
or obligations, in the ordinary course of business consistent with past
practice or in accordance with their terms;
(q) adopt a shareholders' rights plan or enter into a shareholders' rights
agreement or adopt or enter into any other plan or agreement implementing a
"poison pill" or any similar device;
(r) reprice, either directly or indirectly, any stock option or other
right to purchase Shares; or
(s) authorize, recommend, propose or announce an intention to do any of
the foregoing, or enter into any contract, agreement, commitment or
arrangement to do any of the foregoing.
No Solicitation. BeautiControl shall not, nor shall it permit any of its
subsidiaries to, nor shall it authorize and it shall use its best efforts not
to permit any officer, director or employee of or any financial advisor,
attorney or other advisor or representative of BeautiControl or any of its
subsidiaries to, (i) solicit, initiate or encourage the submission of, any
Takeover Proposal (as defined below), (ii) enter into any agreement with
respect to or approve or recommend any Takeover Proposal or (iii) participate
in any discussions or negotiations regarding, or furnish to any person any
information with respect to BeautiControl or any subsidiary in connection with,
or take any other action to knowingly facilitate any inquiries or the making of
any proposal that constitutes, or may reasonably be expected to lead to, any
Takeover Proposal; provided
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however, that neither BeautiControl nor its directors shall be prohibited from
(x) complying with Rule 14e-2 promulgated under the Exchange Act with regard to
a tender or exchange offer or (y) referring a third party to the section of the
Merger Agreement described in this paragraph or making a copy of such section
available to any third party; and provided further that prior to the acceptance
for payment of Shares pursuant to the Offer, if the BeautiControl Board
reasonably determines that a Takeover Proposal constitutes a Superior Proposal
(as defined below), then, to the extent required by the fiduciary obligations
of the BeautiControl Board, as determined in good faith by a majority thereof
after consultation with outside counsel (who may be BeautiControl's regularly
engaged outside counsel), and prior to taking such action, BeautiControl
provides the notice to Tupperware required by the Merger Agreement,
BeautiControl may, in response to an unsolicited request therefor, furnish
information with respect to BeautiControl and its subsidiaries to any person
pursuant to a confidentiality agreement, in customary form and in any event
containing terms, taken as a whole, at least as stringent as those contained in
the confidentiality agreement entered into between BeautiControl and
Tupperware, and participate in discussions or negotiations with such person.
Any violation of the restrictions set forth in the preceding sentence by any
officer or director of BeautiControl or any of its subsidiaries or any
financial advisor, attorney or other advisor or representative of BeautiControl
or any of its subsidiaries, whether or not such person is purporting to act on
behalf of BeautiControl or any of its subsidiaries or otherwise, shall be
deemed to be a breach of this section of the Merger Agreement by BeautiControl.
For purposes of the Merger Agreement, "Takeover Proposal" means any proposal
for (i) a merger or other business combination involving BeautiControl or any
of its subsidiaries, (ii) any proposal or offer to acquire in any manner,
directly or indirectly, an equity interest in or any voting securities of
BeautiControl representing 15% or more of the Shares or of the total voting
securities of BeautiControl outstanding or (iii) an offer to acquire in any
manner, directly or indirectly, a substantial portion of the assets of
BeautiControl or any of its subsidiaries, other than the transactions
contemplated by the Merger Agreement. For purposes of the Merger Agreement,
"Superior Proposal" means a bona fide proposal made by a third party to acquire
BeautiControl pursuant to a tender or exchange offer, a merger, a sale of all
or substantially all of the assets of BeautiControl or otherwise on terms which
a majority of the members of the BeautiControl Board determines at a duly
constituted meeting or by unanimous written consent, in its reasonable good
faith judgment to be more favorable to BeautiControl's stockholders than the
Offer and the Merger (based on the advice from BeautiControl's independent
financial advisor that the value of the consideration provided for in such
proposal exceeds the value of the consideration provided for in the Offer and
the Merger) and for which financing, to the extent required, is then committed.
The Merger Agreement provides further that, BeautiControl must advise
Tupperware orally and in writing of (i) any Takeover Proposal or any inquiry
with respect to or which reasonably could lead to any Takeover Proposal
received by any officer or director of BeautiControl or, to the knowledge of
BeautiControl, any financial advisor, attorney or other advisor or
representative of BeautiControl, (ii) the material terms of such Takeover
Proposal (including a copy of any written proposal), and (iii) the identity of
the person making any such Takeover Proposal or inquiry no later than 24 hours
following receipt of such Takeover Proposal or inquiry. If BeautiControl
intends to furnish any person with any information with respect to any Takeover
Proposal, BeautiControl is required to advise Tupperware orally and in writing
of such intention not less than two business days in advance of providing such
information. BeautiControl is further required to keep Tupperware fully
informed of the status and material terms of any such Takeover Proposal or
inquiry.
Reasonable Best Efforts. The Merger Agreement provides that, subject to its
terms and conditions, each of the parties thereto will use reasonable best
efforts to take or cause to be taken all actions, and to do, or cause to be
done, and to assist and cooperate with the other parties in doing, all things
necessary, proper or advisable to consummate and make effective, in the most
expeditious manner practicable, the Offer, the Merger and the other
transactions contemplated by the Merger Agreement, including (i) obtaining all
necessary consents from governmental entities to make all necessary filings,
including in connection with the HSR Act, (ii) obtaining all necessary
consents, approvals or waivers from third parties, (iii) defending any lawsuits
or other legal proceedings challenging the Merger Agreement, and (iv) executing
and delivering any additional instruments
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necessary to consummate the transactions contemplated by the Merger Agreement.
Each party has also agreed to use all reasonable best efforts to not take any
action, or enter into any transaction which would cause any of its
representations or warranties contained in the Merger Agreement to be untrue or
result in a breach of any covenant made by it in the Merger Agreement. In
connection with any filing or submission required or action to be taken by
either Tupperware or BeautiControl to effect the Offer, the Merger and to
consummate the other transactions contemplated by the Merger Agreement,
BeautiControl may not, without Tupperware's prior written consent, commit to
any divestiture transaction, and neither Tupperware nor any of its affiliates
will be required to divest or hold separate or otherwise take or commit to take
any action that limits its freedom of action with respect to, or its ability to
retain, BeautiControl or any of the businesses or assets of Tupperware or any
of its subsidiaries or that otherwise would have a material adverse effect on
Tupperware.
Third Party Standstill Agreements. During the period from the date of the
Merger Agreement through the Effective Time, BeautiControl has agreed not to
terminate, amend, modify or waive any provision of any confidentiality or
standstill agreement to which BeautiControl or any of its subsidiaries is a
party and to enforce, to the fullest extent permitted under applicable law, the
provisions of any such agreements, including obtaining injunctions to prevent
any breaches of such agreements and to enforce specifically the terms and
provisions thereof in any court of the United States or any state thereof
having jurisdiction.
Stock Based Compensation. In the Merger Agreement, BeautiControl has agreed
that, prior to the consummation of the Offer, the BeautiControl Board (or, if
appropriate, a committee thereof) shall adopt appropriate resolutions and take
any and all other action necessary or appropriate to cause each option (a
"Stock Option") to purchase Shares issued under BeautiControl's stock option
plans (the "BeautiControl Stock Option Plans"), that is outstanding as of the
Effective Time to vest and become exercisable immediately prior to the
Effective Time and to be canceled as of the Effective Time, in consideration
for which the holder thereof shall be entitled to receive from BeautiControl an
amount equal to (A) the product of (1) the number of Shares subject to such
option and (2) the excess, if any, of the Offer Price over the exercise price
per share for the purchase of Shares subject to such Stock Option, minus (B)
all applicable federal, state and local taxes required to be withheld in
respect of such payment. Such amount shall be paid to such option holder by
mailing payment within three Business Days following the Effective Time.
BeautiControl has also agreed to take all actions necessary to provide that,
as of the Effective Time, the BeautiControl Stock Option Plans and any similar
plan or agreement of BeautiControl will be terminated, any rights under any
other plan, program, agreement or arrangement relating to the issuance or grant
of any other interest in respect of the capital stock of BeautiControl or any
of its subsidiaries will be terminated, and no holder of an option to purchase
Shares will have any right to receive any shares of capital stock of
BeautiControl or, if applicable, the Surviving Corporation, upon exercise of
any Stock Option.
Alternatively, Tupperware may, at its option, offer to certain option
holders who are employees of BeautiControl at the Effective Time, the option to
receive, in lieu of any payments described above, in exchange for each Stock
Option held by such company employee that is outstanding as of the Effective
Time, an option ( a "Substitute Option") to purchase the number of shares of
common stock of Tupperware, determined by multiplying (i) the number of Shares
subject to such Stock Option immediately prior to the Effective Time by (ii)
the Exchange Ratio (as defined below), at an exercise price per share of
Tupperware common stock (rounded up to the nearest cent) equal to the exercise
price per Share immediately prior to the Effective Time divided by the Exchange
Ratio. For purposes of the Merger Agreement, "Exchange Ratio" means the
quotient, rounded to the nearest thousandth, of the Offer Price divided by the
average, rounded to the nearest cent, of the last reported sales price per
share of Tupperware common stock on the New York Stock Exchange for the ten
trading days immediately preceding the date of the closing of the Merger. All
Substitute Options will, upon issuance, be fully vested and immediately
exercisable upon the terms and conditions set forth in the Tupperware
Corporation 2000 Incentive Plan. As soon as reasonably practicable, and in no
event later than twenty days after the Effective Time, Tupperware shall file a
registration statement on Form S-8 (or any successor or other appropriate form)
with respect to Tupperware common stock subject to such Substitute Options, or
shall cause such Substitute Options to be deemed to be issued pursuant to a
stock plan of Tupperware registered pursuant to an appropriate registration
form.
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Employee Benefit Plans. Tupperware has agreed in the Merger Agreement that,
for a period of one year immediately following the Effective Time, Tupperware
will, or will cause the Surviving Corporation to, maintain in effect employee
benefit plans and arrangements that provide benefits that have a value that is
substantially comparable, in the aggregate, to the benefits provided by
BeautiControl's employee benefit plans (not taking into account the value of
any benefits under any such plans that are equity based). Tupperware has also
agreed that, for purposes of determining eligibility to participate, vesting
and accrual or entitlement to benefits where length of service is relevant
under any employee benefit plan or arrangement of the Surviving Corporation,
employees of BeautiControl and its subsidiaries as of the Effective Time will
receive service credit for service with BeautiControl and its subsidiaries to
the same extent such credit was granted under the BeautiControl and its
subsidiaries to the same extent such credit was granted under the
BeautiControl's employee benefit plans, subject to offsets for previously
accrued benefits and no duplication of benefits.
Indemnification. Pursuant to the Merger Agreement, from and after the
Effective Time, Tupperware will cause the Surviving Corporation to indemnify
and hold harmless all past and present officers and directors of BeautiControl
to the fullest extent permitted by the DGCL for acts or omissions occurring at
or prior to the Effective Time.
Tupperware has also agreed to cause the Surviving Corporation to provide,
for a period of not less than three years from the Effective Time, to
BeautiControl's current directors and officers an insurance and indemnification
policy that provides coverage for events occurring prior to the Effective Time
(the "D&O Insurance") on terms no less favorable to BeautiControl's existing
policy or, if such insurance coverage is not available, the best available
coverage; provided, however, that the Surviving Corporation shall not be
required to pay an annual premium for the D&O Insurance in excess of 150% of
the last annual premiums paid prior to the date of the Merger Agreement by
BeautiControl, but in such case shall purchase as much coverage as possible for
such amount.
Board Representation. The Merger Agreement provides that promptly after such
time as Purchaser purchases at least a majority of the outstanding Shares
pursuant to the Offer, Purchaser will be entitled, to the fullest extent
permitted by law, to designate at its option up to that number of directors of
the BeautiControl Board, subject to compliance with Section 14(f) of the
Exchange Act, as will make the percentage of BeautiControl's directors
designated by Purchaser equal to the percentage of the aggregate voting power
of the Shares held by Tupperware or any of its subsidiaries; provided, however,
that in the event that Purchaser's designees are elected to the BeautiControl
Board, until the Effective Time the BeautiControl Board shall have at least
three directors who were directors of BeautiControl on the date of the Merger
Agreement and who are not officers of BeautiControl (the "Independent
Directors"). If the number of Independent Directors shall be reduced below
three for any reason whatsoever, the remaining Independent Directors shall
designate an Independent Director or Independent Directors (as the case may be)
for purposes of the Merger Agreement or, if no Independent Directors then
remain, the other directors of BeautiControl shall designate three persons to
fill such vacancies who shall not be officers or affiliates of BeautiControl or
any of its subsidiaries, or officers or affiliates of Tupperware or any of its
subsidiaries, and such persons shall be deemed to be Independent Directors for
purposes of the Merger Agreement. Following the election or appointment of
Purchaser's designees to the BeautiControl Board and prior to the Effective
Time, any amendment, or waiver of any term or condition, of the Merger
Agreement or BeautiControl's Restated Certificate of Incorporation or Restated
Bylaws, any termination of the Merger Agreement by BeautiControl, any extension
by BeautiControl of the time for the performance of any of the obligations or
other acts of Purchaser or waiver or assertion of any of BeautiControl's rights
under the Merger Agreement, and any other consent or action by the
BeautiControl Board with respect to the Merger Agreement, will require the
concurrence of a majority of the Independent Directors and no other action by
BeautiControl, including any action by any other director of BeautiControl,
shall be required for purposes of the Merger Agreement. In connection with the
foregoing, BeautiControl will promptly, at the option of Tupperware, either
increase the size of the BeautiControl Board and/or obtain the resignation of
such number of its current directors as is necessary to enable Purchaser's
designees to be elected or appointed to the BeautiControl Board as provided
above.
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Conditions Precedent. The respective obligations of each party to effect the
Merger are subject to the satisfaction (or waiver by each party) prior to the
Effective Time of the following conditions: (i) the Merger Agreement shall have
been approved and adopted by the affirmative vote of the stockholders of
BeautiControl (unless the vote of stockholders is not required under the DGCL)
as required by the DGCL and BeautiControl's Restated Certificate of
Incorporation; (ii) any waiting period (and any extension thereof) applicable
to the consummation of the Merger under the HSR Act shall have expired or been
terminated; (iii) Purchaser shall have previously accepted for payment and paid
for Shares pursuant to the Offer, except that this condition shall not apply if
Purchaser shall have failed to purchase Shares pursuant to the Offer in breach
of its obligations under the Merger Agreement; and (iv) no court or other
Governmental Entity (as defined in the Merger Agreement) having jurisdiction
over BeautiControl or Tupperware or any of their respective subsidiaries shall
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 Merger illegal.
Termination. The Merger Agreement provides that it may be terminated at any
time prior to the Effective Time, whether before or after adoption of the
Merger Agreement by the stockholders of BeautiControl:
(a) by mutual written consent of Tupperware and BeautiControl;
(b) by either Tupperware or BeautiControl: (i) if (x) as a result of the
failure of any of the Offer Conditions as set forth in Section 14 of this
Offer to Purchase shall have terminated or expired in accordance with its
terms without Purchaser having accepted for payment any Shares pursuant to
the Offer or (y) Purchaser shall not have accepted for payment any Shares
pursuant to the Offer prior to March 31, 2001 (provided that the right to
terminate the Merger Agreement pursuant to this clause (b)(i) shall not be
available to any party whose failure to perform any of its obligations
under the Merger Agreement results in the failure of any such condition or
if the failure of such condition results from facts or circumstances that
constitute a breach of any representation or warranty under the Merger
Agreement by such party), or (ii) if any Governmental Entity shall have
issued an order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the acceptance for payment
of, or payment for, Shares pursuant to the Offer and such order, decree or
ruling or other action shall have become final and nonappealable;
(c) by Tupperware or Purchaser in the event of a breach by BeautiControl
of any representation, warranty, covenant or other agreement contained in
the Merger Agreement which (i) would give rise to the failure of the Offer
Conditions described in paragraph (e) or (f) of Section 14 and (ii) cannot
be or has not been cured within 30 days after the giving of written notice
to BeautiControl;
(d) by Tupperware or Purchaser if either Tupperware or Purchaser is
entitled to terminate the Offer as a result of the occurrence of any event
set forth in paragraph (d) of Section 14;
(e) by BeautiControl if the BeautiControl Board reasonably determines
that a Takeover Proposal constitutes a Superior Proposal and a majority of
the BeautiControl Board determines in its reasonable good faith judgment,
after consultation with outside counsel, that failing to terminate the
Merger Agreement would constitute a breach of the BeautiControl Board's
fiduciary duties under applicable law; provided, that BeautiControl may not
terminate the Merger Agreement pursuant to this clause (e) unless (i)
BeautiControl has complied with all provisions of the no-solicitation
provisions of the Merger Agreement, including the notice provisions
therein, (ii) BeautiControl has delivered to Tupperware a written notice of
BeautiControl's intent to enter into an agreement to effect a Superior
Proposal, (iii) 72 hours have elapsed following delivery to Tupperware of
such written notice by BeautiControl, (iv) during such 72-hour period
BeautiControl has reasonably cooperated with Tupperware, including
informing Tupperware of the terms and conditions of the Takeover Proposal
and identifying the identity of the person making the Takeover Proposal,
with the intent of enabling Tupperware to agree to a modification of the
terms and conditions of the Merger Agreement so the transactions
contemplated by the Merger Agreement may be effected, (v) at the end of
such 72-hour period the BeautiControl Board continues reasonably to believe
that the Takeover Proposal constitutes a Superior Proposal when compared to
the Offer and the Merger (taking into account
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any such modifications as may be proposed by Tupperware) and (vi)
BeautiControl has complied with the requirements of the Merger Agreement
relating to the payment (including the timing of any payment) of the
Expenses and the Termination Fee to the extent required by the Merger
Agreement; and provided, further that BeautiControl may not terminate the
Merger Agreement pursuant to this provision until October 18, 2000; or
(f) by BeautiControl, if (i) any of the representations or warranties of
Tupperware or Purchaser set forth in the Merger Agreement that are
qualified as to materiality shall not be true and correct in any respect or
any such representations or warranties that are not so qualified shall not
be true and correct in any material respect or (ii) Tupperware or Purchaser
shall have failed to perform in any material respect any material
obligation or to comply in any material respect with any material agreement
or covenant of Tupperware or Purchaser to be performed or complied with by
it under the Merger Agreement and such untruth, incorrectness or failure
cannot be or has not been cured within 30 days after the giving of written
notice to Tupperware or Purchaser, as applicable.
In the event of a termination of the Merger Agreement by either
BeautiControl or Tupperware, the Merger Agreement shall become void (except for
certain provisions pertaining to the payment of certain expenses and fees and
except for certain confidentiality obligations of the parties) and there shall
be no liability thereunder on the part of Tupperware, Purchaser or
BeautiControl or their respective officers or directors other than for
liability for any breach of a representation or warranty contained in the
Merger Agreement, the breach of any covenant contained in the Merger Agreement
or for fraud.
Fees and Expenses. Except as provided in the Merger Agreement, whether or
not the Offer or the Merger is consummated, all costs and expenses incurred in
connection with the Merger Agreement and the transactions contemplated thereby
shall be paid by the party incurring such costs and expenses.
The Merger Agreement provides that BeautiControl will pay, or cause to be
paid, in same day funds to Tupperware the following amounts under the
circumstances and at the times set forth as follows:
(i) if Tupperware or the Purchaser terminates the Merger Agreement in
accordance with the provisions described in clause (d) under "Termination"
above, BeautiControl shall pay the Expenses (as defined below) (not to
exceed $1,000,000) of Tupperware and a $1,865,500 termination fee (the
"Termination Fee") upon demand;
(ii) if BeautiControl terminates the Merger Agreement in accordance with
the provisions described in clause (e) under "Termination" above,
BeautiControl shall pay the Termination Fee and the Expenses (not to exceed
$1,000,000) of Tupperware upon demand; or
(iii) if any other termination of the Merger Agreement occurs (other
than a termination by BeautiControl in accordance with the provisions
described in clause (f) under "Termination" above), and at the time of any
such termination a Takeover Proposal shall have been made (other than a
Takeover Proposal made prior to the date of the Merger Agreement ), (x)
BeautiControl shall pay the Expenses (not to exceed $1,000,000) of
Tupperware upon demand, and (y) if concurrently therewith or within twelve
months thereafter, (A) BeautiControl enters into a merger agreement,
acquisition agreement or similar agreement (including a letter of intent)
with respect to a Takeover Proposal, or a Takeover Proposal is consummated,
involving any party (1) with whom BeautiControl had any discussions with
respect to a Takeover Proposal, (2) to whom BeautiControl furnished
information with respect to or with a view to a Takeover Proposal or (3)
who had submitted a proposal or expressed any interest publicly in a
Takeover Proposal, in the case of each of clauses (1), (2) and (3), prior
to such termination, or (B) BeautiControl enters into a merger agreement,
acquisition agreement or similar agreement (including a letter of intent)
with respect to a Superior Proposal, or a Superior Proposal is consummated,
then, in the case of either (A) or (B) above, BeautiControl shall pay the
Termination Fee upon the earlier of the execution of such agreement or upon
consummation of such Takeover Proposal or Superior Proposal.
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For purposes of the Merger Agreement, "Expenses" means documented reasonable
out-of-pocket fees and expenses incurred or paid by or on behalf of Tupperware
in connection with the Offer, the Merger or the consummation of any of the
transactions contemplated by the Merger Agreement, including all fees and
expenses of law firms, commercial banks, investment banking firms, accountants,
experts and consultants to Tupperware.
The Stockholder Agreements.
The following summary description of the Stockholder Agreements is qualified
in its entirety by reference to the agreements themselves, which we have filed
as exhibits to the Schedule TO that we filed with the SEC, which you may
examine and copy as set forth in Section 8.
Tupperware entered into Stockholder Agreements dated as of September 13,
2000 (the "Stockholder Agreements") with each of the following stockholders of
BeautiControl: Richard W. Heath, Jinger L. Heath, A. Stark Taylor, Joel
Williams, Sheila O'Connell Cooper, Joseph M. Haggar, III, Robert S. Folsom and
Charles M. Diker (the "Tendering Stockholders"). Pursuant to the Stockholder
Agreements, each Tendering Stockholder has agreed that, (a) such Tendering
Stockholder will, promptly after the commencement of the Offer, and in no event
later than five business days prior to the first scheduled expiration date of
the Offer, tender and not withdraw his or her Shares pursuant to the Offer; (b)
such Tendering Stockholder will vote his or her Shares in favor of the Merger
and the Merger Agreement; (c) such Tendering Stockholder will vote his or her
Shares against (i) any other merger agreement or merger, Takeover Proposal
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by BeautiControl
or any of its subsidiaries or (ii) any amendment of BeautiControl's Restated
Certificate of Incorporation or Restated Bylaws or other proposal or
transaction involving BeautiControl or any of its subsidiaries, which amendment
or other proposal or transaction would in any manner impede, frustrate, prevent
or nullify the Offer, the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement or change in any manner the
voting rights of any class of capital stock of BeautiControl; (d) such
Tendering Stockholder will not tender his or her Shares pursuant to any offer
other than the Offer; (e) such Tendering Stockholder will not (i) sell,
transfer, pledge, assign or otherwise dispose of, or enter into any contract,
option or other arrangement (including any profit sharing arrangement) with
respect to the sale, transfer, pledge, assignment or other disposition of, his
or her Shares to any person other than in connection with the Offer and the
Merger or (ii) enter into any voting arrangement, whether by proxy, voting
agreement or otherwise, in relation to his or her Shares; (f) such Tendering
Stockholder will not, and will not authorize any investment banker, attorney or
other adviser or representative of such Tendering Stockholder to directly or
indirectly, (i) solicit, initiate or encourage the submission of, any Takeover
Proposal or (ii) participate in any discussions or negotiations regarding, or
furnish to any person any information with respect to BeautiControl or any of
its subsidiaries, or take any other action to facilitate any inquiries or the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Takeover Proposal except in his or her capacity as a representative or
agent of BeautiControl, as permitted by the terms and conditions of the Merger
Agreement; (g) such Tendering Stockholder will use his or her best efforts to
take all actions and to do all things necessary, proper or advisable to support
and to consummate the Offer and the Merger; (h) such Tendering Stockholder will
promptly notify Tupperware in writing of any acquisition of BeautiControl
voting securities by such Tendering Stockholder after the date of the
Stockholder Agreement; (i) such Tendering Stockholder has, by executing the
Stockholder Agreement, revoked any and all prior proxies or powers of attorney
with respect to his or her Shares and (j) such Tendering Stockholder will not
to take any action inconsistent with any of the above covenants.
In addition, Richard W. Heath and Jinger L. Heath have each, in their
individual Stockholder Agreements, agreed that they will, individually, within
90 days of the closing of the Merger, purchase in the open market not less than
$1.25 million worth of Tupperware common stock and that they will not for two
years thereafter sell, transfer, pledge, assign or otherwise dispose of, short
against the box or in any way reduce their risk in the purchased shares of
Tupperware common stock, unless (i) Tupperware terminates their employment,
(ii) E.V.
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Goings ceases to be Chief Executive Officer of Tupperware or (iii) Tupperware
undergoes a change in control (as defined in such Stockholder Agreements).
Richard W. Heath and Jinger L. Heath have also agreed, in their individual
Stockholder Agreements, that they will not, for so long as they are receiving
severance payments under the relevant provision of their Employment Agreements,
(i) engage in any, or assist any person who is engaged in any, business in
competition with any business conducted or contemplated by Tupperware or
BeautiControl in which they had been involved prior to the termination of their
employment (ii) in any manner, directly or indirectly induce or attempt to
induce any employee or independent sales force member of BeautiControl, its
subsidiaries or any worldwide direct selling company of Tupperware to terminate
or abandon his or her relationship with BeautiControl or Tupperware or (iii) in
connection with any business in which they were involved while employed by
BeautiControl, call on, service, solicit or otherwise do business with any
customer of BeautiControl or any of the worldwide direct selling companies of
Tupperware.
The Stockholder Agreements will terminate upon the earlier of (i) the
Effective Time or (ii) six months following the termination of the Merger
Agreement, provided however, that (A) the obligations of Mr. and Mrs. Heath
regarding the purchase of Tupperware Common Stock, noncompetition and
nonsolicitation will terminate in accordance with the terms of those specific
provisions of their Stockholder Agreements, and (B) upon termination of the
Merger Agreement, the Tendering Stockholders will no longer be required to
tender into the Offer, refrain from withdrawing their Shares from the Offer or
vote in favor of the Merger and the Merger Agreement. Consequently, in the
event that the Merger Agreement is terminated, the obligations of the Tendering
Stockholders to vote their shares against any Takeover Proposal and not tender
their shares into any other offer, along with the other provisions of the
Stockholder Agreement, will continue in effect until six months following the
termination of the Merger Agreement, even if the Board of Directors of
BeautiControl recommends the approval of such transaction.
The Employment Agreements.
The following summary description of the Employment Agreements is qualified
in its entirety by reference to the agreements themselves, which we have filed
as exhibits to the Schedule TO that we filed with the SEC, which you may
examine and copy as set forth in Section 8.
Concurrently with the execution of the Merger Agreement, Tupperware agreed
that it would, upon the effectiveness of the Merger, cause BeautiControl to
enter into an Employment Agreement with each of Richard W. Heath and Jinger L.
Heath. The form of those Employment Agreements has been agreed to. Richard W.
Heath's Employment Agreement provides that he will be employed as President and
Chief Executive Officer of BeautiControl. In his capacity as such he will,
subject to the powers, authority and responsibility vested in BeautiControl's
Board of Directors, have the authority and responsibility for the strategic
direction and international expansion of BeautiControl and the general
administration of BeautiControl's affairs. The term of his Employment Agreement
is for five years from the Effective Time of the Merger. His base salary will
be at a rate of $300,000 per year and he shall be eligible for an annual
incentive bonus under Tupperware's annual bonus plan. His annual target bonus
will be at least 45% of his base salary, but he will in no event be able to
receive an annual bonus in excess of 90% of his base salary.
Mr. Heath's Employment Agreement provides that Tupperware will recommend to
the Compensation Committee of its Board of Directors that, as soon as
practicable following the effective time of the Merger, Mr. Heath be granted an
option to purchase 52,500 shares of Tupperware common stock at a price equal to
the fair market value of a share of Tupperware common stock on the date of
grant. During the term of his Employment Agreement, Tupperware will recommend
to the Compensation Committee of its Board of Directors that Mr. Heath be
granted an option to purchase at least 35,000 shares of Tupperware common
stock. All such awards are to be subject to the terms and conditions of the
Tupperware 2000 Incentive Plan. Mr. Heath's Employment Agreement also provides
that he will be eligible to receive other benefits, including participation in
BeautiControl's employee benefit plans, time off for vacation or illness in
accordance with BeautiControl's policies for executives, golf club membership,
payment for financial planning advice and use of an automobile.
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In the event that Tupperware terminates Mr. Heath other than for cause (as
defined in his Employment Agreement), he will be entitled to continuation of
payments equal to his base salary for two years.
Ms. Heath's Employment Agreement provides that she will serve as the
Chairman of BeautiControl. In her capacity as such, she will, subject to the
powers, authority and responsibilities vested in BeautiControl's Board of
Directors, have the authority and responsibility for the creative function of
BeautiControl. In other respects, Ms. Heath's Employment Agreement is
materially identical to Mr. Heath's.
Confidentiality Agreements
The following summary description of confidentiality agreements entered into
between BeautiControl and Tupperware (the "Confidentiality Agreements") is
qualified in its entirety by reference to the agreements themselves, which are
exhibits to the Schedule TO that we filed with the SEC, which you may examine
and copy as set forth in Section 8.
Effective as of August 18, 2000, Tupperware and BeautiControl into a
Confidentiality Agreement, pursuant to which the parties agreed, among other
things, to keep confidential all of the confidential information provided to
such parties, except with respect to disclosures to directors, officers,
employees and certain representatives for the purpose of evaluating the
transactions contemplated by the Merger Agreement. Each party also agreed not
to use, or to permit any of its representatives to use, any of such information
for any purpose other than the evaluation of the transactions contemplated by
the Merger Agreement, and agreed not to make any of such information available
to any person for any other purpose whatsoever. Each party also agreed not to
disclose the fact that it was engaged in discussions concerning the
transactions contemplated by the Merger Agreement, the fact that the
confidential information had been disclosed to the other party, or the fact
that the other party had inspected any portion of the confidential information.
In addition, Tupperware and BeautiControl also entered into a second
Confidentiality Agreement, pursuant to which Tupperware agreed, in return for
the Company's making available certain non-public information, to use such
information solely for the purpose of evaluating the transaction between the
parties. Tupperware also agreed that it and its representatives will not
disclose any of the evaluation information in any manner whatsoever, unless
BeautiControl gives its prior written consent or unless the disclosure is made
to a representative of Tupperware who needs to have such material for the sole
purpose of evaluating the transaction between the parties. Tupperware further
agreed, among other things, to take reasonable precautions to safeguard and
protect the confidentiality of the material provided to it. Tupperware agreed
that, except under certain circumstances, it and its representatives will not
disclose to any other person the fact that the materials have been provided to
it or that discussions or negotiations were taking place.
Statutory Requirements.
In general, under the DGCL a merger of two Delaware corporations requires
the adoption of a resolution by the board of directors of each of the
corporations desiring to merge approving an agreement of merger containing
provisions with respect to certain statutorily specified matters and the
approval of such agreement of merger by the stockholders of each corporation by
the affirmative vote of the holders of a majority of all the outstanding shares
of stock entitled to vote on such merger. According to BeautiControl's Restated
Certificate of Incorporation, the Shares are the only securities of
BeautiControl which entitle the holders thereof to voting rights.
The DGCL also provides that if a parent company owns at least 90% of each
class of stock of a subsidiary that is outstanding and would be entitled to
vote on a merger, the parent company can effect a short-form merger (a "Short-
Form Merger") with that subsidiary without the action of the other stockholders
of the subsidiary. Accordingly, if as a result of the Offer or otherwise
Purchaser acquires or controls the voting power of at least 90% of the Shares,
Purchaser could, and intends (subject to the conditions to its obligations to
effect the Merger contained in the Merger Agreement) to, effect the Merger
without prior notice to, or any action by,
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any other stockholder of BeautiControl. Pursuant to the Merger Agreement, under
certain circumstances we could extend the Offer in order to receive tenders of
at least 90% of the issued and outstanding shares of Common Stock to enable us
to effect a Short-Form Merger. See "--The Merger Agreement--The Offer."
Appraisal Rights.
No appraisal rights are available in connection with the Offer. However, if
the Merger is consummated, any holder of Shares at the Effective Time (a
"Remaining Stockholder") will have certain rights under the DGCL to dissent and
demand appraisal of their Shares. Under Section 262 of the DGCL, a Remaining
Stockholder who does not wish to accept the Merger Consideration pursuant to
the Merger has the right to seek an appraisal and be paid the "fair value" of
its Shares at the Effective Time (exclusive of any element of value arising
from the accomplishment or expectation of the Merger) judicially determined and
paid to it in cash provided that such holder complies with the provisions of
Section 262 of the DGCL.
The following is a brief summary of the statutory procedures to be followed
by a Remaining Stockholder in order to dissent from the Merger and perfect
appraisal rights under Delaware law. This summary is not intended to be
complete and is qualified in its entirety by reference to Section 262 of the
DGCL, the text of which is set forth in Annex A hereto. Any Remaining
Stockholder considering demanding appraisal is advised to consult legal
counsel. Dissenter's rights will not be available unless and until the Merger
(or a similar business combination) is consummated.
Remaining Stockholders of record who desire to exercise their appraisal
rights must fully satisfy all of the following conditions. A written demand for
appraisal of Shares must be delivered to the Secretary of BeautiControl (a)
before the taking of the vote on the approval and adoption of the Merger
Agreement if the Merger is not being effected as a Short-Form Merger but rather
is being consummated following approval thereof at a meeting of BeautiControl's
stockholders (a "Long-Form Merger") or (b) within 20 days after the date that
the Surviving Corporation mails to the Remaining Stockholders a notice (the
"Notice of Merger") to the effect that the Merger is effective and that
appraisal rights are available (and includes in such notice a copy of Section
262 of the DGCL and any other information required thereby) if the Merger is
being effected as a Short-Form Merger without a vote or meeting of
BeautiControl's stockholders. If the Merger is effected as a Long-Form Merger,
this written demand for appraisal of Shares must be in addition to and separate
from any proxy or vote abstaining from or against the approval and adoption of
the Merger Agreement, and neither voting against, abstaining from voting, nor
failing to vote on the Merger Agreement will constitute a demand for appraisal
within the meaning of Section 262 of the DGCL. In the case of a Long-Form
Merger, any stockholder seeking appraisal rights must hold the Shares for which
appraisal is sought on the date of the making of the demand, continuously hold
such Shares through the Effective Time, and otherwise comply with the
provisions of Section 262 of the DGCL.
In the case of both a Short-Form Merger and a Long-Form Merger, a demand for
appraisal must be executed by or for the stockholder of record, fully and
correctly, as such stockholder's name appears on the stock certificates. If
Shares are owned of record in a fiduciary capacity, such as by a trustee,
guardian or custodian, such demand must be executed by the fiduciary. If Shares
are owned of record by more than one person, as in a joint tenancy or tenancy
in common, such demand must be executed by all joint owners. An authorized
agent, including an agent for two or more joint owners, may execute the demand
for appraisal for a stockholder of record; however, the agent must identify the
record owner and expressly disclose the fact that, in exercising the demand, he
is acting as agent for the record owner.
A record owner, such as a broker, who holds Shares as a nominee for others,
may exercise appraisal rights with respect to the Shares held for all or less
than all beneficial owners of Shares as to which the holder is the record
owner. In such case the written demand must set forth the number of Shares
covered by such demand. Where the number of Shares is not expressly stated, the
demand will be presumed to cover all Shares outstanding in the name of such
record owner. Beneficial owners who are not record owners and who intend to
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exercise appraisal rights should instruct the record owner to comply strictly
with the statutory requirements with respect to the exercise of appraisal
rights before the date of any meeting of stockholders of BeautiControl called
to approve the Merger in the case of a Long-Form Merger and within 20 days
following the mailing of the Notice of Merger in the case of a Short-Form
Merger.
Remaining Stockholders who elect to exercise appraisal rights must mail or
deliver their written demands to: Secretary, BeautiControl, Inc., 2121 Midway
Road, Carrollton, TX 75006. The written demand for appraisal should specify the
stockholder's name and mailing address, the number of Shares covered by the
demand and that the stockholder is thereby demanding appraisal of such Shares.
In the case of a long-form merger, BeautiControl must, within ten days after
the Effective Time, provide notice of the Effective Time to all stockholders
who have complied with Section 262 of the DGCL and have not voted for approval
and adoption of the Merger Agreement.
In the case of a Long-Form Merger, Remaining Stockholders electing to
exercise their appraisal rights under Section 262 must not vote for the
approval and adoption of the Merger Agreement or consent thereto in writing.
Voting in favor of the approval and adoption of the Merger Agreement, or
delivering a proxy in connection with the stockholders meeting called to
approve the Merger Agreement (unless the proxy votes against, or expressly
abstains from the vote on, the approval and adoption of the Merger Agreement),
will constitute a waiver of the stockholder's right of appraisal and will
nullify any written demand for appraisal submitted by the stockholder.
Regardless of whether the Merger is effected as a Long-Form Merger or a
Short-Form Merger, within 120 days after the Effective Time, either
BeautiControl or any stockholder who has complied with the required conditions
of Section 262 and who is otherwise entitled to appraisal rights may file a
petition in the Delaware Court of Chancery demanding a determination of the
fair value of the Shares of the dissenting stockholders. If a petition for an
appraisal is timely filed, after a hearing on such petition, the Delaware Court
of Chancery will determine which stockholders are entitled to appraisal rights
and thereafter will appraise the Shares owned by such stockholders, determining
the fair value of such Shares, exclusive of any element of value arising from
the accomplishment or expectation of the Merger, together with a fair rate of
interest to be paid, if any, upon the amount determined to be the fair value.
In determining fair value, the Delaware Court of Chancery is to take into
account all relevant factors. In Weinberger v. UOP, Inc., et al., the Delaware
Supreme Court discussed the factors that could be considered in determining
fair value in an appraisal proceeding, stating 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 and
that "[f]air price obviously requires consideration of all relevant factors
involving the value of a company." The Delaware Supreme Court stated that in
making this determination of fair value the court must consider "market value,
asset value, dividends, earnings prospects, the nature of the enterprise and
any other facts which were known or which could be ascertained as of the date
of merger which throw any light on future prospects of the merged corporation .
. ." The Delaware Supreme Court has construed Section 262 of the DGCL to mean
that "elements of future value, including the nature of the enterprise, which
are known or susceptible of proof as of the date of the merger and not the
product of speculation, may be considered." However, the court noted that
Section 262 provides that fair value is to be determined "exclusive of any
element of value arising from the accomplishment or expectation of the merger."
Remaining Stockholders who in the future consider seeking appraisal should
have in mind that the fair value of their Shares determined under Section 262
could be more than, the same as, or less than the Merger Consideration if they
do seek appraisal of their Shares, and that opinions of investment banking
firms as to fairness from a financial point of view are not necessarily
opinions as to fair value under Section 262 of the DGCL. Moreover, Tupperware
intends to cause the Surviving Corporation to argue in any appraisal proceeding
that, for purposes thereof, the "fair value" of the Shares is less than that
paid in the Offer. The cost of the appraisal proceeding may be determined by
the Delaware Court of Chancery and taxed upon the parties as the Delaware Court
of Chancery deems equitable in the circumstances. Upon application of a
dissenting stockholder, the Delaware Court of Chancery may order that all or a
portion of the expenses incurred by any
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dissenting stockholder in connection with the appraisal proceeding, including,
without limitation, reasonable attorneys' fees and the fees and expenses of
experts, be charged pro rata against the value of all Shares entitled to
appraisal. In the absence of such a determination or assessment, each party
bears its own expenses.
Any Remaining Stockholder who has duly demanded appraisal in compliance with
Section 262 of the DGCL will not, after the Effective Time, be entitled to vote
for any purpose the Shares subject to such demand or to receive payment of
dividends or other distributions on such Shares, except for dividends or other
distributions payable to stockholders of record at a date prior to the
Effective Time.
At any time within 60 days after the Effective Time, any former holder of
Shares shall have the right to withdraw his or her demand for appraisal and to
accept the Merger Consideration. After this period, such holder may withdraw
his or her demand for appraisal only with the consent of BeautiControl as the
Surviving Corporation. If no petition for appraisal is filed with the Delaware
Court of Chancery within 120 days after the Effective Time, stockholders'
rights to appraisal shall cease and all stockholders shall be entitled to
receive the Merger Consideration. Inasmuch as BeautiControl has no obligation
to file such a petition, and Tupperware has no present intention to cause or
permit the Surviving Corporation to do so, any stockholder who desires such a
petition to be filed is advised to file it on a timely basis. However, no
petition timely filed in the Delaware Court of Chancery demanding appraisal
shall be dismissed as to any stockholder without the approval of the Delaware
Court of Chancery, and such approval may be conditioned upon such terms as the
Delaware Court of Chancery deems just.
Failure to take any required step in connection with the exercise of
appraisal rights may result in the termination or waiver of such rights.
APPRAISAL RIGHTS CANNOT BE EXERCISED AT THIS TIME. THE INFORMATION SET FORTH
ABOVE IS FOR INFORMATIONAL PURPOSES ONLY WITH RESPECT TO ALTERNATIVES AVAILABLE
TO STOCKHOLDERS IF THE MERGER IS CONSUMMATED. STOCKHOLDERS WHO WILL BE ENTITLED
TO APPRAISAL RIGHTS IN CONNECTION WITH THE MERGER WILL RECEIVE ADDITIONAL
INFORMATION CONCERNING APPRAISAL RIGHTS AND THE PROCEDURES TO BE FOLLOWED IN
CONNECTION THEREWITH BEFORE SUCH STOCKHOLDERS HAVE TO TAKE ANY ACTION RELATING
THERETO.
STOCKHOLDERS WHO SELL SHARES IN THE OFFER WILL NOT BE ENTITLED TO EXERCISE
APPRAISAL RIGHTS WITH RESPECT THERETO BUT, RATHER, WILL RECEIVE THE PRICE PAID
IN THE OFFER THEREFOR.
Plans for BeautiControl After the Offer and the Merger.
Pursuant to the Merger Agreement, upon completion of the Offer, Tupperware
and Purchaser intend to effect the Merger in accordance with the Merger
Agreement. See "--The Merger Agreement."
Except as otherwise described in this Offer to Purchase, Tupperware has no
current plans or proposals or negotiations which relate to or would result in:
(i) other than the Merger, an extraordinary corporate transaction, such as a
merger, reorganization or liquidation involving BeautiControl; (ii) any
purchase, sale or transfer of a material amount of assets of BeautiControl;
(iii) any change in the management of BeautiControl or any change in any
material term of the employment contract of any executive officer of
BeautiControl; or (iv) any other material change in BeautiControl's corporate
structure or business.
Nevertheless, Tupperware may initiate a review of BeautiControl and its
assets, corporate structure, capitalization, operations, properties, policies,
management and personnel to determine what changes, if any, would be desirable
following the Merger in order best to organize and integrate the activities of
Tupperware and BeautiControl.
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12. Source and Amount of Funds.
The Offer is not conditioned on obtaining financing. Tupperware estimates
that the total amount of funds required to purchase all of the Shares pursuant
to the Offer and to pay all amounts due with respect to stock options as a
result of the Offer and the Merger (excluding related fees and expenses) will
be approximately $54.3 million. The Purchaser expects to obtain these funds
from capital contributions or loans to the
Purchaser from Tupperware. Tupperware intends to obtain the funds for such
capital contributions or loans from borrowings under Tupperware's Revolving
Credit Agreement (as defined below) and/or from the issuance of privately
placed commercial paper pursuant to an agreement currently being negotiated
with Goldman Sachs International.
Under the terms of the Tupperware's Competitive Advance and Revolving Credit
Facility Agreement dated as of May 16, 1996 and amended as of August 8, 1997
(the "Revolving Credit Agreement"), with Chemical Bank (now Chase Manhattan
Bank) as agent bank (the "Agent"), and certain other commercial banks,
Tupperware may borrow up to an aggregate of $300 million on an unsecured basis.
As of September 19, 2000, no borrowings were outstanding thereunder. The term
of the Revolving Credit Agreement expires on August 8, 2002. The Revolving
Credit Agreement is used by Tupperware principally as a back-up facility for an
existing U.S. commercial paper program. As of September 19, 2000, outstanding
borrowings under the existing U.S. commercial paper program totaled
approximately $195.2 million, leaving approximately $104.8 million of
additional borrowing capacity under the Revolving Credit Agreement. The
interest rate on a borrowing under the Revolving Credit Agreement is the London
Interbank Offer Rate for the interest period plus a margin (as defined
therein). The Revolving Credit Agreement contains certain covenants of
Tupperware and its subsidiaries, including a limitation on consolidated debt,
restrictions on subsidiary debt, restrictions on liens, a consolidated leverage
ratio requirement and a consolidated interest coverage ratio requirement. In
addition to typical events of default, including cross default, the Revolving
Credit Agreement provides that a "change of control" (as defined therein) of
Tupperware shall constitute an event of default unless the change of control is
approved by the directors of Tupperware in accordance with the Revolving Credit
Agreement.
Tupperware is currently negotiating, but as of September 19, 2000, has not
finalized, an agreement with Goldman Sachs International, London, to act as
Arranger and Dealer for a Euro-commercial paper program. Under this agreement,
Euro-commercial paper will be issuable in denominations of not less than the
equivalent of $500,000 with maturities not exceeding 364 days. The Euro-
commercial paper may be sold either at a discount or as interest bearing
obligations with interest payable at maturity. Tupperware expects that any
Euro-commercial paper to be issued will be sold at discounts comparable to
those for similarly rated Euro-commercial paper. Tupperware's existing U.S.
commercial paper is currently rated A-2 by Standard & Poor's Corporation and P-
2 by Moody's Investors Service, Inc.
It is anticipated that the indebtedness incurred by Tupperware through the
issuance of commercial paper and/or borrowings under the Revolving Credit
Agreement will be repaid from funds generated internally by Tupperware and its
subsidiaries (including, after the Merger, if consummated, funds generated by
BeautiControl) and from other sources which may include the proceeds of the
sale of private or public debt securities (including commercial paper). No
final decisions have been made concerning the repayment of such indebtedness
and decisions will be made based on Tupperware's review from time to time of
the advisability of particular actions, as well as on prevailing interest rates
and financial and other economic conditions.
13. Dividends and Distributions.
The Merger Agreement provides that subject to certain limited exceptions,
BeautiControl shall not, without the prior written consent of Tupperware, (i)
declare, set aside or pay any dividends on, or make any other actual,
constructive or deemed distributions in respect of, any of its capital stock,
or otherwise make any payments to its stockholders in their capacity as such,
(ii) split, combine or reclassify any of its capital stock or issue or
authorize the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its
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capital stock, or (iii) purchase, redeem or otherwise acquire any of its own
shares of capital stock of BeautiControl or any other securities thereof or any
rights, warrants or options to acquire any such shares or other securities.
14. Conditions of the Offer.
Conditions to the Offer. Notwithstanding any other term of the Offer or the
Merger Agreement, Purchaser shall not be required to accept for payment or,
subject to any applicable rules and regulations of the SEC, including Rule 14e-
1(c) under the Exchange Act (relating to Purchaser's obligation to pay for or
return tendered Shares after the termination or withdrawal of the Offer), to
pay for any Shares tendered pursuant to the Offer unless (i) the Minimum
Condition shall have been satisfied and, (ii) any waiting period under the HSR
Act applicable to the purchase of Shares pursuant to the Offer shall have
expired or been terminated prior to the expiration date of the Offer.
Furthermore, notwithstanding any other term of the Offer or the Merger
Agreement, Purchaser shall not be required to accept for payment or, subject as
aforesaid, to pay for any Shares not theretofore accepted for payment or paid
for, and may terminate the Offer if, at any time on or after the date of the
Merger Agreement and before the acceptance of such Shares for payment or the
payment therefor, any of the following conditions exist (other than as a result
of any action or inaction of Tupperware or any of its subsidiaries that
constitutes a breach of the Merger Agreement):
(a) there shall be threatened or pending by any Governmental Entity (as
defined in the Merger Agreement) any suit, action or proceeding (i)
challenging the acquisition by Tupperware or Purchaser of any Shares under
the Offer, seeking to restrain or prohibit the making or consummation of
the Offer or the Merger or the performance of any of the other transactions
contemplated by the Merger Agreement or the Stockholder Agreements
(including the voting provisions thereunder), or seeking to obtain from
BeautiControl, Tupperware or Purchaser any damages that are material in
relation to BeautiControl and its subsidiaries taken as a whole, (ii)
seeking to prohibit or materially limit the ownership or operation by
BeautiControl, Tupperware or any of their respective subsidiaries of a
material portion of the business or assets of BeautiControl and its
subsidiaries, taken as a whole, or Tupperware and its subsidiaries, taken
as a whole, or to compel BeautiControl or Tupperware to dispose of or hold
separate any material portion of the business or assets of BeautiControl
and its subsidiaries, taken as a whole, or Tupperware and its subsidiaries,
taken as a whole, in each case, as a result of the Offer or any of the
other transactions contemplated by the Merger Agreement or the Stockholder
Agreements, (iii) seeking to impose material limitations on the ability of
Tupperware or Purchaser to acquire or hold, or exercise full rights of
ownership of, any Shares to be accepted for payment pursuant to the Offer,
including the right to vote such Shares on all matters properly presented
to the stockholders of BeautiControl, (iv) seeking to prohibit Tupperware
or any of its subsidiaries from effectively controlling in any material
respect any material portion of the business or operations of BeautiControl
or its subsidiaries (v) which otherwise is reasonably likely to have a
Material Adverse Effect (as defined below) on BeautiControl, or there shall
be pending by any other person any suit, action or proceeding which would
have a Material Adverse Effect on BeautiControl;
(b) there shall be enacted, entered, enforced, promulgated or deemed
applicable to the Offer or the Merger by any Governmental Entity any
statute, rule, regulation, judgment, order or injunction, other than the
application to the Offer or the Merger of applicable waiting periods under
the HSR Act, that is reasonably likely to result, directly or indirectly,
in any of the consequences referred to in clauses (i) through (v) of
paragraph (a) above;
(c) there shall have occurred any Material Adverse Change with respect
to BeautiControl;
(d) (i) the BeautiControl Board or any committee thereof shall have
withdrawn or modified in a manner adverse to Tupperware or Purchaser its
approval or recommendation of the Offer, the Merger or the Merger
Agreement, or approved or recommended any Takeover Proposal or (ii) the
BeautiControl Board or any committee thereof shall have resolved to take
any of the foregoing actions;
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(e) the representations and warranties of BeautiControl set forth in the
Merger Agreement shall not be true and correct in each case at the date of
the Merger Agreement and at the scheduled or extended expiration of the
Offer unless the inaccuracies (without giving effect to any materiality or
Material Adverse Effect qualifications or exceptions contained therein)
under such representations and warranties, taking all the inaccuracies
under such representations and warranties together in their entirety, do
not, individually or in the aggregate, result in a Material Adverse Effect
on BeautiControl;
(f) BeautiControl shall have failed to perform in any material respect
any material obligation or to comply in any material respect with any
material agreement or covenant of BeautiControl to be performed or complied
with by it under the Merger Agreement;
(g) any person or "group" (as defined in Section 13(d)(3) of the
Exchange Act), other than Tupperware, Purchaser or their affiliates or any
group of which any of them is a member, shall have acquired or announced
its intention to acquire beneficial ownership (as determined pursuant to
Rule 13d-3 promulgated under the Exchange Act) of 15% or more of the
Shares;
(h) there shall have occurred and be continuing (i) any general
suspension of trading in, or limitation on prices for, securities on a
national securities exchange in the United States (excluding any
coordinated trading halt triggered solely as a result of a specified
decrease in a market index), (ii) a declaration of a banking moratorium or
any suspension of payments in respect of banks in the United States, (iii)
any limitation (whether or not mandatory) by any Governmental Entity on, or
other event that materially adversely affects, the extension of credit by
banks or other lending institutions, (iv) a commencement of a war or armed
hostilities or other national or international calamity directly or
indirectly involving the United States which in any case is reasonably
expected to have a Material Adverse Effect on BeautiControl or to
materially adversely affect Tupperware's or Purchaser's ability to complete
the Offer and/or the Merger or materially delay the consummation of the
Offer and/or the Merger, or (v) from the date of the Merger Agreement
through the date of termination or expiration, a decline of at least 25% in
either the Dow Jones Industrial Average, the Standard & Poor's 500 Index or
the NASDAQ Composite Index; or
(i) the Merger Agreement shall have been terminated in accordance with
its terms.
"Material Adverse Change" or "Material Adverse Effect" means any change or
effect that is or could reasonably be expected (as far as can be foreseen at
the time) to be materially adverse to the business, operations, properties,
assets, liabilities, earnings or results of operations, financial projections
or forecasts, or the business prospects or condition (financial or otherwise),
with all such matters being considered in the aggregate, of BeautiControl and
its subsidiaries, taken as a whole.
The foregoing conditions are for the sole benefit of Tupperware and
Purchaser and may, subject to the terms of the Merger Agreement, be waived by
Tupperware and Purchaser in whole or in part at any time and from time to time
in their sole discretion. The failure by Tupperware or Purchaser at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
15. Legal Matters; Required Regulatory Approvals.
Except as set forth in this Offer to Purchase, based on our review of
publicly available filings by BeautiControl with the SEC and other information
regarding BeautiControl, we are not aware of any licenses or regulatory permits
that appear to be material to the business of BeautiControl and that might be
adversely affected by our acquisition of Shares in the Offer. In addition,
except as described in this Offer to Purchase, we are not aware of any filings,
approvals or other actions by or with any governmental authority or
administrative or regulatory agency that would be required for our acquisition
or ownership of the Shares. Should any such approval or other action be
required, we expect to seek such approval or action, except as described below
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under "State Takeover Laws." Should any such approval or other action be
required, we cannot be certain that we would be able to obtain any such
approval or action without substantial conditions or that adverse consequences
might not result to BeautiControl's business, or that certain parts of
BeautiControl's, Tupperware's, or any of their respective subsidiaries'
businesses might not have to be disposed of or held separate in order to obtain
such approval or action. In that event, we may not be required to purchase any
Shares in the Offer. See Introduction and Section 14 for a description of the
conditions to the Offer.
State Takeover Laws. BeautiControl is incorporated under the laws of the
State of Delaware. In general, Section 203 of the DGCL ("Section 203") prevents
an "interested stockholder" (including a person who owns or has the right to
acquire 15% or more of a corporation's outstanding voting stock) from engaging
in a "business combination" (defined to include mergers and certain other
actions) with a Delaware corporation for a period of three years following the
date such person became an interested stockholder unless, among other things,
the "business combination" is approved by the Board of Directors of such
corporation prior to such date. The BeautiControl Board has approved the Offer
and the Merger. 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, the Supreme Court of the United
States, in Edgar v. Mite Corp., invalidated on constitutional grounds the
Illinois Business Takeovers Statute, which as a matter of state securities law
made takeovers of corporations meeting certain requirements more difficult. The
reasoning in that decision is likely to apply to certain other state takeover
statutes. In 1987, however, in CTS Corp. v. Dynamics Corp. of America, the
Supreme Court of the United States held that the State of Indiana could as a
matter of corporate law and, in particular, 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, as long as those laws were applicable
only under certain conditions. Subsequently, in TLX Acquisition Corp. v. Telex
Corp., a federal district court in Oklahoma ruled that the Oklahoma statutes
were unconstitutional insofar as they apply to corporations incorporated
outside Oklahoma, because they would subject those corporations to inconsistent
regulations. Similarly, in Tyson Foods, Inc. v. McReynolds, a federal district
court in Tennessee ruled that four Tennessee takeover statutes were
unconstitutional as applied to corporations incorporated outside Tennessee.
This decision was affirmed by the United States Court of Appeals for the Sixth
Circuit. In December 1988, a federal district court in Florida held, in Grand
Metropolitan PLC v. Butterworth, that the provisions of the Florida Affiliated
Transactions Act and Florida Control Share Acquisition Act were
unconstitutional as applied to corporations incorporated outside of Florida.
We have not attempted to comply with any state takeover statutes in
connection with the Offer or the Merger. We reserve the right to challenge the
validity or applicability of any state law allegedly applicable to the Offer or
the Merger, and nothing in this Offer to Purchase nor any action that we take
in connection with the Offer is intended as a waiver of that right. In the
event that it is asserted that one or more takeover statutes apply to the Offer
or the Merger, and it is not determined by an appropriate court that the
statutes in question do not apply or are invalid as applied to the Offer or the
Merger, as applicable, we may be required to file certain documents with, or
receive approvals from, the relevant state authorities, and we might be unable
to accept for payment or purchase Shares tendered in the Offer or be delayed in
continuing or consummating the Offer. In that case, we may not be obligated to
accept for purchase, or pay for, any Shares tendered. See Section 14.
Antitrust. Under the HSR Act, certain acquisition transactions may not be
consummated until certain information and documentary material has been
furnished for review by the Federal Trade Commission (the "FTC") and the
Antitrust Division of the Department of Justice (the "Antitrust Division") and
certain waiting period requirements have been satisfied. These requirements
apply to our acquisition of Shares in the Offer and the Merger.
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Under the HSR Act, the purchase of Shares in the Offer may not be completed
until the expiration of a 15-calendar-day waiting period following the filing
of certain required information and documentary material concerning the Offer
with the FTC and the Antitrust Division, unless the waiting period is earlier
terminated by the FTC and the Antitrust Division. We expect to file a Premerger
Notification and Report Form under the HSR Act with the FTC and the Antitrust
Division in connection with the purchase of Shares in the Offer and the Merger
on September 21, 2000, and, in that event, the required waiting period with
respect to the Offer and the Merger will expire at 11:59 p.m., New York City
time, on or about October 6, 2000, unless earlier terminated by the FTC or the
Antitrust Division or we receive a request for additional information or
documentary material prior to that time. If within the 15-calendar-day waiting
period either the FTC or the Antitrust Division requests additional information
or documentary material from us, the waiting period with respect to the Offer
and the Merger would be extended for an additional period of 10 calendar days
following the date of our substantial compliance with that request. Only one
extension of the waiting period pursuant to a request for additional
information is authorized by the HSR Act rules. After that time, the waiting
period could be extended only by court order or with our consent. The FTC or
the Antitrust Division may terminate the additional 10-calendar-day waiting
period before its expiration. In practice, complying with a request for
additional information or documentary material can take a significant period of
time. Although BeautiControl is required to file certain information and
documentary material with the FTC and the Antitrust Division in connection with
the Offer, neither BeautiControl's failure to make those filings nor a request
made to BeautiControl from the FTC or the Antitrust Division for additional
information or documentary material will extend the waiting period with respect
to the purchase of Shares in the Offer and the Merger.
The FTC and the Antitrust Division frequently scrutinize the legality under
the antitrust laws of transactions such as our acquisition of Shares in the
Offer and the Merger. At any time before or after our purchase of Shares, the
FTC or the Antitrust Division could take any action under the antitrust laws
that either considers necessary or desirable in the public interest, including
seeking to enjoin the purchase of Shares in the Offer and the Merger, the
divestiture of Shares purchased in the Offer or the divestiture of substantial
assets of BeautiControl, Tupperware or any of their respective subsidiaries or
affiliates. Private parties as well as state attorneys general may also bring
legal actions under the antitrust laws under certain circumstances.
Based upon an examination of publicly available information relating to the
businesses in which BeautiControl is engaged, we believe that the acquisition
of Shares in the Offer and the Merger should not violate the applicable
antitrust laws. Nevertheless, we cannot be certain that a challenge to the
Offer and the Merger on antitrust grounds will not be made, or, if such
challenge is made, what the result will be.
16. Fees and Expenses.
We have retained Lazard Freres & Co. LLC to act as Dealer Manager in
connection with the Offer, pursuant to which Lazard Freres & Co. LLC will
receive customary fees upon consummation of the acquisition. We have also
agreed to indemnify Lazard Freres & Co. LLC against certain liabilities and
expenses in connection with its engagement, including liabilities under the
federal securities laws. Lazard Freres & Co. LLC has rendered various
investment banking services and other advisory services to Tupperware and its
affiliates in the past and may continue to render such services, for which they
have received and may continue to receive customary compensation from
Tupperware and its affiliates.
We have retained Georgeson Shareholder Communications Inc. as Information
Agent in connection with the Offer. The Information Agent may contact holders
of Shares by mail, telephone, telex, telegraph and personal interview and may
request brokers, dealers and other nominee stockholders to forward material
relating to the Offer to beneficial owners of Shares. We will pay the
Information Agent reasonable and customary compensation for these services in
addition to reimbursing the Information Agent for its reasonable out-of-pocket
expenses. We have agreed to indemnify the Information Agent against certain
liabilities and expenses in connection with the Offer, including certain
liabilities under the federal securities laws.
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In addition, we have retained ChaseMellon Shareholder Services, L.L.C. as
the Depositary. We will pay the Depositary reasonable and customary
compensation for its services in connection with the Offer, will reimburse the
Depositary for its reasonable out-of-pocket expenses and will indemnify the
Depositary against certain liabilities and expenses, including certain
liabilities under the federal securities laws.
Except as described in "The Merger Agreement--Fees and Expenses,"
BeautiControl will not pay any of the fees and expenses to be incurred by us in
connection with the Offer.
Except as set forth above, we will not pay any fees or commissions to any
broker, dealer or other person for soliciting tenders of Shares pursuant to the
Offer. We will reimburse brokers, dealers, commercial banks and trust companies
and other nominees, upon request, for customary clerical and mailing expenses
incurred by them in forwarding offering materials to their customers.
17. Miscellaneous.
We are not aware of any jurisdiction where the making of the Offer is
prohibited by any administrative or judicial action pursuant to any valid state
statute. If we become aware of any valid state statute prohibiting the making
of the Offer or the acceptance of the Shares, we will make a good faith effort
to comply with that state statute. If, after a good faith effort, we cannot
comply with the state statute, we will not make the Offer to, nor will we
accept tenders from or on behalf of, the holders of Shares in that 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 the Dealer Manager or one or more registered brokers
or dealers licensed under the laws of such jurisdiction.
We have filed with the SEC a Tender Offer Statement on Schedule TO, together
with exhibits, furnishing certain additional information with respect to the
Offer, and may file amendments to our Schedule TO. Our Schedule TO and any
exhibits or amendments may be examined and copies may be obtained from the SEC
in the same manner as described in Section 8 with respect to information
concerning BeautiControl.
We have not authorized any person to give any information or to make any
representation on our behalf not contained in this Offer to Purchase or in the
Letter of Transmittal and, if given or made, you should not rely on any such
information or representation as having been authorized.
Neither the delivery of the 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 Tupperware, Purchaser, BeautiControl or any of
their respective subsidiaries since the date as of which information is
furnished or the date of this Offer to Purchase.
B-C MERGER CORPORATION
September 20, 2000
35
<PAGE>
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
TUPPERWARE AND PURCHASER
The name, present principal occupation or employment and business address
and material occupations or employment for the past five years of each of the
directors and executive officers of Tupperware and Purchaser is set forth
below. Unless otherwise indicated below, each individual listed below has a
business address of 14901 S. Orange Blossom Trail, Orlando, Florida 32837.
Unless otherwise indicated below, each individual listed below is a citizen of
the United States. Directors are designated by the symbol *.
Directors and Executive Officers of Tupperware
<TABLE>
<CAPTION>
Principal Occupation
or Employment and
Five-Year
Name Employment History
---- --------------------
<C> <S>
Rita Bornstein, Ph.D.* President of Rollins College, an independent comprehensive liberal
arts college with campuses in Winter Park and Melbourne, Florida,
since 1990. Dr. Bornstein served as Vice President of the
University of Miami before being elected to her current position.
She also chairs the Associated Colleges of the South.
Gerald M. Crompton Senior Vice President, Product Marketing, Tupperware Worldwide
since November 1997, after serving as Vice President, Product
Marketing, Worldwide since November 1996. Prior thereto, he served
as Vice President, Product Management for Tupperware Europe, Africa
and Middle East since 1992. Mr. Crompton is a citizen of the United
Kingdom.
Judy B. Curry Vice President and Controller of Tupperware since August 2000.
Prior thereto, she served in various financial positions with
Tupperware since October 1990.
Karel A. De Vydt Vice President and Chief Information Officer of Tupperware since
January 1999. Prior thereto, he served as Director of Information
Technology Worldwide from April 1997 after being the Director of
Information Technology for Tupperware Europe, Africa and Middle
East. Mr. De Vydt is a citizen of Belgium.
R. Glenn Drake President, Tupperware North America since January 2000. Prior
thereto, he served as Managing Director, Tupperware Canada from
September 1998 after serving as Area Vice President of Tupperware
North America from July 1995. Prior thereto, he served as Managing
Director, Tupperware Spain from January 1993.
Lillian D. Garcia Senior Vice President, Human Resources of Tupperware since December
1999. Prior thereto, she was Vice President Human Resources since
March 1999, after serving in various human resources positions
within Tupperware.
E.V. Goings* Chairman and Chief Executive Officer of Tupperware since October
1997, after serving as President and Chief Operating Officer since
1996. Prior thereto, he served as Executive Vice President of
Premark International, Inc. and President of Tupperware Worldwide
since November 1992. Mr. Goings serves as a Director of SunTrust
Bank, Florida.
Clifford J. Grum* Retired Chairman of the Board and Chief Executive Officer of
Temple-Inland Inc., a holding company with operations in corrugated
packaging, bleached paperboard, building products and financial
services. The business address of Temple-Inland Inc. is 303 South
Temple Drive, Diboll, Texas 75941. Mr. Grum serves as a director of
Cooper Industries, Inc. and Trinity Industries, Inc.
Betsy D. Holden* President and Chief Executive Officer of Kraft Foods, Inc., a unit
of Philip Morris Companies Inc., since May 2000. Prior thereto, she
served as Executive Vice President of Kraft Foods, Inc. with
responsibility for operations, research and
</TABLE>
I-1
<PAGE>
<TABLE>
<CAPTION>
Principal Occupation
or Employment and
Five-Year
Name Employment History
---- --------------------
<S> <C>
development, marketing services, procurement and e-business, since
December 1998. Prior thereto, she served as Executive Vice
President of Kraft Foods, Inc. and President of the Kraft Cheese
Division since 1995, after serving as President of Kraft's Pizza
Division. The business address of Kraft Foods, Inc. is 3 Lakes
Drive, Northfield, Illinois 60093.
David T. Halversen Senior Vice President, Business Development and Communications of
Tupperware since November 1996. Prior thereto, he served as Senior
Vice President, Planning, Business Development and Financial
Relations since March 1996. He previously served as Vice President,
Business Development and Planning since February 1995, after
serving in various planning and strategy positions with Avon
Products, Inc.
Charles H.R. Henry Vice President, Process Reengineering of Tupperware since January
1999. From 1994 to 1998, he served in various executive positions
with Tupperware Europe, Africa and Middle East. Mr. Henry is a
citizen of Australia.
Alan D. Kennedy President of Tupperware, since April 1998. Prior thereto, he was an
independent consultant, since 1996, and from 1989 to 1996 served as
President and CEO of Nature's Sunshine Products, Inc. The business
address of Nature's Sunshine Products is 75 East 1700 South, Provo,
Utah 84606.
Joe R. Lee* Chairman and Chief Executive Officer of Darden Restaurants, Inc.,
which owns and operates casual dining restaurants, since May 1995.
The business address of Darden Restaurants, Inc. is 5900 Lake
Ellenor Drive, Orlando, Florida 32809. Mr. Lee served as President
and Chief Executive Officer of General Mills Restaurants from
December 1994 until being named to his present position. He
previously served as Vice Chairman of General Mills, Inc. and Chief
Financial Officer. Mr. Lee serves as a director of Darden
Restaurants, Inc.
Bob Marbut* Chairman and Co-Chief Executive Officer of Hearst-Argyle
Television, Inc., a NYSE-listed television station group, from
August 1997. The business address of Hearst-Argyle Television, Inc.
is 888 Seventh Avenue, New York, New York 10106. Previously, he was
Chairman and Chief Executive Officer of Argyle Television since
1994 and prior thereto, he was Chairman and Chief Executive Officer
of Argyle Communications, Inc. since 1992. Mr. Marbut serves as a
director of Argyle Communications, Inc., Hearst-Argyle Television,
Inc., Ultramar Diamond Shamrock, Inc., Geocast, Inc. and Internet
Business Systems.
Angel R. Martinez* Executive Vice President and Chief Marketing Officer of Reebok
International Ltd. since October 1998, with responsibility for
development and coordination of marketing, communication and design
strategies, after serving as President and Chief Executive Officer
of The Rockport Company, a subsidiary of Reebok, since 1994. Prior
thereto he served in a variety of executive positions at Reebok.
The business address of Reebok International Ltd. is 1895 J.W.
Foster Boulevard, Canton, Massachusetts 02021.
Anne E. Naylor Vice President, Internal Audit of Tupperware since October 1999.
Prior thereto, she served as Executive Director, Business Analysis
and Audit, Cummins Engine Company from May 1995. Prior thereto, she
served as Controller, North American Engine Marketing, Cummins
Engine Company since May 1991. The business address of Cummins
Engine Company is 500 Jackson Street, Box 3005, Columbus, Indiana
47202-3005.
</TABLE>
I-2
<PAGE>
<TABLE>
<CAPTION>
Principal Occupation
or Employment and
Five-Year
Name Employment History
---- --------------------
<S> <C>
Gaylin L. Olson President, Tupperware Latin America since September 1998. He has
served in various executive positions for Tupperware, including
Senior Vice President, Emerging Markets since May 1996 and prior
thereto as President, Tupperware Asia Pacific since 1993.
David R. Parker* Managing Principal of Interprise Technology Partners, L.P., a
technology and Internet-focused venture capital firm, since January
1999. The business address of Interprise Technology Partners, L.P.
is 1001 Brickell Bay Drive, 30th Floor, Miami, FL 33131.
Previously, he was employed by AmeriServe, Inc., a food-service
distribution company, from May 1998 until August 1998, after the
acquisition of ProSource, Inc. by AmeriServe, Inc. Prior thereto,
he was Chairman of ProSource, Inc., a food service distribution
company, since July 1992. The business address of ProSource, Inc.
was 1500 San Remo Avenue, Coral Gables, FL 33146. Mr. Parker serves
as a director of Applied Graphics Technologies, Inc. and World
Commerce Online, Inc.
Michael S. Poteshman Vice President, Investor Relations and Treasury since August 2000.
He served as Vice President and Controller of Tupperware from
January 1998 until August 2000, after serving as Assistant
Controller since March 1996. Prior thereto, he served as Director,
Accounting and Reporting Standards for Premark International, Inc.
since September 1993.
Robert M. Price* President of PSV, Inc., a Burnsville, Minnesota firm which assists
public and private organizations in the utilization and
commercialization of new technologies. Mr. Price serves as a
director of Data Link, Inc., Fourth Shift Corporation,
International Multifoods Corporation, Public Service Company of New
Mexico and Affinity Technology Group, Inc.
Joyce M. Roche* President and CEO of Girls Incorporated, a non-profit organization
that helps girls in the United States empower themselves, since
September 2000. The national headquarters of Girls Incorporated is
located at 120 Wall Street, 3rd Floor, New York, NY 10005. Prior
thereto she was an independent marketing consultant from September
1998 until September 2000. Formerly, she served as President and
Chief Operating Officer of Carson, Inc., a personal care products
company, from 1996 until September 1998, after serving in various
executive positions with Avon Products, Inc., a direct-selling
consumer products company. The business address of Carson, Inc. is
64 Ross Road, Savannah Industrial Park, Savannah, Georgia 31405 and
the business address of Avon Products, Inc. is 1345 Avenue of the
Americas, New York, New York 10105-0196. She serves as a director
of SBC Communications, Inc. and Anheuser-Busch Companies.
Thomas M. Roehlk Senior Vice President, General Counsel and Secretary of Tupperware
since December 1995. Prior thereto, he served as Assistant General
Counsel and Assistant Secretary of Premark International, Inc.
James E. Rose, Jr. Senior Vice President, Taxes and Government Affairs of Tupperware
since March 1997, after serving as Vice President, Taxes and
Government Affairs since March 1996. Prior thereto, he served as
Vice President, Taxes and Government Affairs for Premark
International, Inc.
Hans Joachim Schwenzer Senior Vice President, Tupperware Worldwide since May 1996. He also
serves as President, Tupperware Germany; President, Sales Programs
and Promotions, Tupperware Europe, Africa and Middle East; and
Regional General Manager, Russia. Prior to assuming those
positions, he served as President, Tupperware Europe, Africa and
Middle East. Mr. Schwenzer is a citizen of Germany.
</TABLE>
I-3
<PAGE>
<TABLE>
<CAPTION>
Principal Occupation
or Employment and
Five-Year
Name Employment History
---- --------------------
<S> <C>
Christian E. Skroeder Group President, Tupperware Europe, Africa and Middle East since
April 1998. Prior thereto, he served in various other executive
positions with Tupperware. Mr. Skroeder is a citizen of Sweden.
M. Anne Szostak* Executive Vice President and Corporate Director of Human Resources
of FleetBoston Corporation, a diversified financial services
company, since October 1998. The business address of FleetBoston
Corporation is One Federal Street, MA DE 10336A, Boston, MA 02110.
Prior thereto Ms. Szostak served in various senior executive
positions with Fleet Financial Group, Inc. Ms. Szostak serves as a
director of New England Business Systems, Inc. and Providence
Energy Corporation.
Jose R. Timmerman Senior Vice President, Worldwide Operations of Tupperware, since
August 1997, after serving as Vice President Worldwide Operations,
since October 1993. Mr. Timmerman is a citizen of Belgium.
Paul B. Van Sickle Executive Vice President and Chief Financial Officer of Tupperware
since September 1999. Prior thereto, he served as Executive Vice
President since March 1997, after serving as Senior Vice President,
Finance and Operations since November 1992. Mr. Van Sickle is a
citizen of Canada.
Robert W. Williams President, Tupperware Asia Pacific since April 1995. Prior thereto,
he served in various management positions in Tupperware Asia
Pacific starting in August 1993.
Directors and Executive Officers of Purchaser
<CAPTION>
Name Position with the Purchaser
---- ---------------------------
<S> <C>
E.V. Goings President
David T. Halverson Vice President
Thomas M. Roehlk* Secretary
Paul B. Van Sickle* Vice President
</TABLE>
I-4
<PAGE>
ANNEX A
DELAWARE CODE
TITLE 8. CORPORATIONS
CHAPTER 1. GENERAL CORPORATION LAW
SUBCHAPTER IX. MERGER, CONSOLIDATION OR CONVERSION
(S)262 Appraisal Rights.
(a) Any stockholder of a corporation of this State who holds shares of stock
on the date of the making of a demand pursuant to subsection (d) of this
section with respect to such shares, who continuously holds such shares through
the effective date of the merger or consolidation, who has otherwise complied
with subsection (d) of this section and who has neither voted in favor of the
merger or consolidation nor consented thereto in writing pursuant to (S)228 of
this title shall be entitled to an appraisal by the Court of Chancery of the
fair value of the stockholder's shares of stock under the circumstances
described in subsections (b) and (c) of this section. As used in this section,
the word "stockholder" means a holder of record of stock in a stock corporation
and also a member of record of a nonstock corporation; the words "stock" and
"share" mean and include what is ordinarily meant by those words and also
membership or membership interest of a member of a nonstock corporation; and
the words "depository receipt" mean a receipt or other instrument issued by a
depository representing an interest in one or more shares, or fractions
thereof, solely of stock of a corporation, which stock is deposited with the
depository.
(b) Appraisal rights shall be available for the shares of any class or
series of stock of a constituent corporation in a merger or consolidation to be
effected pursuant to (S)251 (other than a merger effected pursuant to (S)251(g)
of this title), (S)252, (S)254, (S)257, (S)258, (S)263 or (S)264 of this title:
(1) Provided, however, that no appraisal rights under this section shall
be available for the shares of any class or series of stock, which stock,
or depository receipts in respect thereof, at the record date fixed to
determine the stockholders entitled to receive notice of and to vote at the
meeting of stockholders to act upon the agreement of merger or
consolidation, were either (i) listed on a national securities exchange or
designated as a national market system security on an interdealer quotation
system by the National Association of Securities Dealers, Inc. or (ii) held
of record by more than 2,000 holders; and further provided that no
appraisal rights shall be available for any shares of stock of the
constituent corporation surviving a merger if the merger did not require
for its approval the vote of the stockholders of the surviving corporation
as provided in subsection (f) of (S)251 of this title.
(2) Notwithstanding paragraph (1) of this subsection, appraisal rights
under this section shall be available for the shares of any class or series
of stock of a constituent corporation if the holders thereof are required
by the terms of an agreement of merger or consolidation pursuant to
(S)(S)251, 252, 254, 257, 258, 263 and 264 of this title to accept for such
stock anything except:
a. Shares of stock of the corporation surviving or resulting from
such merger or consolidation, or depository receipts in respect
thereof;
b. Shares of stock of any other corporation, or depository receipts
in respect thereof, which shares of stock (or depository receipts in
respect thereof) or depository receipts at the effective date of the
merger or consolidation will be either listed on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the National Association of Securities
Dealers, Inc. or held of record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository
receipts described in the foregoing subparagraphs a. and b. of this
paragraph; or
d. Any combination of the shares of stock, depository receipts and
cash in lieu of fractional shares or fractional depository receipts
described in the foregoing subparagraphs a., b. and c. of this
paragraph.
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<PAGE>
(3) In the event all of the stock of a subsidiary Delaware corporation
party to a merger effected under (S)253 of this title is not owned by the
Tupperware corporation immediately prior to the merger, appraisal rights
shall be available for the shares of the subsidiary Delaware corporation.
(c) Any corporation may provide in its certificate of incorporation that
appraisal rights under this section shall be available for the shares of any
class or series of its stock as a result of an amendment to its certificate of
incorporation, any merger or consolidation in which the corporation is a
constituent corporation or the sale of all or substantially all of the assets
of the corporation. If the certificate of incorporation contains such a
provision, the procedures of this section, including those set forth in
subsections (d) and (e) of this section, shall apply as nearly as is
practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are
provided under this section is to be submitted for approval at a meeting of
stockholders, the corporation, not less than 20 days prior to the meeting,
shall notify each of its stockholders who was such on the record date for
such meeting with respect to shares for which appraisal rights are
available pursuant to subsections (b) or (c) hereof that appraisal rights
are available for any or all of the shares of the constituent corporations,
and shall include in such notice a copy of this section. Each stockholder
electing to demand the appraisal of such stockholder's shares shall deliver
to the corporation, before the taking of the vote on the merger or
consolidation, a written demand for appraisal of such stockholder's shares.
Such demand will be sufficient if it reasonably informs the corporation of
the identity of the stockholder and that the stockholder intends thereby to
demand the appraisal of such stockholder's shares. A proxy or vote against
the merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate written
demand as herein provided. Within 10 days after the effective date of such
merger or consolidation, the surviving or resulting corporation shall
notify each stockholder of each constituent corporation who has complied
with this subsection and has not voted in favor of or consented to the
merger or consolidation of the date that the merger or consolidation has
become effective; or
(2) If the merger or consolidation was approved pursuant to (S)228 or
(S)253 of this title, each constituent corporation, either before the
effective date of the merger or consolidation or within ten days
thereafter, shall notify each of the holders of any class or series of
stock of such constituent corporation who are entitled to appraisal rights
of the approval of the merger or consolidation and that appraisal rights
are available for any or all shares of such class or series of stock of
such constituent corporation, and shall include in such notice a copy of
this section; provided that, if the notice is given on or after the
effective date of the merger or consolidation, such notice shall be given
by the surviving or resulting corporation to all such holders of any class
or series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the effective
date of the merger or consolidation, shall, also notify such stockholders
of the effective date of the merger or consolidation. Any stockholder
entitled to appraisal rights may, within 20 days after the date of mailing
of such notice, demand in writing from the surviving or resulting
corporation the appraisal of such holder's shares. Such demand will be
sufficient if it reasonably informs the corporation of the identity of the
stockholder and that the stockholder intends thereby to demand the
appraisal of such holder's shares. If such notice did not notify
stockholders of the effective date of the merger or consolidation, either
(i) each such constituent corporation shall send a second notice before the
effective date of the merger or consolidation notifying each of the holders
of any class or series of stock of such constituent corporation that are
entitled to appraisal rights of the effective date of the merger or
consolidation or (ii) the surviving or resulting corporation shall send
such a second notice to all such holders on or within 10 days after such
effective date; provided, however, that if such second notice is sent more
than 20 days following the sending of the first notice, such second notice
need only be sent to each stockholder who is entitled to appraisal rights
and who has demanded appraisal of such holder's shares in accordance with
this subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud, be
prima facie evidence of the facts stated therein. For purposes of
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<PAGE>
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall be
not more than 10 days prior to the date the notice is given, provided, that
if the notice is given on or after the effective date of the merger or
consolidation, the record date shall be such effective date. If no record
date is fixed and the notice is given prior to the effective date, the
record date shall be the close of business on the day next preceding the
day on which the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation,
the surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) hereof and who is otherwise entitled to appraisal
rights, may file a petition in the Court of Chancery demanding a determination
of the value of the stock of all such stockholders. Notwithstanding the
foregoing, at any time within 60 days after the effective date of the merger or
consolidation, any stockholder shall have the right to withdraw such
stockholder's demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) hereof, upon written request, shall be entitled to
receive from the corporation surviving the merger or resulting from the
consolidation a statement setting forth the aggregate number of shares not
voted in favor of the merger or consolidation and with respect to which demands
for appraisal have been received and the aggregate number of holders of such
shares. Such written statement shall be mailed to the stockholder within 10
days after such stockholder's written request for such a statement is received
by the surviving or resulting corporation or within 10 days after expiration of
the period for delivery of demands for appraisal under subsection (d) hereof,
whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of a copy
thereof shall be made upon the surviving or resulting corporation, which shall
within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the
addresses therein stated. Such notice shall also be given by 1 or more
publications at least 1 week before the day of the hearing, in a newspaper of
general circulation published in the City of Wilmington, Delaware or such
publication as the Court deems advisable. The forms of the notices by mail and
by publication shall be approved by the Court, and the costs thereof shall be
borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled
to appraisal rights. The Court may require the stockholders who have demanded
an appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as
to such stockholder.
(h) After determining the stockholders entitled to an appraisal, the Court
shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger
or consolidation, together with a fair rate of interest, if any, to be paid
upon the amount determined to be the fair value. In determining such fair
value, the Court shall take into account all relevant factors. In determining
the fair rate of interest, the Court may consider all relevant factors,
including the rate of interest which the surviving or resulting corporation
would have had to pay to borrow money during the pendency of the proceeding.
Upon application by the surviving or resulting corporation or by any
stockholder entitled to participate in the appraisal proceeding, the Court may,
in its discretion, permit discovery or other pretrial proceedings and may
proceed to trial upon the appraisal prior to the final determination of the
stockholder entitled to an appraisal. Any stockholder whose name appears on the
list filed by the surviving or resulting corporation pursuant to subsection (f)
of this section and who has submitted such stockholder's
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<PAGE>
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that such
stockholder is not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of the fair value of the shares,
together with interest, if any, by the surviving or resulting corporation to
the stockholders entitled thereto. Interest may be simple or compound, as the
Court may direct. Payment shall be so made to each such stockholder, in the
case of holders of uncertificated stock forthwith, and the case of holders of
shares represented by certificates upon the surrender to the corporation of the
certificates representing such stock. The Court's decree may be enforced as
other decrees in the Court of Chancery may be enforced, whether such surviving
or resulting corporation be a corporation of this State or of any state.
(j) The costs of the proceeding may be determined by the Court and taxed
upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no
stockholder who has demanded appraisal rights as provided in subsection (d) of
this section shall be entitled to vote such stock for any purpose or to receive
payment of dividends or other distributions on the stock (except dividends or
other distributions payable to stockholders of record at a date which is prior
to the effective date of the merger or consolidation); provided, however, that
if no petition for an appraisal shall be filed within the time provided in
subsection (e) of this section, or if such stockholder shall deliver to the
surviving or resulting corporation a written withdrawal of such stockholder's
demand for an appraisal and an acceptance of the merger or consolidation,
either within 60 days after the effective date of the merger or consolidation
as provided in subsection (e) of this section or thereafter with the written
approval of the corporation, then the right of such stockholder to an appraisal
shall cease. Notwithstanding the foregoing, no appraisal proceeding in the
Court of Chancery shall be dismissed as to any stockholder without the approval
of the Court, and such approval may be conditioned upon such terms as the Court
deems just.
(l) The shares of the surviving or resulting corporation to which the shares
of such objecting stockholders would have been converted had they assented to
the merger or consolidation shall have the status of authorized and unissued
shares of the surviving or resulting corporation.
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<PAGE>
Facsimile copies of Letters of Transmittal, properly completed and duly
executed, will be accepted. The appropriate Letter of Transmittal, certificates
for Shares and any other required documents should be sent or delivered by each
stockholder of BeautiControl or his or her broker, dealer, commercial bank,
trust company or other nominee to the Depositary at one of its addresses set
forth below:
The Depositary for the Offer is:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By Mail: By Hand: By Overnight Courier:
Reorganization Reorganization Department Reorganization
Department 120 Broadway Department
PO Box 3301 13th Floor 85 Challenger Road
South Hackensack, NJ New York, NY 10271 Mail Stop-Reorg
07606 Ridgefield Park, NJ
07660
Facsimile (for eligible institutions Confirm facsimile by telephone ONLY:
only):
(201) 296-4860 or
(201) 296-4293 or
You may direct questions and requests for assistance to the Information
Agent at its telephone number and address set forth below. You may obtain
additional copies of this Offer to Purchase, the Letter of Transmittal, the
Notice of Guaranteed Delivery and other tender offer materials from the
Information Agent as set forth below and they will be furnished promptly at our
expense. You may also contact your broker, dealer, commercial bank, trust
company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
[GEORGESON LOGO]
17 State Street, 10th Floor
New York, New York 10004
Banks and Brokers Call Collect:
(212) 440-9800
All Others Call Toll-Free:
(800) 223-2064
The Dealer Manager for the Offer is:
Lazard Freres & Co. llc
30 Rockefeller Plaza
New York, New York 10020
