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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
MDT CORPORATION
(Name of Subject Company)
MDT CORPORATION
(Name of Person Filing Statement)
COMMON STOCK, PAR VALUE $1.25 PER SHARE,
INCLUDING THE ASSOCIATED
COMMON STOCK PURCHASE RIGHTS
(Title of Class of Securities)
552687 10 5
(CUSIP Number of Class of Securities)
J. MILES BRANAGAN
CHIEF EXECUTIVE OFFICER
MDT CORPORATION
STRATFORD HALL
SUITE 200
1009 SLATER ROAD
DURHAM, NORTH CAROLINA 27703
(919) 941-9745
(Name, address and telephone
number of person authorized to
receive notice and communications on
behalf of the person filing statement)
with a copy to:
C. JAMES LEVIN
O'MELVENY & MYERS
400 SOUTH HOPE STREET
15TH FLOOR
LOS ANGELES, CALIFORNIA 90071
(213) 669-6000
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This Amendment No. 1 amends and supplements the Solicitation/Recommendation
Statement on Schedule 14D-9 (as such may be amended from time to time, the
"Schedule 14D-9") filed on May 17, 1996 by MDT Corporation, a Delaware
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission"), relating to the tender offer (the "Offer") by Getinge Acquisition
Corp., a Delaware corporation (the "Bidder") and an indirect wholly-owned
subsidiary of Getinge Industrier AB (publ), a corporation organized under the
laws of Sweden ("Getinge"), disclosed in a Tender Offer Statement on Schedule
14D-1 (the "Schedule 14D-1"), dated May 17, 1996, for all outstanding shares of
Common Stock, par value $1.25 per share, of the Company (the "Shares"),
including the associated Common Stock Purchase Rights (the "Rights"), for a per
Share consideration of $4.50 net in cash to the seller, upon the terms and
subject to the conditions set forth in the Agreement and Plan of Merger, dated
as of May 12, 1996 (the "Merger Agreement"), among Getinge, the Bidder and the
Company.
All capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed thereto in the Schedule 14D-9. In connection with
the foregoing, the Company is hereby amending the Schedule 14D-9 as follows:
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is amended and supplemented to add the following exhibits which are
filed herewith:
(c)(2) Confidentiality Agreement, dated September 26, 1995, between the Company
and Getinge.
(c)(3) Environmental Investigations Indemnity, dated April 26, 1996, from
Getinge in favor of the Company.
(c)(4) Environmental Indemnity Agreement, dated May 10, 1996, between Getinge
and the Company.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Dated: June 7, 1996 MDT CORPORATION
By: /s/ J. Miles Branagan
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Name: J. Miles Branagan
Title: President and Chief Executive Officer
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EXHIBIT INDEX
Exhibit No. Exhibit
- ----------- ---------------------------------------------------
99.C2 Confidentiality Agreement, dated September 26, 1995, between the
Company and Getinge.
99.C3 Environmental Investigations Indemnity, dated April 26, 1996,
from Getinge in favor of the Company.
99.C4 Environmental Indemnity Agreement, dated May 10, 1996, between
Getinge and the Company.
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EXHIBIT 99.C2
MDT Information Letter
----------------------
MDT Corporation
---------------
September 26, 1995
Getinge A.B.
P.O. Box 69
S-310 44 Getinge
Sweden
Attention Mr. Bennet
Re: Letter Agreement to Maintain Confidentiality
of MDT Corporation Materials
--------------------------------------------
Gentlemen:
In connection with your consideration of a possible negotiated
transaction with MDT Corporation (the "Company"), the Company is prepared to
make available to you certain information concerning the business, financial
condition, operations, assets and liabilities of the Company. As a condition to
such information being furnished to you and your directors, officers, employees,
agents or advisors (including, without limitation, attorneys, accountants,
consultants, bankers and financial advisors) (collectively, "Representatives"),
you agree to treat any information concerning the Company which is furnished to
you or to your Representatives now or in the future by or on behalf of the
Company (herein collectively referred to as the "Evaluation Material") in
accordance with the provisions of this letter agreement, and to take or abstain
from taking certain other actions as described in this letter.
The term "Evaluation Material" also shall be deemed to include all
notes, analyses, compilations, studies, interpretations or other documents
prepared by you or your Representatives which contain, reflect or are based
upon, in whole or in part, the information furnished to you or your
Representatives. The term "Evaluation Material" does not include information
which (i) is or becomes generally available to the public other than as a result
of a disclosure by you or your Representatives, (ii) was within your possession
prior to its being furnished to you by or on behalf of the Company, provided
that the source of such information was not bound by a confidentiality agreement
with or other contractual, legal or fiduciary obligation of confidentiality to
the Company or any other party with respect to such information or (iii) becomes
available to you on a non-confidential basis from a source other than the
Company or any of its Representatives, provided that such source is not bound by
a confidentiality agreement with or other contractual, legal or fiduciary
obligation of
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confidentiality to the Company or any other party with respect to such
information.
You hereby agree that you and your Representatives shall use the
Evaluation Material solely for the purpose of evaluating a possible negotiated
transaction between the Company and you, that the Evaluation Material will be
kept confidential and that you and your Representatives will not disclose any of
the Evaluation Material in any manner whatsoever; provided, however, that (i)
you may make any disclosure of such information to which the Company gives its
prior written consent and (ii) any of such information may be disclosed to your
Representatives who need to know such information for the sole purpose of
evaluating a possible negotiated transaction with the Company, who agree to keep
such information confidential and who are provided with a copy of this letter
agreement and agree to be bound by the terms hereof to the same extent as if
they were parties hereto. In any event, you shall be responsible for any breach
of this letter agreement by any of your Representatives and you agree, at your
sole expense, to take all reasonable measures (including but not limited to
court proceedings) to restrain your Representatives from prohibited or
unauthorized disclosure or use of the Evaluation Material.
In addition, you agree that, without the prior written consent of the
Company, you and your Representatives will not disclose to any other person the
fact that the Evaluation Material has been made available to you, that
discussions or negotiations are taking place concerning a possible transaction
involving the Company or any of the terms, conditions or other facts with
respect thereto (including the status thereof) provided, that you may make such
disclosure if you have received the written opinion of your outside counsel that
such disclosure must be made by you in order that you not commit a violation of
law. Without limiting the generality of the foregoing, you further agree that,
for a period of two years from the date of this agreement, without the prior
written consent of the Company, you will not, directly or indirectly, enter into
any agreement, arrangement or understanding, or any discussions which might lead
to such agreement, arrangement or understanding, with any person regarding a
possible transaction involving the Company. The term "person" as used in this
letter agreement shall be broadly interpreted to include the media and any
corporation, partnership, group, individual or other entity.
In the event that you or any of your Representatives are requested or
required (by oral questions, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Evaluation Material, you shall provide
the Company with prompt written notice of any such request or requirement so
that the Company may seek a protective order or other appropriate remedy and/or
waive compliance with the
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provisions of this letter agreement. If, in the absence of a protective order
or other remedy or the receipt of a waiver by the Company, you or any of your
Representatives are nonetheless, in the written opinion of outside counsel,
legally compelled to disclose Evaluation Material to any tribunal or else stand
liable for contempt or suffer other censure or penalty, you or your
Representative may, without liability hereunder, disclose to such tribunal only
that portion of the Evaluation Material which such counsel advises you is
legally required to be disclosed, provided that you exercise your best efforts
to preserve the confidentiality of the Evaluation Material, including, without
limitation, by cooperating with the Company to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Evaluation Material by such tribunal.
If you decide that you do not wish to proceed with a transaction with
the Company, you will promptly inform the Company of that decision. In that
case, or at any time upon the request of the Company for any reason, you will
promptly deliver to the Company all Evaluation Material (and all copies thereof)
furnished to you or your Representatives by or on behalf of the Company pursuant
hereto. In the event of such a decision or request, all other Evaluation
Material prepared by you or your representative shall be destroyed and no copy
thereof shall be retained and, at the Company's request, your Managing Director
shall so certify to the Company. Notwithstanding the return or destruction of
the Evaluation Material, you and your Representatives will continue to be bound
by your obligations of confidentiality and other obligations hereunder.
You understand and acknowledge that neither the Company nor any of its
Representatives (including without limitation any of the Company's directors,
officers, employees, or agents) makes any representation or warranty, express or
implied, as to the accuracy or completeness of the Evaluation Material. You
agree that neither the Company nor any of its Representatives (including without
limitation any of the Company's directors, officers, employees, or agents) shall
have any liability to you or to any of your Representatives relating to or
resulting from the use of the Evaluation Material or any errors therein or
omissions therefrom. Only those representations or warranties which are made in
a final definitive agreement regarding any transactions contemplated hereby,
when, as and if executed, and subject to such limitations and restrictions as
may be specified therein, will have any legal effect.
In consideration of the Evaluation Material being furnished to you,
you hereby agree that, for a period of two years from the date hereof, neither
you nor any of your affiliates will solicit to employ any of the current
officers or employees of the Company with whom you have had contact or who was
specifically identified to you during the period of your
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investigation of the Company, so long as they are employed by the Company,
without obtaining the prior written consent of the Company.
You further agree that, for a period of two years from the date of
this agreement, unless specifically invited in writing by the Company, neither
you nor any of your affiliates (as such term is defined under the Securities
Exchange Act of 1934, as amended (the "1934 Act") or Representatives will in any
manner, directly or indirectly, (a) effect or seek, offer or propose (whether
publicly or otherwise) to effect, or cause or participate in or in any way
assist any other person to effect or seek, offer or propose (whether publicly or
otherwise) to effect or participate in, (i) any acquisition of any securities
(or beneficial ownership thereof) or assets of the Company or any of its
subsidiaries; (ii) any tender or exchange offer, merger or other business
combination involving the Company or any of its subsidiaries; (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the Company or any of its subsidiaries; or (iv) any
"solicitation" of "proxies" (as such terms are used in the proxy rules of the
Securities and Exchange Commission) or consents to vote any voting securities of
the Company; (b) form, join or in any way participate in a "group" (as defined
under the 1934 Act); (c) otherwise act, alone or in concert with others, to seek
to control or influence the management, Board of Directors or policies of the
Company; (d) take any action which might force the Company to make a public
announcement regarding any of the types of matters set forth in (a) above; or
(e) enter into any discussions or arrangements with any third party with respect
to any of the foregoing. You also agree during such period not to request the
Company (or its directors, officers, employees or agents), directly or
indirectly, to amend or waive any provision of this paragraph (including this
sentence).
You understand and agree that no contract or agreement providing for
any transaction involving the Company shall be deemed to exist between you and
the Company unless and until a final definitive agreement has been executed and
delivered. You also agree that unless and until a final definitive agreement
regarding a transaction between the Company and you has been executed and
delivered, neither the Company nor you will be under any legal obligation of any
kind whatsoever with respect to such a transaction by virtue of this letter
agreement except for the matters specifically agreed to herein. You further
acknowledge and agree that the Company reserves the right, in its sole
discretion, to reject any and all proposals made by you or any of your
Representatives with regard to a transaction between the Company and you, and to
terminate discussions and negotiations with you at any time. You further
understand that (i) the Company and its Representatives shall be free to conduct
any process for any transaction involving the Company, if and as they in their
sole discretion shall determine (including, without limitation, negotiating with
any other interested parties and
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entering into a definitive agreement without prior notice to you or any other
person), (ii) any procedures relating to such process or transaction may be
changed at any time without notice to you or any other person, and (iii) you
shall not have any claims whatsoever against the Company, its Representatives or
any of their respective directors, officers, stockholders, owners, affiliates or
agents arising out of or relating to any transaction involving the Company
(other than those as against the parties to a definitive agreement with you in
accordance with the terms thereof) nor, unless a definitive agreement is entered
into with you, against any third party with whom a transaction is entered into.
Neither this paragraph nor any other provision in this agreement can be waived
or amended except by express written consent of the Company.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
future exercise thereof or the exercise of any other right, power or privilege
hereunder.
It is further understood and agreed that money damages would not be a
sufficient remedy for any breach of this letter agreement by you or any of your
Representatives and that the Company shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for any such breach.
Such remedies shall not be deemed to be the exclusive remedies for a breach by
you of this letter agreement but shall be in addition to all other remedies
available at law or equity to the Company. In the event of litigation relating
to this letter agreement, if a court of competent jurisdiction determines that
you or any of your Representatives have breached this letter agreement, then you
shall be liable and pay to the Company the reasonable legal fees incurred by the
Company in connection with such litigation, including any appeal therefrom.
This letter agreement is for the benefit of the Company and its
directors, officers, stockholders, owners, affiliates, and agents, and shall be
governed by and construed in accordance with the laws of the State of New York.
You also hereby irrevocably and unconditionally consent to submit to the
exclusive jurisdiction of the courts of the State of New York and of the United
States of America located in the State of New York for any actions, suits or
proceedings arising out of or relating to this agreement and the transactions
contemplated hereby (and you agree not to commence any action, suit or
proceeding relating thereto except in such courts), and further agree that
service of any process, summons, notice or document by U.S. registered mail to
your address set forth above shall be effective service of process for any
action, suit or proceeding brought against you in any such court. You hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any action, suit or
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proceeding arising out of this agreement or the transactions contemplated
hereby, in the courts of the State of New York or the United States of America
located in the State of New York, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court that any
such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
Please confirm your agreement with the foregoing by signing and
returning one copy of this letter to the undersigned, whereupon this letter
agreement shall become a binding agreement between you and the Company.
Very truly yours,
MDT CORPORATION
/s/ J. Miles Branagan
---------------------------------------
J. Miles Branagan
Chairman, President and Chief Executive
Officer
Accepted and agreed as of
the date first written
above:
GETINGE A.B.
By: /s/ Carl Bennet
-----------------------
Carl Bennet
Managing Director
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EXHIBIT 99.C3
[GETINGE INDUSTRIER AB LETTERHEAD]
MDT Corporation
Stratford Hall
Suite 200
1009 Slater Road
DURHAM, North Carolina 27703
USA
Attention Mr. J. Miles Branagan
- --------- Chief Executive Officer
Getinge, April 26, 1996
Dear Mr. Branagan:
As you know, we are proposing to have Environ Corp. perform Phase II
environmental assessments of our agreement with you that Getinge will indemnify,
defend and hold MDT harmless against, and be responsible for, all damages,
costs, expenses and claims arising from any damage or harm caused by the soil,
soil gas and ground water sampling conducted in such Phase II assessments,
except to the extent caused by the negligence or willful misconduct of MDT or
any of its employees.
Getinge further agrees that after performing the work, it shall cause Environ
Corp. to restore the affected surface and subsurface areas of the facilities to
the condition which existed prior the conduct of the assessments (or as close as
is reasonably possible to such conditions). Getinge further agrees that any
hazardous substance or hazardous waste generated during the course of the
assessments shall be the sole responsibility of Getinge and Getinge shall cause
Environ Corp. or other appropriate duly licensed persons to dispose of any such
materials and waste in compliance with all environmental laws.
Very truly yours,
GETINGE INDUSTRIER AB (publ.)
/s/ Carl Bennet /s/ Ulf Grunander
- ----------------- ---------------------
Carl Bennet Ulf Grunander
Managing Director Chief Financial Officer
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EXHIBIT 99.C4
[GETINGE INDUSTRIER AB LETTERHEAD]
May 10, 1996
MDT Corporation
Stratford Hall
Suite 200
1009 Slater Road
Durham, North Carolina 27703
Attention: J. Miles Branagan
Chief Executive Officer
Re: ENVIRON's "Proposal for Phase III Assessment of
Selected MDT Corporation Facilities"
-----------------------------------------------
Dear Mr. Branagan:
As you know, we are proposing to have ENVIRON perform the work set
forth in its "Proposal for Phase III Assessment of Selected MDT Corporation
Facilities," dated April 12, 1996, at MDT's Rochester, New York and North
Charleston, South Carolina facilities (the "Work"). This letter is to confirm
our agreement with you that Getinge will indemnify, defend and hold MDT harmless
against, and be responsible for, all damages, costs, expenses and claims arising
from any damage caused by the soil and ground water sampling conducted in the
Work, except to the extent caused by the negligence or willful misconduct of MDT
or any of its employees. Getinge further agrees that after performing the Work,
it shall cause ENVIRON to restore the affected surface and subsurface areas of
the facilities to the condition which existed prior to the conduct of the Work
(or as close as is reasonably possible to such conditions) unless MDT consents
to less than full restoration of its property at the end of the Work.
Getinge agrees that ENVIRON will take responsibility for
containerizing soil, water and other materials generated during the course of
the Work in drums or other appropriate containers, to properly label each
container, and to secure such containers in an appropriate location at the MDT
facility. ENVIRON will undertake such sampling and other investigation of the
materials generated during the course of the Work as is necessary to determine
whether such materials must be managed as hazardous waste. If any materials
must be managed as hazardous waste, ENVIRON shall prepare a waste profile and
waste manifest
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MDT Corporation
May 12, 1996
Page 2
and shall certify to MDT that the waste profile is, to the best of its
knowledge, true and correct, and that the waste manifest for the hazardous waste
fully and appropriately describe the hazardous waste by proper shipping name.
Other than specific obligations being undertaken by ENVIRON on behalf of Getinge
herein, MDT shall be responsible for complying with all applicable laws related
to the management, storage, transportation and disposal of any wastes described
herein, and shall be deemed the generator of said waste. MDT shall make
arrangements for the disposal of the wastes and shall sign any hazardous waste
manifest as the generator. Getinge shall be responsible for the costs of such
disposal; however, to the extent that any person makes any claims that either
MDT or Getinge is liable for "response costs", as such term is defined in the
Comprehensive Environmental Response, Compensation and Liability Act or similar
state statutes, natural resource damages, or other damages, as a result of the
disposal of the wastes generated herein, MDT shall be liable for such response
costs, natural resource damages, or other damages, and shall defend, indemnify
and hold harmless Getinge and its officers, agents, employees and outside
consultants, including, but not limited to, ENVIRON, for such response costs,
natural resource damages, or other damages, except to the extent that such
response costs, natural resource damages, or other damages arise solely as a
result of the negligence of ENVIRON or Getinge, or the failure of Getinge or
ENVIRON to comply with applicable legal requirements with respect to the
activities undertaken pursuant to this letter.
At no cost, Getinge will promptly provide MDT copies of the following
information: (i) laboratory analytical reports derived from the Work; (ii) well
construction details and drafted boring logs derived from the Work; (iii)
reports by ENVIRON's subcontractors derived from the Work; (iv) reports of
ENVIRON's field observations, including, without limitation, water level
measurements and observations of suspected contamination derived from the Work
and (v) all final reports that have been or will be prepared by ENVIRON for
Getinge with respect to MDT Corporation.
Getinge agrees that it will comply, and will cause ENVIRON to comply,
with the requirements of the Letter Agreement to Maintain Confidentiality of MDT
Corporation Materials, dated September 26, 1995, from MDT to Getinge (the
"Getinge Confidentiality Agreement"). Without limiting the generality of the
preceding sentence, before making any disclosure regarding the results of
groundwater testing that is permitted under the terms and conditions of the
Getinge Confidentiality Agreement,
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MDT Corporation
May 12, 1996
Page 3
Getinge or ENVIRON will give MDT the opportunity to make any disclosure of such
results required by law. MDT will provide Getinge and ENVIRON with copies of
any information provided to the DHEC and with information sufficient to
demonstrate that MDT has submitted the information required by law. MDT and
Getinge acknowledge that Section 5 of the EQC Monitoring Well Installation
Approval Form, issued April 18, 1996, by the South Carolina Department of Health
and Environmental Control ("DHEC"), Approval No. 6993, for the installation of
monitoring wells at the North Charleston, South Carolina facility, states:
"Please provide groundwater quality analytical data (chemical analysis and/or
water level(s)) associated measurements (i.e., ___________ field measurements)
to Chris Bucklin within thirty (30) days of receipt from laboratory."
If the above terms and conditions are acceptable, please indicate by
countersigning in the space provided below.
Very truly yours,
/s/ Carl Bennet
----------------------
Carl Bennet
Managing Director
Agreed to by MDT Corporation
By: /s/ J. Miles Branagan
--------------------------
Title: President
