<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
SCHEDULE 14D-1
TENDER OFFER STATEMENT PURSUANT TO SECTION 14(D)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
------------------------
MDT CORPORATION
(NAME OF SUBJECT COMPANY)
GETINGE ACQUISITION CORP.
GETINGE INDUSTRIER AB (PUBL)
(BIDDERS)
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)
GETINGE ACQUISITION CORP.
C/O ARJO USA, INC.
8130 Lehigh Avenue
Morton Grove, IL 60053
(847) 967-0360
------------------------
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED
TO RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF BIDDERS)
COPY TO:
BERTIL LUNDQVIST, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 Third Avenue
New York, New York 10022
(212) 735-3000
CALCULATION OF FILING FEE
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<TABLE>
<S> <C>
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TRANSACTION AMOUNT OF
VALUATION* FILING FEE**
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$30,462,439 $6,093
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</TABLE>
* For purposes of calculating fee only. This amount assumes the purchase at a
purchase price of $4.50 per Share of an aggregate of 6,769,431 Shares,
consisting of 6,769,431 Shares outstanding.
** The amount of the filing fee, calculated in accordance with Regulation
240.0-11 of the Securities Exchange Act of 1934, as amended, equals 1/50th
of one percentum of the Transaction Valuation.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(A)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
<TABLE>
<S> <C>
Amount Previously Paid: N/A Filing Party: N/A
Form or Registration No.: N/A Date Filed: N/A
</TABLE>
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<PAGE> 2
14D-1
CUSIP NO. 552687 10 5
<TABLE>
<C> <S>
1. Name of Reporting Persons: Getinge Acquisition Corp.
S.S. or I.R.S. Identification No. of Above Person: N/A
2. Check the appropriate box if a member of a group
(a) / /
(b) / /
3. SEC use only
4. Source of funds:
BK, AF
5. Check if disclosure of legal proceedings is required pursuant to items 2(e) or 2(f) /
/
6. Citizenship or place of organization:
Delaware
7. Aggregate amount beneficially owned by each reporting person:
0
8. Check if the aggregate amount in row (7) excludes certain shares / /
9. Percent of class represented by amount in row (7):
0
10. Type of reporting person:
HC, CO
</TABLE>
2
<PAGE> 3
14D-1
CUSIP NO. 552687 10 5
<TABLE>
<C> <S>
1. Name of Reporting Persons: Getinge Industrier AB (publ)
S.S. or I.R.S. Identification No. of Above Person: N/A
2. Check the appropriate box if a member of a group
(a) / /
(b) / /
3. SEC use only
4. Source of funds:
BK, WC
5. Check if disclosure of legal proceedings is required pursuant to items 2(e) or 2(f) /
/
6. Citizenship or place of organization:
Sweden
7. Aggregate amount beneficially owned by each reporting person:
0
8. Check if the aggregate amount in row (7) excludes certain shares /X/
9. Percent of class represented by amount in row (7):
0
10. Type of reporting person:
CO
</TABLE>
3
<PAGE> 4
This Schedule 14D-1 Tender Offer Statement (this "Statement") relates to
the offer by Getinge Acquisition Corp., a Delaware corporation ("Purchaser"),
and an indirect wholly-owned subsidiary of Getinge Industrier AB (publ), a
corporation organized under the laws of Sweden ("Getinge"), to purchase all
shares of outstanding common stock, par value $1.25 per share (the "Shares"), of
MDT Corporation, a Delaware corporation (the "Company"), and the associated
Rights (as defined in the Offer to Purchase), at a price of $4.50 per Share, net
to the seller in cash, without interest thereon (the "Offer Price"), upon the
terms and subject to the conditions set forth in the Offer to Purchase, dated
May 17, 1996 (the "Offer to Purchase") and in the related Letter of Transmittal
(which, as amended from time to time, together constitute the "Offer"). Copies
of the Offer to Purchase and the Letter of Transmittal are annexed hereto as
Exhibits (a)(1) and (a)(2), respectively. Capitalized terms not defined herein
have the meanings assigned thereto in the Offer to Purchase.
ITEM 1. SECURITY AND SUBJECT COMPANY.
(a) The name of the subject company is MDT Corporation, a Delaware
corporation with its principal executive offices at Stratford Hall, Suite 200,
1009 Slater Road, Durham, North Carolina, 27703.
(b) The information set forth in the Introduction and Section 1 of the
Offer to Purchase is incorporated herein by reference.
(c) The information set forth in Section 6 of the Offer to Purchase is
incorporated herein by reference.
ITEM 2. IDENTITY AND BACKGROUND.
(a-d, g) This Statement is filed on behalf of Getinge and Purchaser for
purposes of Schedule 14D-1. The information set forth in the Introduction,
Section 8 and Schedule I of the Offer to Purchase is incorporated herein by
reference.
(e-f) During the last five years, each of Getinge and Purchaser, and, to
the best knowledge of Getinge and Purchaser, each of Arjo USA, Inc. ("Arjo") and
the persons listed in Schedule I of the Offer to Purchase, has not been (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors), or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree, or final order enjoining future
violation of, or prohibiting activities subject to, federal or state securities
laws or finding any violation of such laws.
ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS WITH THE SUBJECT COMPANY.
(a-b) The information set forth in Sections 8 and 10 of the Offer to
Purchase is incorporated herein by reference.
ITEM 4. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a-c) The information set forth in Section 9 of the Offer to Purchase is
incorporated herein by reference.
ITEM 5. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE BIDDERS.
(a-g) The information set forth in the Introduction and Sections 11 and 13
of the Offer to Purchase is incorporated herein by reference.
4
<PAGE> 5
ITEM 6. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
Each of Getinge and Purchaser, and, to the best knowledge of Getinge and
Purchaser, each of Arjo, the persons listed in Schedule I to the Offer to
Purchase and each associate or majority-owned subsidiary of all such persons or
entities neither beneficially owns nor has any right to acquire, directly or
indirectly, any Shares, and each of Getinge and Purchaser, and, to the best
knowledge of Getinge and Purchaser, each of the persons or entities referred to
above and each executive officer, director or subsidiary of any of the foregoing
has not effected any transaction in Shares during the past sixty days.
ITEM 7. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO THE SUBJECT COMPANY'S SECURITIES.
The information set forth in Sections 8 and 10 of the Offer to Purchase is
incorporated herein by reference. Except as set forth in Sections 8 and 10 of
the Offer to Purchase, each of Getinge and Purchaser, and, to the best knowledge
of Getinge and Purchaser, each of the persons listed in Schedule I to the Offer
to Purchase does not have any contract, arrangement, understanding or
relationship with any other person with respect to any securities of the Company
(including, but not limited to, any contract, arrangement, understanding or
relationship concerning the transfer or the voting of any such securities, joint
ventures, loan or option arrangements, puts or calls, guarantees of loans,
guarantees against loss or the giving or withholding of proxies).
ITEM 8. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in Section 16 of the Offer to Purchase is
incorporated herein by reference.
ITEM 9. FINANCIAL STATEMENTS OF CERTAIN BIDDERS.
The information set forth in Section 8 of the Offer to Purchase is
incorporated herein by reference.
Getinge is a corporation organized under the laws of Sweden. The
consolidated financial statements of Getinge contained in the Offer to Purchase
have been prepared in accordance with accounting principles generally accepted
in Sweden ("Swedish GAAP") and have not been reconciled to generally accepted
accounting principles in the United States ("U.S. GAAP"). Because Getinge is not
subject to the informational requirements of the Securities Exchange Act of
1934, as amended, Getinge could not reconcile, to the extent contemplated by
Item 17 of Form 20-F, the material differences between Swedish GAAP and U.S.
GAAP as they would affect such financial statements and other financial
information without unreasonable effort and expense. However, a summary of
differences between U.S. GAAP and Swedish GAAP has been provided in Section 8 of
the Offer to Purchase.
The incorporation by reference herein of the above-referenced financial
information does not constitute an admission that such information is material
to a decision by a stockholder of the Company whether to sell, tender or hold
Shares being sought in the Offer.
ITEM 10. ADDITIONAL INFORMATION.
<TABLE>
<S> <C>
(a) The information set forth in Section 10 of the Offer to Purchase is incorporated
herein by reference.
(b-c) The information set forth in Section 15 of the Offer to Purchase is incorporated
herein by reference.
(d) The information set forth in Section 13 of the Offer to Purchase is incorporated
herein by reference.
(e) To the best knowledge of Purchaser and Getinge, there are no pending legal
proceedings relating to the Offer.
(f) The information set forth in the Offer to Purchase and the Letter of Transmittal,
to the extent not otherwise incorporated herein by reference, is incorporated
herein by reference.
</TABLE>
5
<PAGE> 6
ITEM 11. MATERIAL TO BE FILED AS EXHIBITS.
<TABLE>
<S> <C>
(a)(1) Offer to Purchase, dated May 17, 1996.
(a)(2) Letter of Transmittal.
(a)(3) Notice of Guaranteed Delivery.
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies
and Other Nominees.
(a)(6) Guidelines for Certification of Taxpayer Identification Number on Substitute Form
W-9.
(a)(7) Summary Advertisement, dated May 17, 1996.
(a)(8) Press Release, dated May 12, 1996.
(a)(9) Press Release, dated May 17, 1996.
(b)(1) Commitment Letter, dated May 10, 1996, between Skandinaviska Enskilda Banken and
Purchaser, for $40,000,000 credit facility.
(b)(2) Commitment Letter, dated May 10, 1996, between Skandinaviska Enskilda Banken and
Purchaser, for $50,000,000 credit facility.
(c)(1) Agreement and Plan of Merger, dated as of May 12, 1996, among Getinge, Purchaser
and the Company.
(d) None.
(e) Not applicable.
(f) None.
</TABLE>
6
<PAGE> 7
SIGNATURE
AFTER DUE INQUIRY AND TO THE BEST OF MY KNOWLEDGE AND BELIEF, I CERTIFY
THAT THE INFORMATION SET FORTH IN THIS STATEMENT IS TRUE, COMPLETE AND CORRECT.
GETINGE ACQUISITION CORP.
By: /s/ CARL BENNET
Name: Carl Bennet
Title: Chairman of the Board
GETINGE INDUSTRIER AB (publ)
By: /s/ CARL BENNET
Name: Carl Bennet
Title: President and Chief Executive
Officer
Dated: May 17, 1996
7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT NAME PAGE
------- ------------------------------------------------------------------------ ----
<S> <C> <C>
(a)(1) Offer to Purchase, dated May 17, 1996. .................................
(a)(2) Letter of Transmittal. .................................................
(a)(3) Notice of Guaranteed Delivery. .........................................
(a)(4) Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees. ..............................................................
(a)(5) Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees. ..........................................
(a)(6) Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9. ...................................................
(a)(7) Summary Advertisement, dated May 17, 1996. .............................
(a)(8) Press Release, dated May 12, 1996. .....................................
(a)(9) Press Release, dated May 17, 1996. .....................................
(b)(1) Commitment Letter, dated May 10, 1996, between Skandinaviska Enskilda
Banken and Purchaser, for $40,000,000 credit facility. .................
(b)(2) Commitment Letter, dated May 10, 1996, between Skandinaviska Enskilda
Banken and Purchaser, for $50,000,000 credit facility. .................
(c)(1) Agreement and Plan of Merger, dated as of May 12, 1996, among Getinge,
Purchaser and the Company. .............................................
(d) None. ..................................................................
(e) Not applicable. ........................................................
(f) None. ..................................................................
</TABLE>
8
<PAGE> 1
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
(Including the Associated Common Stock Purchase Rights)
of
MDT CORPORATION
at
$4.50 NET PER SHARE IN CASH
by
Getinge Acquisition Corp.
an indirect wholly-owned subsidiary of
GETINGE INDUSTRIER AB (PUBL)
(A COMPANY ORGANIZED UNDER THE LAWS OF SWEDEN)
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
FRIDAY, JUNE 28, 1996, UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY TENDERED
AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF
SHARES WHICH CONSTITUTES AT LEAST 66 2/3% OF THE SHARES OUTSTANDING
ON A FULLY DILUTED BASIS (EXCLUDING SHARES SUBJECT TO
OPTIONS UNDER MDT CORPORATION'S 1987 STOCK OPTION
PLAN).
------------------------
THE BOARD OF DIRECTORS OF MDT CORPORATION HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, HAS
UNANIMOUSLY DETERMINED THAT EACH OF THE MERGER AGREEMENT, THE OFFER AND
THE MERGER IS FAIR TO AND IN THE BEST INTERESTS OF THE STOCKHOLDERS OF
MDT CORPORATION, AND UNANIMOUSLY RECOMMENDS THAT SUCH STOCKHOLDERS
ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT TO THE OFFER
AND APPROVE AND ADOPT THE MERGER AGREEMENT AND THE MERGER.
------------------------
IMPORTANT
Any Stockholder desiring to tender all or any portion of such Stockholder's
Shares (and the associated Rights (each as defined herein)) should either (i)
complete and sign the Letter of Transmittal (or a facsimile thereof) in
accordance with the instructions in the Letter of Transmittal and mail or
deliver it together with the certificate(s) representing tendered Shares and any
other required documents to the Depositary or tender such Shares pursuant to the
procedures for book-entry transfer set forth in Section 3 or (ii) request such
Stockholder's broker, dealer, commercial bank, trust company or other nominee to
effect the transaction for such Stockholder. A Stockholder whose Shares are
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. Unless the
context requires otherwise, all references herein to Shares include the Rights,
and all references to the Rights include all benefits that may inure to the
holders of the Rights pursuant to the Rights Agreement (as defined herein).
A Stockholder who desires to tender Shares and whose certificates
representing such Shares are not immediately available, or who cannot comply
with the procedures for book-entry transfer described in this Offer to Purchase
on a timely basis, may tender such Shares by following the procedures 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 or other tender offer materials,
may be directed to the Information Agent or the Dealer Manager at their
respective addresses and telephone numbers set forth on the back cover of this
Offer to Purchase. Stockholders may also contact brokers, dealers, commercial
banks and trust companies for assistance concerning the Offer.
------------------------
The Dealer Manager for the Offer is:
ROTHSCHILD INC.
May 17, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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PAGE
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<S> <C> <C>
INTRODUCTION............................................................................ 1
THE TENDER OFFER........................................................................ 4
1. Terms of the Offer; Expiration Date............................................... 4
2. Acceptance for Payment and Payment................................................ 5
3. Procedures for Tendering Shares................................................... 6
4. Withdrawal Rights................................................................. 8
5. Certain Federal Income Tax Consequences........................................... 9
6. Price Range of Shares; Dividends.................................................. 10
7. Certain Information Concerning the Company........................................ 10
8. Certain Information Concerning Purchaser, Arjo and Getinge........................ 13
9. Financing of the Offer and the Merger............................................. 16
10. Background of the Offer; Contacts with the Company; The Merger Agreement.......... 17
11. Purpose of the Offer and the Merger; Plans for the Company; Other Matters......... 27
12. Dividends and Distributions....................................................... 29
13. Effect of the Offer on the Market for the Shares; Nasdaq Quotation; Exchange Act 29
Registration; Margin Regulations................................................
14. Certain Conditions of the Offer................................................... 30
15. Certain Legal Matters and Regulatory Approvals.................................... 32
16. Fees and Expenses................................................................. 34
17. Miscellaneous..................................................................... 34
Schedule I -- Directors and Executive Officers of Andersson & Bennet AB,
Getinge, Arjo and Purchaser.............................................. I-1
</TABLE>
i
<PAGE> 3
To the Stockholders of MDT Corporation:
INTRODUCTION
Getinge Acquisition Corp., a Delaware corporation ("Purchaser") and an
indirect wholly-owned subsidiary of Getinge Industrier AB (publ), a company
organized under the laws of Sweden ("Getinge"), hereby offers to purchase all
outstanding shares of Common Stock, par value $1.25 per share ("Shares"), of MDT
Corporation, a Delaware corporation (the "Company"), including the associated
Common Stock Purchase Rights ("Rights") issued pursuant to the Rights Agreement,
dated as of February 12, 1990, between the Company and Bank of America, N.T. &
S.A., as rights agent, as extended or amended pursuant to the Rights Agreement,
dated as of August 1, 1992, and the Amendment to Rights Agreement, dated as of
May 10, 1996, between the Company and Chemical Trust Company of California, as
successor rights agent (as so amended, the "Rights Agreement"), at a price of
$4.50 per Share (and associated Right), net to the seller in cash, without
interest thereon (the "Offer Price"), upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, as extended or amended from time to time, together
constitute the "Offer"). No separate payment will be made by Purchaser for the
Rights pursuant to the Offer. Unless the context requires otherwise, all
references to Shares herein include the Rights, and all references to the Rights
include all benefits that may inure to the holders of the Rights pursuant to the
Rights Agreement.
Tendering stockholders of the Company ("Stockholders") will not be
obligated to pay brokerage fees or commissions or, except as set forth in
Instruction 6 of the Letter of Transmittal, stock transfer taxes with respect to
the purchase of Shares by Purchaser pursuant to the Offer. Purchaser will pay
all charges and expenses of Rothschild Inc., as Dealer Manager (in such
capacity, the "Dealer Manager"), The Bank of New York, as Depositary (the
"Depositary"), and D.F. King & Co., Inc., as Information Agent (the "Information
Agent"), incurred in connection with the Offer. See Section 16.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF
SHARES WHICH CONSTITUTES AT LEAST 66 2/3% OF THE SHARES OUTSTANDING ON A FULLY
DILUTED BASIS, EXCLUDING SHARES SUBJECT TO OPTIONS UNDER THE COMPANY'S 1987
STOCK OPTION PLAN (THE "MINIMUM CONDITION"). SEE SECTION 14.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, HAS
UNANIMOUSLY DETERMINED THAT EACH OF THE MERGER AGREEMENT, THE OFFER AND THE
MERGER IS FAIR TO AND IN THE BEST INTERESTS OF THE STOCKHOLDERS, AND UNANIMOUSLY
RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT
TO THE OFFER AND APPROVE AND ADOPT THE MERGER AGREEMENT AND THE MERGER.
Reference is made to the Company's Solicitation/Recommendation Statement on
Schedule 14D-9 (the "Schedule 14D-9"), which is being mailed to Stockholders
herewith. Stockholders are urged to read the Schedule 14D-9 in its entirety for
a description of the assumptions made, factors considered and procedures
followed by the Board of Directors of the Company (the "Board of Directors") in
making the approval, determination and recommendation set forth above.
The Offer is being made pursuant to an Agreement and Plan of Merger dated
as of May 12, 1996 (the "Merger Agreement") among Getinge, Purchaser and the
Company. The Merger Agreement provides, among other things, that promptly
following the purchase of Shares pursuant to the Offer and subject to the terms
and conditions of the Merger Agreement, and in accordance with the relevant
provisions of the Delaware General Corporation Law ("DGCL"), Purchaser will be
merged with and into the Company (the "Merger"). The Company will continue as
the surviving corporation and an indirect wholly-owned subsidiary of Getinge
following consummation of the Merger. As of the effective time of the Merger
(the "Effective Time"), each Share issued and outstanding (other than Shares
held in the treasury of the Company or any
<PAGE> 4
subsidiary thereof, any Shares owned by Purchaser or any subsidiary thereof, and
any Shares held by Stockholders properly exercising appraisal rights pursuant to
the DGCL) will be converted into the right to receive the Offer Price in cash,
or any higher price per Share that may be paid pursuant to the Offer, without
interest. See Section 10.
Based on representations and warranties of the Company contained in the
Merger Agreement, there were 6,769,431 Shares issued and outstanding and
1,200,000 Shares subject to options under the Company's 1987 Stock Option Plan,
as amended and restated through May 1, 1993 (the "1987 Stock Option Plan"), at
the close of business on May 9, 1996. Assuming no change in the number of Shares
issued and outstanding or subject to options under the 1987 Stock Option Plan
from the amounts shown above, there presently would be 7,969,431 Shares
outstanding on a fully diluted basis. For purposes of determining whether the
Minimum Condition has been met, however, the Purchaser and the Company have
agreed to exclude shares subject to options under the 1987 Stock Option Plan.
Accordingly, Purchaser will consider the Minimum Condition to be satisfied if at
least 4,512,954 Shares are validly tendered and not withdrawn prior to the
Expiration Date (as hereinafter defined). However, the actual Minimum Condition
will depend on the facts as they exist on the date of purchase.
The Company has represented in the Merger Agreement that each of the
Company's directors, subject to his or her fiduciary duties and changes in
circumstances, intends to tender pursuant to the Offer all Shares owned by such
person or to vote all such Shares in favor of the Merger.
The consummation of the Merger is subject to the satisfaction or waiver of
certain conditions, including the approval and adoption of the Merger Agreement
by the requisite vote of Stockholders and the purchase of Shares in the Offer.
See Section 10. The approval of the Offer and the Merger by the Board of
Directors has rendered inapplicable the provisions of Section 203 of the DGCL
(concerning business combinations with interested shareholders), which otherwise
would have been applicable to the Offer and the Merger. The Board of Directors
has also taken all necessary action so that (i) the Rights will not be
exercisable, trade separately, or be otherwise affected by the Offer, the Merger
or the other transactions contemplated by the Merger Agreement, (ii) none of
Getinge and its affiliates will be deemed to be an "Acquiring Person" for
purposes thereof, and (iii) a "Distribution Date" will not occur by virtue of
the Offer, the Merger or the other transactions contemplated by the Merger
Agreement.
Pursuant to the terms of the Company's certificate of incorporation, the
Merger Agreement and the transactions contemplated thereby must be approved by
the affirmative vote of the holders of two-thirds of the outstanding Shares. The
Board of Directors has unanimously approved and adopted the Merger Agreement and
the transactions contemplated thereby, and, unless the Merger is consummated
pursuant to the short-form merger provisions of the DGCL as described below, the
only remaining required corporate action of the Company is the approval and
adoption of the Merger Agreement and the transactions contemplated thereby by
the affirmative vote of the holders of two-thirds of the issued and outstanding
Shares. If the Minimum Condition is satisfied, Purchaser will have sufficient
voting power to cause the approval and adoption of the Merger Agreement and the
transactions contemplated thereby without the affirmative vote of any other
Stockholder.
In the Merger Agreement, the Company has agreed to take all action
necessary to convene a meeting of the Stockholders as promptly as practicable
after the consummation of the Offer for the purpose of considering and taking
action on the Merger Agreement and the transactions contemplated thereby, if
such action is required by the DGCL. Pursuant to the Merger Agreement, Getinge
has agreed to vote, or cause to be voted, all Shares then owned by it, Purchaser
or any of its other affiliates in favor of the Merger Agreement and the
transactions contemplated thereby. See Section 10 for a more complete
description of the Merger Agreement.
Under the DGCL, if Purchaser acquires, pursuant to the Offer or otherwise,
at least 90% of the outstanding Shares, Purchaser will be able to approve the
Merger Agreement and the transactions contemplated thereby without a vote of the
Stockholders. In such event, Getinge, Purchaser and the Company have agreed in
the Merger Agreement to take, at the request of Purchaser, all necessary and
appropriate actions to cause the Merger to become effective as soon as
reasonably practicable after such acquisition, without a
2
<PAGE> 5
meeting of the Stockholders. If, however, Purchaser does not acquire at least
90% of the outstanding Shares pursuant to the Offer or otherwise and a vote of
the Stockholders is required under the DGCL, a significantly longer period of
time would be required to effect the Merger. In the Merger Agreement, the
Company and Getinge have agreed that if immediately prior to the scheduled
Expiration Date (as defined below) the Shares tendered pursuant to the Offer
equal more than 80% but less than 90% of the outstanding Shares, Purchaser may
extend the Offer for a period not to exceed 10 business days.
THIS OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE OFFER.
3
<PAGE> 6
THE TENDER OFFER
1. TERMS OF THE OFFER; EXPIRATION DATE
Upon the terms and subject to the conditions of the Offer, Purchaser will
accept for payment and pay for all Shares which are validly tendered prior to
the Expiration Date (as hereinafter defined) and not withdrawn in accordance
with Section 4. The term "Expiration Date" means 5:00 p.m., New York City time,
on Friday, June 28, 1996, unless and until Purchaser, in its sole discretion
(but subject to the terms and conditions of the Merger Agreement), shall have
extended the period of time during which the Offer is open, in which event the
term "Expiration Date" shall mean the latest time and date at which the Offer,
as so extended by Purchaser, shall expire. All Shares purchased pursuant to the
Offer will be purchased at the Offer Price, or any higher price per Share that
may be paid in the Offer, net to the seller in cash, without interest thereon.
The Offer is conditioned upon, among other things, the satisfaction of the
Minimum Condition and the expiration or earlier termination of all waiting
periods imposed by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the regulations thereunder (the "HSR Act"). See Section 14, which
sets forth in full the conditions to the Offer. If any condition to Purchaser's
obligation to purchase Shares under the Offer is not satisfied prior to the
Expiration Date, Purchaser reserves the right (but shall not be obligated) (i)
to decline to purchase any of the Shares tendered and terminate the Offer and
promptly return all tendered Shares to tendering Stockholders, (ii) to waive
such unsatisfied condition, subject to compliance with applicable rules and
regulations of the Securities and Exchange Commission (the "Commission"), and
purchase all Shares validly tendered, (iii) to extend the Offer and, subject to
the right of Stockholders to withdraw Shares as provided in Section 4, retain
the Shares which have been tendered during the period or periods for which the
Offer is extended or (iv) to amend the Offer. Notwithstanding the foregoing, the
Merger Agreement provides that, without the prior written consent of the
Company, Purchaser will not (i) decrease the Offer Price, (ii) decrease the
number of Shares sought, (iii) decrease the Minimum Condition, (iv) change the
form of consideration payable in the Offer or (v) impose any additional, or
amend any other, term or condition of the Offer in any manner adverse to the
Stockholders.
Subject to the applicable rules and regulations of the Commission and the
terms of the Merger Agreement, Purchaser expressly reserves the right, in its
sole discretion, at any time or from time to time, regardless of whether any of
the events set forth in Section 14 shall have occurred or shall have been
determined by Purchaser to have occurred, (i) to extend the period of time
during which the Offer is open and thereby delay acceptance for payment of, and
the payment for, any Shares, by giving oral or written notice of such extension
to the Depositary, and (ii) to amend the Offer in any respect by giving oral or
written notice of such amendment to the Depositary. The rights reserved by
Purchaser in this paragraph are in addition to Purchaser's rights to terminate
the Offer described in Section 14. Under no circumstances will interest be paid
on the purchase price for tendered Shares, whether or not Purchaser exercises
its rights to extend the Offer.
Any extension, amendment or termination of the Offer will be followed as
promptly as practicable by public announcement thereof, such announcement, in
the case of an extension, to be made no later than 9:00 a.m., New York City
time, on the next business day after the previously scheduled Expiration Date.
For purposes of the Offer, a "business day" means any day other than a Saturday,
Sunday or federal holiday and consists of the time period from 12:01 a.m.
through 12:00 midnight, New York City time. Subject to applicable law (including
Rules 14d-4(c), 14d-6(d), 14e-1(b) and 14e-1(d) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), which require that material
changes be promptly disseminated to Stockholders in a manner reasonably designed
to inform them of such changes) and without limiting the manner in which
Purchaser may choose to make any public announcement, Purchaser currently
intends to make announcements by issuing a press release to the Dow Jones News
Service.
If Purchaser extends the Offer, or if Purchaser (whether before or after
its acceptance for payment of Shares) is delayed in its purchase of or payment
for Shares or is unable to pay for Shares pursuant to the Offer for any reason,
then, without prejudice to Purchaser's rights under the Offer, the Depositary
may retain tendered Shares on behalf of Purchaser, and such Shares may not be
withdrawn except to the extent tendering Stockholders are entitled to withdrawal
rights as described in Section 4. The ability of Purchaser to delay the
4
<PAGE> 7
payment for Shares which Purchaser has accepted for payment is, however, limited
by Rule 14e-1(c) under the Exchange Act, which requires that a bidder pay the
consideration offered or return the securities deposited by or on behalf of
holders of securities promptly after the termination or withdrawal of the
bidder's offer.
If Purchaser makes a material change in the terms of the Offer or the
information concerning the Offer, or if it waives a material condition of the
Offer, Purchaser will disseminate additional tender offer materials and extend
the Offer in the manner and to the extent required by Rules 14d-4(c), 14d-6(d),
14e-1(b) and 14e-1(d) under the Exchange Act. The minimum period during which
the Offer must remain open following material changes in the terms of the Offer
or information concerning the Offer, other than a change in price or a change in
percentage of securities sought, will depend upon the facts and circumstances,
including the relative materiality of the terms or information. With respect to
a change in price or a change in percentage of securities sought, a minimum ten
business day period is required to allow for adequate dissemination to
Stockholders and investor response. Subject to the terms of the Merger
Agreement, if, prior to the Expiration Date, Purchaser should decide to decrease
the number of Shares being sought or to alter the consideration being offered in
the Offer, such decrease in the number of Shares being sought or alteration in
the consideration being offered will be applicable to all Stockholders whose
Shares are accepted for payment pursuant to the Offer.
The Company has provided Purchaser with the Company's Stockholder list and
security position listings for the purpose of disseminating the Offer to
Stockholders. This Offer to Purchase and the related Letter of Transmittal and
other relevant materials will be mailed to record holders of Shares and will be
furnished to brokers, dealers, commercial banks, trust companies and similar
persons whose names, or the names of whose nominees, appear on the Stockholder
list or, if applicable, who are listed as participants in a clearing agency's
security position listing, for subsequent transmittal to beneficial owners of
Shares.
2. ACCEPTANCE FOR PAYMENT AND PAYMENT
Pursuant to the terms of, and subject to the prior satisfaction or waiver
of the conditions of, the Offer (as it may be extended or amended), Purchaser
will accept for payment and pay for all Shares validly tendered prior to the
Expiration Date as promptly as practicable following such Expiration Date.
Subject to applicable rules of the Commission and the terms of the Merger
Agreement, Purchaser expressly reserves the right to delay acceptance for
payment of or payment for Shares in order to comply, in whole or in part, with
any applicable law, including the HSR Act. See Sections 14 and 15.
Any such delays will be effected in compliance with Rule 14e-1(c) under the
Exchange Act (relating to a bidder's obligation to pay for or return tendered
securities promptly after the termination or withdrawal of such bidder's offer).
In all cases, payment for Shares purchased pursuant to the Offer will be made
only after timely receipt by the Depositary of (i) the certificates evidencing
such Shares (the "Share Certificates"), or timely confirmation of a book-entry
transfer (a "Book-Entry Confirmation") of such Shares, if such procedure is
available, into the Depositary's account at The Depository Trust Company or the
Philadelphia Depository Trust Company (each a "Book-Entry Transfer Facility"
and, collectively, the "Book-Entry Transfer Facilities") pursuant to the
procedures set forth in Section 3, (ii) the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's Message (as
defined below) and (iii) any other documents required by the Letter of
Transmittal.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgment from the participant in such Book-Entry
Transfer Facility tendering the Shares, that such participant has received and
agrees to be bound by the terms of the Letter of Transmittal and that Purchaser
may enforce such agreement against the participant.
For purposes of the Offer, Purchaser will be deemed to have accepted for
payment, and thereby purchased, Shares validly tendered and not withdrawn as,
if, and when Purchaser gives oral or written notice to the Depositary of
Purchaser's acceptance of such Shares for payment. Upon the terms and subject to
the conditions of the Offer, payment for Shares accepted for payment pursuant to
the Offer will be made by
5
<PAGE> 8
deposit of the aggregate purchase price therefor with the Depositary, which will
act as agent for tendering Stockholders for the purpose of receiving payment
from Purchaser and transmitting payment to such tendering Stockholders. UNDER NO
CIRCUMSTANCES WILL INTEREST ON THE PURCHASE PRICE FOR SHARES BE PAID, REGARDLESS
OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT. Upon the
deposit of funds with the Depositary for the purpose of making payments to
tendering Stockholders, Purchaser's obligation to make such payment will be
satisfied and tendering Stockholders must thereafter look solely to the
Depositary for payment of amounts owed to them by reason of the acceptance for
payment of Shares pursuant to the Offer.
If any tendered Shares are not accepted for payment for any reason pursuant
to the terms and conditions of the Offer, or if Share Certificates are submitted
evidencing more Shares than are tendered, Share Certificates evidencing
unpurchased or untendered Shares will be returned, without expense to the
tendering Stockholder (or, in the case of Shares tendered by book-entry transfer
into the Depositary's account at a Book-Entry Transfer Facility pursuant to the
procedure set forth in Section 3, such Shares will be credited to an account
maintained at such Book-Entry Transfer Facility), as promptly as practicable
following the expiration, termination or withdrawal of the Offer.
If, prior to the Expiration Date, Purchaser increases the consideration
offered to Stockholders pursuant to the Offer, such increased consideration will
be paid to all holders whose Shares are purchased in the Offer, whether or not
such Shares were tendered prior to such increase in consideration.
Purchaser reserves the right to transfer or assign, in whole at any time,
or in part from time to time, to Getinge or to one or more of its affiliates,
the right to purchase all or any portion of the Shares tendered pursuant to the
Offer, but any such transfer or assignment will not relieve Purchaser of its
obligations under the Offer or prejudice the rights of tendering Stockholders to
receive payment for Shares validly tendered and accepted for payment pursuant to
the Offer.
3. PROCEDURES FOR TENDERING SHARES
Valid Tender of Shares. In order for Shares to be validly tendered
pursuant to the Offer, either (a) the Letter of Transmittal or a facsimile
thereof, properly completed and duly executed, with any required signature
guarantees, or an Agent's Message in connection with a book-entry delivery of
Shares, and any other required documents, must be received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase prior
to the Expiration Date and either the Share Certificates evidencing tendered
Shares must be received by the Depositary along with the Letter of Transmittal
or such Shares must be tendered pursuant to the procedure for book-entry
transfer described below and a Book-Entry Confirmation must be received by the
Depositary, in each case prior to the Expiration Date, or (b) the tendering
Stockholder must comply with the guaranteed delivery procedures described below.
Book-Entry Transfer. The Depositary will establish an account with respect
to the Shares at each Book-Entry Transfer Facility for purposes of the Offer
within two business days after the date of this Offer to Purchase, and any
financial institution that is a participant in any of the Book-Entry Transfer
Facilities' systems may make book-entry delivery of Shares by causing a
Book-Entry Transfer Facility to transfer such Shares into the Depositary's
account at a Book-Entry Transfer Facility in accordance with such Book-Entry
Transfer Facility's procedures for transfer. However, although delivery of
Shares may be effected through book-entry transfer at a Book-Entry Transfer
Facility, the Letter of Transmittal or facsimile thereof, with any required
signature guarantees, or an Agent's Message, and any other required documents,
must, in any case, be transmitted to and received by the Depositary at one of
its addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date or the guaranteed delivery procedures described below must be
complied with. DELIVERY OF DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN
ACCORDANCE WITH THE BOOK-ENTRY TRANSFER FACILITY'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE DEPOSITARY.
THE METHOD OF DELIVERY OF SHARE CERTIFICATES AND ALL OTHER REQUIRED
DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER FACILITY, IS AT
THE OPTION AND RISK OF THE TENDERING STOCKHOLDER, AND THE DELIVERY WILL BE
DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY
MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
6
<PAGE> 9
Signature Guarantees. Signatures on all Letters of Transmittal must be
guaranteed by a member firm of a registered national securities exchange, a
member of the National Association of Securities Dealers, Inc. ("NASD") or a
commercial bank or trust company having an office or correspondent in the United
States (each of the foregoing being referred to as an "Eligible Institution"),
unless the Shares tendered thereby are tendered (i) by a registered Stockholder
who has not completed either the box entitled "Special Delivery Instructions" or
the box entitled "Special Payment Instructions" on the Letter of Transmittal, or
(ii) for the account of an Eligible Institution. See Instruction 1 of the Letter
of Transmittal.
If a Share Certificate is registered in the name of a person other than the
signer of the Letter of Transmittal, or if payment is to be made, or a Share
Certificate is not accepted for payment or is not tendered and is to be returned
to a person other than the registered holder(s), then the Share Certificate must
be endorsed or accompanied by appropriate stock powers, in either case signed
exactly as the name(s) of the registered holder(s) appear on the Share
Certificate, with the signature(s) on such Share Certificate or stock powers
guaranteed as described above. See Instructions 1 and 5 of the Letter of
Transmittal.
Guaranteed Delivery. If a Stockholder desires to tender Shares pursuant to
the Offer and such Stockholder's Share Certificates are not immediately
available or time will not permit all required documents to reach the Depositary
prior to the Expiration Date or the procedure for book-entry transfer cannot be
completed on a timely basis, such Shares may nevertheless be tendered if all the
following conditions are satisfied:
(i) the tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form provided by Purchaser herewith, is
received by the Depositary as provided below prior to the Expiration Date;
and
(iii) the Share Certificates for all tendered Shares, in proper form
for transfer, or a Book-Entry Confirmation, together with a properly
completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) with any required signature guarantee (or, in the case
of a book-entry delivery, an Agent's Message) and any other documents
required by such Letter of Transmittal, are received by the Depositary
within three trading days after the date of execution of the Notice of
Guaranteed Delivery. A "trading day" is any day on which the NASDAQ
National Market System (the "NASDAQ National Market") operated by the NASD
is open for business.
Any Notice of Guaranteed Delivery may be delivered by hand or transmitted
by telegram, facsimile transmission or mail to the Depositary and must include a
guarantee by an Eligible Institution in the form set forth in the Notice of
Guaranteed Delivery.
Notwithstanding any other provision hereof, payment for Shares purchased
pursuant to the Offer will, in all cases, be made only after timely receipt by
the Depositary of (i) the Share Certificates evidencing such Shares, or a
Book-Entry Confirmation of the delivery of such Shares, (ii) a properly
completed and duly executed Letter of Transmittal (or manually signed facsimile
thereof) (or, in the case of a book-entry delivery, an Agent's Message) and
(iii) any other documents required by the Letter of Transmittal.
Backup Federal Withholding Tax. To prevent backup federal income tax
withholding with respect to payment of the purchase price of Shares purchased
pursuant to the Offer, each such Stockholder must provide the Depositary with
such Stockholder's correct taxpayer identification number ("TIN") and certify
that such Stockholder is not subject to backup federal income tax withholding by
completing the Substitute Form W-9 included in the Letter of Transmittal.
Foreign Stockholders must submit a completed Form W-8 to avoid 31% backup
withholding. This form may be obtained from the Depositary. See Instruction 8 of
the Letter of Transmittal.
Appointment as Proxy; Distributions. By executing a Letter of Transmittal
as set forth above, a tendering Stockholder irrevocably appoints designees of
Purchaser as such Stockholder's attorneys-in-fact and proxies, in the manner set
forth in the Letter of Transmittal, each with full power of substitution, to the
full extent of such Stockholder's rights with respect to the Shares tendered by
such Stockholder and accepted for
7
<PAGE> 10
payment by Purchaser (and any and all non-cash dividends, distributions, rights,
other Shares, or other securities issued or issuable in respect of such Shares
on or after the date of this Offer to Purchase). All such proxies shall be
considered coupled with an interest in the tendered Shares. This appointment
will be effective if, when, and only to the extent that, Purchaser accepts such
Shares for payment pursuant to the Offer. Upon such acceptance for payment, all
prior proxies given by such Stockholder with respect to such Shares and other
securities will, without further action, be revoked, and no subsequent proxies
may be given. The designees of Purchaser will, with respect to the Shares and
other securities for which the appointment is effective, be empowered to
exercise all voting and other rights of such Stockholder as they in their sole
discretion may deem proper at any annual, special, adjourned or postponed
meeting of Stockholders, by written consent or otherwise, and in order for
Shares or other securities to be deemed validly tendered, immediately upon
Purchaser's acceptance for payment of such Shares Purchaser must be able to
exercise full voting rights with respect to such Shares and other securities.
Determination of Validity. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance for payment of any
tendered Shares pursuant to any of the procedures described above will be
determined by Purchaser, in its sole discretion, whose determination will be
final and binding on all parties. Purchaser reserves the absolute right to
reject any or all tenders of any Shares determined by it not to be in proper
form or if the acceptance for payment of, or payment for, such Shares may, in
the opinion of Purchaser's counsel, be unlawful. Purchaser also reserves the
absolute right, in its sole discretion, to waive any of the conditions of the
Offer or any defect or irregularity in any tender with respect to Shares of any
particular Stockholder, whether or not similar defects or irregularities are
waived in the case of other Stockholders. Purchaser's interpretation of the
terms and conditions of the Offer (including the Letter of Transmittal and the
instructions thereto) will be final and binding. None of Getinge, Purchaser, the
Dealer Manager, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in
tenders or will incur any liability for failure to give any such notification.
Binding Agreement. Purchaser's acceptance for payment of Shares validly
tendered pursuant to the Offer will constitute a binding agreement between the
tendering Stockholder and Purchaser upon the terms and subject to the conditions
of the Offer.
4. WITHDRAWAL RIGHTS
Except as otherwise provided in this Section 4, tenders of Shares made
pursuant to the Offer are irrevocable. Shares tendered pursuant to the Offer may
be withdrawn at any time prior to the Expiration Date and, unless theretofore
accepted for payment by Purchaser pursuant to the Offer, may also be withdrawn
at any time after Monday, July 15, 1996, or at such later time as may apply if
the Offer is extended.
If Purchaser extends the Offer, is delayed in its acceptance for payment of
Shares or is unable to accept Shares for payment pursuant to the Offer for any
reason, then, without prejudice to Purchaser's rights under the Offer, the
Depositary may, nevertheless, on behalf of Purchaser, retain tendered Shares,
and such Shares may not be withdrawn except to the extent that tendering
Stockholders are entitled to withdrawal rights as described in this Section 4.
Any such delay will be by an extension of the Offer to the extent required by
law.
For a withdrawal to be effective, a written, telegraphic or facsimile
transmission notice of withdrawal must be timely received by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase. Any
such notice of withdrawal must specify the name of the person who tendered the
Shares to be withdrawn, the number of Shares to be withdrawn and the name of the
registered holder, if different from that of the person who tendered such
Shares. If Share Certificates evidencing Shares to be withdrawn have been
delivered or otherwise identified to the Depositary, then, prior to the release
of such Share Certificates, the serial numbers shown on such Share Certificates
must be submitted to the Depositary and the signature(s) on the notice of
withdrawal must be guaranteed by an Eligible Institution, unless such Shares
have been tendered for the account of an Eligible Institution. If Shares have
been tendered pursuant to the procedure for book-entry transfer as set forth in
Section 3, any notice of withdrawal must also specify the name and number of the
account at the Book-Entry Transfer Facility to be credited with the withdrawn
Shares.
8
<PAGE> 11
All questions as to the form and validity (including time of receipt) of
notices of withdrawal will be determined by Purchaser, in its sole discretion,
whose determination will be final and binding. None of Getinge, Purchaser, the
Dealer Manager, the Depositary, the Information Agent or any other person will
be under any duty to give notification of any defects or irregularities in any
notice of withdrawal or incur any liability for failure to give any such
notification.
Any Shares properly withdrawn will thereafter be deemed not to have been
validly tendered for purposes of the Offer. However, withdrawn Shares may be
re-tendered at any time prior to the Expiration Date by following one of the
procedures described in Section 3.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal income
tax consequences of the Offer and the Merger to Stockholders whose Shares are
purchased pursuant to the Offer or whose Shares are converted to cash in the
Merger (including pursuant to the exercise of perfected appraisal rights under
the DGCL). The discussion applies only to Stockholders in whose hands Shares are
capital assets, and may not apply to Shares received pursuant to the exercise of
employee stock options or otherwise as compensation, or to Stockholders who are
in special tax situations (such as insurance companies, tax-exempt organizations
or dealers in securities). This discussion does not discuss the federal income
tax consequences to a Stockholder who, for United States federal income tax
purposes, is a non-resident alien individual, a foreign corporation, a foreign
partnership or a foreign estate or trust.
THE FEDERAL INCOME TAX CONSEQUENCES SET FORTH BELOW ARE INCLUDED FOR
GENERAL INFORMATIONAL PURPOSES ONLY AND ARE BASED UPON CURRENT LAW. BECAUSE
INDIVIDUAL CIRCUMSTANCES MAY DIFFER, EACH STOCKHOLDER SHOULD CONSULT SUCH
STOCKHOLDER'S OWN TAX ADVISOR TO DETERMINE THE APPLICABILITY OF THE RULES
DISCUSSED BELOW TO SUCH STOCKHOLDER AND THE PARTICULAR TAX EFFECTS TO SUCH
STOCKHOLDER OF THE OFFER AND THE MERGER, INCLUDING THE APPLICATION AND EFFECT OF
STATE, LOCAL AND OTHER INCOME TAX LAWS.
The receipt of cash for Shares pursuant to the Offer or the Merger will be
a taxable transaction for federal income tax purposes (and also may be a taxable
transaction under applicable state, local and other income tax laws). In
general, for federal income tax purposes, a Stockholder will recognize gain or
loss equal to the difference between his or her adjusted tax basis in the Shares
sold pursuant to the Offer or converted to cash in the Merger and the amount of
cash received therefor. Gain or loss must be determined separately for each
block of Shares (i.e., Shares acquired at the same cost in a single transaction)
sold pursuant to the Offer or converted to cash in the Merger. Such gain or loss
will be capital gain or loss and will be long-term gain or loss if the Shares
were held for more than one year on the date of sale (in the case of the Offer)
or the Effective Time of the Merger (in the case of the Merger). The receipt of
cash for Shares pursuant to the exercise of appraisal rights will generally be
taxed in the same manner as described above. Long-term capital gain of
individuals currently is taxed at a maximum rate of 28%. Legislative proposals
are pending that would decrease the tax rate applicable to an individual's
long-term capital gains. It is not known whether any such proposal will be
enacted, and, if enacted, when any new tax rate will be effective.
9
<PAGE> 12
6. PRICE RANGE OF SHARES; DIVIDENDS
The Shares are listed and traded on the NASDAQ National Market and quoted
under the symbol MDTC. The following table sets forth, for the quarters
indicated, the range of high and low prices per Share on (and as reported by)
the NASDAQ National Market.
<TABLE>
<CAPTION>
MARKET PRICE
-------------
HIGH LOW
----- ----
<S> <C> <C>
FISCAL YEAR ENDED MARCH 31, 1995:
First Quarter........................................................ $61/16 $4 1/2
Second Quarter....................................................... 5 5/8 4 5/8
Third Quarter........................................................ 6 7/8 5 1/4
Fourth Quarter....................................................... 7 1/4 5 5/8
FISCAL YEAR ENDED MARCH 31, 1996:
First Quarter........................................................ $7 1/8 $5 3/8
Second Quarter....................................................... 8 5 7/8
Third Quarter........................................................ 6 1/2 4 1/2
Fourth Quarter....................................................... 5 1/4 4 1/4
FISCAL YEAR ENDED MARCH 31, 1997:
First Quarter (through May 16, 1996)................................. $5 1/4 $4 1/4
</TABLE>
On Friday, May 10, 1996, the last full trading day prior to the
announcement of the execution of the Merger Agreement and of Purchaser's
intention to commence the Offer, the closing price per Share on the Nasdaq
National Market was $4.875, and the closing bid price per Share on such market
was $4.50. On Thursday, May 16, 1996, the last full trading day prior to the
commencement of the Offer, the closing price per Share on the Nasdaq National
Market was $4.438, and the closing bid price per Share on such market was
$4.375. STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION FOR THE
SHARES.
The Company has informed Purchaser that it has never paid cash or other
dividends in respect of the Shares. Pursuant to the Merger Agreement, the
Company has agreed not to declare or pay any dividends prior to the consummation
of the Merger.
7. CERTAIN INFORMATION CONCERNING THE COMPANY
General. The Company is a Delaware corporation and its principal executive
offices are located at Stratford Hall, Suite 200, 1009 Slater Road, Durham,
North Carolina 27703; Telephone: (919) 941-9745. The Company is a holding
company whose principal operating subsidiaries are MDT Biologic Company, which
produces, sells and services Sterility Assurance Systems, and MDT Diagnostic
Company, which produces, sells and services examining and operatory equipment.
Effective April 1, 1995, the Company formed a new operating subsidiary, MDT
Technionic Company, which provides product support, maintenance, repair and
other services to customers of MDT Biologic Company, MDT Diagnostic Company and
other manufacturers, and which also sells to such customers parts and consumable
products relating to the sterility assurance systems and examining and operatory
equipment. The Company also operates international sales and service
subsidiaries, including MDT Asia Limited, MDT Canada Limited and MDT
International Limited.
Financial Information. Set forth below is certain selected historical
consolidated financial information relating to the Company and its subsidiaries
which has been excerpted or derived from the audited financial information of
the Company contained in the Annual Report to Stockholders of the Company for
1995, and
10
<PAGE> 13
which is incorporated by reference in the Company's Annual Report on Form 10-K
for the fiscal year ended March 31, 1995 (the "Company's March 1995 10-K"), and
the unaudited financial information contained in the Company's Quarterly Report
on Form 10-Q for the nine months ended December 31, 1995 (the "Company's
December 1995 10-Q"). More comprehensive financial information is included in
such reports and other documents filed by the Company with the Commission. The
financial information that follows is qualified in its entirety by reference to
such reports and other documents, including the financial statements and related
notes contained therein. Such reports and other documents may be inspected and
copies may be obtained from the offices of the Commission or the NASD in the
manner set forth below under "Other Information."
MDT CORPORATION AND SUBSIDIARIES
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
DECEMBER 31, FISCAL YEAR ENDED MARCH 31,
-------------------- ----------------------------------
1995 1994 1995 1994 1993
------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Sales................................ $97,167 $100,061 $135,462 $136,475 $133,947
Cost of sales........................ 67,956 68,773 92,564 92,728 89,673
------- -------- -------- -------- --------
Gross profit......................... 29,211 31,288 42,898 43,747 44,274
------- -------- -------- -------- --------
Operating expenses................... 28,047 27,636 37,355 38,631 37,249
Reorganization costs................. 1,373 733 1,235 -- --
------- -------- -------- -------- --------
Operating income (loss).............. (209) 2,919 4,308 5,116 7,025
Interest expense..................... 2,608 2,538 3,514 2,803 2,756
Other (income) expense............... (447) 150 113 169 177
------- -------- -------- -------- --------
Income before income taxes and
cumulative effect of change in
accounting method.................. (2,370) 231 681 2,144 4,092
Income taxes (benefit)............... (829) 99 405 901 1,716
------- -------- -------- -------- --------
Income before cumulative effect of
change in accounting method........ (1,541) 132 276 1,243 2,376
Cumulative effect of change in
accounting method for valuation of
inventory.......................... -- -- -- 699 --
------- -------- -------- -------- --------
Net income (loss).................... $(1,541) $ 132 $ 276 $ 1,942 $ 2,376
======= ======== ======== ======== ========
Earnings per share:
Income before cumulative effect of
change in accounting method..... $ (.23) $ .02 $ .04 $ .18 $ .38
Cumulative effect of change in
accounting method............... -- -- -- .11 --
------- -------- -------- -------- --------
Net income (loss).................. $ (.23) $ .02 $ .04 $ .29 $ .38
======= ======== ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
MARCH 31,
---------------------
1995 1994
DECEMBER 31, 1995 -------- --------
-----------------
(UNAUDITED)
<S> <C> <C> <C>
BALANCE SHEET DATA (AT END OF PERIOD):
Total current assets.................................. $ 71,026 $ 72,631 $ 73,318
Total assets.......................................... 102,480 105,349 105,652
Total current liabilities............................. 44,139 49,204 46,682
Long-term debt, less current installments............. 9,421 5,684 8,838
Total liabilities..................................... 58,560 59,888 60,630
Total shareholders' equity............................ $ 43,920 $ 45,461 $ 45,022
</TABLE>
11
<PAGE> 14
Fiscal Year 1996 Earnings and Recent Developments. On May 12, 1996, the
Company publicly announced the following preliminary unaudited income statement
and balance sheet data, subject to audit and year-end adjustments, for the
fiscal year ended March 31, 1996. Such data is set forth below:
MDT CORPORATION AND SUBSIDIARIES
PRELIMINARY CONDENSED CONSOLIDATED INCOME STATEMENT DATA
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE AND OUTSTANDING SHARE DATA)
<TABLE>
<CAPTION>
QUARTER ENDED
MARCH 31, FISCAL YEAR ENDED MARCH 31,
--------------------------- ---------------------------
1996 1995 1996 1995
---------- ---------- ---------- ----------
(UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C>
Sales................................. $ 34,022 $ 35,401 $ 131,188 $ 135,462
Gross profit.......................... 7,540 11,610 36,751 42,898
Operating expenses.................... 10,308 9,719 38,355 37,355
Reorganization costs.................. 662 502 2,035 1,235
Operating income (loss)............... (3,430) 1,389 (3,639) 4,308
Interest expense...................... 835 977 3,443 3,514
Other (income) expense................ 2,156 (37) 1,709 113
Income (loss) before income taxes..... (6,421) 449 (8,791) 681
Net income............................ (4,525) 143 (6,066) 276
Earnings per share.................... (.67) .02 (.90) .04
Weighted average number of shares
outstanding......................... 6,769,000 6,840,000 6,769,000 6,775,000
</TABLE>
MDT CORPORATION AND SUBSIDIARIES
PRELIMINARY CONDENSED CONSOLIDATED BALANCE SHEET DATA
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
MARCH 31,
-----------------------
1995
1996 --------
--------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets..................................................... $ 69,306 $ 72,631
Other assets....................................................... 30,726 32,718
-------- --------
Total assets....................................................... $100,032 $105,349
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Liabilities
Bank credit agreement borrowings................................ $ 33,300 $ 32,433
Other current liabilities....................................... 22,465 21,604
Other non-current liabilities................................... 4,871 5,851
Stockholders' equity............................................... 39,396 45,461
-------- --------
Total liabilities and stockholders' equity......................... $100,032 $105,349
======== ========
</TABLE>
On May 12, 1996, the Company also announced that it recorded bookings and
revenues in the fourth quarter ended March 31, 1996 of approximately $28,889,000
and $34,022,000, compared to $35,017,000 and $35,401,000 in the same period a
year earlier. For the fiscal year ended March 31, 1996, bookings and revenues
were approximately $128,136,000 and $131,188,000 compared to $134,535,000 and
$135,462,000 for the earlier year. The backlog of orders at March 31, 1996 was
$24,057,000 compared to $27,145,000 at March 31, 1995. The Company reported a
loss for the recent fourth quarter and fiscal year, estimated at $4,525,000
(approximately $6,421,000 before taxes) and $6,066,000 (approximately $8,791,000
before taxes),
12
<PAGE> 15
respectively. This result compares to earnings of $143,000 and $276,000 for the
same periods a year earlier. The results for the fourth quarter placed the
Company out-of-compliance with certain of the provisions of its bank credit
agreement.
Other Information. The Company is subject to the information and reporting
requirements of the Exchange Act and is required to file reports and other
information with the Commission relating to its business, financial condition
and other matters. Information, as of particular dates, concerning the Company's
directors and officers, their remuneration, stock options granted to them, the
principal holders of the Company's securities, any material interests of such
persons in transactions with the Company and other matters is required to be
disclosed in proxy statements distributed to Stockholders and filed with the
Commission. These reports, proxy statements and other information should be
available for inspection at the public reference facilities of the Commission
located at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
also should be available for inspection and copying at prescribed rates at the
following regional offices of the Commission: Seven World Trade Center, New
York, New York 10048; and 500 West Madison Street, Chicago, Illinois 60661.
Copies of such materials may also be obtained by mail, upon payment of the
Commission's customary fees, from the Commission's principal office at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. The materials should also
be available for inspection at the offices of the NASD located at 1735 K Street,
N.W., Washington, D.C. 20006.
Except as otherwise noted in this Offer to Purchase, all the information
with respect to the Company and its affiliates set forth in this Offer to
Purchase has been derived from publicly available information. Although neither
Getinge nor Purchaser has any knowledge that any such information is untrue,
neither Getinge nor Purchaser takes any responsibility for the accuracy or
completeness of such information or for any failure by the Company to disclose
events that may have occurred and that may affect the significance or accuracy
of any such information.
8. CERTAIN INFORMATION CONCERNING PURCHASER, ARJO AND GETINGE
PURCHASER AND ARJO
Purchaser is a recently incorporated Delaware corporation organized in
connection with the Offer and the Merger and has not carried on any activities
other than in connection with its formation and capitalization and the
transactions contemplated by the Offer and the Merger. All the outstanding
capital stock of Purchaser is owned directly by Arjo USA, Inc. ("Arjo"), a
Delaware corporation and an indirect wholly-owned subsidiary of Getinge. Arjo is
Getinge's principal holding company for its North American operations. The
principal offices of Purchaser and Arjo are located at 8130 Lehigh Avenue,
Morton Grove, Illinois 60053.
GETINGE
Getinge, which operates in the field of medical technology, develops,
manufactures and markets equipment and systems for sterilization and
disinfection purposes within the pharmaceutical industry and health care sector.
Getinge also develops, manufactures and markets hygiene and patient handling
systems for the care of elderly and disabled people in the health care sector.
The Getinge group of companies enjoys a position as one of the world's leaders
within all these sectors. Getinge is also a distributor of equipment and
consumables to the dental sector in Scandinavia.
Getinge has 66 subsidiaries and 17 factories in 22 countries and
distributors in 100 countries.
The address of Getinge's principal office is Box 69, S-310 44, Getinge,
Sweden; Telephone 011-46-35-15-55-00. Getinge's Series B shares are quoted on
the "A" list of the Stockholm Stock Exchange.
Getinge's largest stockholder is Andersson & Bennet AB, a company organized
under the laws of Sweden, which is a holding company principally involved in
industrial and investment activity in Sweden. Andersson & Bennet AB owns shares
representing approximately 45 percent of the total voting power of Getinge. All
the outstanding capital stock of Andersson & Bennet AB is indirectly owned by
Messrs. Rune Andersson and Carl Bennet, the Chairman of the Board and President,
respectively, of Getinge. The principal
13
<PAGE> 16
offices of Andersson & Bennet AB are located at Box 69, S-310 44, Getinge,
Sweden; Telephone 011-46-35-15-55-00.
The name, citizenship, business address, present principal occupation or
employment and five-year employment history for each of the directors and
executive officers of Andersson & Bennet AB, Getinge, Arjo and Purchaser are set
forth in Schedule I hereto.
Set forth below is certain selected consolidated financial data with
respect to Getinge and its subsidiaries excerpted or derived from audited
consolidated financial statements published by Getinge for the two years ended
December 31, 1994 and 1995 and from unaudited consolidated financial statements
published by Getinge for the three month periods ended March 31, 1995 and 1996
(collectively, the "Getinge Financial Statements"). The following summary is
qualified in its entirety by reference to the Getinge Financial Statements, a
copy of which may be obtained from the Secretary of Arjo upon written request at
the address set forth above.
The Getinge Financial Statements are presented in Swedish krona ("SEK") and
are prepared in accordance with accounting principles generally accepted in
Sweden ("Swedish GAAP") and are not in accordance with accounting principles
generally accepted in the United States ("U.S. GAAP"). Swedish GAAP differs in
certain respects from U.S. GAAP. The differences between Swedish GAAP and U.S.
GAAP relevant to Getinge are explained below under the heading "Summary of
Differences Between Swedish GAAP and U.S. GAAP."
On December 29, 1995, December 30, 1994, March 31, 1995 and March 29, 1996,
respectively, the noon U.S. dollar buying rate in New York City for cable
transfers in Swedish krona as certified for customs purposes by the Federal
Reserve Bank of New York (each a "Noon Buying Rate") was SEK 1.00 per US$0.1509,
US$0.1346, US$0.1352 and US$0.1496, respectively.
GETINGE INDUSTRIER AB
SELECTED CONSOLIDATED FINANCIAL DATA
(SEK IN MILLIONS, EXCEPT PER SHARE AND RETURN ON CAPITAL DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED DECEMBER
MARCH 31, 31,
------------------- ---------------------
1996 1995 1995 1994
------- ------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Invoiced sales............................................................ 881.1 631.7 3,222.9 2,590.8
Operating costs........................................................... 725.3 519.4 2,749.7 2,114.3
Depreciation according to plan............................................ 20.3 14.6 77.1 50.6
------- ------- -------- --------
Operating profit after depreciation....................................... 135.5 97.7 396.1 425.9
Interest income........................................................... 9.7 8.9 38.0 23.2
Interest expense.......................................................... 19.1 3.0 32.1 32.4
Other financial expenses.................................................. 1.2 1.8 13.1 6.0
------- ------- -------- --------
Profit after financial items.............................................. 124.9 101.8 388.9 410.7
Shares in profits of associated companies................................. -- -- -- 1.2
------- ------- -------- --------
Profit before tax......................................................... 124.9 101.8 388.9 411.9
Tax....................................................................... 27.5 17.3 66.3 74.2
Minority share in profits of associated companies......................... -- 0.5 1.2 2.1
------- ------- -------- --------
Net profit................................................................ 97.4 84.0 321.4 335.6
======= ======= ======== ========
BALANCE SHEET DATA (AT END OF PERIOD):
ASSETS:
Liquid assets............................................................. 204.7 290.9 274.0 363.8
Receivables............................................................... 825.3 716.6 839.1 713.4
Stock..................................................................... 527.2 481.1 532.8 395.8
Goodwill.................................................................. 676.5 201.3 676.5 151.5
Fixed assets.............................................................. 403.9 356.0 403.9 331.8
------- ------- -------- --------
Total assets...................................................... 2,606.4 2,045.9 2,726.3 1,956.3
======= ======= ======== ========
</TABLE>
14
<PAGE> 17
<TABLE>
<CAPTION>
THREE MONTHS ENDED YEAR ENDED DECEMBER
MARCH 31, 31,
1996 1995 1995 1994
------- ------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C>
LIABILITIES AND EQUITY:
Liabilities:
Non-interest bearing liabilities........................................ 818.8 621.1 1,034.7 643.9
Interest bearing liabilities............................................ 878.7 149.7 885.4 144.4
Pension liabilities..................................................... 5.1 9.2 4.4 4.3
------- ------- -------- --------
Total liabilities................................................. 1,702.6 780.0 1,924.5 792.6
Minority Shareholding..................................................... -- 3.3 0.0 2.1
Equity.................................................................... 903.8 1,262.6 801.8 1,161.6
------- ------- -------- --------
Total Liabilities and Equity.............................................. 2,606.4 2,045.9 2,726.3 1,956.3
======= ======= ======== ========
ADDITIONAL DATA:
Cash flow before investments(1)........................................... (78.8) (11.7) 366.8 273.6
EPS after full tax(2)..................................................... 6.43 5.70 21.82 22.79
Employed capital(3)....................................................... 1,458.9 1,013.2 1,317.0 1,026.4
Return on employed capital................................................ 29.6% 35.7% 30.1% 41.6%
</TABLE>
- ---------------
(1) Cash flow is defined as net profit before tax, less tax paid and adjusted
for decreases/increases in operating capital.
(2) EPS after full tax is defined as profit before tax, less reported tax,
divided by the average number of shares outstanding during the relevant
period.
(3) Employed capital is defined as total assets less liquid assets and less
non-interest bearing liabilities, calculated as an average over the relevant
period.
SUMMARY OF DIFFERENCES BETWEEN SWEDISH GAAP AND U.S. GAAP
Getinge is not subject to the informational filing requirements of the
Exchange Act and therefore does not file reports or other information with the
Commission relating to its business, financial condition or other matters.
Accordingly, Getinge does not reconcile its consolidated financial information
to U.S. GAAP. However, the differences between Swedish GAAP and U.S. GAAP that
Getinge believes would have a material effect on the Getinge Financial
Statements are described below.
Accounting for Pensions. Swedish law and Swedish GAAP do not require that
all pension commitments be provided for in the financial statements. Certain
actuarially computed liabilities may be disclosed as contingent liabilities with
related costs recorded on a cash basis. U.S. GAAP provides for allocation of
pension costs to operating expenses over the service lives of the covered
employees calculated in accordance with a specific actuarial method. Thus, U.S.
GAAP could produce a different pension expense than Swedish GAAP.
Accounting for Deferred Income Taxes. Swedish GAAP generally requires
accounting for deferred income taxes on a full provision basis using the
liability method except in the case of certain tax deductions which are not
recognized until realized. U.S. GAAP recognizes tax deductions when they arise
subject to a more-likely-than-not test for realizability. Thus, U.S. GAAP may
result in accelerated recognition of certain tax deductions and thus produce
lower income tax expense under certain conditions.
Statement of Cash Flows. Swedish GAAP permits presentation of a statement
of changes in financial position which does not present the cash flows of a
company as provided by a statement of cash flows required under U.S. GAAP.
Goodwill. According to the Redovisningsradets (the Swedish Financial
Accounting Standards Council) recommendation regarding goodwill, a depreciation
period longer than 20 years is not allowed. U.S. GAAP allows goodwill to be
depreciated over a maximum period of 40 years. U.S. GAAP does not allow goodwill
to be written off against shareholders' contributions.
Hedging. Getinge uses forward foreign exchange contracts to hedge existing
foreign currency receivables. Getinge's policy is to record the foreign currency
receivables at the forward rates specified under the related forward foreign
currency contracts. Under U.S. GAAP the following principles would apply:
-- the foreign currency receivables would be translated at the exchange
rate prevailing at year-end and the unrealized exchange gain or loss
would be recognized in the income statement;
15
<PAGE> 18
-- the difference between the forward rate and the spot rate at the
inception of the forward foreign exchange contracts would be amortized
through the income statement over the life of the contracts; and
-- the difference between the exchange rate prevailing at year end and the
spot rate at the date of inception of the forward foreign exchange
contracts (or the exchange rate at the previous year end if later) would
be recognized in the income statement.
Pooling of Interests. Although the use of pooling of interests accounting
is required under certain circumstances in the U.S., the criteria to be met in
order to use this method of accounting are more stringent under U.S. GAAP than
under Swedish GAAP.
OTHER INFORMATION
Except as set forth in this Offer to Purchase, neither Purchaser nor
Getinge nor, to the best knowledge of Purchaser and Getinge, Arjo, Andersson &
Bennet AB or any of the persons listed in Schedule I hereto, or any associate or
majority-owned subsidiary of such persons, beneficially owns or has a right to
acquire any equity security of the Company, and neither Purchaser nor Getinge
nor, to the best knowledge of Purchaser and Getinge, any of the other entities
or persons referred to above, or any of the respective directors, executive
officers or subsidiaries of any of the foregoing, has effected any transaction
in any equity security of the Company during the past 60 days.
Except as provided in the Merger Agreement and as otherwise set forth in
this Offer to Purchase, neither Purchaser nor Getinge nor, to the best knowledge
of Purchaser and Getinge, Arjo, Andersson & Bennet AB or any of the persons
listed in Schedule I hereto, has any contract, arrangement, understanding or
relationship with any other person with respect to any securities of the
Company, including, without limitation, any contract, arrangement, understanding
or relationship concerning the transfer or the voting of any securities of the
Company, joint ventures, loan or option arrangements, puts or calls, guaranties
of loans, guaranties against loss or the giving or withholding of proxies.
Except as set forth in this Offer to Purchase, neither Purchaser nor Getinge
nor, to the best knowledge of Purchaser and Getinge, Arjo, Andersson & Bennet AB
or any of the persons listed in Schedule I hereto, has had, since April 1, 1993,
any business relationships or transactions with the Company, or any of its
executive officers, directors or affiliates that would require reporting under
applicable rules of the Commission.
Except as set forth in this Offer to Purchase, there have been, since April
1, 1993, no contacts, negotiations or transactions between either Purchaser or
Getinge or any subsidiary thereof, or, to the best knowledge of Purchaser and
Getinge, between Arjo, Andersson & Bennet AB or any of the persons listed in
Schedule I hereto, on the one hand, and the Company or its executive officers,
directors or affiliates, on the other hand, concerning a merger, consolidation
or acquisition, tender offer or other acquisition of securities, election of
directors, or a sale or other transfer of a material amount of assets.
9. FINANCING OF THE OFFER AND THE MERGER
The Offer is not subject to any financing condition. The total amount of
funds required by Purchaser to consummate the Offer and the Merger and to pay
related fees and expenses is estimated to be approximately $40 million and is
expected to be obtained pursuant to borrowings by Getinge from Skandinaviska
Enskilda Banken AB ("SE Bank").
SE Bank Commitment. Getinge and SE Bank have executed commitment letters
dated May 10, 1996 (the "SE Bank Commitment") providing for an aggregate credit
facility of up to $90 million (the "SE Bank Facility") to be made available to
Getinge. Funds are available under the SE Bank Commitment subject to (i) the
terms and conditions of the SE Bank Facility, and (ii) all aspects of the SE
Bank Facility, the Offer and the Merger being reasonably satisfactory in form
and substance to SE Bank.
Getinge is also considering the repayment of the Company's bank loans with
Wells Fargo Bank, National Association and Chemical Bank. Necessary funding for
such repayment has been obtained under the SE Bank Commitment.
16
<PAGE> 19
Amounts borrowed under the SE Bank Commitment will mature twelve months
from the date of drawdown and may be repaid by Getinge in whole or in part at
any time. Borrowings under the SE Bank Facility will bear interest at a rate
equal to 0.03 percent over such London Interbank Offered Rate on Eurodollar
deposits ("LIBOR") to be agreed upon between SE Bank and Getinge.
The SE Bank Commitment provides for the payment of a total commitment fee
of SEK 150,000, equivalent to $22,245 based on the May 16, 1996 Noon Buying Rate
of SEK 1.00 per $.1483.
The repayment of amounts borrowed pursuant to the SE Facility is expected
to be made through the application of general corporate funds (including funds
generated by the operations of the Company), new medium and long term borrowings
by Getinge or Getinge subsidiaries or any of the foregoing, and through the use
of financial instruments available in international markets. Getinge's
management may propose to its Board of Directors that a part of the of the SE
Bank Facility be refinanced through the issuance of new shares of Getinge
capital stock.
The foregoing description of the SE Bank Commitment is qualified in its
entirety by reference to the text of the SE Bank Commitment, a copy of which has
been filed as an exhibit to the Schedule 14D-1 and which may be obtained in the
manner described in Section 7 (except that it will not be available at the
regional offices of the Commission).
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY; THE MERGER AGREEMENT
BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY
In August of 1995, Mr. Miles Branagan of the Company contacted Mr. Carl
Bennet of Getinge by telephone and indicated the Company's interest in pursuing
a distribution agreement regarding the Company's plasma technology.
On or about September 12 and 13, 1995, Mr. Branagan together with Mr.
Creighton White of the Company visited Getinge in Sweden and discussed the
distribution agreement with Mr. Bennet and other representatives of Getinge. At
such meeting, Mr. Bennet first raised the possibility of a combination between
the two companies.
On September 26, 1995, a confidentiality agreement (the "Confidentiality
Agreement") was entered into between Getinge and the Company.
On or about September 29, 1995, Mr. Rune Andersson and Mr. Carl Bennet of
Getinge met with Mr. Miles Branagan of the Company at Mr. Branagan's request.
The meeting took place in Cannes, France. The purpose of the meeting was to
discuss the possibilities for combining the two companies. The discussions were
general in nature.
On or about November 15, 1995, Mr. Branagan and one of the Company's
outside directors, Mr. Charles E. Johnson, met with Mr. Bennet in Chicago and
generally discussed different forms which a potential business combination might
take, including a cash transaction, a stock-for-stock transaction or some
combination thereof, as well as timing considerations relating to a transaction.
The parties also discussed, in a preliminary manner, a range of prices which
might be acceptable to both Getinge and the Company. They agreed to renew the
discussions around March 1, 1996 at Getinge's request since Getinge had recently
acquired Arjo AB, a Swedish corporation, and was occupied in consolidating its
operations and preferred to defer further discussions until after March 1, 1996.
During December of 1995 and January of 1996, representatives of Getinge and
the Company continued negotiations on a possible distribution agreement for the
Company's plasma sterilizer. The Company and Getinge continued to negotiate a
possible distribution agreement, including at meetings in Dallas on March 4,
1996, but decided on May 10, 1996 not to enter into any such agreement in light
of the pendency of the Offer and Merger.
17
<PAGE> 20
On January 31, 1996, Mr. Bennet reported to the Board of Getinge his
discussions with Mr. Branagan regarding a possible acquisition by Getinge of the
Company.
On February 22 and 23, 1996, Mr. Bennet and Mr. Lars-Peter Harbing of
Getinge met with Mr. Branagan and other representatives of the Company, and
visited the Company's facilities in Henrietta, New York, Charleston, South
Carolina, Durham, North Carolina and Mercersburg, Pennsylvania. They discussed
the development of MDT's results and the possible offer by Getinge for the
shares of the Company. On February 24, 1996, Mr. Bennet discussed various price
levels and deal structures with representatives of Rothschild Inc., Getinge's
financial advisor. On the same day, Mr. Bennet called Mr. Branagan and discussed
a price level of $5 per Share. Mr. Branagan indicated that he was not prepared
to recommend that the Company's board of directors consider a transaction at $5
per share at that time.
On or about February 25, 1996, Mr. Bennet telephoned Mr. Branagan to inform
him that Getinge was prepared to submit two proposals for consideration by the
Company's board of directors: (i) an offer of $5.50 in cash for each Share, or
(ii) an exchange of shares on the basis of one share of Getinge common stock for
each nine Shares, in each case subject to completion of due diligence. Mr.
Bennet and Mr. Branagan had several telephone conversations regarding possible
deal structures and price levels. Mr. Bennet proposed a meeting in New York on
March 13 and 14, 1996, in order to discuss the transaction among representatives
of Getinge and the Company and their respective attorneys, auditors and
investment bankers.
On or about March 4, 1996, Mr. Ulf Grunander of Getinge discussed Getinge's
financial statements with Mr. Tom Hein of the Company.
On March 13 and 14, 1996, representatives of Getinge and the Company and
their respective legal and financial advisors met to negotiate the transaction.
Over the course of the meetings, the representatives conducted extensive
discussions and negotiations concerning the terms and conditions of the
transaction. Based on those discussions, Getinge indicated that it was prepared
to offer $5.75 in cash for each Share, subject to a more extensive due diligence
review of the Company as the parties had concluded that a stock-for-stock
transaction would not be appropriate.
Over the next several weeks, representatives of and advisors to Getinge met
with representatives of and advisors to the Company concerning certain
provisions of the proposed merger agreement, and extensive legal, accounting,
environmental and employee benefit-related due diligence was undertaken. On
April 10, 1996, Mr. Bennet telephoned Mr. Branagan and indicated that Getinge
was prepared to offer a price of $5.25 in cash for each Share, based upon the
low level of incoming orders in the fourth quarter and other due diligence
completed by Getinge, including Getinge's belief that the Company would need to
take additional reserves relating to certain inventory, warranty and workers
compensation matters.
On April 11, 1996, Mr. Bennet notified the Negotiating Committee of the
Company's Board of Directors by telephone that Getinge was lowering its offer to
$5.125 in cash for each Share because of concerns relating to its calculation of
potential payments to terminated employees pursuant to certain employment
agreements with the Company. Mr. Bennet also indicated that the price was
subject to the completion of environmental due diligence relating to the
Company's Charleston, South Carolina, and Henrietta, New York facilities.
On April 12, 1996, Getinge informed the Company that its preliminary due
diligence indicated certain environmental contamination at the Charleston and
Henrietta facilities, and that the results of further testing to indentify the
scope of the contamination would be available in approximately two weeks.
On May 3, 1996, Getinge informed the Company that its environmental due
diligence had revealed certain environmental contamination at each of the
Charleston and Henrietta facilities. Based on that information and Getinge's
conviction that substantial restructuring costs would be incurred on a going
forward basis, Getinge stated that it was prepared to offer a price of $4.50 in
cash for each Share. Discussions continued between the financial and legal
advisors to each of Getinge and the Company. Prior to May 12, 1996, the parties
negotiated the final terms of the Merger Agreement, which, following its
approval by the board of directors of each of Getinge and the Company, was
executed on May 12, 1996.
18
<PAGE> 21
Reference is made to the Company's Schedule 14D-9, which is being mailed to
Stockholders herewith, for a description of the matters considered by the Board
of Directors in connection with its actions.
THE MERGER AGREEMENT
The following is a summary of the Merger Agreement, a copy of which is
filed as an exhibit to the Schedule 14D-1 filed by Purchaser and Getinge with
the Commission in connection with the Offer. Such summary is qualified in its
entirety by reference to the Merger Agreement.
The Offer. The Merger Agreement provides that the obligation of Purchaser
to accept for payment Shares tendered pursuant to the Offer is subject to the
satisfaction or waiver of the Minimum Condition and the other conditions set
forth in Section 14 hereof. The Merger Agreement provides that, without the
prior written consent of the Company, Purchaser will not (i) decrease the Offer
Price, (ii) decrease the number of Shares sought, (iii) decrease the Minimum
Condition, (iv) change the form of consideration payable in the Offer or (v)
impose any additional, or amend any other term or condition of the Offer in any
manner adverse to the Stockholders.
Pursuant to the Merger Agreement, the Company has approved of and consented
to the Offer and has represented that the Board of Directors has (i) unanimously
determined that each of the Merger Agreement, the Offer and the Merger are fair
to and in the best interests of Stockholders, (ii) received the opinion of
Lehman Brothers to the effect that the Offer and the Merger are fair to
Stockholders from a financial point of view, (iii) approved the Merger Agreement
and the transactions contemplated thereby, including the Offer and the Merger,
and (iv) resolved to recommend that Stockholders accept the Offer, tender their
Shares thereunder to Purchaser and approve and adopt the Merger Agreement and
the Merger. Pursuant to the Merger Agreement, the Company has agreed that
concurrent with the commencement of the Offer, it will file with the Commission
and mail to Stockholders the Schedule 14D-9, which will contain the
recommendation of the Board of Directors that Stockholders accept the Offer,
tender their Shares thereunder and approve and adopt the Merger Agreement and
the Merger.
The Merger. The Merger Agreement provides that, subject to the terms and
conditions thereof, at the Effective Time, Purchaser will be merged with and
into the Company and the separate corporate existence of the Purchaser will
cease, with the Company continuing as the surviving corporation in the Merger
(sometimes hereinafter referred to as the "Surviving Corporation"), and will
continue to be governed by the laws of the State of Delaware. As of the
Effective Time, each Share issued and outstanding (other than Shares held in the
treasury of the Company or any subsidiary thereof, any Shares owned by Purchaser
or any subsidiary thereof, and any Shares held by Stockholders exercising
appraisal rights pursuant to the DGCL) will be converted into the right to
receive the Offer Price in cash, without interest.
Pursuant to the Merger Agreement, as of the Effective Time, by virtue of
the Merger and without any action on the part of the holders of any Shares or
any shares of capital stock of Purchaser, each issued and outstanding share of
capital stock of Purchaser will be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation.
Agreements of the Company, Getinge and Purchaser. In the Merger Agreement,
the Company has represented that the Board of Directors has duly and validly
approved the transactions contemplated thereby for the purposes of Section 203
of the DGCL. Accordingly, the provisions of Section 203 of the DGCL will not
apply to the transactions contemplated by the Merger Agreement. The Company has
also represented that no other state takeover statute or similar statute or
regulation applies or purports to apply to the Offer, the Merger or the other
transactions contemplated by the Merger Agreement. Furthermore, the Company has
represented in the Merger Agreement that the Board of Directors has taken all
necessary action so that (i) the Rights will not be exercisable, trade
separately, or be otherwise affected by the Offer, the Merger or the other
transactions contemplated by the Merger Agreement, (ii) in consummating the
Offer and the Merger, none of Getinge and its affiliates will be deemed to be an
"Acquiring Person" for purposes of the Rights Agreement, and (iii) a
"Distribution Date" (as defined in the Rights Agreement) will not occur by
virtue of the Offer, the Merger or the other transactions contemplated by the
Merger Agreement. The Company has also agreed in the Merger Agreement to take
any action reasonably requested by Getinge to ensure and confirm that the
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<PAGE> 22
Company, Getinge and their respective affiliates will not have any obligations
in connection with the Rights or the Rights Agreement in connection with the
Offer, the Merger and the other transactions contemplated by the Merger
Agreement.
Pursuant to the Merger Agreement, the Company shall, if required by
applicable law in order to consummate the Merger, duly call, give notice of,
convene and hold a special meeting of its Stockholders (the "Special Meeting")
as promptly as practicable following the acceptance for payment and purchase of
Shares by Purchaser pursuant to the Offer for the purpose of considering and
taking action upon the approval of the Merger and the adoption of the Merger
Agreement. If Purchaser acquires (pursuant to the Offer or otherwise) at least
two-thirds of the outstanding Shares, Purchaser will have sufficient voting
power to approve the Merger without the affirmative vote of any other
Stockholder.
The Merger Agreement provides that if required by applicable law in order
to consummate the Merger, the Company, acting through its Board of Directors,
shall, in accordance with applicable law, prepare and file with the Commission a
preliminary proxy or information statement in accordance with the Exchange Act
relating to the Merger and the Merger Agreement and use its best efforts to
obtain and furnish the information required to be included by the Exchange Act
and the Commission in such proxy or information statement (including any
amendment or supplement thereto, the "Proxy Statement") and, after consultation
with Getinge, to respond promptly to any comments made by the Commission with
respect to the preliminary Proxy Statement and cause a definitive Proxy
Statement to be mailed to its Stockholders. The Company has also agreed to
include in the Proxy Statement the recommendation of the Board of Directors that
Stockholders vote in favor of the approval of the Merger and the adoption of the
Merger Agreement. Getinge has agreed to vote, or cause to be voted, all Shares
then owned by it, Purchaser or any of its other subsidiaries in favor of the
approval of the Merger and the adoption of the Merger Agreement.
The Merger Agreement further provides that each of Getinge, Purchaser and
the Company have agreed, upon the terms and subject to the conditions set forth
in the Merger Agreement, to use all reasonable 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 and the Merger, and the other transactions contemplated by the Merger
Agreement, including to obtain all necessary waivers, consents and approvals, to
defend all lawsuits or other legal proceedings challenging the Merger Agreement
or the consummation of any of the transactions contemplated by the Merger
Agreement, and to execute and deliver any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the purposes
of, the Merger Agreement.
The Merger Agreement provides that promptly upon the purchase of and
payment for any Shares pursuant to the Offer, Getinge shall be entitled to
designate for appointment or election to the Board of Directors, upon written
notice to the Company, such number of directors, rounded up to the next whole
number, on the Board of Directors such that the percentage of its designees on
the Board shall equal the percentage of the outstanding Shares beneficially
owned by Getinge and its affiliates. In furtherance thereof, the Company shall,
upon request of Purchaser, use its best efforts promptly to cause Getinge's
designees to be so elected to the Company's Board, and in furtherance thereof,
to the extent necessary, increase or diminish the size of the Board of
Directors. The Company shall also cause persons designated by Getinge to
constitute at least the same percentage (rounded up to the next whole number) as
is on the Board of Directors of (i) each committee of the Board of Directors,
(ii) each board of directors (or similar body) of each subsidiary of the Company
and (iii) each committee (or similar body) of each such board. The Company has
agreed to promptly take all actions required pursuant to Section 14(f) of the
Exchange Act and Rule 14f-1 thereunder in order to fulfill its obligations to
appoint such designees, including mailing to shareholders the information
required by such Section 14(f) and Rule 14f-1 (or, at Getinge's request,
furnishing such information to Getinge for inclusion in the Schedule 14D-1 and
the Offer to Purchase) as is necessary to enable Getinge's designees to be
elected to the Board of Directors. Such required information is set forth in
Exhibit 1 to the Company's Schedule 14D-9.
From and after the time, if any, that Getinge's designees constitute a
majority of the Board of Directors, any amendment of the Merger Agreement, any
termination of the Merger Agreement by the Company, any extension of time for
performance of any of the obligations of Getinge or Purchaser thereunder, any
waiver of
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<PAGE> 23
any condition or any of the Company's rights thereunder or other action by the
Company thereunder may be effected only by the action of a majority of the
directors of the Company then in office who are not officers of Getinge or
designees, shareholders or affiliates of Getinge, which action shall be deemed
to constitute the action of any committee specifically designated by the Board
of Directors to approve the actions and transactions contemplated by the Merger
Agreement and the full Board of Directors; provided, that if there shall be no
such directors, such actions may be effected by majority vote of the entire
Board of Directors.
The Merger Agreement provides that the directors of Purchaser at the
Effective Time shall be the initial directors of the Surviving Corporation. The
officers of the Company at the Effective Time will be the initial officers of
the Surviving Corporation.
The Company has agreed in the Merger Agreement that until the acquisition
of the Shares pursuant to the Offer, except as specifically contemplated by the
Merger Agreement, the Company shall and shall cause its subsidiaries to carry on
their respective businesses in the ordinary course and use all commercially
reasonable efforts consistent with good business judgment to preserve intact
their current business organizations and, subject to complying with subsections
(viii) and (ix) below, keep available the services of their current officers and
key employees and preserve their relationships consistent with past practice
with desirable customers, suppliers, licensors, licensees, distributors and
others having business dealings with them. The Company has further covenanted
and agreed that, except as expressly contemplated by the Merger Agreement or as
consented to in writing by Getinge (which consent shall not be withheld
unreasonably), after the date of the Merger Agreement and prior to the
consummation of the Offer:
(i) neither the Company nor any of its subsidiaries shall, directly or
indirectly, amend its certificate of incorporation or by-laws or similar
organizational documents;
(ii) neither the Company nor any of its subsidiaries shall: (A)(1)
declare, set aside or pay any dividend or other distribution payable in
cash, stock or property with respect to the Company's capital stock or that
of its subsidiaries, or (2) redeem, purchase or otherwise acquire directly
or indirectly any of the Company's capital stock or that of its
subsidiaries; (B) issue, sell, pledge, dispose of or encumber any
additional shares of, or securities convertible into or exchangeable for,
or options, warrants, calls, commitments or rights of any kind to acquire,
any shares of capital stock of any class of the Company or its
subsidiaries, other than Shares issued upon the exercise of employee or
director stock options ("Options") outstanding on the date of the Merger
Agreement granted under the 1987 Stock Option Plan as in effect on the date
of the Merger Agreement; or (C) split, combine or reclassify the
outstanding capital stock of the Company or of any of the subsidiaries of
the Company;
(iii) neither the Company nor any of its subsidiaries shall acquire or
agree to acquire (A) by merging or consolidating with, or by purchasing a
substantial portion of the assets of, or by any other manner, any business
or any corporation, partnership, joint venture, association or other
business organization or division thereof (including entities which are
subsidiaries of the Company or any of the Company's subsidiaries) or (B)
any assets, including real estate, except (1) purchases of inventory,
furnishings, equipment, fuel and other non-material assets in the ordinary
course of business consistent with past practice or (2) expenditures
consistent with the Company's current capital budget previously provided to
Getinge as set forth in the Merger Agreement (the "Capital Budget");
(iv) neither the Company nor any of its subsidiaries shall make any
new capital expenditure or expenditures, other than capital expenditures
not to exceed, in the aggregate, the amounts provided for capital
expenditures in the Capital Budget;
(v) neither the Company nor any of its subsidiaries shall, except in
the ordinary course of business and consistent with past practice or as
provided for in the Capital Budget, undertake or agree to undertake any
capital expenditures for the construction or acquisition of any plant,
manufacturing or distribution facility, equipment, or other real property
or fixtures except in the ordinary course of business and consistent with
past practice;
(vi) neither the Company nor any of its subsidiaries shall, except in
the ordinary course of business and except as otherwise permitted by the
Merger Agreement, modify, amend or terminate any material
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<PAGE> 24
contract or agreement set forth in any reports, proxy statements, forms and
other documents required to be filed with the Commission since January 1,
1993 (the "Commission Documents") to which the Company or any subsidiary
thereof is a party or waive, release or assign any material rights or
claims;
(vii) neither the Company nor any of its subsidiaries shall transfer,
lease, license, sell, mortgage, pledge, dispose of, or encumber any
property or assets other than in the ordinary course of business and
consistent with past practice;
(viii) neither the Company nor any of its subsidiaries shall: (A)
enter into any employment or severance agreement with or, except in
accordance with the existing written policies of the Company, grant any
severance or termination pay to any officer, director or key employee of
the Company or any of its subsidiaries; or (B) hire or agree to hire any
new or additional key employees or officers at an annual salary in excess
of $125,000;
(ix) neither the Company nor any of its subsidiaries shall, except as
required to comply with applicable law or expressly provided in the Merger
Agreement, (A) adopt, enter into, terminate or amend any Benefit Plan (as
defined in the Merger Agreement) or other arrangement for the current or
future benefit or welfare of any director, officer or current or former
employee, except to the extent necessary to coordinate any such Benefit
Plans with the terms of the Merger Agreement, (B) increase in any manner
the compensation or fringe benefits of, or pay any bonus to, any director,
officer or employee (except for normal increases or bonuses in the ordinary
course of business consistent with past practice to employees other than
directors, officers or senior management personnel and that, in the
aggregate, do not result in a significant increase in benefits or
compensation expense to the Company and its subsidiaries relative to the
level in effect prior to such action (but in no event shall the aggregate
amount of all such increases exceed 3% of the aggregate annualized
compensation expense of the Company and its subsidiaries reported in the
most recent audited financial statements of the Company included in the
Commission Documents)), (C) pay any benefit not provided for under any
Benefit Plan, (D) grant any awards under any bonus, incentive, performance
or other compensation plan or arrangement or Benefit Plan (including the
grant of stock options, stock appreciation rights, stock based or stock
related awards, performance units or restricted stock, or the removal of
existing restrictions in any Benefit Plans or agreements or awards made
thereunder) or (E) except as required by the current terms thereof, take
any action to fund or in any other way secure the payment of compensation
or benefits under any employee plan, agreement, contract or arrangement or
Benefit Plan;
(x) neither the Company nor any of its subsidiaries shall: (A) incur
or assume any long-term debt, or except in the ordinary course of business,
incur or assume any short-term indebtedness in amounts not consistent with
past practice; (B) incur or modify any material indebtedness or other
liability except as set forth in the Merger Agreement; (iii) assume,
guarantee, endorse or otherwise become liable or responsible (whether
directly, contingently or otherwise) for the obligations of any other
person, except in the ordinary course of business and consistent with past
practice; (D) make any loans, advances or capital contributions to, or
investments in, any other person (other than to wholly-owned subsidiaries
of the Company, or by such subsidiaries to the Company, or customary loans
or advances to employees in accordance with past practice); (E) settle any
claims in excess of $100,000 other than in the ordinary course of business,
in accordance with past practice, and without admission of liability; or
(F) enter into any material commitment or transaction in excess of $100,000
except in the ordinary course of business;
(xi) neither the Company nor any of its subsidiaries shall change any
of the accounting methods used by it unless required by U.S. GAAP;
(xii) neither the Company nor any of its subsidiaries shall make any
material tax election or settle or compromise any material tax liability;
(xiii) neither the Company nor any of its subsidiaries shall 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 and consistent with past
practice, or of claims, liabilities or obligations reflected or reserved
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<PAGE> 25
against in, or contemplated by, the consolidated financial statements (or
the notes thereto) of the Company and its consolidated subsidiaries; or,
except in the ordinary course of business consistent with past practice,
waive the benefits of, or agree to modify in any manner, any
confidentiality agreement or undertaking to which the Company or any of its
subsidiaries is a party; and
(xiv) neither the Company nor any of its subsidiaries will enter into
an agreement, contract, commitment or arrangement to do any of the
foregoing, or to authorize, recommend, propose or announce an intention to
do any of the foregoing.
The Company shall not, and shall not permit any of its subsidiaries to,
take any voluntary action that would result in (i) any of its representations
and warranties set forth in the Merger Agreement that are qualified as to
materiality becoming untrue, (ii) any of such representations and warranties
that are not so qualified becoming untrue in any material manner having a
Material Adverse Effect (as defined in the Merger Agreement) or (iii) any of the
conditions to the Offer set forth in sections (a) and (c) of Section 14 of this
Offer to Purchase not being satisfied (subject to the Company's right to take
action specifically permitted by the "No Solicitation" provisions of the Merger
Agreement, described below).
The Merger Agreement requires that the Company shall (and shall cause each
of its subsidiaries to) afford to the officers, employees, accountants, counsel,
financing sources and other representatives of Getinge (subject to applicable
law and any existing confidentiality provisions in Company contracts), access,
during normal business hours during the period prior to the Effective Time, to
all its properties, books, contracts, commitments and records, including, at
Getinge's discretion, access to conduct environmental investigations on the
terms and conditions set forth in letter agreements between Getinge and the
Company dated April 26, 1996 and May 10, 1996; provided, however, that the
Company shall (and shall cause each of its subsidiaries to) furnish promptly to
Getinge (a) a copy of each report, schedule, registration statement and other
document filed or received by it during such period pursuant to the requirements
of federal or state securities laws and (b) all other information concerning its
business, properties and personnel as Getinge may reasonably request. Except as
otherwise agreed to in writing by the Company, unless and until Getinge and
Purchaser shall have purchased at least a majority of the outstanding Shares
pursuant to the Offer, Getinge will be bound by the terms of the Confidentiality
Agreement.
No Solicitation. The Company has agreed in the Merger Agreement that it
shall not, nor shall it permit any of its subsidiaries to, nor shall it
authorize (and shall use its best efforts not to permit) any officer, director
or employee of, or any investment banker, attorney or other advisor or
representative of, the Company or any of its subsidiaries to, solicit or
initiate, or knowingly encourage the submission of, any Takeover Proposal (as
hereinafter defined). Notwithstanding the foregoing, and subject to the second
succeeding paragraph below, if prior to the acceptance for payment of Shares
pursuant to the Offer, the Board of Directors, after receiving advice from
outside legal counsel to the Company, determines that a failure to act would be
inconsistent with its fiduciary duties to the Stockholders under applicable law,
the Company may (i) furnish information with respect to the Company to any
person in response to an unsolicited request pursuant to a confidentiality
agreement with terms and conditions similar to the Confidentiality Agreement and
(ii) participate in discussions and negotiations regarding any potential
Takeover Proposal. For purposes of the Merger Agreement, "Takeover Proposal"
means (a) any proposal or offer from any person relating to any direct or
indirect acquisition or purchase of all or a substantial part of the assets of
the Company or any of its subsidiaries or of any class of equity securities of
the Company or any of its subsidiaries or any tender offer or exchange offer
that if consummated would result in any person beneficially owning shares of any
class of equity securities of the Company or any of its subsidiaries, or any
merger, consolidation, business combination, sale of substantially all of the
assets, recapitalization, liquidation, dissolution or similar transaction
involving the Company or any of its subsidiaries other than the transactions
contemplated by the Merger Agreement, or (b) any other transaction the
consummation of which would reasonably be expected to impede, interfere with,
prevent or materially delay the Offer or the Merger.
Pursuant to the Merger Agreement, and subject to compliance by the members
of the Board of Directors with their fiduciary duties, neither the Board of
Directors nor any committee thereof shall (i) withdraw or modify, or propose to
withdraw or modify, in a manner adverse to Getinge or Purchaser, the approval or
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<PAGE> 26
recommendation by the Board of Directors or any such committee of the Offer, the
Merger Agreement or the Merger, (ii) approve or recommend, or propose to approve
or recommend, any Takeover Proposal or (iii) enter into any definitive agreement
to consummate any Takeover Proposal. Notwithstanding the foregoing, in the event
that prior to the time of acceptance for payment of Shares in the Offer if in
the opinion of the Board of Directors, after receiving advice from outside legal
counsel to the Company, failure to act would be inconsistent with its fiduciary
duties to the Stockholders under applicable law, the Board of Directors may
(subject to the terms of this and the following sentence) withdraw or modify its
approval or recommendation of the Offer, the Merger Agreement or the Merger,
approve or recommend or propose to approve or recommend a Takeover Proposal, or
enter into an agreement with respect to a Takeover Proposal, in each case at any
time after midnight on the next business day following Getinge's receipt of
written notice (a "Notice of Takeover Proposal") advising Getinge that the Board
of Directors has received a Takeover Proposal, specifying the material terms and
conditions of such Takeover Proposal and identifying the person making such
Takeover Proposal; provided that the Company shall not enter into a definitive
agreement to consummate a Takeover Proposal unless the Company shall have
furnished Getinge with a Notice of Takeover Proposal within the time frame
provided in the immediately preceding clause in advance of any date that it
intends to enter into such agreement. In addition, if the Company enters into a
definitive agreement with respect to any Takeover Proposal, it shall
concurrently with entering into such agreement pay, or cause to be paid, to
Getinge the Expenses (as such term is defined in the Merger Agreement).
In addition to the obligations of the Company set forth above, the Company
is obligated to advise Getinge of any Takeover Proposal, or any proposal with
respect to any Takeover Proposal, the material terms and conditions of such
Takeover Proposal, and the identity of the person making any such Takeover
Proposal or inquiry.
The Company shall be entitled, in the exercise of the Board of Directors'
fiduciary duties, to notify any person that has made a Takeover Proposal of the
material terms and conditions of any change or modification to the terms and
conditions of the Offer or Merger, or of any alternative transaction (a
"Responsive Offer") that may be proposed by Getinge, Purchaser or any of their
affiliates. Getinge and Purchaser agree that all such Responsive Offers shall
remain open for at least two full business days after receipt by the Company.
Agreements Respecting Employee Matters. The Merger Agreement provides that
the Company shall, effective as of the commencement of the Offer, cause each
option outstanding under the Option Plan, whether or not then exercisable or
vested, to become fully exercisable and vested. The Company shall, effective on
or before the consummation of the Offer, cause each option that is then
outstanding to be cancelled.
The Merger Agreement specifies that the Option Plan shall terminate as of
the Effective Time and the provisions in any other Benefit Plan providing for
the issuance, transfer or grant of any capital stock of the Company or any
interest in respect of any capital stock of the Company shall be deleted as of
the Effective Time, and the Company shall use its best efforts to ensure that
following the Effective Time no holder of an option or any participant in the
Option Plan shall have any right thereunder to acquire any capital stock of the
Company, Getinge or the Surviving Corporation.
Pursuant to the Merger Agreement, for a period of one year following the
Effective Time, Purchaser shall, or shall cause the Surviving Corporation to,
provide all of the employees of the Surviving Corporation and its subsidiaries
with employee benefit plans, programs, policies or arrangements (the "Purchaser
Benefit Plans") as are substantially equivalent, in the aggregate, as those
currently provided by the Company (the "Current Benefit Plans"), so long as such
Current Benefit Plans are not materially more favorable, in the aggregate, than
the benefit plans generally provided to employees of companies within the
Company's industry. In the event such Current Benefit Plans are materially more
favorable, in the aggregate, than the benefit plans generally provided to
employees of companies within the Company's industry, Purchaser shall, or shall
cause the Surviving Corporation to, provide for a period of one year following
the Effective Time to all employees of the Surviving Corporation employee
benefit plans that are substantially equivalent, in the aggregate, to the
benefit plans generally provided to employees of companies within the Company's
industry. Except to the extent that benefits may be duplicated, each Purchaser
Benefit Plan shall give full credit for each employee's period of service with
the Company and its subsidiaries prior to the Effective Time for all
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<PAGE> 27
purposes for which such service was recognized under the Company's benefit plans
prior to the Effective Time, and shall waive any pre-existing condition
limitation for any Company employee covered under a Benefit Plan immediately
prior to the Effective Time.
Indemnification. Purchaser and the Surviving Corporation have agreed in
the Merger Agreement that all rights to indemnification existing in favor of the
present or former directors, officers, employees, fiduciaries and agents of the
Company or any of its subsidiaries (collectively, the "Indemnified Parties") as
provided in the Company's certificate of incorporation or by-laws or the
certificate or articles of incorporation, by-laws or similar organizational
documents of any of the Company's subsidiaries as in effect as of the Effective
Time shall survive the Merger and shall continue in full force and effect for
three years after the Effective Time (without modification or amendment, except
as required by applicable law), to the fullest extent permitted by law, and
shall be enforceable by the Indemnified Parties against the Surviving
Corporation, provided that in any event Purchaser and the Surviving Corporation
shall pay and reimburse expenses in advance of the final disposition of any
action or proceeding to each Indemnified Party to the fullest extent permitted
by law. At the Closing the Surviving Corporation shall expressly and directly
assume by written instrument all such obligations. Purchaser shall cause to be
maintained in effect for not less than three years from the Effective Time the
current policies of directors' and officers' liability insurance maintained by
the Company (provided that Purchaser may substitute therefor polices of at least
equivalent coverage containing terms and conditions which are no less
advantageous) with respect to matters occurring prior to the Effective Time,
provided that in no event shall Purchaser or the Surviving Corporation be
required to expend to maintain or procure such insurance coverage any amount per
annum in excess of 200% of the aggregate premiums paid in 1995 on an annualized
basis for such purpose. In the event the payment of such amount for any year is
insufficient to maintain such insurance or equivalent coverage cannot otherwise
be obtained, the Surviving Corporation shall purchase as much insurance as may
be purchased for the amount indicated.
Representations and Warranties. The Merger Agreement contains various
customary representations and warranties of the parties thereto.
Conditions to the Merger. The obligations of each party to effect the
Merger are subject to the satisfaction of the following conditions, any and all
of which may be waived in whole or in part by the Company, Getinge or Purchaser,
as the case may be, to the extent permitted by applicable law:
(a) The Merger Agreement shall have been approved and adopted by the
requisite vote of the Stockholders, if required by applicable law and the
Company's certificate of incorporation, in order to consummate the Merger;
(b) No statute, rule, order, decree or regulation shall have been
enacted or promulgated by any government or any governmental agency or
authority of competent jurisdiction which prohibits the consummation of the
Merger;
(c) There shall be no order or injunction of a court or other
governmental authority of competent jurisdiction in effect precluding,
restraining, enjoining or prohibiting consummation of the Merger; and
(d) Getinge, Purchaser or their affiliates shall have purchased Shares
pursuant to the Offer.
The obligations of the Company to effect the Merger shall also be subject
to the satisfaction, or waiver by the Company, of the following conditions:
(a) Purchaser and Getinge shall have performed in all material
respects their respective obligations under the Merger Agreement required
to be performed prior to the Effective Time; and
(b) All representations and warranties of Purchaser and Getinge
contained in the Merger Agreement shall have been true and correct in all
material respects at the time made, and shall be true and correct in all
material respects as though made on and as of such date.
Termination. The Merger Agreement may be terminated by written notice and
the Merger may be abandoned, by written notice promptly given, at any time prior
to the Effective Time, whether prior to or after approval thereof by
Stockholders: (a) by mutual consent of Getinge and the Company; (b) by either
Getinge
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<PAGE> 28
or the Company if any governmental entity shall have issued an order, decree or
ruling or taken any other action (which order, decree, ruling or other action
the parties hereto shall use their reasonable efforts to lift), in each case
permanently restraining, enjoining or otherwise prohibiting the Offer or the
Merger and such order, decree, ruling or other action shall have become final
and non-appealable; (c) by the Board of Directors (i) if the Company has entered
into a definitive agreement with a third party to consummate a Takeover
Proposal, provided the Company has complied with all relevant provisions of the
Merger Agreement and that it makes simultaneous payment of the Expenses (as
defined below), (ii) if, prior to the purchase of Shares pursuant to the Offer,
Getinge or Purchaser breaches or fails in any material respect to perform or
comply with any of its material covenants and agreements contained in the Merger
Agreement or breaches in any material respect its representations and warranties
as contained in the Merger Agreement, (iii) if Getinge or Purchaser shall have
terminated the Offer without Getinge or Purchaser purchasing the minimum number
of Shares pursuant thereto or failing to pay for the Shares accepted pursuant to
the Offer for purchase, in either case within 60 days of commencement of the
Offer, or if the Offer shall have expired without any Shares being purchased
therein, or (iv) if Getinge, Purchaser or any of their affiliates shall have
failed to commence the Offer on or prior to five business days following the
date of the initial public announcement of the Offer, provided that the Company
may not terminate the Merger Agreement if the Company is in material breach of
the Merger Agreement; or (d) by Getinge (i) if, prior to the purchase of the
Shares pursuant to the Offer, the Board of Directors shall have withdrawn or
modified or changed in a manner adverse to Getinge or Purchaser, its approval or
recommendation of the Offer or the Merger or shall have entered into a
definitive agreement for the consummation of a Takeover Proposal, or (ii) if the
Offer shall have terminated or expired without Getinge or Purchaser purchasing
any Shares thereunder (other than if Getinge or Purchaser has failed to purchase
Shares in the Offer in violation of the Merger Agreement or the terms of the
Offer), or (iii) if, due to an occurrence that if occurring after the
commencement of the Offer would result in a failure to satisfy any of the
conditions to such commencement, Getinge, Purchaser or any of their affiliates
fail to commence the Offer on or prior to five business days following the date
of the initial public announcement of the Offer.
Fees and Expenses. The Merger Agreement also provides that the Company
shall pay to Getinge all of Getinge's reasonably documented out-of-pocket
expenses in an amount up to but not to exceed $1,500,000 (the "Expenses") upon
demand if (i) Getinge or Purchaser terminates the Merger Agreement in accordance
with clause (d)(i) of the preceding paragraph and a Takeover Proposal has been
received by the Company and publicly announced, (ii) the Company terminates the
Merger Agreement in accordance with clause (c)(i) of the preceding paragraph or
(iii) prior to any termination of the Merger Agreement, a Takeover Proposal
shall have been made and within nine months of the termination of the Merger
Agreement a transaction constituting a Takeover Proposal is consummated with
respect to, or the Company enters into an agreement with respect to, or approves
or recommends a Takeover Proposal, made prior to any termination of the Merger
Agreement, provided, however, that in the case of clause (iii) above such
Expenses shall not be paid if such transaction has a value to Stockholders
equivalent to or less favorable than the proposed Offer and Merger and,
provided, further, that no payment is to be made if the Merger Agreement has
been terminated in accordance with clauses (c)(ii), (c)(iii)(y) or (c)(iv) of
the preceding paragraph. In addition, if prior to any termination of the Merger
Agreement, any person or group purchases or otherwise acquires, directly or
indirectly, beneficial ownership of more than 20 percent of the outstanding
voting securities of the Company, and additionally, if at any time within 12
months following the termination of the Merger Agreement any such person or
group consummates a transaction that would otherwise constitute a Takeover
Proposal, Getinge is to be paid, immediately prior to the consummation of such
transaction, the Expenses (provided that no such payment shall be made if the
Merger Agreement has been terminated in accordance with clause (c)(ii) of the
preceding paragraph). The amount of Expenses so payable shall be the amount set
forth in an estimate delivered by Getinge, subject to upward or downward
adjustment (not to be in excess of the amount set forth above) upon reasonable
documentation therefor. For purposes of this paragraph, "Takeover Proposal"
shall mean Takeover Proposal as defined only in clause (a) of the definition of
Takeover Proposal set forth above under the subsection "No Solicitation."
Delaware Law. The Board of Directors has approved the Offer and the Merger
as contemplated by the Merger Agreement for purposes of Section 203 of the DGCL.
Accordingly, the provisions of Section 203 of the DGCL will not apply to the
Offer and the Merger. Section 203 of the DGCL prevents an "interested
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shareholder" (generally, a shareholder owning 15% or more of a corporation's
outstanding voting stock or an affiliate or associate of that shareholder) from
engaging in a "business combination" (defined to include a merger and certain
other transactions) with a Delaware corporation for a period of three years
following the date on which the shareholder became an interested shareholder,
unless (i) prior to that date, the corporation's board of directors approved
either the business combination or the transaction that resulted in the
shareholder becoming an interested shareholder, (ii) upon consummation of the
transaction that resulted in the shareholder becoming an interested shareholder,
the interested shareholder owned at least 85% of the corporation's voting stock
outstanding at the time the transaction commenced (excluding shares owned by
certain employee stock plans and persons who are directors and also officers of
the corporation), or (iii) on or subsequent to that date, the business
combination is approved by the corporation's board of directors and authorized
at an annual or special meeting of shareholders, and not by written consent, by
the affirmative vote of at least 66 2/3% of the outstanding voting stock not
owned by the interested shareholder. As described above, Section 203 of the DGCL
does not apply to the Offer and the Merger.
11. PURPOSE OF THE OFFER AND THE MERGER; PLANS FOR THE COMPANY; OTHER MATTERS
PURPOSE OF THE OFFER AND THE MERGER
The purpose of the Offer and the Merger is to enable Purchaser to acquire,
in one or more transactions, control of, and the entire equity interest in, the
Company. The Offer is intended to increase the likelihood that the Merger will
be completed promptly.
PLANS FOR THE COMPANY
Except as set forth herein, neither Getinge nor Purchaser has any present
plans or proposals which relate to or would result in an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving the
Company or any of its subsidiaries, a sale or transfer of a material amount of
assets of the Company or any of its subsidiaries or any material change in the
Company's capitalization or dividend policy or any other material changes in the
Company's corporate structure or business, or the composition of the Board or
management.
It is expected that initially following the Merger the business and
operations of the Company will, except as set forth in this Offer to Purchase,
be continued by the Company substantially as they are currently being conducted.
Getinge will continue to evaluate the business and operations of the Company
during the pendency of the Offer and after the consummation of the Offer and the
Merger, and will take such actions as are deemed appropriate under the
circumstances then existing. Getinge intends to seek additional information
about the Company during this period. Thereafter, Getinge intends to review such
information as part of a comprehensive review of the Company's business,
operations, capitalization and management with a view to optimizing exploitation
of the Company's potential in conjunction with Getinge's U.S. and worldwide
businesses. Although no decisions have been made to date, Getinge believes that
investments of approximately $20-25 million will be necessary to improve the
Company's business and create a profitable operation. After such review, Getinge
will determine what actions or changes, if any, would be desirable in light of
the circumstances which then exist, and reserves the right to effect such
actions or changes. Such review and ultimate investment program could result in,
among other things, reductions in the workforce, changes in the product mix
(which could result in additional write-offs of inventory) and sale of certain
product lines at a loss, increasing efficiencies in production, administration
and sales through changes in the operations of the Company and relocation of the
head office to the Henrietta, New York facility. Getinge is also considering the
repayment of the Company's bank loans. Necessary funding for such repayment has
been obtained under the SE Bank Commitment. See Section 9. Getinge's decisions
could be affected by information hereafter obtained, changes in general economic
or market conditions or in the business of the Company or its subsidiaries,
actions by the Company or its subsidiaries and other factors. It is expected
that the business and operations of the Company would form an important part of
Getinge's future business plans.
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OTHER MATTERS
Stockholder Approval. Pursuant to the terms of the Company's certificate
of incorporation, the Merger Agreement and the Merger must be approved by the
affirmative vote of the holders of two-thirds of the outstanding Shares. The
Board of Directors has unanimously approved and adopted the Merger Agreement and
the transactions contemplated thereby, and, unless the Merger is consummated
pursuant to the short-form merger provisions under the DGCL as described below,
the only remaining required corporate action of the Company is the approval and
adoption of the Merger Agreement and the transaction contemplated thereby by the
affirmative vote of the holders of two-thirds of the issued and outstanding
Shares. Accordingly, if the Minimum Condition is satisfied, Purchaser will have
sufficient voting power to cause the approval and adoption of the Merger
Agreement and the transactions contemplated thereby without the affirmative vote
of any other Stockholder.
In the Merger Agreement, the Company has agreed to take all action
necessary to convene a meeting of the Stockholders as soon as practicable after
the consummation of the Offer for the purpose of considering and taking action
on the Merger Agreement and the transactions contemplated thereby, if such
action is required by the DGCL. Pursuant to the Merger Agreement, Getinge has
agreed to vote, or cause to be voted, all Shares then owned by it, Purchaser or
any of its other affiliates in favor of the Merger Agreement and the
transactions contemplated thereby.
Board Representation. If Purchaser purchases Shares pursuant to the Offer,
the Merger Agreement provides that promptly upon the purchase of and payment for
any Shares pursuant to the Offer, Getinge shall be entitled to designate for
appointment or election to the Board of Directors, upon written notice to the
Company, such number of directors, rounded up to the next whole number, on the
Board of Directors such that the percentage of its designees on the Board shall
equal the percentage of the outstanding Shares beneficially owned by Getinge and
its affiliates. See Section 10. Getinge expects that such representation would
permit Getinge to exert substantial influence over the Company's conduct of its
business and operations.
Short Form Merger. Under the DGCL, if Purchaser acquires, pursuant to the
Offer or otherwise, at least 90% of the outstanding Shares, Purchaser will be
able to approve the Merger Agreement and the transactions contemplated thereby
without a vote of the Stockholders. In such event, Getinge, Purchaser and the
Company have agreed in the Merger Agreement to take, at the request of
Purchaser, all necessary and appropriate actions to cause the Merger to become
effective as soon as reasonably practicable after such acquisition, without a
meeting of the Stockholders. If, however, Purchaser does not acquire at least
90% of the outstanding Shares pursuant to the Offer or otherwise and a vote of
the Stockholders is required under the DGCL, a significantly longer period of
time would be required to effect the Merger. In the Merger Agreement, the
Company and Getinge have agreed that if immediately prior to the scheduled
Expiration Date the Shares tendered pursuant to the Offer equal more than 80%
but less than 90% of the outstanding Shares, Purchaser may extend the Offer for
a period not to exceed 10 business days.
Appraisal Rights. No appraisal rights are available in connection with the
Offer. However, if the Merger is consummated, Stockholders will have certain
rights under Section 262 of the DGCL to dissent and demand appraisal of, and
payment in cash of the fair value of, their Shares. Such rights, if the
statutory procedures are complied with, could lead to a judicial determination
of the fair value of the Shares (excluding any element of value arising from the
Merger) required to be paid in cash to such dissenting Stockholders for their
Shares. In addition, such dissenting Stockholders would be entitled to receive
payment of a fair rate of interest, from the date of consummation of the Merger,
on the amount determined to be the fair value of their Shares. In determining
the fair value of the Shares, a Delaware court would be required to take into
account all relevant factors. Accordingly, such determination could be based
upon considerations other than, or in addition to, the Offer Price or the market
value of the Shares, including, among other things, asset values and the
investment value of the Shares. In Weinberger v. UOP, Inc., the Delaware Supreme
Court stated, among other things, that "proof of value by any techniques or
methods which are generally considered acceptable in the financial community and
otherwise admissible in court" should be considered in an appraisal proceeding.
Therefore, the value so determined in any appraisal proceeding could be more or
less than the Offer Price.
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In addition, several decisions by Delaware courts have held that, in
certain instances, a controlling shareholder of a corporation involved in a
merger has a fiduciary duty to the other shareholders that requires the merger
to be fair to such other shareholders. In determining whether a merger is fair
to minority shareholders, the Delaware courts have considered, among other
things, the type and amount of consideration to be received by the shareholders
and whether there were fair dealings among the parties. The Delaware Supreme
Court stated in Weinberger and in Rabkin v. Philip A. Hunt Chemical Corp. that
although the remedy ordinarily available to minority shareholders in a cash-out
merger is the right to appraisal described above, a damages remedy or injunctive
relief may be available if a merger is found to be the product of procedural
unfairness, including fraud, misrepresentation or other misconduct.
If a Stockholder who demands appraisal under Section 262 of the DGCL fails
to perfect, or effectively withdraws or loses, his right to appraisal, as
provided in the DGCL, the Shares of that Stockholder will be converted into the
right to receive cash in an amount equal to the Offer Price (without interest)
in accordance with the Merger Agreement. A Stockholder may withdraw his demand
for appraisal by delivering to Purchaser a written withdrawal of such demand for
appraisal and acceptance of the Merger.
Failure to follow the steps required by Section 262 of the DGCL for
perfecting appraisal rights may result in the loss of those rights.
Going Private Transactions. The Commission has adopted Rule 13e-3 under
the Exchange Act which is applicable to certain "going private" transactions and
which may under certain circumstances be applicable to the Merger. However, Rule
13e-3 would be inapplicable if (1) the Shares are deregistered under the
Exchange Act prior to the Merger or other business combination or (2) the Merger
or other business combination is consummated within one year after the purchase
of the Shares pursuant to the Offer and the amount paid per Share in the Merger
or other business combination is at least equal to the amount paid per Share in
the Offer. If applicable, Rule 13e-3 requires, among other things, that certain
financial information concerning the fairness of the proposed transaction and
the consideration offered to minority shareholders in such transaction be filed
with the Commission and disclosed to shareholders prior to the consummation of
the transactions. Purchaser believes that Rule 13e-3 will not be applicable to
the Merger.
12. DIVIDENDS AND DISTRIBUTIONS
The Company has agreed in the Merger Agreement that it will not issue or
sell any Shares prior to the Effective Time other than Shares issuable upon
exercise of options outstanding on the date of the Merger Agreement. The Company
has also agreed in the Merger Agreement not to declare or pay any dividends
prior to the consummation of the Merger.
13. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; NASDAQ QUOTATION;
EXCHANGE ACT REGISTRATION; MARGIN REGULATIONS.
Market for the Shares. The purchase of Shares pursuant to the Offer will
reduce the number of Shares that might otherwise trade publicly and the number
of Stockholders and could adversely affect the liquidity and market value of the
remaining Shares held by the public; if such purchase of Shares satisfies the
Minimum Condition, it will adversely affect the liquidity and may therefore
adversely affect the market value of the remaining Shares held by the public.
NASDAQ Quotation. Depending upon the number, aggregate market value and
per share price of any Shares not purchased pursuant to the Offer, the Shares
may no longer meet the standards of the NASD for continued inclusion in the
NASDAQ National Market, which require that an issuer have at least 200,000
publicly held shares, held by at least 400 shareholders (or 300 shareholders of
round lots), with a market value of at least $1,000,000, and have net tangible
assets of at least $1,000,000, $2,000,000 or $4,000,000, depending on
profitability levels during the issuer's four most recent fiscal years. If these
standards are not met, the Shares might nevertheless continue to be included in
the NASD's NASDAQ Stock Market (the "NASDAQ Stock Market") with quotations
published in the NASDAQ "additional list" or in one of the "local lists," but if
the number of Stockholders were to fall below 300, or if the number of publicly
held Shares were to fall below 100,000 or there were not at least two registered
and active market makers for the Shares, the NASD's
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rules provide that the Shares would no longer be "qualified" for NASDAQ Stock
Market reporting and the NASDAQ Stock Market would cease to provide any
quotations. Shares held directly or indirectly by an officer or director of the
Company, or by any beneficial owner of more than 10 percent of the Shares,
ordinarily will not be considered as being publicly held for such purpose. The
Company has advised Purchaser that as of the close of business on May 9, 1996,
there were 6,769,431 Shares outstanding, held by approximately 496 holders of
record. If, as a result of the purchase of Shares pursuant to the Offer or
otherwise, the Shares no longer meet the requirements of the NASD for continued
inclusion in the NASDAQ National Market or in any other tier of the NASDAQ Stock
Market and the Shares are no longer included in the NASDAQ National Market or in
any other tier of the NASDAQ Stock Market, as the case may be, the market for
the Shares could be adversely affected.
In the event that the Shares no longer meet the requirements of the NASD
for continued inclusion in any tier of the NASDAQ Stock Market, it is possible
that the Shares would continue to trade in the over-the-counter market and that
price quotations would be reported by other sources. The extent of the public
market for the Shares and availability of such quotations would, however, depend
upon the number of Stockholders remaining at such time, the interest in
maintaining a market in Shares on the part of securities firms, the possible
termination of registration under the Exchange Act, as described below, and
other factors.
Exchange Act Registration. The Shares are currently registered under the
Exchange Act. Registration of the Shares under the Exchange Act may be
terminated upon application of the Company to the Commission if the Shares are
neither listed on a national securities exchange nor held by 300 or more holders
of record. Termination of registration of the Shares under the Exchange Act
would substantially reduce the information required to be furnished by the
Company to its Stockholders and to the Commission and would make certain
provisions of the Exchange Act no longer applicable to the Company, such as the
short-swing profit recovery provisions of Section 16(b) of the Exchange Act, the
requirement of furnishing a proxy statement pursuant to Section 14(a) of the
Exchange Act in connection with Stockholders' meetings and the related
requirement of furnishing an annual report to Stockholders and the requirements
of Rule 13e-3 under the Exchange Act with respect to "going private"
transactions. Furthermore, the ability of "affiliates" of the Company and
persons holding "restricted securities" of the Company to dispose of such
securities pursuant to Rule 144 or Rule 144A under the Securities Act of 1933,
as amended, may be impaired or eliminated. Purchaser intends to seek to cause
the Company to apply for termination of registration of the Shares under the
Exchange Act as soon after the completion of the Offer as the requirements for
such termination are met. The Rights are registered under the Exchange Act, but
are attached to the Shares and are not currently separately transferable. If
registration of the Shares is not terminated prior to the Merger, then the
Shares will be delisted from the Nasdaq National Market and registration of the
Shares and Rights under the Exchange Act will be terminated following the
consummation of the Merger.
Margin Regulations. The Shares are currently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), which has the effect, among other things, of allowing
brokers to extend credit on the collateral of the Shares. Depending upon factors
similar to those described above regarding listing and market quotations, it is
possible that, following the Offer, the Shares would no longer constitute
"margin securities" for the purposes of the margin regulations of the Federal
Reserve Board and therefore could no longer be used as collateral for loans made
by brokers.
14. CERTAIN CONDITIONS OF THE OFFER
In addition to (and not in limitation of) Purchaser's rights to extend and
amend the Offer at any time in its sole discretion (subject to the provisions of
the Merger Agreement), Purchaser will not be required to accept for payment or,
subject to any applicable rules and regulations of the Commission, including
Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay
for or return tendered Shares promptly after termination or withdrawal of the
Offer), pay for, and may delay the acceptance for payment of or, subject to the
restriction referred to above, the payment for, any tendered Shares, and may
terminate the Offer as to any Shares not then paid for, if (i) there shall not
have been validly tendered and not withdrawn prior to the expiration of the
Offer such number of Shares which would constitute at least the Minimum
Condition, (ii) any applicable waiting period under the HSR Act has not expired
or terminated, or
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(iii) at any time on or after the date of the Merger Agreement and before the
time of payment for any such Shares, any of the following events shall occur or
shall be determined by Purchaser, in its sole discretion (reasonably
determined), to have occurred:
(a) there shall have been any legal action taken, or any statute,
rule, regulation, judgment, order or injunction promulgated, entered,
enforced, enacted, issued or deemed applicable to the Offer or the Merger
by any domestic or foreign federal or state governmental regulatory or
administrative agency or authority or court or legislative body or
commission which (1) prohibits, or imposes any material limitations, other
than limitations generally affecting the industries in which the Company
and Getinge conduct their business, on Getinge's or Purchaser's ownership
or operation (or that of any of their respective subsidiaries or
affiliates) of all or a material portion of the Company's businesses or
assets as a whole, or compels Getinge or Purchaser or their respective
subsidiaries and affiliates to dispose of or hold separate any material
portion of the business or assets of the Company or Getinge, in each case
taken as a whole, (2) prohibits, or makes illegal, the acceptance for
payment, payment for or purchase of Shares or the consummation of the
Offer, the Merger or the other transactions contemplated by the Merger
Agreement, (3) results in the material delay in the ability of Purchaser,
or renders Purchaser unable, to accept for payment, pay for or purchase a
material amount of the Shares, or (4) imposes material limitations on the
ability of Purchaser or Getinge effectively to exercise full rights of
ownership of the Shares, including, without limitation, the right to vote
the Shares purchased by it on all matters properly presented to
Stockholders;
(b) there shall have occurred (1) any general suspension of trading
in, or limitation on prices for, securities in the NASDAQ National Market,
for a period in excess of three hours, (2) a declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States or Sweden (whether or not mandatory), (3) a commencement of a war,
armed hostilities or other national or international calamity directly or
indirectly involving the United States or Sweden and having a Material
Adverse Effect (as defined in the Merger Agreement) or materially adversely
effecting or delaying the Offer, (4) any limitation (whether or not
mandatory) by any Swedish or United States governmental authority on the
extension of credit by banks or other financial institutions in a manner
which prohibits the extension of funds under the SE Bank Commitment, or (5)
in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening thereof;
(c)(1) the representations and warranties of the Company set forth in
the Merger Agreement shall not be true and correct in any material respect
as of the date of the Merger Agreement and as of consummation of the Offer
as though made on or as of such date, (2) the Company shall have failed to
comply with its covenants and agreements under the Merger Agreement in all
material respects or (3) there shall have occurred any events or changes
which have had individually or in the aggregate a Material Adverse Effect
on the Company and its subsidiaries taken as a whole; provided, however,
that for purposes of determining the trueness and correctness of the
representations and warranties under clause (1) above and for purposes of
clause (3) above, no change or effect shall be deemed a Material Adverse
Effect to the extent that such change or effect arises (i) from
developments, events or changes arising out of the transactions
contemplated by the Merger Agreement and specifically relating to Getinge
as the acquiror of the Company or (ii) from general economic conditions or
matters generally affecting the industries in which the Company conducts
its business;
(d) the Board of Directors shall have withdrawn, or modified or
changed in a manner adverse to Getinge or Purchaser (including by amendment
of the Schedule 14D-9) its recommendation of the Offer, the Merger
Agreement, or the Merger, or recommended another proposal or offer, or the
Board of Directors, upon request of Purchaser, shall fail to reaffirm such
approval or recommendation or shall have resolved to do any of the
foregoing; or
(e) the Merger Agreement shall have terminated in accordance with its
terms;
which in the sole judgment of Getinge or Purchaser (subject to the provisions of
the Merger Agreement), in any such case, and regardless of the circumstances
(including any action or inaction by Getinge or Purchaser)
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giving rise to such conditions makes it inadvisable to proceed with the Offer
and/or with such acceptance for payment of or payment for Shares.
Subject to the provisions of the Merger Agreement, the foregoing conditions
are for the sole benefit of Getinge and Purchaser and may be asserted by
Purchaser regardless of the circumstances giving rise to such conditions or,
subject to the terms of the Merger Agreement, may be waived by Getinge or
Purchaser, in whole or in part at any time and from time to time in the sole
discretion of Getinge or Purchaser, provided, that the condition set forth in
clause (e) above may be waived only by the mutual consent of Getinge or
Purchaser and the Company.
15. CERTAIN LEGAL MATTERS AND REGULATORY APPROVALS
General. Except as otherwise disclosed herein, based on a review of
publicly available filings by the Company with the Commission and the review of
certain information furnished by the Company to Getinge and discussions by
representatives of Getinge with representatives of the Company during Getinge's
investigation of the Company (see Section 10), none of Purchaser, Arjo or
Getinge is aware of (i) any license or regulatory permit that appears to be
material to the business of the Company and its subsidiaries, taken as a whole,
that might be adversely affected by the acquisition of Shares by Purchaser
pursuant to the Offer or the Merger or (ii) except as set forth below, any
approval or other action by any governmental, administrative or regulatory
agency or authority, domestic or foreign that would be required for the
acquisition or ownership of Shares by Purchaser as contemplated herein. Should
any such approval or other action be required, Purchaser currently contemplates
that such approval or action would be sought. While Purchaser does not currently
intend to delay the acceptance for payment of Shares tendered pursuant to the
Offer pending the outcome of any such matter, there can be no assurance that any
such approval or action, if needed, would be obtained or would be obtained
without substantial conditions or that adverse consequences might not result to
the business of the Company, Purchaser or Getinge or that certain parts of the
businesses of the Company, Purchaser or Getinge might not have to be disposed of
in the event that such approvals were not obtained or any other actions were not
taken. Purchaser's obligation under the Offer to accept for payment and pay for
Shares is subject to certain conditions, including conditions relating to the
legal matters discussed in this Section 15. See Section 14.
Antitrust Compliance. Under the HSR Act, and the rules and regulations
that have been promulgated thereunder by the Federal Trade Commission (the
"FTC"), certain acquisition transactions may not be consummated until certain
information and documentary material have been furnished for review by the FTC
and the Antitrust Division of the Department of Justice (the "Antitrust
Division") and certain waiting period requirements have been satisfied. The
acquisition of Shares pursuant to the Offer and the Merger are subject to such
requirements. Both Getinge and the Company filed Pre-merger Notification and
Report Forms with the FTC and the Antitrust Division with respect to the Merger
on May 16, 1996.
Under the provisions of the HSR Act applicable to the Merger, the purchase
of Shares pursuant to the Offer and the Merger may not be consummated until the
expiration of a 30-calendar day waiting period following the filings by Getinge
and the Company, unless such waiting period is earlier terminated by the FTC or
the Antitrust Division. Accordingly, the waiting period with respect to the
Offer will expire at 11:59 P.M., New York City time, on June 15, 1996, unless
Getinge and the Company receive a request for additional information or
documentary material. If, within such 30-day waiting period, either the
Antitrust Division or the FTC requests additional information or material from
Getinge and the Company concerning the Offer, the waiting period would expire at
11:59 P.M., New York City time, on the twentieth calendar day after the date of
substantial compliance with such request by Getinge and the Company. Thereafter,
the waiting period could be extended only by court order or with the consent of
Getinge and the Company. The additional 20-calendar day waiting period may be
terminated sooner by the FTC or the Antitrust Division.
Purchaser will not accept for payment Shares tendered pursuant to the Offer
unless and until the waiting period requirements imposed by the HSR Act with
respect to the Offer and the Merger have been satisfied. See Section 14.
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Pursuant to the HSR Act, Getinge and the Company have requested early
termination of the waiting period applicable to the Merger. There can be no
assurance, however, that such waiting period will be terminated early.
The Antitrust Division, the FTC and state antitrust enforcement agencies
frequently scrutinize the legality under the antitrust laws of transactions such
as Purchaser's acquisition of Shares pursuant to the Offer and the Merger. At
any time before or after Purchaser's acquisition of Shares, any such agency
could take such action under the antitrust laws as it deems necessary or
desirable in the public interest, including seeking to enjoin the acquisition of
Shares pursuant to the Offer or otherwise or seeking divestiture of Shares
acquired by Purchaser or divestiture of substantial assets of Purchaser, Getinge
and/or the Company. Private parties may also bring legal action under the
antitrust laws under certain circumstances.
Based upon an examination of publicly available information relating to the
businesses in which Getinge, the Company and their respective subsidiaries are
engaged, Getinge and Purchaser believe that the acquisition of Shares pursuant
to the Offer and the Merger would not violate the antitrust laws. Nevertheless,
there can be no assurance that a challenge to the Offer on antitrust grounds
will not be made or, if such a challenge is made, what the result will be. See
Section 14.
State Takeover Statutes. The Board of Directors has duly and validly
approved the transactions contemplated by the Merger Agreement for the purposes
of Section 203 of the DGCL. Accordingly, the provisions of Section 203 of the
DGCL will not apply to the transactions contemplated by the Merger Agreement.
Based on information supplied by the Company and the Company's representations
in the Merger Agreement, Purchaser does not believe that any state takeover
statute or similar statute or regulation applies or purports to apply to the
Offer, the Merger or the other transactions contemplated by the Merger
Agreement. Neither Purchaser nor Getinge has currently complied with any
applicable state takeover statute or regulation. Purchaser reserves the right to
challenge the applicability or validity of any state law purportedly applicable
to the Offer or the Merger and nothing in this Offer to Purchase or any action
taken in connection with the Offer or the Merger is intended as a waiver of that
right. If it is asserted that any state takeover statute is applicable to the
Offer or the Merger and an appropriate court does not determine that it is
inapplicable or invalid as applied to the Offer or the Merger, Purchaser might
be required to file certain information with, or to receive approvals from, the
relevant state authorities, and Purchaser might be unable to accept for payment
or pay for Shares tendered pursuant to the Offer, or be delayed in consummating
the Offer or the Merger. In such case, Purchaser may not be obligated to accept
for payment or pay for any Shares tendered pursuant to the Offer.
Foreign Laws. Purchaser understands that the Company and its subsidiaries
own property and conduct business in a number of foreign countries, including,
without limitation, Canada, Hong Kong and Greece. In connection with the
acquisition of the Shares pursuant to the Offer, the laws of certain of these
foreign countries may require the filing of information with, or obtaining the
approval of, governmental authorities therein. After commencement of the Offer,
Purchaser will seek further information regarding the applicability of any such
laws and currently intends to take such action as they may require. However,
Purchaser has no present intention to delay the acceptance for payment of or the
payment for Shares pursuant to the Offer pending the completion of such filings
and the obtaining of such approvals. Such governments might attempt to impose
additional conditions on the Company's operations conducted in such countries as
a result of the acquisition of Shares pursuant to the Offer. There can be no
assurance that Purchaser will be able to cause the Company or its subsidiaries
to satisfy or comply with such laws or that compliance or noncompliance will not
have adverse consequences for the Company or any subsidiary after the purchase
of Shares pursuant to the Offer. If any action is taken prior to completion of
the Offer by any such government which, directly or indirectly (i) prohibits, or
imposes any material limitations, other than limitations generally affecting the
industries in which the Company and Parent conduct their business, on, Getinge's
or Purchaser's ownership or operation (or that of any of their respective
subsidiaries or affiliates) of all or a material portion of the Company's
businesses or assets as a whole, or compels Getinge or the Purchaser or their
respective subsidiaries and affiliates to dispose of or hold separate any
material portion of the business or assets of the Company or Getinge in each
case taken as a whole, (ii) prohibits, or makes illegal, the acceptance for
payment, payment for or purchase of Shares or the consummation of the Offer, the
Merger or the other
33
<PAGE> 36
transactions contemplated by the Merger Agreement, (iii) results in a material
delay in the ability of Purchaser or renders Purchaser unable, to accept for
payment, pay for or purchase a material amount of the Shares, or (4) imposes
material limitations on the ability of Purchaser or Getinge effectively to
exercise full rights of ownership of the Shares, including, without limitation,
the right to vote the Shares purchased by it on all matters properly presented
to the Company's Stockholders. Purchaser will not be obligated to accept for
payment or pay for any Shares which are tendered. See Section 14.
16. FEES AND EXPENSES
Except as set forth below, none of Getinge, Arjo or Purchaser will pay any
fees or commissions to any broker, dealer or other person for soliciting tenders
of Shares pursuant to the Offer.
Rothschild Inc. is acting as the Dealer Manager in connection with the
Offer and is acting as financial advisor to Getinge in connection with its
effort to acquire the Company. Getinge has agreed to pay Rothschild Inc. for its
services an initial financial advisory fee of $70,000, an additional $280,000
upon the announcement of the execution of the Merger Agreement, and a further
$570,000 upon the completion of the Merger. Getinge has also agreed to reimburse
Rothschild Inc. (in its capacity as Dealer Manager and financial advisor) for
its reasonable out-of-pocket expenses, including the fees and expenses of its
legal counsel, incurred in connection with its engagement, and to indemnify
Rothschild Inc. and certain related persons against certain liabilities and
expenses in connection with its engagement, including certain liabilities under
the federal securities laws. Rothschild Inc. has rendered various investment
banking and other advisory services to Getinge and its affiliates in the past
and is expected to continue to render such services, for which it has received
and will continue to receive customary compensation from Getinge and its
affiliates.
Purchaser has retained D.F. King & Co., Inc. to act as the Information
Agent in connection with the Offer. The Information Agent may contact
Stockholders by mail, telephone, facsimile, telegraph and personal interviews
and may request brokers, dealers and other nominee Stockholders to forward
materials relating to the Offer to beneficial owners of Shares. The Information
Agent will receive reasonable and customary compensation for its services, will
be reimbursed for certain reasonable out-of-pocket expenses and will be
indemnified against certain liabilities and expenses in connection therewith,
including certain liabilities under the federal securities laws.
In addition, The Bank of New York has been retained as the Depositary. The
Depositary has not been retained to make solicitations or recommendations in its
role as Depositary. The Depositary will receive reasonable and customary
compensation for its services, will be reimbursed for certain reasonable out-of-
pocket expenses and will be indemnified against certain liabilities and expenses
in connection therewith, including certain liabilities under the federal
securities laws. Brokers, dealers, commercial banks and trust companies will be
reimbursed by Purchaser for customary mailing and handling expenses incurred by
them in forwarding offering material to their customers.
17. MISCELLANEOUS
Purchaser is not aware of any jurisdiction where the making of the Offer is
prohibited by any administrative or judicial action pursuant to any valid
statute. If Purchaser becomes aware of any valid statute prohibiting the making
of the Offer or the acceptance of the Shares pursuant thereto, Purchaser will
make a good faith effort to comply with such statute or seek to have such
statute declared inapplicable to the Offer. If, after such good faith effort,
Purchaser cannot comply with any such statute, the Offer will not be made to
(nor will tenders be accepted from or on behalf of) the Stockholders in such
jurisdiction. 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 will be
deemed to be made on behalf of Purchaser by the Dealer Manager or one or more
registered brokers or dealers which are licensed under the laws of such
jurisdiction.
Getinge and Purchaser have filed with the Commission a Tender Offer
Statement on Schedule 14D-1 (the "Schedule 14D-1"), together with exhibits,
pursuant to Rule 14d-3 under the Exchange Act, furnishing certain additional
information with respect to the Offer, and may file amendments thereto. The
Schedule 14D-1 and any amendments thereto, including exhibits, may be inspected
at, and copies may be obtained
34
<PAGE> 37
from, the same places and in the same manner as set forth in Section 7 above
(except that they will not be available at the regional offices of the
Commission). The Company's recommendation with respect to the Offer and other
information required to be disseminated to Stockholders pursuant to Rule 14d-9
is contained in the Company's Schedule 14D-9, which is being mailed to
Stockholders herewith and which has been filed by the Company with the
Commission.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF GETINGE OR PURCHASER NOT CONTAINED IN THIS OFFER TO
PURCHASE OR IN THE LETTER OF TRANSMITTAL AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED.
GETINGE ACQUISITION CORP.
May 17, 1996
35
<PAGE> 38
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
ANDERSSON & BENNET AB, GETINGE, ARJO AND PURCHASER
1. Directors and Executive Officers of Andersson & Bennet AB. Set forth
below is the name, current business address, citizenship and the present
principal occupation or employment and material occupations, positions, offices
or employments for the past five years of each director and executive officer of
Andersson & Bennet AB. Unless otherwise indicated, each person identified below
is employed by Andersson & Bennet AB. The principal address of Andersson &
Bennet AB and, unless otherwise indicated below, the current business address
for each individual listed below is P.O. Box 69, S-310 44, Getinge, Sweden. Each
such person is a citizen of Sweden.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND CURRENT BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------- ------------------------------------------------------
<S> <C>
Rune Andersson....................... Chairman of the Board of Directors of Andersson &
Bennet AB. See below.
Carl Bennet.......................... Director and President of Andersson & Bennet AB. See
below.
</TABLE>
2. Directors and Executive Officers of Getinge. Set forth below is the
name, current business address, citizenship and the present principal occupation
or employment and material occupations, positions, offices or employments for
the past five years of each director and executive officer of Getinge. Unless
otherwise indicated, each person identified below is employed by Getinge. The
principal address of Getinge and, unless otherwise indicated below, the current
business address for each individual listed below is Box 69, S-310 44, Getinge,
Sweden. Each such person is a citizen of Sweden, except for Edward J. McKinley,
who is a citizen of the United States. Directors are identified by an asterisk.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND CURRENT BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------- ------------------------------------------------------
<S> <C>
Rune Andersson*...................... Chairman of the Board of Directors of Getinge. Mr.
Andersson is also Chairman of the Board of Directors
of Trelleborg AB, a mining, metals and rubber company,
Svedala Industri AB, a mineral processing equipment
company, SSAB, a steel company, since 1991, Akila AB,
a construction company, since 1994, Metric AB, a
distributor of laboratory products, since 1995 and
Andersson & Bennet AB. He is a director of
Skandinaviska Enskilda Banken, a Swedish bank, Sandvik
AB, a steel company, since 1994. Mr. Andersson has
served as the Chairman of the Board of Directors of
ASG AB, a transportation company, from 1990 to 1993,
and as a director of BPA AB, a construction company,
from 1989 to 1993, Esselte AB, an office products
company, from 1991 to 1996 and Scribona AB, an office
products company, from 1991 to 1996. He has been a
director of Industriforbundet, a Swedish industrial
association. Mr. Andersson has been President and
Chief Executive Officer of Trelleborg AB from 1983 to
1989.
Carl Bennet*......................... President and Chief Executive Officer of Getinge. Mr.
Bennet is a director of Scandinavian Recycling AB, a
company engaged in the recycling of rubber and metal
equipment, since 1993, Metric AB since 1995, Andersson
& Bennet AB and Sperlingsholms Kraft AB, a power
utility company, since 1991.
Sven Borelius*....................... Chairman of the Board of Directors of LKAB, a mining
company. Mr. Borelius is a director of Trelleborg AB,
Svedala Industri AB, Scribona AB, Euroc AB, a building
products company, Cardo AB, an industrial group,
Fabege AB, a construction company, and Sanitec Ltd OY,
a ceramics company.
</TABLE>
I-1
<PAGE> 39
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND CURRENT BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------- ------------------------------------------------------
<S> <C>
Roger Holtback*...................... President and Chief Executive Officer of Investment AB
Bure, an investment company, since 1993. Mr. Holtback
is Chairman of the Board of Directors of Gunnebo AB, a
building materials company, since 1993 and the Deputy
Chairman of SPIRA Investment AB, an investment
company, since 1994. Mr. Holtback has been the Head of
S-E-Banken Western Sweden from 1991 to 1993 and the
President and Chief Executive Officer of the Volvo Car
Corporation and Executive Vice President of AB Volvo
from 1984 to 1990. He has been a director of
Investment AB Bure since 1992, Scribona AB, an office
products company, since 1995, Skane Gripen AB, a
building products company, since 1995, Nordic Capital
Svenska AB, an investment fund, since 1993, and TBG,
Monaco, an industrial holding company, since 1988. Mr.
Holtback has also served as a director of Volvo Car
Corporation and a number of its affiliates.
Edward J. McKinley*.................. Employed by E.M. Warburg, Pincus & Co., Inc. since
E.M. Warburg, Pincus & Co. 1984, where he has served as Managing Director since
International Limited January 1988. Mr. McKinley is a director of Getinge
Almack House since November 1995. Mr. McKinley is also a director
28 King Street of several privately held companies.
London SW1Y 6QW
England
Thomas Esko*......................... Union Representative. Welder. Employed by Getinge AB.
Leif Holmgren*....................... Deputy Board Member. Union Representative. Welder.
Getinge Disinfection AB Employed by Getinge Disinfection AB.
Ljungadalsgatan 11
351 15 Vaxjo
Sweden
Gert Klaren*......................... Union Representative. Foreman. Employed by Getinge AB.
Edgar Svensson*...................... Deputy Board Member. Union Representative. Engineer.
Getinge Disinfection AB Employed by Getinge Disinfection AB.
Ljungadalsgatan 11
351 15 Vaxjo
Sweden
Harald Castler....................... Business Area Manager Sterilization -- Health Care
Industry.
Ulf Grunander........................ Chief Financial Officer since 1993. Auditor with
Arthur Andersen & Co. from 1978 to 1992.
Ingmar Johansson..................... Technical Director.
Johan Malmqvist...................... Executive Vice President of Getinge, President of
Getinge Disinfection AB Arjo. Business Area Manager Disinfection, Business
Ljungadalsgatan 11 Area Manager and President of Arjo AB.
351 15 Vaxjo
Sweden
</TABLE>
I-2
<PAGE> 40
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND CURRENT BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------- ------------------------------------------------------
<S> <C>
Bengt Sjoholm........................ Business Area Manager Sterilization -- Pharmaceutical
Industry.
</TABLE>
3. Directors and Executive Officers of Arjo. Set forth below is the name,
current business address, citizenship and the present principal occupation or
employment and material occupations, positions, offices or employments for the
past five years of each director and officer of Arjo. Unless otherwise
indicated, each person identified below is employed by Arjo. The principal
address of Arjo and, unless otherwise indicated below, the current business
address for each individual listed below is 8130 Lehigh Avenue, Morton Grove, IL
60053. Each such person is a citizen of Sweden. Directors are identified by an
asterisk.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND CURRENT BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------- ------------------------------------------------------
<S> <C>
Carl Bennet*......................... Chairman of the Board of Directors of Arjo. See above.
Johan Malmqvist*..................... President of Arjo. See above.
Ulf Grunander........................ Treasurer and Secretary of Arjo. See above.
</TABLE>
4. Directors and Executive Officers of Purchaser. Set forth below is the
name, current business address, citizenship and the present principal occupation
or employment and material occupations, positions, offices or employments for
the past five years of each director and officer of Purchaser. Unless otherwise
indicated, each person identified below is employed by Purchaser and has held
such position since the formation of Purchaser on May 8, 1996. The principal
address of Purchaser and, unless otherwise indicated below, the current business
address for each individual listed below is 8130 Lehigh Avenue, Morton Grove, IL
60053. Each such person is a citizen of Sweden. Directors are identified by an
asterisk.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME AND CURRENT BUSINESS ADDRESS MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
- ------------------------------------- ------------------------------------------------------
<S> <C>
Carl Bennet*......................... Chairman of the Board of Directors of Purchaser. See
above.
Lars-Peter Harbing*.................. President of Purchaser. Mr. Harbing is also the
1100 Towbin Avenue President of Getinge International, Inc. since 1994
Lakewood, NJ 08701 and was the President of Getinge GmbH from 1991 to
1994.
Ulf Grunander........................ Treasurer and Secretary of Purchaser. See above.
</TABLE>
I-3
<PAGE> 41
Manually signed facsimile copies of the Letter of Transmittal will be
accepted. The Letter of Transmittal, certificates for Shares and any other
required documents should be sent by each Stockholder or such Stockholder's
broker, dealer, bank, trust company or other nominee to the Depositary as
follows:
The Depositary for the Offer is:
THE BANK OF NEW YORK
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or Overnight Courier:
Tender & Exchange (For Eligible Institutions Only) Tender & Exchange
Department (212) 815-6213 Department
P. O. Box 11248 101 Barclay Street
Church Street Station For Information Telephone: Receive and Deliver Window
New York, New York 10286-1248 (800) 507-9357 New York, New York 10286
</TABLE>
Questions and requests for assistance or for additional copies of the Offer
to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery may
be directed to the Information Agent or the Dealer Manager at their respective
telephone numbers and locations listed below. You may also contact your broker,
dealer, bank, trust company or other nominee for assistance concerning the
Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
(800) 549-6650 (Toll Free)
(212) 269-5550 (collect)
The Dealer Manager for the Offer is:
ROTHSCHILD INC.
1251 Avenue of Americas
New York, New York 10020
(212) 403-3611 (collect)
<PAGE> 1
LETTER OF TRANSMITTAL
TO TENDER SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
MDT CORPORATION
PURSUANT TO THE OFFER TO PURCHASE
DATED MAY 17, 1996
BY
GETINGE ACQUISITION CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
GETINGE INDUSTRIER AB (PUBL)
(A COMPANY ORGANIZED UNDER THE LAWS OF SWEDEN)
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON FRIDAY, JUNE 28, 1996, UNLESS THE OFFER IS EXTENDED.
TO: THE BANK OF NEW YORK, DEPOSITARY
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand or Overnight Courier:
The Bank of New York The Bank of New York The Bank of New York
Tender & Exchange Department (212) 815-6213 Tender & Exchange Department
P.O. Box 11248 (For Eligible Institutions Only) 101 Barclay Street
Church Street Station Confirm by Telephone: Receive and Deliver Window
New York, New York 10286-1248 (800) 507-9357 New York, New York 10286
</TABLE>
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA A FACSIMILE TRANSMISSION, OTHER THAN AS SET
FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD BE READ
CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
<PAGE> 2
This Letter of Transmittal is to be used either if certificates for Shares
(as defined below) are to be forwarded herewith or, unless an Agent's Message
(as defined below) is utilized, if delivery of Shares is to be made by
book-entry transfer to an account maintained by the Depositary at The Depository
Trust Company or the Philadelphia Depository Trust Company (each a "Book-Entry
Transfer Facility" and, collectively, the "Book-Entry Transfer Facilities")
pursuant to the book-entry transfer procedures set forth in Section 3 of the
Offer to Purchase. Stockholders who deliver certificates evidencing Shares
("Share Certificates") by book-entry transfer are referred to herein as
"Book-Entry Stockholders" and other stockholders are referred to herein as
"Certificate Stockholders." Stockholders whose Share Certificates are not
immediately available or who cannot deliver either the Share Certificates for,
or a Book-Entry Confirmation (as defined in Section 2 of the Offer to Purchase)
with respect to, their Shares and all other documents required hereby to the
Depositary prior to the Expiration Date (as defined in Section 1 of the Offer to
Purchase) must tender their Shares in accordance with the guaranteed delivery
procedures set forth in Section 2 of the Offer to Purchase. See Instruction 2.
Delivery of documents to a Book-Entry Transfer Facility in accordance with the
Book-Entry Transfer Facility's procedures does not constitute delivery to the
Depositary.
- --------------------------------------------------------------------------------
DESCRIPTION OF SHARES TENDERED (SEE INSTRUCTIONS)
<TABLE>
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED OWNER(S)
(PLEASE FILL IN EXACTLY AS NAME(S) APPEAR(S) ON SHARE SHARES TENDERED
CERTIFICATE(S) (ATTACH ADDITIONAL LIST IF NECESSARY)
------------------------------------------------------------------------------------------------------------------------------
SHARE TOTAL NUMBER OF SHARES NUMBER OF
CERTIFICATE REPRESENTED BY SHARE SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
TOTAL SHARES
------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by Book-Entry Stockholders.
** Unless otherwise indicated, it will be assumed that all Shares described
herein are being tendered. See Instruction 4.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 3
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER
MADE TO AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH A BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN A BOOK-ENTRY
TRANSFER FACILITY MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):
(N)ame of Tendering Institution
- --------------------------------------------------------------------------------
(C)heck box of Book-Entry Transfer Facility:
/ / The Depository Trust Company
/ / Philadelphia Depository Trust Company
(A)ccount No.
- --------------------------------------------------------------------------------
(T)ransaction Code No.
- --------------------------------------------------------------------------------
/ / CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF
GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE
FOLLOWING:
(N)ame(s) of Registered Owner(s):
- --------------------------------------------------------------------------------
(D)ate of Execution of Notice of Guaranteed Delivery
-----------------------------------------------------------------
(N)ame of Institution that Guaranteed Delivery
------------------------------------------------------------------------
(I)f delivery is by book-entry transfer check box of Book-Entry Transfer
Facility:
/ / The Depository Trust Company
/ / Philadelphia Depository Trust Company
(A)ccount No.
- --------------------------------------------------------------------------------
(T)ransaction Code No.
- --------------------------------------------------------------------------------
<PAGE> 4
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
LADIES AND GENTLEMEN:
The undersigned hereby tenders to Getinge Acquisition Corp. (the
"Purchaser"), a Delaware corporation and an indirect wholly owned subsidiary of
Getinge Industrier AB (publ) ("Getinge"), a corporation organized under the laws
of Sweden, the above-described shares of common stock, par value $1.25 per share
(the "Shares"), of MDT Corporation (the "Company"), a Delaware corporation,
including the associated Common Stock Purchase Rights ("Rights") issued pursuant
to the Rights Agreement, dated as of February 12, 1990, between the Company and
Bank of America, N.T. & S.A., as extended or amended pursuant to the Rights
Agreement, dated as of August 1, 1992, and the Amendment to Rights Agreement,
dated as of May 10, 1996, between the Company and Chemical Trust Company of
California, as successor rights agent (as so amended, the "Rights Agreement"),
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated May 17, 1996 (the "Offer to Purchase") and this Letter of Transmittal
(which, as amended from time to time, together constitute the "Offer"), receipt
of which is hereby acknowledged. Unless the context otherwise requires, all
references to the Shares shall include the associated Rights and all references
to the Rights shall include all benefits that may inure to the holders of the
Rights pursuant to the Rights Agreement, including the right to receive any
payment due upon redemption of the Rights. The undersigned understands that the
Purchaser reserves the right to transfer or assign, in whole at any time, or in
part from time to time, to Getinge or one or more of its affiliates, the right
to purchase all or any portion of the Shares tendered pursuant to the Offer.
Upon the terms of the Offer, subject to, and effective upon, acceptance for
payment of, and payment for, the Shares tendered herewith in accordance with the
terms of the Offer, the undersigned hereby sells, assigns and transfers to, or
upon the order of, the Purchaser all right, title and interest in and to all the
Shares that are being tendered hereby and all dividends, distributions
(including, without limitation, distributions of additional Shares) and rights
declared, paid or distributed in respect of such Shares on or after May 17, 1996
(collectively, "Distributions"), and irrevocably constitutes and appoints The
Bank of New York (the "Depositary"), the true and lawful agent and
attorney-in-fact of the undersigned, with full power of substitution (such power
of attorney being deemed to be an irrevocable power coupled with an interest),
to the full extent of the undersigned's rights with respect to such Shares and
all Distributions, to (i) deliver Share Certificates evidencing such Shares and
all Distributions or transfer ownership of such Shares and all Distributions on
the account books maintained by a Book-Entry Transfer Facility, together, in any
such case, with all accompanying evidences of transfer and authenticity to, or
upon the order of, the Purchaser, (ii) present such Shares and all Distributions
for transfer on the Company's books and (iii) receive all benefits and otherwise
exercise all rights of beneficial ownership of such Shares and all
Distributions, all in accordance with the terms of the Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the Shares
tendered hereby and all Distributions and, when the same are accepted for
payment by the Purchaser, the Purchaser will acquire good title thereto, free
and clear of all liens, restrictions, claims and encumbrances, and the same will
not be subject to any adverse claim. The undersigned will, upon request, execute
any additional documents deemed by the Depositary or the Purchaser to be
necessary or desirable to complete the sale, assignment and transfer of the
Shares tendered hereby and all Distributions. In addition, the undersigned shall
remit and transfer promptly to the Depositary for the account of the Purchaser
all Distributions in respect of the Shares tendered hereby, accompanied by
appropriate documentation of transfer, and, pending such remittance and transfer
or appropriate assurance thereof, the Purchaser shall be entitled to all rights
and privileges as owner of such Distribution and may withhold the entire
purchase price of the Shares tendered hereby or deduct from such purchase price,
the amount or value of such Distribution as determined by the Purchaser in its
sole discretion.
All authority conferred or agreed to be conferred pursuant to this Letter
of Transmittal shall be binding upon the successors, assigns, heirs, executors,
administrators and legal representatives of the undersigned and shall not be
affected by, and shall survive, the death or incapacity of the undersigned.
Except as stated in the Offer to Purchase, this tender is irrevocable.
<PAGE> 5
The undersigned hereby irrevocably appoints Mr. Carl Bennet and Mr.
Lars-Peter Harbing, and each of them, and any other designees of the Purchaser,
the attorneys-in-fact and proxies of the undersigned, each with full power of
substitution, to vote at any annual, special, adjourned or postponed meeting of
the Company's stockholders or otherwise in such manner as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, to execute any written consent concerning any matter as
each such attorney-in-fact and proxy or his substitute shall in his sole
discretion deem proper with respect to, and to otherwise act as each such
attorney-in-fact and proxy or his substitute shall in his sole discretion deem
proper with respect to, the Shares tendered hereby that have been accepted for
payment by the Purchaser prior to the time any such action is taken and with
respect to which the undersigned is entitled to vote (and any and all other
Shares and Distributions). This appointment is effective when, and only to the
extent that, the Purchaser accepts for payment such Shares as provided in the
Offer to Purchase. This power of attorney and proxy are irrevocable and are
granted in consideration of the acceptance for payment of such Shares in
accordance with the terms of the Offer. Upon such acceptance for payment, all
prior powers of attorney, proxies and consents given by the undersigned with
respect to such Shares (and all Shares and other securities issued in
Distributions in respect of such Shares) will, without further action, be
revoked and no subsequent powers of attorney, proxies, consents or revocations
may be given (and, if given, will not be deemed effective) by the undersigned.
The undersigned understands that the Purchaser's acceptance for payment of
Shares validly tendered pursuant to any of the procedures described in Section 3
of the Offer to Purchase and in the Instructions hereto will constitute a
binding agreement between the undersigned and the Purchaser upon the terms and
subject to the conditions of the Offer. Without limiting the foregoing, if the
price to be paid in the Offer is amended in accordance with the Offer, the price
to be paid to the undersigned will be the amended price notwithstanding the fact
that a different price is stated in this Letter of Transmittal.
Unless otherwise indicated herein under "Special Payment Instructions,"
please issue the check for the purchase price for all Shares purchased and/or
return all Share Certificates evidencing Shares not tendered or accepted for
payment in the name(s) of the registered holder(s) appearing under "Description
of Shares Tendered." Similarly, unless otherwise indicated under "Special
Delivery Instructions," please mail the check for the purchase price and/or
return any Share Certificates evidencing Shares not tendered or accepted for
payment (and accompanying documents, as appropriate) to the address(es) of the
registered holder(s) appearing under "Description of Shares Tendered." In the
event that both the Special Delivery Instructions and the Special Payment
Instructions are completed, please issue the check for the purchase price and/or
return any Share Certificates evidencing Shares not tendered or accepted for
payment (and any accompanying documents, as appropriate) in the name of, and
deliver such check and/or return such Share Certificates (and any accompanying
documents, as appropriate) to, the person or persons so indicated. Unless
otherwise indicated herein under "Special Payment Instructions," please credit
any Shares tendered herewith by book-entry transfer that are not accepted for
payment by crediting the account at the Book-Entry Transfer Facility designated
above. The undersigned recognizes that the Purchaser has no obligation pursuant
to the Special Payment Instructions to transfer any Shares from the name of the
registered holder thereof if the Purchaser does not accept for payment any of
the Shares so tendered.
/ / CHECK HERE IF ANY OF THE SHARE CERTIFICATES REPRESENTING SHARES THAT
YOU OWN HAVE BEEN LOST OR DESTROYED AND SEE INSTRUCTION 11.
Number of Shares represented by the lost or destroyed Share Certificates:
------------------------------------
<PAGE> 6
---------------------------------------------------------------
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if Share Certificates not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment are to be issued in the name of someone other than
the undersigned, or if Shares delivered by book-entry transfer that are
not accepted for payment are to be returned by credit to an account
maintained at a Book-Entry Transfer Facility other than the account
indicated above.
Issue: / / check, and/or
/ / Share Certificates to:
Name
-------------------------------------------------------
(PLEASE PRINT)
Address
-----------------------------------------------------
---------------------------------------------------------------
(ZIP CODE)
---------------------------------------------------------------
EMPLOYER IDENTIFICATION
OR SOCIAL SECURITY NO.
/ / Credit unpurchased Shares delivered by book-entry transfer to the
Book-Entry Transfer Facility account set forth below:
Check appropriate box of Book-Entry Transfer Facility:
/ / The Depository Trust Company
/ / Philadelphia Depositary Trust Company
---------------------------------------------------------------
(ACCOUNT NUMBER)
---------------------------------------------------------------
---------------------------------------------------------------
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 5, 6 AND 7)
To be completed ONLY if Share Certificates not tendered or not
accepted for payment and/or the check for the purchase price of Shares
accepted for payment are to be sent to someone other than the undersigned,
or to the undersigned at an address other than that above.
Mail: / / check, and/or
/ / Share Certificates to:
Name
-------------------------------------------------------
(PLEASE PRINT)
Address
-----------------------------------------------------
---------------------------------------------------------------
(ZIP CODE)
---------------------------------------------------------------
EMPLOYER IDENTIFICATION
OR SOCIAL SECURITY NO.
---------------------------------------------------------------
<PAGE> 7
IMPORTANT
STOCKHOLDERS: SIGN HERE
(ALSO COMPLETE SUBSTITUTE FORM W-9 BELOW)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SIGNATURE(S) OF STOCKHOLDER(S)
Dated , 1996
(Must be signed by registered holder(s) exactly as name(s) appear(s) on Share
Certificates or on a security position listing or by person(s) authorized to
become registered holder(s) by certificates and documents transmitted herewith.
If signature is by trustee, executor, administrator, guardian, attorney-in-fact,
agent, officer of a corporation or other person acting in a fiduciary or
representative capacity, please provide the following information and see
Instruction 5.)
Name(s) ------------------------------------------------------------------------
(PLEASE PRINT)
Capacity (full title)
------------------------------------------------------------------
Address-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(ZIP CODE)
Daytime Area Code and Telephone No.( )
-----------------------------------------------
Employer Identification or Social Security No.
----------------------------------------------
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Authorized Signature
----------------------------------------------------------------
Name --------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT)
Title---------------------------------------------------------------------------
Name of Firm
---------------------------------------------------------------------
Address-------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(ZIP CODE)
Area Code and Telephone No.( )
-----------------------------------------------------
Dated:
- ---------------------------
<PAGE> 8
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. Guarantee of Signatures. No signature guarantee is required on this
Letter of Transmittal (i) if this Letter of Transmittal is signed by the
registered holder(s) (which term, for purposes of this Section, includes any
participant in any of the Book-Entry Transfer Facilities' systems whose name
appears on a security position listing as the owner of the Shares) of Shares
tendered herewith, unless such registered holder(s) has completed either the box
entitled "Special Payment Instructions" or the box entitled "Special Delivery
Instructions" on the Letter of Transmittal or (ii) if such Shares are tendered
for the account of a financial institution (including most commercial banks,
savings and loan associations and brokerage houses) that is a participant in the
Security Transfer Agents Medallion Program, the New York Stock Exchange
Medallion Signature Guarantee Program or the Stock Exchange Medallion Program
(an "Eligible Institution"). In all other cases, all signatures on this Letter
of Transmittal must be guaranteed by an Eligible Institution. See Instruction 5.
2. Requirements of Tender. This Letter of Transmittal is to be completed
by stockholders either if Share Certificates are to be forwarded herewith or,
unless an Agent's Message is utilized, if delivery of Shares is to be made
pursuant to the procedures for book-entry transfer set forth in Section 3 of the
Offer to Purchase. For a stockholder validly to tender Shares pursuant to the
Offer, either (i) a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), together with any required signature guarantees, or, in
the case of a book-entry transfer, an Agent's Message, and any other required
documents, must be received by the Depositary at one of its addresses set forth
herein prior to the Expiration Date and either the Share Certificates evidencing
tendered Shares must be received by the Depositary at one of such addresses or
Shares must be delivered pursuant to the procedures for book-entry transfer set
forth herein (and a Book-Entry Confirmation received by the Depositary), in each
case prior to the Expiration Date, or (ii) the tendering stockholder must comply
with the guaranteed delivery procedures set forth below and in Section 3 of the
Offer to Purchase. If Share Certificates are forwarded to the Depositary in
multiple deliveries, a properly completed Letter of Transmittal must accompany
each such Delivery.
Stockholders whose Share Certificates are not immediately available or who
cannot deliver their Share Certificates and all other required documents to the
Depositary or complete the procedures for book-entry transfer prior to the
Expiration Date may tender their Shares by properly completing and duly
executing the Notice of Guaranteed Delivery pursuant to the guaranteed delivery
procedures set forth in Section 3 of the Offer to Purchase. Pursuant to such
procedures, (i) such tender must be made by or through an Eligible Institution,
(ii) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Purchaser, must be received by the
Depositary prior to the Expiration Date and (iii) the Share Certificates for all
tendered Shares, in proper form for transfer (or a Book-Entry Confirmation with
respect to all such Shares), together with a properly completed and duly
executed Letter of Transmittal or facsimile thereof, with any required signature
guarantees (or, in the case of a book-entry transfer, an Agent's Message), and
any other required documents are received by the Depositary within three trading
days after the date of execution of the Notice of Guaranteed Delivery, all as
provided in Section 3 of the Offer to Purchase. A "trading day" is any day on
which the Nasdaq National Market operated by the National Association of
Securities Dealers, Inc. is open for business.
The term "Agent's Message" means a message, transmitted by a Book-Entry
Transfer Facility to, and received by, the Depositary and forming a part of a
Book-Entry Confirmation, which states that such Book-Entry Transfer Facility has
received an express acknowledgement from the participant in such Book-Entry
Transfer Facility tendering the Shares that such participant has received and
agrees to be bound by the terms of this Letter of Transmittal and that the
Purchaser may enforce such agreement against this participant.
<PAGE> 9
THE METHOD OF DELIVERY OF SHARE CERTIFICATES, THE LETTER OF TRANSMITTAL AND
ANY OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL
BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING IN
THE CASE A OF BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF DELIVERY IS
BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
DELIVERY.
No alternative, conditional or contingent tenders will be accepted and no
fractional Shares will be purchased. All tendering stockholders, by execution of
this Letter of Transmittal (or facsimile thereof), waive any right to receive
any notice of the acceptance of their Shares for payment.
3. Inadequate Space. If the space provided herein is inadequate, the Share
Certificate numbers, the number of Shares evidenced by such Share Certificates
and the number of Shares tendered should be listed on a separate schedule
attached hereto.
4. Partial Tenders (Applicable to Certificate Stockholders Only). If fewer
than all the Shares evidenced by any Share Certificate submitted are to be
tendered, fill in the number of Shares that are to be tendered in the box
entitled "Number of Shares Tendered." In any such case, new Share Certificate(s)
for the remainder of the Shares that were evidenced by the old Share
Certificate(s) will be sent to the registered holder, unless otherwise provided
in the appropriate box on this Letter of Transmittal, as soon as practicable
after the expiration of the Offer. All Shares represented by Share Certificates
delivered to the Depositary will be deemed to have been tendered unless
otherwise indicated.
5. Signatures on Letter of Transmittal, Stock Powers and Endorsements. If
this Letter of Transmittal is signed by the registered holder(s) of the Shares
tendered hereby, the signature must correspond with the name as written on the
face of the Share Certificate(s) without any change whatsoever.
If any of the Shares tendered hereby are owned of record by two or more
joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares are registered in different names on several Share
Certificates, it will be necessary to complete, sign and submit as many separate
Letters of Transmittal as there are different registrations of Share
Certificates.
If this Letter of Transmittal or any Share Certificates or stock powers are
signed by trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, such persons should so indicate when signing, and proper evidence
satisfactory to the Purchaser of their authority so to act must be submitted.
If this Letter of Transmittal is signed by the registered owner(s) of the
Shares listed and transmitted hereby, no endorsements of Share Certificates or
separate stock powers are required unless payment or Share Certificates for
Shares not tendered or accepted for payment are to be issued to a person other
than the registered owner(s). Signatures on such Share Certificates or stock
powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Share Certificates listed, the Share Certificates
must be endorsed or accompanied by appropriate stock powers, in either case
signed exactly as the name or names of the registered owner or owners appear on
the Share Certificates. Signatures on such Share Certificates or stock powers
must be guaranteed by an Eligible Institution.
<PAGE> 10
6. Stock Transfer Taxes. The Purchaser will pay any stock transfer taxes
with respect to the transfer and sale of Shares to it or its order pursuant to
the Offer. If, however, payment of the purchase price of any Share is to be made
to, or if Share Certificates evidencing Shares not tendered or accepted for
payment are to be registered in the name of, any person(s) other than the
registered holder(s), or if tendered Share Certificates are registered in the
name(s) of any person(s) other than the person(s) signing this Letter of
Transmittal, the amount of any stock transfer taxes (whether imposed on the
registered holder(s) or such person(s)) payable on account of the transfer to
such person(s) will be deducted from the purchase price of such Shares unless
satisfactory evidence of the payment of such taxes or exemption therefrom is
submitted.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT WILL NOT BE NECESSARY FOR
TRANSFER TAX STAMPS TO BE AFFIXED TO THE SHARE CERTIFICATES EVIDENCING THE
SHARES TENDERED HEREBY.
7. Special Payment and Delivery Instructions. If a check is to be issued
in the name of, and/or Share Certificates evidencing Shares not accepted for
payment are to be returned to, a person other than the signer of this Letter of
Transmittal or if a check is to be sent and/or such Share Certificates are to be
returned to a person other than the signer of this Letter of Transmittal or to
an address other than that shown above, the appropriate boxes on this Letter of
Transmittal should be completed. Any stockholder(s) delivering Shares by
book-entry transfer may request that Shares not accepted for payment be credited
to such account maintained at a Book-Entry Transfer Facility as such
stockholder(s) may designate.
8. 31% Backup Withholding. In order to avoid "backup withholding" of
federal income tax on payments of cash pursuant to the Offer, a stockholder
surrendering Shares in the Offer must, unless an exemption applies, provide the
Depositary with such stockholder's correct taxpayer identification number
("TIN") on Substitute Form W-9 in this Letter of Transmittal and certify under
penalties of perjury that such TIN is correct and that such stockholder is not
subject to backup withholding. If a stockholder does not provide such
stockholder's correct TIN or fails to provide the certifications described
above, the Internal Revenue Service (the "IRS") may impose a $50 penalty on such
stockholder and payment of cash to such stockholder pursuant to the Offer may be
subject to backup withholding of 31%.
Backup withholding is not an additional income tax. Rather, the amount of
the backup withholding can be credited against the federal income tax liability
of the person subject to the backup withholding, provided that the required
information is given to the IRS. If backup withholding results in an overpayment
of tax, a refund can be obtained by the stockholder upon filing an income tax
return.
The stockholder is required to give the Depositary the TIN (i.e., social
security number or employer identification number) of the record owner of the
Shares. If the Shares are held in more than one name or are not in the name of
the actual owner, consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
number to report.
The box in Part 3 of the Substitute Form W-9 may be checked if the
tendering stockholder has not been issued a TIN and has applied for a TIN or
intends to apply for a TIN in the near future. If the box in Part 3 is checked,
the stockholder or other payee must also complete the Certificate of Awaiting
Taxpayer Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 3 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Depositary will
withhold 31% on all payments made prior to the time a properly certified TIN is
provided to the Depositary. However, such amounts will be refunded to such
stockholder if a TIN is provided to the Depositary within 60 days.
<PAGE> 11
Certain stockholders (including, among others, all corporations and certain
foreign individuals and entities) are not subject to backup withholding.
Noncorporate foreign stockholders should complete and sign the main signature
form and a Form W-8, Certificate of Foreign Status, a copy of which may be
obtained from the Depositary, in order to avoid backup withholding. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for more instructions.
9. Requests for Assistance or Additional Copies. Questions and requests
for assistance may be directed to the Information Agent or the Dealer Manager at
their respective addresses set forth below. Additional copies of the Offer to
Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and the
Guidelines for Certification of Taxpayer Identification Number on Substitute
Form W-9 may be obtained from the Information Agent or from brokers, dealers, or
commercial banks and trusts.
10. Lost, Destroyed or Stolen Certificates. If any Share Certificate has
been lost, destroyed or stolen, the stockholder should promptly notify the
Depositary by checking the box immediately preceding the special payment/special
delivery instructions and indicating the number of Shares lost. The stockholder
will then be instructed as to the steps that must be taken in order to replace
the Share Certificate. This Letter of Transmittal and related documents cannot
be processed until the procedures for replacing lost or destroyed certificates
have been followed.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF), TOGETHER WITH
ANY REQUIRED SIGNATURE GUARANTEES, OR, IN THE CASE OF A BOOK-ENTRY TRANSFER, AN
AGENT'S MESSAGE, AND ANY OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE
DEPOSITARY PRIOR TO THE EXPIRATION DATE AND EITHER SHARE CERTIFICATES EVIDENCING
TENDERED SHARES MUST BE RECEIVED BY THE DEPOSITARY OR SHARES MUST BE DELIVERED
PURSUANT TO THE PROCEDURES FOR BOOK-ENTRY TRANSFER, IN EACH CASE PRIOR TO THE
EXPIRATION DATE, OR THE TENDERING STOCKHOLDER MUST COMPLY WITH THE PROCEDURES
FOR GUARANTEED DELIVERY.
<PAGE> 12
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------
PAYER'S NAME: GETINGE ACQUISITION CORP.
- ---------------------------------------------------------------------------------------------------------
SUBSTITUTE PART 1 -- PLEASE PROVIDE YOUR TAXPAYER ----------------------------
FORM W-9 IDENTIFICATION NUMBER ("TIN") IN THE BOX AT Social Security Number(s)
DEPARTMENT OF THE TREASURY RIGHT AND CERTIFY BY SIGNING AND DATING BELOW. OR
INTERNAL REVENUE SERVICE ------------------------
PAYER'S REQUEST FOR Employer Identification
TAXPAYER IDENTIFICATION Number(s)
NUMBER (TIN)
-----------------------------------------------------------------------------
PART 2 -- Certification -- Under penalties of
perjury, I certify that:
(1) the number shown on this form is my correct
Taxpayer Identification Number (or I am waiting
for a number to be issued to me) and
(2) I am not subject to backup withholding
because (a) I am
exempt from backup withholding or (b) I have
not been
notified by the Internal Revenue Service
(the "IRS") that I
am subject to backup withholding as a result
of failure to
report all interest or dividends or (c) the
IRS has notified
me that I am no longer subject to backup
withholding.
-----------------------------------------------------------------------------
CERTIFICATION INSTRUCTIONS -- You must cross out item (2) in Part 2 above if
you have been notified by the IRS that you are subject to backup withholding
because of under reporting interest or dividends on your tax returns.
However, if after being notified by the IRS that you were subject to backup
withholding you received another notification from the IRS stating that you
are no longer subject to backup withholding, do not cross out such item (2).
If you are exempt from backup withholding, check the box in Part 4 above.
- ---------------------------------------------------------------------------------------------------------
Signature Date , 1996
- ---------------------------------------------------------------------------------------------------------
</TABLE>
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN
PART 3 OF SUBSTITUTE FORM W-9.
- --------------------------------------------------------------------------------
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification
number has not been issued to me, and either (a) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or
(b) I intend to mail or deliver an application in the near future. I
understand that, if I do not provide a taxpayer identification number to the
Depositary, 31% of all reportable payments made to me will be withheld, but
will be refunded if I provide a certified taxpayer identification number
within 60 days.
--------------------------------------------------------------
--------------------------------------------------------------
Signature Date
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS SUBSTITUTE FORM W-9 MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE
OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL INFORMATION.
PART 3 --
Awaiting TIN
/ /
--------------------------
PART 4 --
Exempt TIN
/ /
<PAGE> 13
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect (212) 269-5550
All Others Call Toll Free (800) 549-6650
The Dealer Manager for the Offer is:
ROTHSCHILD INC.
1251 Avenue Of The Americas
New York, New York 10022
(212) 403-3611 (collect)
<PAGE> 1
NOTICE OF GUARANTEED DELIVERY
FOR
TENDER OF SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
MDT CORPORATION
As set forth in Section 3 of the Offer to Purchase (as defined below), this
form or one substantially equivalent hereto must be used to accept the Offer (as
defined below) if certificates for shares of common stock, par value $1.25 per
share (the "Shares"), of MDT Corporation, a Delaware corporation (the
"Company"), and the associated Rights (as defined in the Offer to Purchase), are
not immediately available or time will not permit all required documents to
reach The Bank of New York (the "Depositary") prior to the Expiration Date (as
defined in the Offer to Purchase) or the procedure for book-entry transfer
cannot be completed on a timely basis. This form may be delivered by hand to the
Depositary or transmitted by mail, overnight courier, hand or facsimile
transmission to the Depositary and must include a guarantee by an Eligible
Institution (as defined in the Offer to Purchase). See Section 3 of the Offer to
Purchase.
TO: THE BANK OF NEW YORK, DEPOSITARY
<TABLE>
<S> <C> <C>
By Mail: By Facsimile Transmission: By Hand: or Overnight Courier:
The Bank of New York (212) 815-6213 The Bank of New York
Tender & Exchange Department (For Eligible Institutions Only) Tender & Exchange Department
P. 0. Box 11248 101 Barclay Street
Church Street Station Confirm by Telephone: Receive and Deliver Window
New York, New York 10286-1248 (800) 507-9357 New York, New York 10286
</TABLE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS
VIA A FACSIMILE TRANSMISSION, OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE
A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to Getinge Acquisition Corp., a Delaware
corporation (the "Purchaser"), which is a wholly owned subsidiary of Getinge
Industrier AB (publ), a corporation organized under the laws of Sweden, upon the
terms and subject to the conditions set forth in the Purchaser's Offer to
Purchase dated May 17, 1996 (the "Offer to Purchase") and the related Letter of
Transmittal, receipt of which is hereby acknowledged, the number of Shares
(including the associated Rights, as defined in the Offer to Purchase) set forth
below, all pursuant to the guaranteed delivery procedures set forth in Section 3
of the Offer to Purchase.
Number of Shares:
- --------------------------------------------------------------------------------
Share Certificate Nos.
(if available):
- --------------------------------------------------------------------------------
Check ONE box if Shares will be tendered by book-entry transfer:
/ / The Depository Trust Company
/ / Philadelphia Depository Trust Company
Account Number:
- --------------------------------------------------------------------------------
Name of Tendering Institution:
- --------------------------------------------------------------------------------
Name(s) of Record Holder(s):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print)
Address(es):
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Zip Code)
Area Code and Telephone No.:
Signature(s)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Dated:
- ------------------------
<PAGE> 3
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a participant in the Security Transfer Agent's Medallion
Program, the New York Stock Exchange Medallion Signature Guarantee Program or
the Stock Exchange Medallion Program, hereby (i) represents that the tender of
Shares effected hereby complies with Rule 14c-4 under the Securities Exchange
Act of 1934, and (ii) guarantees to deliver to the Depositary either the
certificates representing the Shares tendered hereby, in proper form for
transfer, or a Book Entry Confirmation with respect to such Shares, in any such
case together with a properly completed and duly executed Letter of Transmittal
(or facsimile thereof), with any required signature guarantees, or, in the case
of a book entry of Shares, an Agent's Message, and any other required documents,
within three trading days after the date hereof. A trading day is any day on
which the Nasdaq National Market operated by the National Association of
Securities Dealers, Inc. is open for business.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for Shares to the Depositary within the time period shown herein.
Failure to do so could result in a financial loss to such Eligible Institution.
All terms used herein have the meanings set forth in the Offer to Purchase.
Name of Firm:
- --------------------------------------------------------------------------------
Address:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Zip Code)
Area Code and
Telephone No.:
- --------------------------------------------------------------------------------
(Authorized Signature)
Name:
- --------------------------------------------------------------------------------
(Please print)
Title:
- --------------------------------------------------------------------------------
Dated:
- --------------------------------------------------------------------------------
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE; CERTIFICATES FOR
SHARES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
<PAGE> 1
ROTHSCHILD INC.
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
MDT CORPORATION
AT
$4.50 NET PER SHARE
BY
GETINGE ACQUISITION CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
GETINGE INDUSTRIER AB (PUBL)
(A COMPANY ORGANIZED UNDER THE LAWS OF SWEDEN)
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
FRIDAY, JUNE 28, 1996, UNLESS THE OFFER IS EXTENDED.
May 17, 1996
To Brokers, Dealers, Banks,
Trust Companies and other Nominees:
We have been engaged by Getinge Acquisition Corp. (the "Purchaser"), a
Delaware corporation which is an indirect wholly owned subsidiary of Getinge
Industrier AB (publ) ("Getinge"), a corporation organized under the laws of
Sweden, and by Getinge to act as Dealer Manager in connection with the
Purchaser's offer to purchase all outstanding shares of common stock, par value
$1.25 per share (the "Shares"), of MDT Corporation, a Delaware corporation (the
"Company"), and the associated Rights (as defined in the Offer to Purchase), at
$4.50 per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Purchaser's Offer to Purchase dated May 17, 1996
(the "Offer to Purchase") and in the related Letter of Transmittal (which, as
amended from time to time, together constitute the "Offer"). Please furnish
copies of the enclosed materials to those of your clients for whom you hold
Shares registered in your name or in the name of your nominee.
Enclosed herewith are copies of the following documents:
1. Offer to Purchase dated May 17, 1996;
2. Letter of Transmittal to be used by stockholders of the Company in
accepting the Offer and tendering Shares;
3. A letter to stockholders of the Company from J. Miles Branagan, Chairman
of the Board of Directors, President and Chief Executive Officer of the Company,
together with a Solicitation/Recommendation Statement on Schedule 14D-9 filed
with the Securities and Exchange Commission by the Company;
4. A printed form of letter that may be sent to your clients for whose
account you hold Shares in your name or in the name of a nominee, with space
provided for obtaining such clients' instructions with regard to the Offer;
5. Notice of Guaranteed Delivery to be used to accept the Offer if the
Shares and all other required documents are not immediately available or cannot
be delivered to the Bank of New York (the "Depository") by the Expiration Date
or if the procedure for book entry transfer cannot be completed by the
Expiration Date;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9; and
7. Return envelope addressed to The Bank of New York, the Depositary.
<PAGE> 2
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF
SHARES WHICH CONSTITUTES AT LEAST 66 2/3% OF THE SHARES OUTSTANDING ON A FULLY
DILUTED BASIS (EXCLUDING SHARES SUBJECT TO OPTIONS UNDER THE COMPANY'S 1987
STOCK OPTION PLAN). THE OFFER IS ALSO CONDITIONED ON OTHER TERMS AND CONDITIONS
CONTAINED IN THE OFFER TO PURCHASE. SEE THE INTRODUCTION AND SECTIONS 1, 14 AND
15 OF THE OFFER TO PURCHASE.
We urge you to contact your clients promptly. Please note that the Offer
and withdrawal rights will expire at 5:00 p.m., New York City time, on Friday,
June 28, 1996, unless extended.
In order to accept the Offer, a duly executed and properly completed Letter
of Transmittal and any required signature guarantees, or an Agent's Message (as
defined in the Offer to Purchase) in connection with a book-entry delivery of
Shares, and any other required documents should be sent to the Depositary and
either Share Certificates representing the tendered Shares should be delivered
to the Depositary, or Shares should be tendered by book-entry transfer into the
Depositary's account maintained at one of the Book Entry Transfer Facilities (as
described in the Offer to Purchase), all in accordance with the instructions set
forth in the Letter of Transmittal and the Offer to Purchase.
If holders of Shares wish to tender, but it is impracticable for them to
forward their Share Certificates or other required documents on or prior to the
Expiration Date or to comply with the book-entry transfer procedures on a timely
basis, a tender may be effected by following the guaranteed delivery procedures
specified in Section 3 of the Offer to Purchase.
Neither the Purchaser nor Getinge will pay any fees or commissions to any
broker or dealer or any other person (other than the Dealer Manager and the
Information Agent as described in the Offer to Purchase) for soliciting tenders
of Shares pursuant to the Offer. You will be reimbursed by the Purchaser upon
request for customary mailing and handling expenses incurred by you in
forwarding the enclosed offering materials to your customers. The Purchaser will
pay or cause to be paid any stock transfer taxes payable on the transfer of
Shares to it, except as otherwise provided in Instruction 6 of the Letter of
Transmittal.
Additional copies of the enclosed material may be obtained by contacting
the Dealer Manager or the Information Agent at their respective addresses and
telephone numbers set forth on the back cover of the enclosed Offer to Purchase.
Very truly yours,
ROTHSCHILD INC.
as Dealer Manager
1251 Avenue of the Americas
New York, New York 10020
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU OR
ANY OTHER PERSON THE AGENT OF THE COMPANY, THE PURCHASER, GETINGE, THE
DEPOSITARY, THE INFORMATION AGENT OR THE DEALER MANAGER OR AUTHORIZE YOU OR ANY
OTHER PERSON TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY
OF THEM WITH RESPECT TO THE OFFER NOT CONTAINED IN THE OFFER TO PURCHASE OR THE
LETTER OF TRANSMITTAL.
2
<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
MDT CORPORATION
AT
$4.50 NET PER SHARE
BY
GETINGE ACQUISITION CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
GETINGE INDUSTRIER AB (PUBL)
(A COMPANY ORGANIZED UNDER THE LAWS OF SWEDEN)
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
FRIDAY, JUNE 28, 1996, UNLESS THE OFFER IS EXTENDED.
May 17, 1996
To Our Clients:
Enclosed for your consideration is an Offer to Purchase dated May 17, 1996
(the "Offer to Purchase") and the related Letter of Transmittal (which, as
amended from time to time, together constitute the "Offer") relating to the
Offer by Getinge Acquisition Corp. (the "Purchaser"), a Delaware corporation,
which is an indirect wholly owned subsidiary of Getinge Industrier AB (publ)
("Getinge"), a corporation organized under the laws of Sweden, to purchase all
outstanding shares of common stock, par value $1.25 per share (the "Shares"), of
MDT Corporation (the "Company"), a Delaware corporation, and the associated
Rights (as defined in the Offer to Purchase), at a price of $4.50 per Share, net
to the seller in cash, upon the terms and subject to the conditions set forth in
the Offer.
Unless the context otherwise requires, all references to Shares shall
include the associated Rights and all references to the Rights shall include all
benefits that may inure to holders of the Rights pursuant to the Rights
Agreement (as defined in the Offer to Purchase), including the right to receive
any payment due upon redemption of the Rights. Holders of Shares whose
certificates for such Shares (the "Share Certificates") are not immediately
available, or who cannot deliver their Share Certificates and all other required
documents to the Depositary on or prior to the Expiration Date (as defined in
the Offer to Purchase), or who cannot complete the procedures for book-entry
transfer on a timely basis, must tender their Shares according to the guaranteed
delivery procedures set forth in Section 3 of the Offer to Purchase.
WE ARE THE HOLDER OF RECORD OF SHARES HELD BY US FOR YOUR ACCOUNT. A TENDER
OF SUCH SHARES CAN BE MADE ONLY BY US AS THE HOLDER OF RECORD AND PURSUANT TO
YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR
INFORMATION ONLY AND CANNOT BE USED BY YOU TO TENDER SHARES HELD BY US FOR YOUR
ACCOUNT.
We request instructions as to whether you wish to tender any or all of the
Shares held by us for your account, pursuant to the terms and conditions set
forth in the Offer.
Your attention is directed to the following:
1. The offer price is $4.50 per Share, net to the seller in cash, without
interest thereon, upon the terms and subject to the conditions of the Offer.
2. The Offer is being made for all outstanding Shares.
3. The Board of Directors of the Company has unanimously approved the
Agreement and Plan of Merger, dated as of May 12, 1996 (the "Merger Agreement"),
by and among Getinge, the Purchaser and the Company, and the transactions
contemplated by the Merger Agreement, has unanimously determined that each of
the Merger Agreement, the Offer and the Merger is fair to and in the best
interests of the Company's stockholders and unanimously recommends
<PAGE> 2
that stockholders of the Company accept the Offer and tender their Shares
pursuant to the Offer and approve and adopt the Merger Agreement and the Merger.
4. The Offer and withdrawal rights will expire at 5:00 p.m., New York City
time, on Friday, June 28, 1996, unless the Offer is extended.
5. The Offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the expiration of the Offer a number of
Shares which constitutes at least 66 2/3% of the Shares outstanding on a fully
diluted basis (other than Shares outstanding under the Company's 1987 Stock
Option Plan, as defined in the Offer to Purchase). The Offer is also subject to
other terms and conditions contained in the Offer to Purchase. See the
Introduction and Sections 1, 14 and 15 of the Offer to Purchase.
6. Any stock transfer taxes applicable to a sale of Shares to the Purchaser
pursuant to the Offer will be borne by the Purchaser, except as otherwise
provided in Instruction 6 of the Letter of Transmittal.
Your instructions to us should be forwarded promptly to permit us to submit
a tender on your behalf prior to the expiration of the Offer.
If you wish to have us tender any or all of the Shares held by us for your
account, please so instruct us by completing, executing, detaching and returning
to us the instruction form on the detachable part hereof. An envelope to return
your instructions to us is enclosed. If you authorize the tender of your Shares,
all such Shares will be tendered unless otherwise specified on the detachable
part hereof. Your instructions should be forwarded to us in ample time to permit
us to submit a tender on your behalf prior to the expiration of the Offer.
In all cases, payment for Shares accepted for payment pursuant to the Offer
will be made only after timely receipt by The Bank of New York (the
"Depositary"), of (i) the certificates evidencing such Shares (the "Share
Certificates"), or a timely Book-Entry Confirmation (as defined in the Offer to
Purchase) with respect to such Shares, (ii) a Letter of Transmittal (or
facsimile thereof), properly completed and duly executed, with any required
signature guarantees, or, in the case of a book-entry transfer effected pursuant
to the procedure set forth in Section 3 of the Offer to Purchase, an Agent's
Message (as defined in the Offer to Purchase), and (iii) any other documents
required by the Letter of Transmittal. Accordingly, tendering stockholders may
be paid at different times depending upon when Share Certificates or Book-Entry
Confirmations with respect to Shares are actually received by the Depositary.
Under no circumstances will interest be paid on the purchase price of the Shares
to be paid by the Purchaser, regardless of any extension of the Offer or any
delay in making such payment.
The Offer is not being made to, nor will tenders be accepted from, or on
behalf of, holders of Shares in any jurisdiction in which the making or
acceptance of the Offer would not be in compliance with the laws of such
jurisdiction. However, the Purchaser may, in its discretion, take such action as
it may deem necessary to make to offer in any jurisdiction and extend the Offer
to holders of Shares in such jurisdictions.
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 is being made on
behalf of the Purchaser by Rothschild Inc., the Dealer Manager for the Offer, or
one or more registered brokers or dealers that are licensed under the laws of
such jurisdiction.
2
<PAGE> 3
INSTRUCTIONS WITH RESPECT TO
THE OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
MDT CORPORATION
BY
GETINGE ACQUISITION CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
GETINGE INDUSTRIER AB (PUBL)
(A COMPANY ORGANIZED UNDER THE LAWS OF SWEDEN)
The undersigned acknowledge(s) receipt of your letter, the Offer to
Purchase of Getinge Acquisition Corp., a Delaware corporation (the "Purchaser"),
dated May 17, 1996 (the "Offer to Purchase") and the related Letter of
Transmittal relating to Purchaser's offer to purchase shares of common stock,
par value $1.25 per share (the "Shares"), of MDT Corporation, a Delaware
corporation, and the associated Rights (as defined in the Offer to Purchase), at
a purchase price of $4.50 per Share net to the seller in cash, without interest
thereon, upon the terms and subject to the conditions set forth in the Offer to
Purchase.
This will instruct you to tender the number of Shares and the associated
Rights indicated below or, if no number is indicated below, all Shares and
associated Rights held by you for the account of the undersigned, on the terms
and subject to the conditions set forth in such Offer to Purchase and Letter of
Transmittal.
Number of Shares to be Tendered:*
____________ Shares
Dated: ____________________ , 1996
SIGN HERE
- --------------------------------------
- --------------------------------------
Signature(s)
- --------------------------------------
- --------------------------------------
(Please type or print names)
- --------------------------------------
- --------------------------------------
(Please type or print addresses)
- --------------------------------------
- --------------------------------------
Area Code and Telephone No.
- --------------------------------------
- --------------------------------------
Tax Identification or Social Security
No.(s)
* Unless otherwise instructed, it will be assumed that all Shares held by us for
your account are to be tendered.
<PAGE> 1
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER. -- Social Security numbers have nine digits separated by two hyphens:
i.e., 000-00-0000. Employer identification numbers have nine digits separated by
only one hyphen: i.e., 00-0000000. The table below will help determine the
number to give the payer.
<TABLE>
<C> <S> <C>
- ---------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF --
- ---------------------------------------------------------
- ---------------------------------------------------------
GIVE THE
FOR THIS TYPE OF ACCOUNT: SOCIAL SECURITY
NUMBER OF --
- ---------------------------------------------------------
1. An individual's account The individual
2. Two or more individuals (joint The actual owner of
account) the account or, if
combined funds, any
one of the
individuals(1)
3. Husband and wife (joint The actual owner of
account) the account or, if
joint funds, either
person(1)
4. Custodian account of a minor The minor(2)
(Uniform Gift to Minors Act)
5. Adult and minor (joint account) The adult or, if
the minor is the
only contributor,
the minor(1)
6. Account in the name of guardian The ward, minor, or
or committee for a designated incompetent
ward, minor or incompetent person(3)
person
7. a. The usual revocable savings The grantor-
trust account (grantor is trustee(1)
also trustee)
b. So-called trust account that The actual owner(1)
is not a legal or valid trust
under state law
8. Sole proprietorship account The owner(4)
9. A valid trust, estate, or The legal entity
pension trust (Do not furnish the
identification
number of the
personal
representative or
trustee unless the
legal entity itself
is not designated
in the account
title.)(5)
10. Corporate account The corporation
11. Religious, charitable, or The organization
educational organization
account
12. Partnership account The partnership
13. Association, club or other tax- The organization
exempt organization
14. A broker or registered nominee The broker or
nominee
15. Account with the Department of The public entity
Agriculture in the name of a
public entity (such as a State
or local government, school
district, or prison) that
receives agricultural program
payments
</TABLE>
- ------------------------------------------------------------
- ------------------------------------------------------------
(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be
considered to be that of the first name listed.
<PAGE> 2
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
If you don't have a taxpayer identification number or you don't know your
number, obtain Form SS-5, Application for a Social Security Number Card, or Form
SS-4, Application for Employer Identification Number, at the local office of the
Social Security Administration or the Internal Revenue Service and apply for a
number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
Payees specifically exempted from backup withholding on ALL payments include the
following:
- A corporation.
- A financial institution.
- An organization exempt from tax under section 501(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), or an individual retirement plan.
- The United States or any agency or instrumentality thereof.
- A State, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality thereof.
- A foreign government, a political subdivision of a foreign government, or
any agency or instrumentality thereof.
- An international organization or any agency or instrumentality thereof.
- A registered dealer in securities or commodities registered in the United
States or a possession of the United States.
- A real estate investment trust.
- A common trust fund operated by a bank under section 584(a) of the Code.
- An exempt charitable remainder trust, or a nonexempt trust described in
section 4947(a)(1) of the Code.
- An entity registered at all times under the Investment Company Act of 1940.
- A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
- Payments to nonresident aliens subject to withholding under section 1441 of
the Code.
- Payments to partnerships not engaged in a trade or business in the United
States and which have at least one nonresident partner.
- Payments of patronage dividends where the amount received is not paid in
money.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
Payments of interest not generally subject to backup withholding include the
following:
- Payments of interest on obligations issued by individuals. Note: You may be
subject to backup withholding if this interest is $600 or more and is paid
in the course of the payer's trade or business and you have not provided
your correct taxpayer identification number to the payer.
- Payments of tax-exempt interest (including exempt-interest dividends under
section 852 of the Code).
- Payments described in section 6049(b)(5) of the Code to non-resident aliens.
- Payments on tax-free covenant bonds under section 1451 of the Code.
- Payments made by certain foreign organizations.
- Payments made to a nominee.
EXEMPT PAYEES DESCRIBED ABOVE MUST STILL COMPLETE THE SUBSTITUTE FORM W-9
ENCLOSED HEREWITH TO AVOID POSSIBLE ERRONEOUS BACKUP WITHHOLDING. FILE
SUBSTITUTE FORM W-9 WITH THE PAYER, REMEMBERING TO CERTIFY YOUR TAXPAYER
IDENTIFICATION NUMBER ON PART III OF THE FORM, WRITE "EXEMPT" ON THE FACE OF THE
FORM AND SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details, see sections 6041, 6041A(a), 6042, 6044, 6045,
6049, 6050A, and 6050N of the Code and their regulations.
PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividends,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. The IRS uses the numbers for identification
purposes and to help verify the accuracy of your tax return. Payers must be
given the numbers whether or not recipients are required to file a tax return.
Payers must generally withhold 31% of taxable interest, dividends, and certain
other payments to a payee who does not furnish a taxpayer identification number
to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail
to furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no imposition
of backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX
CONSULTANT OR THE INTERNAL REVENUE SERVICE.
<PAGE> 1
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase dated May
17, 1996 and the related Letter of Transmittal, and is not being made to
(nor will tenders be accepted from or on behalf of) holders of Shares in
any jurisdiction in which the making of the Offer or the acceptance
thereof would not be in compliance with the laws of such
jurisdiction. In any jurisdiction where securities, blue sky or
other laws require the Offer to be made by a licensed broker
or dealer, the Offer is being made on behalf of the
Purchaser by Rothschild Inc. or one or more registered
brokers or dealers licensed under the laws of such
jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
ALL OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED COMMON STOCK PURCHASE RIGHTS)
OF
MDT CORPORATION
AT
$4.50 NET PER SHARE
BY
GETINGE ACQUISITION CORP.
AN INDIRECT WHOLLY-OWNED SUBSIDIARY OF
GETINGE INDUSTRIER AB (PUBL)
(A COMPANY ORGANIZED UNDER THE LAWS OF SWEDEN)
Getinge Acquisition Corp. (the "Purchaser"), a Delaware corporation and an
indirect wholly-owned subsidiary of Getinge Industrier AB (publ), a corporation
organized under the laws of Sweden ("Getinge"), is offering to purchase all
outstanding shares of common stock, par value $1.25 per share (the "Shares"), of
MDT Corporation, a Delaware corporation (the "Company"), and the associated
Common Stock Purchase Rights (the "Rights") issued pursuant to the Rights
Agreement, dated as of February 12, 1990 between the Company and Bank of
America, N.T. & S.A., as rights agent, as extended or amended pursuant to the
Rights Agreement, dated as of August 1, 1992, and the Amendment to Rights
Agreement, dated May 10, 1996, between the Company and Chemical Trust Company of
California, as successor rights agent (the "Rights Agreement") at a price of
$4.50 per Share (and associated Right), net to the seller in cash (the "Offer
Price"), upon the terms and subject to the conditions set forth in the Offer to
Purchase, dated May 17, 1996 (the "Offer to Purchase") and in the related Letter
of Transmittal (which, as amended from time to time, together constitute the
"Offer"). Unless the context otherwise requires, all references to Shares herein
and in the Offer to Purchase include the associated Rights, and all references
to the Rights shall include all benefits that may inure to holders of the Rights
pursuant to the Rights Agreement, including the right to receive any payment due
upon redemption of the Rights.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON FRIDAY, JUNE 28, 1996, UNLESS THE OFFER IS EXTENDED.
The Offer is being made pursuant to an Agreement and Plan of Merger, dated
as of May 12, 1996 (the "Merger Agreement"), by and among Getinge, the Purchaser
and the Company. The Merger Agreement provides, among other things, for the
making of the Offer by the Purchaser, and further provides that, following the
purchase of Shares pursuant to the Offer and promptly after the satisfaction or
waiver of certain conditions, the Purchaser will be merged with and into the
Company (the "Merger"). The Company will continue as the Surviving Corporation
after the Merger. At the effective time of the Merger, each outstanding Share
(except for Shares owned by the Purchaser or any subsidiary of the Purchaser,
Shares held in treasury of the Company or any subsidiary thereof and Shares held
by stockholders properly exercising their appraisal rights under the Delaware
General Corporation Law) will be converted into the right to receive $4.50 per
Share (or any higher price per Share paid for Shares pursuant to the Offer),
without interest.
THE BOARD OF DIRECTORS OF THE COMPANY HAS UNANIMOUSLY APPROVED THE MERGER
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT, HAS
UNANIMOUSLY DETERMINED THAT EACH OF THE OFFER, THE MERGER AGREEMENT AND THE
MERGER IS FAIR TO AND IN THE BEST INTERESTS OF THE STOCKHOLDERS OF THE COMPANY
AND UNANIMOUSLY RECOMMENDS THAT SUCH STOCKHOLDERS ACCEPT THE OFFER, TENDER THEIR
SHARES PURSUANT TO THE OFFER AND APPROVE AND ADOPT THE MERGER AGREEMENT AND THE
MERGER.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN PRIOR TO THE EXPIRATION OF THE OFFER A NUMBER OF
SHARES WHICH CONSTITUTES AT LEAST 66 2/3% OF THE SHARES OUTSTANDING ON A FULLY
DILUTED BASIS (EXCLUDING SHARES SUBJECT TO OPTIONS UNDER THE COM-
<PAGE> 2
PANY'S 1987 STOCK OPTION PLAN). The Offer is also conditioned on other terms and
conditions contained in the Offer to Purchase. See the Introduction and Sections
1, 14 and 15 of the Offer to Purchase.
For purposes of the Offer, the Purchaser will be deemed to have accepted
for payment, and thereby purchased, Shares validly tendered to the Purchaser as,
if and when the Purchaser gives oral or written notice to The Bank of New York
(the "Depositary") of the Purchaser's acceptance for payment of such Shares.
Upon the terms and subject to the conditions of the Offer, payment for Shares
accepted for payment pursuant to the Offer will be made by deposit of the
purchase price therefor with the Depositary, which will act as agent for
tendering stockholders for the purpose of receiving payment from the Purchaser
and transmitting payment to validly tendering stockholders. In all cases,
payment for Shares accepted for payment pursuant to the Offer will be made only
after timely receipt by the Depositary of (i) certificates for (or a timely
Book-Entry Confirmation (as defined in Section 2 of the Offer to Purchase) with
respect to) such Shares, (ii) a Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees,
or, in the case of a book-entry transfer, an Agent's Message (as defined in
Section 2 of the Offer to Purchase), and (iii) any other documents required by
the Letter of Transmittal. Under no circumstances will interest be paid on the
purchase price of the Shares to be paid by the Purchaser, regardless of any
extension of the Offer or any delay in making such payment.
Except as otherwise provided below or in Section 4 of the Offer to
Purchase, tenders of Shares are irrevocable. Shares tendered pursuant to the
Offer may be withdrawn pursuant to the procedures set forth below and in Section
4 of the Offer to Purchase at any time prior to the Expiration Date and, unless
theretofore accepted for payment by the Purchaser pursuant to the Offer, may
also be withdrawn at any time after July 15, 1995 or at such later time as may
apply if the Offer is extended. The term "Expiration Date" means 5:00 P.M., New
York City time, on Friday, June 28, 1996, unless and until the Purchaser,
subject to the terms of the Merger Agreement, shall have further extended the
period of time for which the Offer is open, in which event the term "Expiration
Date" shall mean the date and time at which the Offer, as so extended by the
Purchaser, shall expire. For a withdrawal to be effective, a written,
telegraphic or facsimile transmission notice of withdrawal must be timely
received by the Depositary at one of its addresses set forth on the back cover
of the Offer to Purchase and such notice must specify the name of the person
having tendered the Shares to be withdrawn, the number of Shares to be withdrawn
and the name of the registered holder of the Shares to be withdrawn, if
different from the name of the person who tendered the Shares. If certificates
evidencing Shares (the "Share Certificates") to be withdrawn have been delivered
or otherwise identified to the Depositary, then, prior to the physical release
of such Share Certificates, the serial numbers shown on such Share Certificates
must be submitted to the Depositary and, unless such Shares have been tendered
for the account of an Eligible Institution (as defined in Section 3 of the Offer
to Purchase), the signatures on the notice of withdrawal must be guaranteed by
an Eligible Institution. If Shares have been tendered pursuant to the procedure
for book-entry transfer as set forth in Section 3 of the Offer to Purchase, any
notice of withdrawal must also specify the name and number of the account at the
appropriate Book-Entry Transfer Facility (as defined in Section 2 of the Offer
to Purchase) to be credited with the withdrawn Shares and otherwise comply with
such Book-Entry Transfer Facility's procedures. Withdrawals of tenders of Shares
may not be rescinded, and any Shares properly withdrawn will thereafter be
deemed not validly tendered for any purposes of the Offer. However, withdrawn
Shares may be retendered at any time prior to the Expiration Date by again
following one of the procedures described in Section 3 of the Offer to Purchase.
All questions as to the form and validity (including time of receipt) of notices
of withdrawal will be determined by the Purchaser in its sole discretion, whose
determination will be final and binding.
Subject to the applicable rules and regulation of the Securities and
Exchange Commission and the terms of the Merger Agreement, the Purchaser
expressly reserves the right, in its sole discretion, at any time or from time
to time, to extend the period of time during which the Offer is open by giving
oral or written notice of such extension to the Depositary.
The information required to be disclosed by Rule 14d-6(e)(l)(vii) under the
Securities Exchange Act of 1934, as amended, is contained in the Offer to
Purchase and is incorporated herein by reference.
<PAGE> 3
The Company has provided the Purchaser with the Company's stockholder list
and security position listings for the purpose of disseminating the Offer to
holders of Shares. The Offer to Purchase, the related Letter of Transmittal and
other relevant materials will be mailed to record holders of Shares whose names
appear on the Company's stockholder list and will be furnished, for subsequent
transmittal to beneficial owners of Shares, to brokers, dealers, commercial
banks and trust companies, and similar persons whose names, or the names of
whose nominees, appear on the stockholder lists, or, if applicable, who are
listed as participants in a clearing agency's security position listing.
THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH RESPECT TO THE
OFFER.
Questions and requests for assistance or for copies of the Offer to
Purchase, the Letter of Transmittal and other tender offer documents may be
directed to the Information Agent or the Dealer Manager, as set forth below, and
copies will be furnished at the Purchaser's expense. No fees or commissions will
be payable to brokers, dealers or other persons other than the Dealer Manager
and the Information Agent for soliciting tenders of Shares pursuant to the
Offer.
The Information Agent for the Offer is:
D. F. KING & CO., INC.
77 Water Street
New York, New York 10005
Banks and Brokers Call Collect (212)269-5550
All Others Call Toll Free (800) 549-6650
The Dealer Manager for the Offer is:
ROTHSCHILD INC.
1251 Avenue of the Americas
New York, New York 10020
(212) 403-3611 (Call Collect)
May 17, 1996
<PAGE> 1
May 12, 1996
FOR IMMEDIATE RELEASE
TENDER OFFER FOR ALL OUTSTANDING SHARES OF MDT CORPORATION
The Board of Directors of Getinge Industrier AB ("Getinge") announced today
the signing of a definitive Merger Agreement with MDT Corporation of the United
States (NASDAQ: MDTC) ("MDT") pursuant to which a subsidiary of Getinge will
commence a tender offer (the "Tender Offer") to acquire all outstanding shares
(the "Shares") of common stock (including the associated common stock purchase
rights (the "Rights")) of MDT at a price of US$4.50 per Share in cash.
The Merger Agreement and the Tender Offer have been unanimously approved by
the Board of Directors of each of Getinge and MDT. The Tender Offer is scheduled
to commence not later than Friday, May 17, 1996. Any Shares of MDT not acquired
in the Tender Offer will be converted into US$4.50 in cash pursuant to a merger
(the "Merger") to be effected as soon as possible following completion of the
Tender Offer. Getinge does not currently own any Shares of MDT.
TERMS OF THE TENDER OFFER
The Merger Agreement provides that the Tender Offer will be made at a price
of US$4.50 per Share (and associated Right), net to the seller in cash, and that
the Merger will provide the same price to stockholders who do not tender into
the Tender Offer. Based on MDT's approximately 6,769,000 shares outstanding, the
transaction has an indicated value of US$30,461,000.
The Tender Offer will be made pursuant to definitive offering documents to
be filed with the United States Securities and Exchange Commission (the "SEC").
Consummation of the Tender Offer is subject to customary terms and conditions,
including acceptance by the holders of at least two-thirds of the outstanding
Shares and regulatory approvals.
The last traded Share price on Friday, May 10, 1996 was US$4.875 per Share,
and the closing bid price for each Share on Friday, May 10, 1996 was $4.50 per
Share. The Tender Offer price is equal to such closing bid price, and represents
a discount of 7.69% per share relative to such closing sale price. Concurrently
with the announcement of the signing of the Merger Agreement, MDT announced its
results of operations for the full year ended March 31, 1996. MDT's results of
operations included a net loss for the year of US$6.066 million and for the
fourth quarter a net loss of US$4.525 million.
BACKGROUND TO THE OFFER
Getinge, with a worldwide presence, is a leading manufacturer of
sterilization and disinfection equipment for hospitals and the pharmaceutical
industry, with its strength in the United States in the pharmaceutical sector.
MDT manufactures sterilization and disinfection equipment, operating tables
and lights and dental equipment in four factories in the United States and has
1,100 employees. MDT has a strong position in the United States health care
sector and represents an opportunity for Getinge to obtain a position in the
United States market for health care products.
MDT and Getinge will form a competitive combination in the United States
and worldwide.
To improve MDT's business and create a profitable operation, Getinge
believes investments of US$20-25 million in product development, production,
administration, sales and service are necessary.
FINANCIAL EFFECTS
In 1995, Getinge completed an acquisition of LIC Care AB and a merger with
Arjo AB. Getinge reported sales of SEK 3,222.9 million in 1995, with a net
profit of SEK 321.4 million. Getinge has approximately 2,700 employees.
<PAGE> 2
MDT's sales for its fiscal year 1995/1996 are expected to be US$131.188
million (approximately SEK 890 million) with a loss of US$6.066 million
(approximately SEK 40 million).
Short term, the Merger is expected to have a marginal effect on earnings
per share. Long-term, the Merger is expected to have positive effects on
earnings per share as the combination of Getinge and MDT will be a leading
manufacturer of sterilization and disinfection equipment in the world. This
combination will create a strong geographical balance and attractive economies
of scale. The equity/assets ratio of Getinge amounts to approximately 35% and,
as a result of the Merger with MDT, is estimated to be approximately 25%.
Following the closing of the Merger, Getinge intends to raise new equity
capital through issuance of new shares.
CONDITIONS TO THE TENDER OFFER
The Tender Offer is subject to customary terms and conditions, including:
- that the Tender Offer is accepted by the holders of at least two-thirds
of the outstanding Shares;
- that necessary regulatory approvals, including approval under the United
States Hart-Scott-Rodino Antitrust Improvements Act, have been obtained;
and
- that certain events, including any legal or regulatory actions that
impose material limitations on the operation of the business of MDT by
Getinge or the acceptance of Shares in the Tender Offer, have not
occurred.
The conditions to the Tender Offer will be set forth fully in the offering
documents to be filed with the SEC and mailed to stockholders of MDT.
TIME TABLE
The Tender Offer is scheduled to commence not later than Friday, May 17,
1996, and will remain open for at least thirty business days thereafter.
Accordingly, the first scheduled closing date for the Tender Offer is June 28,
1996.
The Merger will occur as soon after the closing of the Tender Offer as
possible, and is currently expected to be completed in the third quarter of
1996.
Rothschild Inc. and Scandi-Latin Corporate Finance AB are acting as
financial advisors to Getinge.
Getinge, which operates in the field of medical technology, develops,
manufactures and markets equipment and systems for sterilization and
disinfection purposes within the pharmaceutical industry and health care sector.
Getinge also develops, manufactures and markets hygiene and patient handling
systems for the care of elderly and disabled people in the health care sector.
The Group enjoys a position as one of the world's leaders within all of these
sectors. Getinge is also a distributor of equipment and consumables to the
dental sector in Scandinavia.
Getinge has 66 subsidiaries and 17 factories in 22 countries and
distributors in 100 countries.
Getinge, May 12, 1996
GETINGE INDUSTRIER AB
Carl Bennet
Managing Director
For further information, please contact:
Carl Bennet, Managing Director, + 46-35-15-55-00
2
<PAGE> 1
PRESS RELEASE
CONTACT:
Getinge Industrier AB (publ)
Carl Bennet,
Managing Director
011-46-35-15-55-00
FOR IMMEDIATE RELEASE
GETINGE INDUSTRIER AB (PUBL) COMMENCES CASH OFFER FOR MDT CORPORATION,
GETINGE, SWEDEN, May 17, 1996 . . . Getinge Industrier AB (publ), a Swedish
corporation ("Getinge") announced today that it has commenced a cash tender
offer (the "Offer") for all outstanding Shares of common stock (the "Shares") of
MDT Corporation, a Delaware corporation ("MDT") (NASDAQ: MDTC) at $4.50 per
share, net to the seller in cash. The offer is being made by Getinge Acquisition
Corp., a newly formed, indirect wholly-owned subsidiary of Getinge.
The offer is conditioned upon, among other things, there being validly
tendered and not withdrawn prior to the expiration of the Offer at least
two-thirds of the outstanding Shares of MDT on a fully-diluted basis (excluding
Shares subject to options under MDT's 1987 Stock Option Plan). Getinge's Offer
is not subject to a financing condition. Getinge has received commitments from
Skandinaviska Enskilda Banken pursuant to which such bank has agreed, subject to
certain terms and conditions, to provide a loan facility adequate to finance the
Offer and the subsequent Merger.
The Offer and withdrawal rights will expire at 5:00 P.M., New York City
time, on Friday, June 28, 1996, unless the Offer is extended.
Getinge also said that it filed on Thursday, May 16, 1996 the pre-merger
notification forms with the Federal Trade Commission with respect to the Offer.
As previously announced, the Offer is being made pursuant to an Agreement
and Plan of Merger (the "Merger Agreement") entered into by MDT, Getinge and
Getinge Acquisition Corp. dated as of May 12, 1996, which provides for the first
step tender offer commenced today to be followed by a merger of the Getinge
subsidiary into MDT (the "Merger"). Shares not acquired in the Offer will
receive $4.50 per Share in cash (without interest) in the Merger.
The Board of Directors of MDT has unanimously approved the Merger
Agreement, and the transactions contemplated by the Merger Agreement, has
unanimously determined that each of the Offer and the Merger is fair to and in
the best interests of the stockholders of MDT, and unanimously recommends that
such stockholders accept the Offer and tender their Shares pursuant to the Offer
and approve and adopt the Merger Agreement and the Merger.
Rothschild Inc. is Dealer Manager for the offer and D.F. King & Co., Inc.
is the Information Agent.
<PAGE> 1
[S-E-BANKEN LETTERHEAD]
Getinge Industrier AB 1996-05-10
Box 69
310 44 Getinge
Sweden
RE: COMMITMENT LETTER
Dear Sirs,
We have been advised that you ("the Borrower") plan to enter into an
agreement to acquire MDT Corporation pursuant to which, among other things, you
will make a tender offer ("the Offer") to acquire outstanding shares of MDT
Corporation and subsequently consummate a merger through which MDT Corporation
will become a subsidiary of you ("the Transaction").
You have advised us that you may require up to USD 40.000.000 in credit
facilities ("the Facility"). The Facility would be used to finance MDT
Corporations general working capital requirements.
A summary of certain preliminary terms and conditions of the Facility is
attached hereto as Annex A.
We are pleased to confirm that we hereby commit ourselves to provide the
entire Facility on the terms and conditions agreed upon. All aspects of the
Facility shall be in form and substance reasonably satisfactory to us.
If you are in agreement with the foregoing, please promptly sign and return
to us the two enclosed copies of this letter. This letter supersedes all prior
agreements with respect to the matters set forth herein. This letter may be
executed in two copies, one of which is delivered to you and us respectively.
Each of the two copies when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument.
Our commitment in this letter is conditioned by your acquisition of MDT
Corporation in accordance with the Offer.
Yours sincerely
Skandinaviska Enskilda Banken AB (publ.)
Agreed to and Accepted this
1996-05-10
Getinge Industrier AB
<PAGE> 2
SUMMARY TERMS & CONDITIONS
Term Loan Facility
<TABLE>
<S> <C>
Borrower: Getinge Industrier AB
Lender: Skandinaviska Enskilda Banken AB (Publ.)
Facility: Up to USD 40.000.000 facility
Security: Negative Pledge and Financial Covenants
Final Maturity: 12 months after drawdown
Interest Rate: The Interest Rate shall be LIBOR + 0.03% per annum
Commitment Fee: SEK 50.000
Governing Law: Swedish
</TABLE>
<PAGE> 1
[S-E-BANKEN LETTERHEAD]
Getinge Industrier AB 1996-05-10
Box 69
310 44 Getinge
Sweden
RE: COMMITMENT LETTER
Dear Sirs,
We have been advised that you ("the Borrower") plan to enter into an
agreement to acquire MDT Corporation pursuant to which, among other things, you
will make a tender offer ("the Offer") to acquire outstanding shares of MDT
Corporation and subsequently consummate a merger through which MDT Corporation
will become a subsidiary of you ("the Transaction").
You have advised us that you may require up to USD 50.000.000 in credit
facilities ("the Facility") in connection with the Transaction. The Facility
would be used to finance the Offer and to pay related fees and expenses.
A summary of certain preliminary terms and conditions of the Facility is
attached hereto as Annex A.
We are pleased to confirm that we hereby commit ourselves to provide the
entire Facility on the terms and conditions agreed upon. All aspects of the
Facility and the proposed Transaction including, without limitation, the Offer
shall be in form and substance reasonably satisfactory to us.
If you are in agreement with the foregoing, please promptly sign and return
to us the two enclosed copies of this letter. This letter supersedes all prior
agreements with respect to the matters set forth herein. This letter may be
executed in two copies, one of which is delivered to you and us respectively.
Each of the two copies when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument.
Yours sincerely
Skandinaviska Enskilda Banken AB (publ.)
Agreed to and Accepted this
1996-05-10
Getinge Industrier AB
<PAGE> 2
SUMMARY TERMS & CONDITIONS
Term Loan Facility
<TABLE>
<S> <C>
Borrower: Getinge Industrier AB
Lender: Skandinaviska Enskilda Banken AB (Publ.)
Facility: Up to USD 50.000.000 facility
Security: Negative Pledge and Financial Covenants
Final Maturity: 12 months after drawdown
Interest Rate: The Interest Rate shall be LIBOR + 0.03% per annum
Commitment Fee: SEK 100.000
Governing Law: Swedish
</TABLE>
<PAGE> 1
------------------------
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
GETINGE INDUSTRIER AB,
GETINGE ACQUISITION CORP.
AND
MDT CORPORATION
DATED AS OF
MAY 12, 1996
------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I
THE OFFER AND MERGER................................................. 1
Section 1.1 The Offer............................................................ 1
Section 1.2 Company Actions...................................................... 1
Section 1.3 SEC Documents........................................................ 2
Section 1.4 Directors............................................................ 3
Section 1.5 The Merger........................................................... 3
Section 1.6 Effective Time....................................................... 4
Section 1.7 Closing.............................................................. 4
Section 1.8 Stockholders' Meeting................................................ 4
ARTICLE II
CONVERSION OF SECURITIES............................................. 4
Section 2.1 Conversion of Capital Stock.......................................... 4
Section 2.2 Exchange of Certificates............................................. 5
Section 2.3 Dissenters' Rights................................................... 6
Section 2.4 Intentionally Omitted................................................ 6
Section 2.5 Company Stock Plans.................................................. 6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................ 6
Section 3.1 Representations and Warranties of the Company........................ 6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE PURCHASER........... 17
Section 4.1.. Representations and Warranties of Parent and the Purchaser........... 17
ARTICLE V
COVENANTS............................................................ 19
Section 5.1 (a) Interim Operations of the Company................................ 19
(b) Other Actions.................................................... 21
Section 5.2 Access; Confidentiality.............................................. 21
Section 5.3 Reasonable Efforts; Notification..................................... 21
Section 5.4 No Solicitation...................................................... 22
Section 5.5 Publicity............................................................ 23
Section 5.6 Transfer Taxes....................................................... 23
Section 5.7 Indemnification...................................................... 23
Section 5.8 Benefits............................................................. 24
ARTICLE VI
CONDITIONS........................................................... 24
Section 6.1 Conditions to Each Party's Obligation to Effect the Merger........... 24
Section 6.2 Conditions to the Company's Obligation to Effect the Merger.......... 25
ARTICLE VII
TERMINATION.......................................................... 25
Section 7.1 Termination.......................................................... 25
Section 7.2 Effect of Termination................................................ 26
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
PAGE
--
<S> <C> <C>
ARTICLE VIII
MISCELLANEOUS........................................................ 26
Section 8.1 Fees and Expenses.................................................... 26
Section 8.2 Amendment and Modification........................................... 27
Section 8.3 Nonsurvival of Representations and Warranties........................ 27
Section 8.4 Notices.............................................................. 27
Section 8.5 Interpretation....................................................... 27
Section 8.6 Counterparts......................................................... 28
Section 8.7 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership............................................................ 28
Section 8.8 Severability......................................................... 28
Section 8.9 Governing Law........................................................ 28
Section 8.10 Assignment........................................................... 28
Section 8.11 Enforcement.......................................................... 28
Section 8.12 Extension; Waiver.................................................... 28
Section 8.13 Procedure for Termination, Amendment, Extension or Waiver............ 28
Section 8.14 Fiduciary Duty....................................................... 29
Section 8.15 Definitions.......................................................... 29
Annex A Certain Conditions of the Offer...................................... A-1
</TABLE>
ii
<PAGE> 4
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 12, 1996, by and among
Getinge Industrier AB, a Swedish corporation (the "Parent"), Getinge Acquisition
Corp., a Delaware corporation and an indirect wholly-owned subsidiary of Parent
(the "Purchaser"), and MDT Corporation, a Delaware corporation (the "Company").
ARTICLE I
THE OFFER AND MERGER
Section 1.1 The Offer. As promptly as practicable (but in no event later
than five business days after the public announcement of the execution hereof),
the Purchaser shall commence (within the meaning of Rule 14d-2 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) a tender offer
(the "Offer") for the outstanding shares of Common Stock, par value $1.25 per
share (the "Shares"), of the Company (together with the rights relating thereto)
at a price of $4.50 per Share, net to the seller in cash (such price, or such
higher price per Share as may be paid in the Offer, being referred to herein as
the "Offer Price"), subject to the conditions set forth in Annex A hereto.
The obligations of the Purchaser to commence the Offer and to accept for
payment and to pay for any Shares validly tendered on or prior to the expiration
of the Offer and not withdrawn shall be subject only to the conditions set forth
in Annex A hereto. The Offer shall be made by means of an offer to purchase (the
"Offer to Purchase") containing the terms set forth in this Agreement and the
conditions set forth in Annex A hereto. Notwithstanding anything to the contrary
in clause (iii) of Annex A hereto, the Purchaser shall be required to make a
reasonable determination that any of the events set forth in paragraphs (a)
through (e) of Annex A shall have occurred in order to refuse payment for
tendered Shares or to terminate the Offer in connection with any purported
failure to meet a condition specified in such clauses (a) through (e) of Annex
A.
The Purchaser shall not decrease the Offer Price or decrease the number of
Shares sought or the minimum number of Shares required to be tendered or change
the form of consideration payable in the Offer, impose additional or amend any
other term or condition of the Offer in any manner adverse to the holders of the
Shares (other than with respect to insignificant changes or amendments and
subject to the penultimate sentence of this Section 1.1) without the prior
written consent of the Company, provided, however, that if on the initial
scheduled expiration date of the Offer, which shall be 30 business days after
the date the Offer is commenced, all conditions to the Offer shall not have been
satisfied or waived, the Purchaser may, from time to time, in its sole
discretion, extend the expiration date. In addition, the Offer Price may be
increased, and the Offer may be extended to the extent required by law in
connection with such increase in each case without the consent of the Company.
The Purchaser shall, on the terms and subject to the prior satisfaction or
waiver of the conditions of the Offer, accept for payment and pay for Shares
validly tendered as promptly as practicable; provided, however, that if,
immediately prior to the expiration date of the Offer (as it may be extended),
the Shares validly tendered and not withdrawn pursuant to the Offer equal more
than 80% but less than 90% of the outstanding Shares, the Purchaser may extend
the Offer for a period not to exceed 10 business days, notwithstanding that all
conditions to the Offer are satisfied as of such expiration date of the Offer.
Section 1.2 Company Actions.
(a) The Company hereby approves of and consents to the Offer and represents
that the Board of Directors, at a meeting duly called and held, has (i)
unanimously determined that each of the Agreement, the Offer and the Merger (as
defined in Section 1.5) is fair to and in the best interests of the stockholders
of the Company, (ii) received the opinion of Lehman Brothers Inc., financial
advisor to the Company, to the effect that the Offer and the Merger are fair to
the stockholders of the Company from a financial point of view, (iii) approved
this Agreement and the transactions contemplated hereby, including the Offer and
the Merger (collectively, the "Transactions") and (iv) resolved to recommend
that the stockholders of the Company accept the Offer, tender their Shares
thereunder to the Purchaser and approve and adopt this Agreement and the Merger.
The Company has been advised by each of its directors that each director,
subject to his fiduciary
<PAGE> 5
duties and changes in circumstances, intends to tender pursuant to the Offer all
Shares owned by such Person or to vote all Shares owned by such Person in favor
of the Merger.
(b) In connection with the Offer, the Company will promptly furnish or
cause to be furnished to the Purchaser mailing labels, security position
listings and any available listing or computer file containing the names and
addresses of all holders of record of the Shares as of a recent date, and shall
furnish the Purchaser with such additional information (including, but not
limited to, updated lists of holders of the Shares and their addresses, mailing
labels and lists of security positions) and assistance as the Purchaser or its
agents may reasonably request in communicating the Offer to the record and
beneficial holders of the Shares.
Section 1.3 SEC Documents.
(a) Concurrently with the commencement of the Offer, the Parent and the
Purchaser shall file with the United States Securities and Exchange Commission
(the "SEC") a Tender Offer Statement on Schedule 14D-1 in accordance with the
Exchange Act with respect to the Offer (the Schedule 14D-1 together with all
amendments, supplements and exhibits thereto, including the Offer to Purchase,
being collectively the "Offer Documents"). The Company and its counsel shall be
given a reasonable opportunity to review and comment on the Offer Documents and
all amendments and supplements thereto prior to their filing with the SEC or
dissemination to stockholders of the Company. The Purchaser agrees to provide
the Company and its counsel in writing with any comments the Purchaser and its
counsel may receive from the SEC or its staff with respect to the Offer
Documents promptly after the receipt of such comments and shall provide the
Company and its counsel a reasonable opportunity to review and comment on the
response of the Purchaser to such comments. Concurrently with the commencement
of the Offer, the Company shall file with the SEC a Solicitation/ Recommendation
Statement on Schedule 14D-9 in accordance with the Exchange Act (together with
all amendments and supplements thereto and including the exhibits thereto, the
"Schedule 14D-9"), which shall contain the recommendation referred to in clause
(iv) of Section 1.2(a) hereof; provided, that subject to the provisions of
Section 5.4, such recommendation may be withdrawn, modified or amended.
(b) Parent and the Purchaser will take all steps necessary to ensure that
the Offer Documents, and the Company will take all steps necessary to ensure
that the Schedule 14D-9, will comply in all material respects with the
provisions of applicable Federal and state securities Laws and, on the date
filed with the SEC and on the date first published, sent or given to the
Company's stockholders, shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that Parent and the Purchaser
make no representation with respect to information furnished by the Company for
inclusion in the Offer Documents and the Company makes no representation with
respect to information furnished by Parent or the Purchaser for inclusion in the
Schedule 14D-9. The information supplied in writing by the Company for inclusion
in the Offer Documents and by Parent or the Purchaser for inclusion in the
Schedule 14D-9 will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Each of Parent and the Purchaser will take all steps
necessary to cause the Offer Documents, and the Company will take all steps
necessary to cause the Schedule 14D-9, to be filed with the SEC and to be
disseminated to holders of the Shares, in each case as and to the extent
required by applicable Federal and state securities Laws. Each of Parent and the
Purchaser, on the one hand, and the Company, on the other hand, will promptly
correct any information provided by it for use in the Offer Documents and the
Schedule 14D-9, respectively, if and to the extent that it shall have become
false and misleading in any material respect and the Purchaser will take all
steps necessary to cause the Offer Documents, and the Company will take all
steps necessary to cause the Schedule 14D-9, as so corrected to be filed with
the SEC and to be disseminated to holders of the Shares, in each case as and to
the extent required by applicable Federal and state securities Laws. Parent and
its counsel shall be given a reasonable opportunity to review and comment upon
the Schedule 14D-9 and all amendments and supplements thereto prior to their
filing with the SEC or dissemination to stockholders of the Company. The Company
agrees to provide Parent and its counsel in writing with any comments the
Company or its counsel may receive from the SEC or its staff with respect to the
Schedule 14D-9 promptly after the receipt of such comments and shall provide
Parent
2
<PAGE> 6
and its counsel a reasonable opportunity to review and comment on the response
of the Company to such comments.
Section 1.4 Directors.
(a) Promptly upon the purchase of and payment for any Shares by Parent or
any of its Subsidiaries pursuant to the Offer, Parent shall be entitled to
designate for appointment or election to the Company's Board of Directors, upon
written notice to the Company, such number of directors, rounded up to the next
whole number, on the Board of Directors such that the percentage of its
designees on the Board shall equal the percentage of the outstanding Shares
beneficially owned by Parent and its affiliates. In furtherance thereof, the
Company shall, upon request of the Purchaser, use its best efforts promptly to
cause Parent's designees to be so elected to the Company's Board, and in
furtherance thereof, to the extent necessary, increase the size of the Board of
Directors. At such time, the Company shall also cause Persons designated by
Parent to constitute at least the same percentage (rounded up to the next whole
number) as is on the Company's Board of Directors of (i) each committee of the
Company's Board of Directors, (ii) each board of directors (or similar body) of
each Subsidiary of the Company and (iii) each committee (or similar body) of
each such board. Notwithstanding the foregoing, until the Effective Time (as
defined in Section 1.6 hereof), the parties shall use all reasonable efforts to
have at least two members of the Board of Directors who are neither (i) officers
of Parent or the Company, nor (ii) designees, stockholders or affiliates of
Parent. The Company shall promptly take all actions required pursuant to Section
14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to
fulfill its obligations under this Section 1.4(a), including mailing to
stockholders the information required by such Section 14(f) and Rule 14f-1 (or,
at Parent's request, furnishing such information to Parent for inclusion in the
Offer Documents initially filed with the SEC and distributed to the stockholders
of the Company) as is necessary to enable Parent's designees to be elected to
the Company's Board of Directors. Parent or the Purchaser will supply the
Company in writing, and be solely responsible for, any information with respect
to either of them and their nominees, officers, directors and affiliates
required by such Section 14(f) and Rule 14f-1 as is necessary in connection with
the appointment of any of Parent's designees under Section 1.4(a). The
provisions of this Section 1.4(a) are in addition to and shall not limit any
rights which the Purchaser, Parent or any of their affiliates may have as a
holder or beneficial owner of Shares as a matter of law with respect to the
election of directors or otherwise.
(b) From and after the time, if any, that Parent's designees constitute a
majority of the Company's Board of Directors, any amendment of this Agreement,
any termination of this Agreement by the Company, any extension of time for
performance of any of the obligations of Parent or the Purchaser hereunder, any
waiver of any condition or any of the Company's rights hereunder or other action
by the Company hereunder may be effected only by the action of a majority of the
directors of the Company then in office who are not officers of Parent or
designees, stockholders or affiliates of Parent, which action shall be deemed to
constitute the action of any committee specifically designated by the Board of
Directors to approve the actions and Transactions contemplated hereby and the
full Board of Directors; provided, that if there shall be no such directors,
such actions may be effected by majority vote of the entire Board of Directors
of the Company.
Section 1.5 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.6 hereof), the Company
and the Purchaser shall consummate a merger (the "Merger") pursuant to which (a)
the Purchaser shall be merged with and into the Company and the separate
corporate existence of the Purchaser shall thereupon cease and (b) the Company
shall be the surviving corporation in the Merger (sometimes hereinafter referred
to as the "Surviving Corporation") and shall continue to be governed by the Laws
of the State of Delaware.
Pursuant to the Merger, (x) the Certificate of Incorporation of the Company
(the "Certificate of Incorporation"), as in effect immediately prior to the
Effective Time, shall be the initial certificate of incorporation of the
Surviving Corporation and (y) the By-laws of the Company (the "By-laws"), as in
effect immediately prior to the Effective Time, shall be the initial By-laws of
the Surviving Corporation. The Merger shall have the effects specified in the
Delaware General Corporation Law (the "DGCL").
3
<PAGE> 7
The directors of the Purchaser at the Effective Time shall be the initial
directors of the Surviving Corporation. The officers of the Company at the
Effective Time shall be the initial officers of the Surviving Corporation.
Section 1.6 Effective Time. Parent, the Purchaser and the Company will
cause a Certificate of Merger, or, if applicable, a Certificate of Ownership and
Merger (as applicable, the "Certificate of Merger"), to be executed and filed on
the date of the Closing (as defined in Section 1.7) (or on such other date as
Parent and the Company may agree) with the Secretary of State of Delaware (the
"Secretary of State") as provided in the DGCL. The Merger shall become effective
on the date on which the Certificate of Merger has been duly filed with the
Secretary of State or such time as is agreed upon by the parties and specified
in the Certificate of Merger, and such time is hereinafter referred to as the
"Effective Time."
Section 1.7 Closing. The closing of the Merger (the "Closing") shall take
place at 10:00 a.m., local time, on the later to occur of (a) the day of (and
immediately following) the receipt of approval of the Merger by the Company's
stockholders, or as soon as practicable after expiration of the Offer if such
approval is not required and (b) a date to be specified by the parties, which
shall be no later than the second business day after satisfaction or waiver of
all of the conditions set forth in Section 6.1 hereof (the "Closing Date"), at
the offices of Skadden, Arps, Slate, Meagher & Flom, New York, New York, unless
another date or place is agreed to in writing by the parties hereto.
Section 1.8 Stockholders' Meeting.
(a) If required by applicable law in order to consummate the Merger, the
Company, acting through its Board of Directors, shall, in accordance with
applicable law:
(i) duly call, give notice of, convene and hold a special meeting of
its stockholders (the "Special Meeting") as promptly as practicable
following the acceptance for payment and purchase of Shares by the
Purchaser pursuant to the Offer for the purpose of considering and taking
action upon the approval of the Merger and the adoption of this Agreement;
(ii) prepare and file with the SEC a preliminary proxy or information
statement in accordance with the Exchange Act relating to the Merger and
this Agreement and use its best efforts (x) to obtain and furnish the
information required to be included by the Exchange Act and the SEC in the
Proxy Statement (as hereinafter defined) and, after consultation with
Parent, to respond promptly to any comments made by the SEC with respect to
the preliminary proxy or information statement and cause a definitive proxy
or information statement, including any amendment or supplement thereto
(the "Proxy Statement") to be mailed to its stockholders, provided that no
amendment or supplement to the Proxy Statement will be made by the Company
without consultation with Parent and its counsel and (y) to obtain the
necessary approvals of the Merger and this Agreement by its stockholders;
and
(iii) include in the Proxy Statement the recommendation of the Board
that stockholders of the Company vote in favor of the approval of the
Merger and the adoption of this Agreement.
(b) Parent shall vote, or cause to be voted, all of the Shares then owned
by it, the Purchaser or any of its other Subsidiaries and affiliates in favor of
the approval of the Merger and the adoption of this Agreement and shall use its
reasonable efforts to consummate the Merger as promptly as possible after
consummation of the Offer.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1 Conversion of Capital Stock. As of the Effective Time, by
virtue of the Merger and without any action on the part of the holders of any
Shares or any shares of capital stock of the Purchaser:
(a) Purchaser Capital Stock. Each issued and outstanding share of capital
stock of the Purchaser shall be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation.
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(b) Cancellation of Treasury Stock and Purchaser-Owned Stock. All Shares
that are owned by the Company or any Subsidiary of the Company and any Shares
owned by the Purchaser or any Subsidiary of the Purchaser shall be cancelled and
retired and shall cease to exist and no consideration shall be delivered in
exchange therefor; provided, that Shares held beneficially or of record by any
plan, program or arrangement sponsored or maintained for the benefit of
employees of the Company or any Subsidiaries thereof shall not be deemed to be
held by the Company regardless of whether the Company has, directly or
indirectly, the power to vote or control the disposition of such Shares.
(c) Exchange of Shares. Each issued and outstanding Share (other than
Shares to be cancelled in accordance with Section 2.1(b) and any Shares which
are held by stockholders exercising appraisal rights pursuant to Section 262 of
the DGCL ("Dissenting Stockholders")) shall be converted into the right to
receive the Offer Price in cash, payable to the holder thereof, without interest
(the "Merger Consideration"), upon surrender of the certificate formerly
representing such Share in the manner provided in Section 2.2. All such Shares,
when so converted, shall no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist, and each holder of a certificate
representing any such Shares shall cease to have any rights with respect
thereto, except the right to receive the Merger Consideration therefor upon the
surrender of such certificate in accordance with Section 2.2, without interest,
or the right, if any, to receive payment from the Surviving Corporation of the
"fair value" of such Shares as determined in accordance with Section 262 of the
DGCL.
Section 2.2 Exchange of Certificates.
(a) Paying Agent. Prior to the Effective Time, Parent shall designate a
bank or trust company to act as agent for the holders of the Shares in
connection with the Merger (the "Paying Agent") to receive the funds to which
holders of the Shares shall become entitled pursuant to Section 2.1(c). Parent
shall, from time to time, make available to the Paying Agent funds in amounts
and at times necessary for the payment of the Merger Consideration as provided
herein. All interest earned on such funds shall be paid to Parent.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, the Paying Agent shall mail to each holder of record of a
certificate or certificates, which immediately prior to the Effective Time
represented outstanding Shares (the "Certificates"), whose Shares were converted
pursuant to Section 2.1 into the right to receive the Merger Consideration (i) a
letter of transmittal (which shall specify that delivery shall be effected, and
risk of loss and title to the Certificates shall pass, only upon delivery of the
Certificates to the Paying Agent and shall be in such form and have such other
provisions as Parent and the Company may reasonably specify) and (ii)
instructions for use in effecting the surrender of the Certificates in exchange
for payment of the Merger Consideration. Upon surrender of a Certificate for
cancellation to the Paying Agent or to such other agent or agents as may be
appointed by Parent, together with such letter of transmittal, duly executed,
the holder of such Certificate shall be entitled to receive in exchange therefor
the Merger Consideration for each Share formerly represented by such Certificate
and the Certificate so surrendered shall forthwith be cancelled. If payment of
the Merger Consideration is to be made to a Person other than the Person in
whose name the surrendered Certificate is registered, it shall be a condition of
payment that the Certificate so surrendered shall be properly endorsed or shall
be otherwise in proper form for transfer and that the Person requesting such
payment shall have paid any transfer and other taxes required by reason of the
payment of the Merger Consideration to a Person other than the registered holder
of the Certificate surrendered or shall have established to the satisfaction of
the Surviving Corporation that such tax either has been paid or is not
applicable. Until surrendered as contemplated by this Section 2.2, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive the Merger Consideration in cash as contemplated by
this Section 2.2. The right of any stockholder to receive the Merger
Consideration shall be subject to and reduced by any applicable withholding Tax
obligation.
(c) Transfer Books; No Further Ownership Rights in the Shares. At the
Effective Time, the stock transfer books of the Company shall be closed and
thereafter there shall be no further registration of transfers of the Shares on
the records of the Company. From and after the Effective Time, the holders of
Certificates evidencing ownership of the Shares outstanding immediately prior to
the Effective Time shall cease to have any rights with respect to such Shares,
except as otherwise provided for herein or by applicable law. If, after
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<PAGE> 9
the Effective Time, Certificates are presented to the Surviving Corporation for
any reason, they shall be cancelled and exchanged as provided in this Article
II.
(d) Termination of Fund; No Liability. At any time following six months
after the Effective Time, the Surviving Corporation shall be entitled to require
the Paying Agent to deliver to it any funds (including any interest received
with respect thereto) which had been made available to the Paying Agent and
which have not been disbursed to holders of Certificates, and thereafter such
holders shall be entitled to look to the Surviving Corporation (subject to
abandoned property, escheat or other similar Laws) only as general creditors
thereof with respect to the Merger Consideration payable upon due surrender of
their Certificates, without any interest thereon. Notwithstanding the foregoing,
none of Parent, the Surviving Corporation or the Paying Agent shall be liable to
any holder of a Certificate for Merger Consideration delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law.
Section 2.3 Dissenters' Rights. Notwithstanding anything in this Agreement
to the contrary, if any Dissenting Stockholder shall demand to be paid the "fair
value" of such holder's Shares, as provided in Section 262 of the DGCL, such
Shares shall not be converted into or be exchangeable for the right to receive
the Merger Consideration except as provided in this Section 2.3 and the Company
shall give the Parent notice thereof and the Parent shall have the right to
participate in all negotiations and proceedings with respect to any such
demands. Neither the Company nor the Surviving Corporation shall, except with
the prior written consent of the Parent, voluntarily make any payment with
respect to, or settle or offer to settle, any such demand for payment. If any
Dissenting Stockholder shall fail to perfect or shall have effectively withdrawn
or lost the right to dissent, the Shares held by such Dissenting Stockholder
shall thereupon be treated as though such Shares had been converted into the
Merger Consideration pursuant to Section 2.1.
Section 2.4 [Intentionally Omitted]
Section 2.5 Company Stock Plans. (a) The Company shall, effective as of
the commencement of the Offer, cause each outstanding employee or director stock
option (the "Options") to purchase Shares granted under the Company's 1987 Stock
Option Plan, as amended and restated through May 1, 1993 (the "Option Plan"),
whether or not then exercisable or vested, to become fully exercisable and
vested. The Company shall, effective on or before the consummation of the Offer,
cause each Option that is then outstanding to be cancelled.
(b) All Option Plans shall terminate as of the Effective Time and the
provisions in any other Benefit Plan providing for the issuance, transfer or
grant of any capital stock of the Company or any interest in respect of any
capital stock of the Company shall be deleted as of the Effective Time, and the
Company shall use its best efforts to ensure that following the Effective Time
no holder of an Option or any participant in any Option Plan shall have any
right thereunder to acquire any capital stock of the Company, Parent or the
Surviving Corporation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Representations and Warranties of the Company. The Company
represents and warrants to Parent and the Purchaser as follows:
(a) Organization, Standing and Corporate Power. Except as set forth in
Schedule 3.1(a) of the Company Disclosure Schedule, each of the Company and each
of its Subsidiaries is a corporation duly organized, validly existing and in
good standing under the Laws of the jurisdiction in which it is organized and
has the requisite corporate power and authority to carry on its business as now
being conducted. Each of the Company and its Subsidiaries is duly qualified as a
foreign corporation or licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties makes such qualification or licensing necessary, other than in
such jurisdictions where the failure to be so qualified or licensed
(individually or in the aggregate) would not have a Material Adverse Effect on
the Company. The Company has made available to Parent complete and correct
copies of the Certificate of
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Incorporation, as amended, and By-laws of the Company, in each case as amended
to the date of this Agreement, and has delivered the certificates of
incorporation and by-laws or other organizational documents of its Subsidiaries,
in each case as amended to the date of this Agreement. The respective
certificates of incorporation and by-laws or other organizational documents of
the Subsidiaries of the Company do not contain any provision limiting or
otherwise restricting the ability of the Company to control such Subsidiaries.
(b) Subsidiaries. Except as set forth in Schedule 3.1(b) of the Company
Disclosure Schedule, the list of Subsidiaries of the Company filed by the
Company with its most recent Report on Form 10-K is a true and accurate list of
all the Subsidiaries of the Company which are required to be set forth therein.
All the outstanding shares of capital stock of each Subsidiary are owned by the
Company or by another wholly owned Subsidiary of the Company, free and clear of
all Liens, except as set forth in Schedule 3.1(b) of the Company Disclosure
Schedule. There are no other companies in which the Company has a direct or
indirect ownership interest.
(c) Capital Structure. The authorized capital stock of the Company
consists of 20,000,000 shares, par value $1.25 per share and 1,600,000 shares of
preferred stock, par value $1.25 per share. At the close of business on May 9,
1996, (i) 6,769,431 Shares and no shares of Company Preferred Stock were issued
and outstanding, (ii) 1,200,000 shares were reserved for issuance upon exercise
of outstanding Options, and (iii) 1,692,358 shares were reserved for issuance in
respect of the Company's Rights Agreement between the Company and Bank of
America dated as of February 12, 1990, as amended as of August 1, 1992, between
the Company and Chemical Trust Company of California. Except as set forth above,
as of the date of this Agreement: (i) no shares of capital stock or other voting
securities of the Company are issued, reserved for issuance or outstanding; (ii)
there were no stock appreciation rights, restricted stock grant or contingent
stock grants and there are no other outstanding contractual rights to which the
Company is a party the value of which is based on the value of Shares; (iii) all
outstanding shares of capital stock of the Company are, and all shares which may
be issued will be, when issued, duly authorized, validly issued, fully paid and
nonassessable and not subject to preemptive rights; and (iv) there are no bonds,
debentures, notes or other indebtedness of the Company having the right to vote
(or convertible into, or exchangeable for, securities having the right to vote)
on any matters on which stockholders of the Company may vote. Except as set
forth above and in Schedule 3.1(c) of the Company Disclosure Schedule, as of the
date of this Agreement, there are no outstanding securities, options, warrants,
calls, rights, commitments, agreements, arrangements or undertakings of any kind
to which the Company or any of its Subsidiaries is a party or by which any of
them is bound obligating the Company or any of its Subsidiaries to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
capital stock or other voting securities of the Company or of any of its
Subsidiaries or obligating the Company or any of its Subsidiaries to issue,
grant, extend or enter into any such security, option, warrant, call, right,
commitment, agreement, arrangement or undertaking. There are not any outstanding
contractual obligations of the Company or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any shares of capital stock of the Company or any of
its Subsidiaries.
(d) Authority; Noncontravention; Company Action. The Company has the
requisite corporate power and authority to enter into this Agreement and,
subject to approval of this Agreement by the holders of two-thirds of the
outstanding Shares, to consummate the Merger contemplated by this Agreement. The
execution and delivery of this Agreement by the Company and the consummation by
the Company of the Transactions contemplated by this Agreement have been duly
authorized by all necessary corporate action on the part of the Company,
subject, in the case of the Merger, to any necessary approval of this Agreement
by the holders of two-thirds of the outstanding Shares. This Agreement has been
duly executed and delivered by the Company and, assuming this Agreement
constitutes the valid and binding obligation of Parent and the Purchaser,
constitutes the valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, except that (i) such enforcement may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar Laws now or hereafter in effect relating to creditors' rights generally
and general principles of equity and (ii) the remedy of specific performance and
injunctive relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefor may be brought. Except as set
forth in Schedule 3.1(d) of the Company Disclosure Schedule, the execution and
delivery of this Agreement do not, and the consummation of the Transactions
contemplated by this Agreement
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(including the changes in the composition of the Board of Directors of the
Company) and compliance with the provisions of this Agreement will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or result
in the creation of any lien or other encumbrance upon any of the properties or
assets of the Company or any of its Subsidiaries under, (i) the Certificate of
Incorporation, as amended, or By-laws of the Company or the comparable charter
or organizational documents of any of its Subsidiaries, (ii) any loan or credit
agreement note, bond, mortgage, indenture, lease or other agreement, instrument,
permit, concession, franchise or license applicable to the Company or any of its
Subsidiaries or their respective properties or assets (including all agreements
described pursuant to Section 3.1(u)) or (iii) any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to the Company or any of
its Subsidiaries or their respective properties or assets, other than, in the
case of clauses (ii) or (iii), any such conflicts, violations, defaults, rights
or Liens that individually or in the aggregate would not (x) have a Material
Adverse Effect or (y) prevent the consummation of any of the Transactions
contemplated by this Agreement. No consent, approval, order or authorization of,
or registration, declaration or filing with, any Federal, state or local
government or any court, administrative or regulatory agency or commission or
other governmental authority or agency, domestic or foreign (a "Governmental
Entity") or any other party, is required by the Company or any of its
Subsidiaries in connection with the execution and delivery of this Agreement by
the Company or the consummation by the Company of the Transactions contemplated
by this Agreement, except for (i) if required, the filing of a premerger
notification and report form by the Company under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (ii) the filing
with the SEC of (x) the Schedule 14D-9, (y) a Proxy Statement and (z) such
reports under Section 13(a) of the Exchange Act in each case to the extent
required in connection with this Agreement and the Transactions contemplated by
this Agreement, (iii) the filing of the Certificate of Merger with the Secretary
of State and appropriate documents with the relevant authorities of other states
in which the Company is qualified to do business, (iv) as may be required by any
applicable state securities or "blue sky" Laws, and (v) such other consents,
approvals, orders, authorizations, registrations, declarations and filings the
failure of which to be obtained or made would not, individually or in the
aggregate, (x) have a Material Adverse Effect or (y) prevent the consummation of
any of the Transactions contemplated by this Agreement.
(e) SEC Documents; Financial Statements. The Company has filed all
reports, proxy statements, forms, and other documents required to be filed with
the SEC under the Securities Act of 1933 (the "Securities Act") and the Exchange
Act since January 1, 1993 (the "SEC Documents"). As of their respective dates,
(i) the SEC Documents complied in all material respects with the requirements of
the Securities Act, or the Exchange Act, as the case may be, and the rules and
regulations of the SEC promulgated thereunder applicable to such SEC Documents,
and (ii) none of the SEC Documents contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of the
Company included in the SEC Documents comply as to form in all material respects
with applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis during the periods
involved (except as may be indicated in the notes thereto) and fairly present in
accordance with generally accepted accounting principles the consolidated
financial position of the Company and its consolidated Subsidiaries as of the
dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments). Except as set forth in Schedule 3.1(e) of
the Company Disclosure Schedule and except as set forth in the SEC Documents
filed and publicly available prior to the date of this Agreement, and except for
liabilities and obligations incurred in the ordinary course of business
consistent with past practice since the date of the most recent consolidated
balance sheet included in the SEC Documents filed and publicly available prior
to the date of this Agreement, neither the Company nor any of its Subsidiaries
has any liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) required by generally accepted accounting principles to
be set forth on a consolidated balance sheet of the Company and its consolidated
Subsidiaries or in the notes thereto.
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(f) Information Supplied. None of the written information supplied or to
be supplied by the Company expressly for inclusion or incorporation by reference
in (i) the Offer Documents or (ii) the Proxy Statement, will, and in the case of
the Offer Documents, at the time the Offer Documents are filed with the SEC and
first published, sent or given to the Company's stockholders, or, in the case of
the Proxy Statement, on the date the Proxy Statement is first mailed to the
Company's stockholders and at the time of the meeting of the Company's
stockholders held to vote on approval and adoption of this Agreement, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not false or
misleading. The Proxy Statement will comply as to form in all material respects
with the Exchange Act and the rules and regulations thereunder, except that no
representation or warranty is made by the Company with respect to statements
made or incorporated by reference therein based on information supplied by
Parent or the Purchaser for inclusion or incorporation by reference therein.
(g) Absence of Certain Changes or Events. Except as set forth in Schedule
3.1(g) of the Company Disclosure Schedule and except as set forth in the SEC
Documents filed prior to the date of this Agreement, since March 31, 1995, (i)
the Company and its Subsidiaries have conducted their respective businesses in
all material respects only in the ordinary course, (ii) there has not been any
Material Adverse Change in the Company and (iii) neither the Company nor any of
its Subsidiaries has taken any of the actions described in Sections 5.1(i),
(ii), (iii), (iv), (ix), (xi) or (xii).
(h) Litigation. Except as set forth in Schedules 3.1(h) and 3.1(x) of the
Company Disclosure Schedule or the SEC Documents or to the extent reserved for
as reflected on the Company's financial statements for the year ended March 31,
1995 or otherwise fully covered by insurance, there are (i) no suits, actions or
proceedings pending or, to the knowledge of the Company, threatened against the
Company or any of its Subsidiaries, (ii) no complaints, lawsuits, charges or
other proceedings pending or, to the knowledge of the Company, threatened in any
forum by or on behalf of any present or former employee of the Company or any of
its Subsidiaries, any applicant for employment or classes of the foregoing
alleging breach of any express or implied contract of employment, any law or
regulation governing employment or the termination thereof or other
discriminatory, wrongful or tortious conduct in connection with the employment
relationship, (iii) no judgments, decrees, injunctions or orders of any
Governmental Entity or arbitrator outstanding against the Company and (iv)
except as set forth in the Schedule to this Section, none of the Intellectual
Property is subject to any order, writ, judgment, injunction, decree,
determination or award that, in the case of each of clauses (i), (ii), (iii) and
(iv) individually or in the aggregate has, or would reasonably be expected to
have a Material Adverse Effect on the Company.
(i) Absence of Changes in Benefit Plans; SEC Disclosure. Except as
disclosed in Schedule 3.1(i) of the Company Disclosure Schedule, there has not
been any adoption or amendment by the Company or any of its Subsidiaries or any
ERISA Affiliate (as defined in Section 3.1(j) hereof) of any Benefit Plan (as
defined in Section 3.1(j) hereof) since March 31, 1995. Except as disclosed in
Schedule 3.1(i) of the Company Disclosure Schedule, neither the Company nor any
of its Subsidiaries, nor any ERISA Affiliate has any formal plan or commitment,
whether legally binding or not, to create any additional Benefit Plan or modify
or change any existing Benefit Plan that would affect any employee or terminated
employee of the Company, a Subsidiary of the Company or any ERISA Affiliate. All
employment, consulting, severance, termination, change in control or
indemnification agreements, arrangements or understandings between the Company
or any of its Subsidiaries and any current or former officer or director of the
Company or any of its Subsidiaries which are required to be disclosed in the SEC
Documents have been disclosed therein.
(j) Employee Benefits; ERISA. (i) Schedule 3.1(j) of the Company
Disclosure Schedule contains a true and complete list of each material bonus,
deferred compensation, incentive compensation, stock purchase, stock option,
severance or termination pay, hospitalization or other medical, life or other
insurance, supplemental unemployment benefits, profit-sharing, pension, or
retirement plan, program, agreement or arrangement, and each other material
employee benefit plan, program, agreement or arrangement, sponsored, maintained
or contributed to or required to be contributed to (at any time during the past
six years) by the Company, any of its Subsidiaries or by any trade or business,
whether or not incorporated (an "ERISA Affiliate"), that together with the
Company or any Subsidiary of the Company would be deemed a "single
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employer" within the meaning of section 4001 of the Employee Retirement Income
Security Act of 1974, as amended, and the rules and regulations promulgated
thereunder ("ERISA"), for the benefit of any employee or terminated employee of
the Company, its Subsidiaries or any ERISA Affiliate, whether formal or informal
and whether legally binding or not (the "Benefit Plans").
(ii) With respect to each Benefit Plan, the Company has delivered a
true and complete copy thereof (including all amendments thereto), as well
as true and complete copies of the annual reports, if required under ERISA,
with respect thereto for the last completed plan year; the actuarial
reports, if required under ERISA, with respect thereto for the last
completed plan year; the most recent report prepared with respect thereto
in accordance with Statement of Financial Accounting Standards No. 87,
Employer's Accounting for Pensions; the most recent Summary Plan
Description, together with each Summary of Material Modifications, if
required under ERISA with respect thereto; if the Benefit Plan is funded
through a trust or any third party funding vehicle, the trust or other
funding agreement (including all amendments thereto) and the latest
financial statements thereof; and the most recent determination letter
received from the Internal Revenue Service with respect to each Benefit
Plan that is intended to be qualified under section 401 of the Internal
Revenue Code of 1986, as from time to time amended (the "Code").
(iii) No material liability under Title IV of ERISA has been incurred
by the Company, its Subsidiaries or any ERISA Affiliate since the effective
date of ERISA that has not been satisfied in full, and no condition exists
that presents a material risk to the Company, its Subsidiaries or any ERISA
Affiliate of incurring a material liability under such Title, other than
liability for premiums due the Pension Benefit Guaranty Corporation
("PBGC") (which premiums have been paid when due).
(iv) The PBGC has not instituted proceedings to terminate any Benefit
Plan and, to the knowledge of the Company, no condition exists that
presents a material risk that such proceedings will be instituted.
(v) Except as set forth in Schedule 3.1(j) of the Company Disclosure
Schedule, with respect to each Benefit Plan which is subject to Title IV of
ERISA, the present value of accrued benefits under such plan, based upon
the actuarial assumptions used for funding purposes in the most recent
actuarial report prepared by such plan's actuary with respect to such plan
do not exceed, as of its latest valuation date, the then current value of
the assets of such plan allocable to such accrued benefits.
(vi) Neither the Company, nor any Subsidiary of the Company, nor any
ERISA Affiliate, nor any Benefit Plan, nor any trust created thereunder,
nor, to the knowledge of the Company, any trustee or administrator thereof
has engaged in a transaction in connection with which the Company, any
Subsidiary of the Company or any ERISA Affiliate, any Benefit Plan, any
such trust, or any trustee or administrator thereof, could be subject to
either a civil penalty assessed pursuant to section 409 or 502(i) of ERISA
or a tax imposed pursuant to section 4975 or 4976 of the Code which would
have a Material Adverse Effect.
(vii) All material contributions which the Company, any Subsidiary of
the Company or an ERISA Affiliate are required to make with respect to each
Benefit Plan (for which contribution deductions are governed by section
404(a) of the Code) for the plan years of such plans ending with or within
the most recent tax year of the Company, the Subsidiary or ERISA Affiliate
ended prior to the date of this Agreement either (A) were made prior to the
last day of such tax year or (B) have been or will be made subsequent to
such last day within the time required by section 404(a)(6) of the Code in
order to be deemed to have been made on the last day of such tax year; and
all material contribution amounts properly accrued through the Closing Date
with respect to the current plan year of each Benefit Plan will be paid by
the Company, a Subsidiary of the Company or ERISA Affiliate, as
appropriate, on or prior to the Closing Date or will be properly recorded
on the Balance Sheet in accordance with Financial Accounting Standards
Board Statement No. 87; and no Benefit Plan subject to Title IV of ERISA or
any trust established thereunder has incurred any "accumulated funding
deficiency" (as defined in section 302 of ERISA and section 412 of the
Code), whether or not waived, as of the last day of the most recent fiscal
year of each Benefit Plan ended prior to the date of this Agreement; and
all material
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contributions required to be made with respect thereto (whether pursuant to
the terms of any Benefit Plan or otherwise) on or prior to the date of this
Agreement have been timely made.
(viii) No Benefit Plan is a "multiemployer pension plan," as such term
is defined in section 3(37) of ERISA.
(ix) Except as set forth in Schedule 3.1(j) of the Company Disclosure
Schedule, each Benefit Plan has been operated and administered in all
material respects in accordance with its terms and applicable law,
including but not limited to ERISA and the Code.
(x) Each Benefit Plan which is intended to be "qualified" within the
meaning of section 401(a) of the Code has received a favorable
determination letter from the IRS that it is so qualified and the trusts
maintained thereunder are exempt from taxation under section 501(a) of the
Code and to the Company's knowledge no event has occurred which would
reasonably be expected to adversely affect such qualified or exempt status.
(xi) Except as set forth in Schedule 3.1(j) of the Company Disclosure
Schedule, no Benefit Plan provides death or medical benefits (whether or
not insured), with respect to current or former employees of the Company,
its Subsidiaries or any ERISA Affiliate beyond their retirement or other
termination of service (other than (a) coverage mandated by applicable law,
(b) death benefits or retirement benefits under any "employee pension
plan," as that term is defined in section 3(2) of ERISA, or (c) benefits
the full cost of which is borne by the current or former employee (or his
beneficiary).
(xii) Except as disclosed in Schedule 3.1(j) of the Company Disclosure
Schedule or expressly provided in this Agreement, the consummation of the
Transactions contemplated by this Agreement will not (a) entitle any
current or former employee or officer of the Company or any ERISA Affiliate
to severance pay, or any other material payment from the Company, (b)
accelerate the time of payment or vesting, or increase the amount of
compensation due any such employee or officer, or (c) require the Company
or any ERISA Affiliate to fund or make any payments to any trust or other
funding vehicle in respect of any Benefit Plan.
(xiii) Except as set forth in Schedule 3.1(j) of the Company
Disclosure Schedule, there are no pending, or, to the knowledge of the
Company, threatened claims by, on behalf of or against any Benefit Plan, by
any employee or beneficiary covered under any such Benefit Plan, or
otherwise involving any such Benefit Plan (other than routine claims for
benefits) that would have a Material Adverse Effect.
(xiv) No Benefit Plan of the Company or its Subsidiaries or other
arrangement authorizes grants of either stock appreciation rights or
restricted stock of the Company and there are no outstanding stock
appreciation rights or restricted stock of the Company.
(xv) Except as set forth in Schedule 3.1(j) of the Company Disclosure
Schedule, no Benefit Plan is not subject to ERISA pursuant to Section
4(b)(4) of ERISA. Each Benefit Plan relating to employees not employed in
the United States (A) is in compliance with, in all material respects, all
requirements of law applicable thereto and the respective requirements of
the governing documents of such plan and (B) is fully and properly funded
in accordance with, and the assets thereof are held by a person authorized
to hold such assets under, applicable law and regulation and the governing
documents of such plan except to the extent the failure to be in compliance
with the statements in clauses (A) and (B) would not have a Material
Adverse Effect.
(k) Taxes. (i) Each of the Company and each of its Subsidiaries has
filed all Federal, and all material state, local and foreign, income Tax
Returns and all other material Tax Returns required to be filed by it. To
the knowledge of the Company, all such Tax Returns are complete and correct
except where the failure of such Tax Returns to be true and correct would
not individually or in the aggregate have a Material Adverse Effect. Each
of the Company and each of its Subsidiaries has paid (or the Company has
paid on its Subsidiaries' behalf), all Taxes shown as due on such Tax
Returns and all material Taxes for which no Tax Return was required to be
filed, and has provided adequate reserves in its most recent financial
statements contained in the SEC Documents in accordance with generally
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<PAGE> 15
accepted accounting principles for all Taxes payable by the Company and its
Subsidiaries for all taxable periods and portions thereof through the date
of such financial statements except where the failure to make such filings,
pay such taxes or provide for such reserves would not individually or in
the aggregate have a Material Adverse Effect.
(ii) Except as set forth in Schedule 3.1(k) of the Company Disclosure
Schedule, no deficiencies for any Taxes have been asserted or assessed
against the Company or any of its Subsidiaries, which are not reserved for.
To the knowledge of the Company, no governmental authority is presently
conducting a Tax audit or investigation with respect to the Company or any
of its Subsidiaries, or has asked for an extension or waiver of an
applicable statute of limitations. The Federal income Tax Returns of the
Company and each of its Subsidiaries consolidated in such Tax Returns have
been examined by and settled with the Internal Revenue Service for all
years through March 31, 1993 and all Tax Returns thereafter are open and
subject to examination. Neither the Company nor any of its Subsidiaries
within the past five years have filed Tax Returns on a consolidated,
combined or unitary basis with any group of entities except the group with
which it presently files Tax Returns. With respect to Taxes or any Tax
Return, no power of attorney has been executed by the Company or any of its
Subsidiaries.
(iii) Except as set forth in Schedule 3.1.(k) of the Company
Disclosure Schedule, no transaction contemplated by this Agreement is
subject to withholding under Section 1445 of the Internal Revenue Code of
1986, as amended.
(iv) As used in this Agreement, "Taxes" shall include all Federal,
state, local and foreign income, payroll, franchise, property, sales,
excise and any and all other Taxes, tariffs, duties, fees, assessments or
governmental charges of any nature whatsoever, including interest,
additions and penalties. As used in this Agreement, "Tax Returns" shall
mean all returns, reports, or similar statements required to be filed with
respect to any Tax (including any attached schedules), including, without
limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
(l) No Excess Parachute Payments. Except as disclosed on Schedule 3.1(l)
of the Company Disclosure Schedule, no amounts payable as a result of the
Transactions contemplated by this Agreement under the Benefit Plans or any other
plans or arrangements will constitute a "parachute payment" to a "disqualified
individual" as those terms are defined in section 280G of the Code, without
regard to whether such payment is reasonable compensation for personal services
performed or to be performed in the future.
(m) Compliance with Applicable Laws. (i) Except as set forth in Schedule
3.1(m) of the Company Disclosure Schedule, (i) to the knowledge of the Company,
the Company and each of its Subsidiaries have complied and are presently
complying in all material respects with all applicable Laws (whether statutory
or otherwise), rules, regulations, orders, ordinances, judgments or decrees of
all governmental authorities (Federal, state, local or otherwise) (collectively,
"Laws"), including, but not limited to, the Federal Occupational Safety and
Health Act, the Federal Food, Drug, and Cosmetic Act, and all Laws relating to
the safe conduct of business and environmental protection and conservation, the
Civil Rights Act of 1964 and Executive Order 11246 concerning equal employment
opportunity obligations of Federal contractors and any applicable health,
sanitation, fire, safety, labor, zoning and building Laws and ordinances, and
neither the Company nor any of its Subsidiaries has received notification of any
asserted present or past failure to so comply, except in each case where such
non-compliance would not individually or in the aggregate have a Material
Adverse Effect.
(ii) To the knowledge of the Company, each of the Company and its
Subsidiaries has in effect all Federal, state, local and foreign
governmental approvals, authorizations, certificates, filings, franchises,
licenses, notices, permits and rights, including all authorizations under
Environmental Laws ("Permits"), necessary for it to own, lease or operate
its properties and assets and to carry on its business substantially as now
conducted, there are no appeals nor any other actions pending to revoke any
such Permits, and there has occurred no material default or violation under
any such Permits except in each case to the extent the failure to have such
Permit or the revocation of such Permit or default or violation would not
individually or in the aggregate have a Material Adverse Effect.
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<PAGE> 16
(iii) Except as set forth in Schedule 3.1(m)(iii) of the Company
Disclosure Schedule, to the knowledge of the Company, each of the Company
and its Subsidiaries is, and has been, and each of the Company's former
Subsidiaries, while a Subsidiary of the Company, was in compliance in all
material respects with all applicable Environmental Laws, except such
non-compliance as do not and will not individually or in the aggregate have
a Material Adverse Effect. Except as set forth in Schedule 3.1(m)(iii) of
the Company Disclosure Schedule, to the knowledge of the Company, as of the
date of this Agreement, there are no circumstances or conditions that would
reasonably be expected to prevent or interfere with compliance by the
Company or its Subsidiaries in the future with Environmental Laws (or
Permits issued thereunder) in effect as of the date of this Agreement,
except such circumstances or conditions that would not individually or in
the aggregate have a Material Adverse Effect.
(iv) Except as set forth in Schedule 3.1(m)(iv) of the Company
Disclosure Schedule, neither the Company nor any Subsidiary of the Company
has received any written claim, demand, notice, complaint, court order,
administrative order or request for information from any Governmental
Entity or private party, alleging violation of, or asserting any
noncompliance with or liability under or potential liability under, any
Environmental Laws, except for matters which are no longer threatened or
pending and for which the Company or its Subsidiaries are not subject to
further requirements pursuant to an administrative or court order,
judgment, or a settlement agreement or which would not individually or in
the aggregate have a Material Adverse Effect.
(v) Except as set forth in Schedule 3.1(m)(v) of the Company
Disclosure Schedule, to the knowledge of the Company, during the period of
ownership or operation by the Company and its Subsidiaries of any of their
respective current or previously owned or leased properties, there have
been no Releases of Hazardous Material in, on, under or affecting such
properties except in each case for those which individually or in the
aggregate do not and will not have a Material Adverse Effect. Prior to the
period of ownership or operation by the Company and its Subsidiaries of any
of their respective current or previously owned or leased properties, to
the knowledge of the Company, no Hazardous Material was generated, treated,
stored, disposed of, used, handled or manufactured at, or transported
shipped or disposed of from, such current or previously owned or leased
properties, and there were no Releases of Hazardous Material in, on, under
or affecting any such property, except in each case for those which
individually or in the aggregate would not have a Material Adverse Effect.
(vi) Schedule 3.1(m)(vi) of the Company Disclosure Schedule identifies
all environmental audits, assessments or studies within the possession of
the Company or any Subsidiary of the Company with respect to the facilities
or real property currently or previously owned, leased or operated by the
Company or any Subsidiary of the Company, or to facilities or real property
owned or leased by former Subsidiaries of the Company (when such companies
were Subsidiaries of the Company), which were conducted within the last
five years and which contain information which individually or in the
aggregate has a Material Adverse Effect. The Company has furnished to
Parent complete and correct copies of all such audits, assessments and
studies.
(vii) Except for leases entered into in the ordinary course of
business, as to which no written notice of a claim for indemnity or
reimbursement has been received by the Company, and except as set forth on
Schedule 3.1(m)(vii) of the Company Disclosure Schedule, to the knowledge
of the Company, neither the Company nor any of its Subsidiaries has entered
into any agreement that may require it to pay to, reimburse, guarantee,
pledge, defend, indemnify, or hold harmless any Person for or against any
Environmental Liabilities and Costs.
(viii) Neither the Company nor any of its Subsidiaries has treated,
stored or disposed of "hazardous waste", as that term is defined in the
Resource Conservation and Recovery Act, 42 U.S.C. sec. 6901 et seq.,
analogous state Laws, or the regulations promulgated thereunder, such that
the Company or any of its Subsidiaries would be required to obtain a permit
under said Laws for such treatment, storage or disposal.
(n) DGCL Section 203; Other Takeover Statutes; Rights Agreement. (i) The
Board of Directors of the Company has duly and validly approved the Offer and
Merger contemplated hereby for the purposes of Section 203 of the DGCL.
Accordingly, the provisions of Section 203 of the DGCL will not apply to the
Offer
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<PAGE> 17
and Merger contemplated by this Agreement. No other state takeover statute or
similar statute or regulation applies or purports to apply to the Offer or the
Merger contemplated hereby.
(ii) The Board of Directors of the Company has taken all necessary
action so that (i) the Rights will not be exercisable, trade separately, or
be otherwise affected by the Offer, the Merger or the other Transactions
required hereby, (ii) none of Parent and its affiliates will be deemed to
be an "Acquiring Person" for purposes thereof in consummating the Offer and
Merger and (iii) a "Distribution Date" shall not occur by virtue of the
Offer, the Merger or the other Transactions contemplated hereby. The
Company will take any action reasonably requested by Parent to ensure and
confirm that the Company, Parent and their respective affiliates will not
have any obligations in connection with the Rights or the Rights Agreement
in connection with the Offer, the Merger and the other Transactions
contemplated hereby on the terms provided herein.
(o) Voting Requirements. The affirmative vote of the holders of two-thirds
of all the Shares entitled to vote approving this Agreement is the only vote of
the holders of any class or series of the Company's capital stock necessary to
approve this Agreement and the Transactions contemplated by this Agreement.
(p) Brokers. No broker, investment banker, financial advisor or other
Person, other than Lehman Brothers Inc., is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in connection with the
Transactions contemplated by this Agreement based upon arrangements made by or
on behalf of the Company.
(q) Opinion of Financial Advisor. The Company has received an opinion of
Lehman Brothers Inc., to the effect that, as of the date of this Agreement, the
consideration to be received in the Offer and the Merger by the Company's
stockholders is fair to the Company's stockholders from a financial point of
view, and a complete and correct signed copy of such opinion will be delivered
to Parent. Parent may, upon the prior review and approval of the Company and
Lehman Brothers Inc. of such reference, refer to this opinion in the Offer
Documents to the extent necessary to comply with the provisions of applicable
Federal and state securities laws.
(r) Intellectual Property. Schedule 3.1(r) of the Company Disclosure
Schedule sets forth a true and complete list of all patents, registered and
material unregistered trademarks, trade names, service marks and copyrights and
applications therefor owned, used or filed by or licensed to the Company and its
Subsidiaries (collectively, "Intellectual Property Rights"). The Intellectual
Property Rights are sufficient to allow each of the Company and each of its
Subsidiaries to conduct, and continue to conduct, its business as currently
conducted except where the failure to have such rights would not individually or
in the aggregate have a Material Adverse Effect. To the knowledge of the
Company, each of the Company and each of its Subsidiaries owns or has sufficient
unrestricted right to use the Intellectual Property Rights in order to allow it
to conduct, and continue to conduct, its business as currently conducted in all
material respects, and the consummation of the Transactions contemplated hereby
will not alter or impair such ability in any respect which would have a Material
Adverse Effect. There is no restriction or encumbrance on the right of the
Company to transfer to the Purchaser any of the Intellectual Property Rights, or
to grant licenses to the Intellectual Property Rights, other than any such Liens
that alone or in the aggregate would not result in a Material Adverse Effect or
as disclosed on Schedule 3.1(r) of the Company Disclosure Schedule. To the
knowledge of the Company, and except as disclosed on Schedule 3.1(r) of the
Company Disclosure Schedule, there are no pending oppositions, cancellations,
invalidity proceedings, interference or re-examination proceedings with respect
to the Intellectual Property Rights and no such proceedings are threatened. To
the knowledge of the Company, and except as disclosed on Schedule 3.1(r) of the
Company Disclosure Schedule, neither the Company nor any of its Subsidiaries has
received any written notice from any other Person challenging the right of the
Company or any of its Subsidiaries to use any of the Intellectual Property
Rights. Except as disclosed on Schedule 3.1(r) of the Company Disclosure
Schedule, no claims are pending by any Person with respect to the ownership,
validity, enforceability or use of any such Intellectual Property Rights
challenging or questioning the validity or effectiveness of any of the
foregoing. Except as disclosed on Schedule 3.1(r) of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries has made any claim of
a violation or infringement by others of its rights to or in connection with the
Intellectual Property Rights.
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<PAGE> 18
(s) Title to Properties. Each of the Company and each of its Subsidiaries
has sufficiently good and valid title to, or an adequate leasehold interest in,
its material tangible properties and assets (including the Real Property) in
order to allow it to conduct, and continue to conduct, its business as currently
conducted except where the failure to have such interests would not have a
Material Adverse Effect. To the knowledge of the Company, each of the Company
and each of its Subsidiaries enjoys peaceful and undisturbed possession under
all leases, except for such breaches of the right to peaceful and undisturbed
possession which individually or in the aggregate would not have a Material
Adverse Effect. Schedule 3.1(s) of the Company Disclosure Schedule sets forth a
complete list of all material real property and material interests in real
property owned in fee by the Company or one of its Subsidiaries (the "Fee
Properties") and sets forth all material real property and interests in real
property leased by the Company or one of its Subsidiaries as of the date hereof
(the "Leased Properties," together with the Fee Properties, the "Real
Property").
(i) Leases in Full Force and Effect.
(A) All material leases executed by the Company or its Subsidiaries
as lessee for the Leased Properties are in full force and effect and,
except as set forth on Schedule 3.1(s) of the Company Disclosure
Schedule, there exist no other landlords of the Leased Properties and
the Company and its Subsidiaries have received no written notices of
default from any landlord which default remains uncured as of the date
hereof and which individually or in the aggregate would result in a
Material Adverse Effect;
(B) All material leases executed by the Company or its Subsidiaries
as lessor for the Real Property are in full force and effect and, except
as set forth on Schedule 3.1(s) of the Company Disclosure Schedule,
there exist no other tenants of the Real Property and the Company and
its Subsidiaries have received no written notices of default from any
tenant which default remains uncured as of the date hereof and which
individually or in the aggregate would result in a Material Adverse
Effect;
(ii) Fee Simple Ownership. The Company and/or its Subsidiaries have
good, valid, marketable and fee simple title to all the Fee Property, free
and clear of all Liens, that will continue after the Closing except for
such Liens as shown on the title searches relating to such Fee Properties
disclosed on Schedule 3.1(s) of the Company Disclosure Schedule or Liens
which do not materially detract from the value or current use of the Fee
Property; and
(iii) No Variances or Conditions. There are no variances, special
exceptions, easements, or agreements pertaining to the fee properties
imposed by, or granted by or entered into by the Company or its
Subsidiaries, with or enforceable by any state, county or municipal
government, agent or body, any neighborhood or civic group, or any similar
body which individually or in the aggregate would have a Material Adverse
Effect. No written notice from any city, county or other governmental
authority has been received by the Company or its Subsidiaries requiring
any work, repair, construction, alteration or installation on, or in
connection with, the Real Property which individually or in the aggregate
would have a Material Adverse Effect.
(t) Insurance. (i) Set forth in Schedule 3.1(t) of the Company
Disclosure Schedule is a complete and accurate list as of the date hereof
of all primary, excess and umbrella policies of general liability, fire,
products liability, completed operations, employers' liability, workers'
compensation, bonds and other forms of insurance owned or held by or on
behalf of or providing insurance coverage to the Company and its
Subsidiaries as of the date hereof, including the following information for
each such policy: type(s) of insurance coverage provided; name of insurer;
effective dates of the policy; policy number; per occurrence and annual
aggregate deductibles or self-insured retention; and per occurrence and
annual aggregate limits of liability; and the extent, if any, to which the
limits of liability of any products liability or general liability
insurance have been invaded or exhausted.
(ii) All current policies set forth in Schedule 3.1(t) of the Company
Disclosure Schedule are in full force and effect, and with respect to all
policies, all premiums payable with respect to all periods up to and
including the Closing Date have been, or will be, paid, and no notice of
cancellation or termination has
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<PAGE> 19
been received with respect to any such policy except such cancellations or
terminations which individually or in the aggregate would not have a
Material Adverse Effect.
(iii) To the Company's knowledge, neither the Company nor any of its
Subsidiaries has been refused any insurance by any insurance carrier to
which the Company or any of its Subsidiaries have applied for any such
insurance or with which they have carried insurance during the last 5
(five) years, nor has, as of the date hereof, any of the insurance carriers
set forth in Schedule 3.1(t) of the Company Disclosure Schedule disclaimed
coverage, or defended the Company or any of its Subsidiaries under a
reservation of rights with respect to any pending claims, except where any
such refusal, disclaimer or defense under a reservation of rights,
individually or in the aggregate, would not have a Material Adverse Effect.
(u) Contracts; Debt Instruments. Except as set forth in Schedule 3.1(u) of
the Company Disclosure Schedule, there are no (i) agreements of the Company or
any of its Subsidiaries containing an unexpired covenant not to compete or any
other restriction on competition applying to the Company or any of its
Subsidiaries, (ii) interest rate, currency or commodity hedging, swap or similar
derivative transactions to which the Company is a party or (iii) other contracts
or amendments thereto that would be required to be filed as an exhibit to a Form
10-K filed by the Company with the SEC as of the date of this Agreement. To the
knowledge of the Company, each of the agreements listed in Schedule 3.1(u) of
the Company Disclosure Schedule is a valid and binding obligation of the Company
or its Subsidiary, as the case may be, and, limited to the Company's knowledge
based on written information received from any party thereto, of each other
party thereto, and, to the Company's knowledge, each such agreement is in full
force and effect and is enforceable by the Company or its Subsidiary in
accordance with its terms, except that (i) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar Laws now or
hereafter in effect relating to creditors' rights generally and (ii) the remedy
of specific performance and injunctive relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought and except to the extent any covenant not to compete contained
therein may be unenforceable. Except to the extent set forth in Schedule 3.1(u)
of the Company Disclosure Schedule or to the extent such default individually or
in the aggregate would not have a Material Adverse Effect, to the knowledge of
the Company, there are no existing defaults (or circumstances or events that,
with the giving of notice or lapse of time or both would become defaults) of the
Company or any of its Subsidiaries (or, to the knowledge of the Company based on
written information received from any party thereto, any other party thereto)
under any of the agreements set forth in Schedule 3.1(u) of the Company
Disclosure Schedule.
(v) Labor Relations. Except to the extent set forth in Schedule 3.1(v) of
the Company Disclosure Schedule, (i) there is no labor strike, dispute,
slowdown, stoppage or lockout actually pending, or to the knowledge of the
Company threatened against or affecting the Company or any of its Subsidiaries,
and during the past three years there has not been any such action which
individually or in the aggregate would have a Material Adverse Effect; (ii) to
the Company's knowledge, no union claims to represent the employees of the
Company or any of its Subsidiaries; (iii) the Company or any of its Subsidiaries
is not a party to or bound by any collective bargaining agreement with any labor
organization and (iv) as of the date hereof (x) none of the employees of the
Company or any of its Subsidiaries is represented by any labor organization, (y)
to the knowledge of the Company, there is no current union organizing activities
among the employees of the Company or any of its Subsidiaries and (z) the
Company has not received notice of any pending petition for certification before
the National Labor Relations Board with respect to any group of employees who
are not currently organized; (v) there are no written personnel policies, rules
or procedures applicable to employees of the Company or any of its Subsidiaries;
(vi) there is no grievance arising out of any collective bargaining agreement or
other grievance procedure against the Company or any of its Subsidiaries, except
such grievances which individually or in the aggregate would not have a Material
Adverse Effect; and (vii) there are no employment contracts or severance
agreements with any employees of the Company or any of its Subsidiaries, except
as set forth in Schedule 3.1(j) of the Company Disclosure Schedule and the SEC
Documents.
(w) Compliance with WARN Act. Since the enactment of the Worker Adjustment
and Retraining Notification Act of 1988 (the "WARN Act"), the Company and its
Subsidiaries have not incurred any
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<PAGE> 20
liability under and have complied in all material respect with, the WARN Act.
Except as set forth in Schedule 3.1(w) of the Company Disclosure Schedule, none
of the employees of the Company or any of its Subsidiaries has suffered an
"employment loss" (as defined in the WARN Act) since October 1, 1995.
(x) Products Liability. As used in this subsection 3.1(x), the term
"Product" shall mean any product designed, manufactured, shipped, sold,
marketed, distributed and/or otherwise introduced into the stream of commerce by
or on behalf of the Company or any of its Subsidiaries, including, without
limitation, any product sold in the United States by the Company or any of its
Subsidiaries as the distributor, agent, or pursuant to any other contractual
relationship with a non-U.S. manufacturer; and the term "Defect" shall mean a
defect or impurity of any kind, whether in design, manufacture, processing, or
otherwise, including, without limitation, any dangerous propensity associated
with any reasonably foreseeable use of a Product, or the failure to warn of the
existence of any defect, impurity, or dangerous propensity.
(i) Except as set forth in Schedule 3.1(x) of the Company Disclosure
Schedule, there is no pending or to the knowledge of the Company threatened
claim, action, suit, inquiry, proceeding or investigation by any individual
or Governmental Entity in which a Product is alleged to have a Defect nor,
to the knowledge of the Company and its Subsidiaries, is there any valid
basis for any such claim, action, suit, inquiry, proceeding, or
investigation; except any such claim, action, suit, inquiry, proceeding, or
investigation, which would not individually or in the aggregate, have a
Material Adverse Effect on the Company or any of its Subsidiaries.
(ii) Except as set forth in Schedule 3.1(x) of the Company Disclosure
Schedule, neither the Company nor any of its Subsidiaries has within the
last three years, either voluntarily or at the request of any Governmental
Entity, initiated or participated in a recall of any Product, provided
post-sale warnings regarding any Product, or sent "dear doctor" letters
regarding any Product.
(y) No Undisclosed Liabilities. Except (a) as disclosed in the Company SEC
Documents, including any exhibits to the SEC Documents, and (b) for liabilities
and obligations (x) incurred in the ordinary course of business and consistent
with past practice (y) pursuant to the terms of this Agreement or (z) as set
forth in Schedule 3.1(y) of the Company Disclosure Schedule, since March 31,
1995 to the date hereof, neither the Company nor any of its Subsidiaries has
incurred any liabilities or obligations of any nature, whether or not accrued,
contingent or otherwise, that have, or would be reasonably likely to have,
individually or in the aggregate a Material Adverse Effect or would be required
by GAAP to be reflected on a consolidated balance sheet of the Company and its
Subsidiaries (including the notes thereto).
(z) Full Disclosure. To the Company's knowledge, the representations and
warranties made by the Company in this Agreement, or in any documents referenced
or delivered pursuant hereto or thereto, does not, and will not, contain any
untrue statement of a material fact or omit to state a material fact required to
be stated herein or therein, or necessary to make the statements and facts
contained herein or therein, in light of the circumstances in which they are
made, not false or misleading. Copies of all documents heretofore or hereafter
delivered or made available to Parent and the Purchaser pursuant hereto were or
will be complete and accurate copies of such documents.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
PARENT AND THE PURCHASER
Section 4.1 Representations and Warranties of Parent and the
Purchaser. Parent and the Purchaser represent and warrant to the Company as
follows:
(a) Organization, Standing and Corporate Power. Each of Parent and the
Purchaser is a corporation duly organized, validly existing and in good standing
under the Laws of the jurisdiction in which each is incorporated and has the
requisite corporate power and authority to carry on its business as now being
conducted. Each of Parent and the Purchaser is duly qualified or licensed to do
business and is in good standing in each jurisdiction in which the nature of its
business or the ownership or leasing of its properties
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<PAGE> 21
makes such qualification or licensing necessary, other than in such
jurisdictions where the failure to be so qualified or licensed (individually or
in the aggregate) would not have a Material Adverse Effect on Parent.
(b) Authority; Noncontravention. Parent and the Purchaser have the
requisite corporate power and authority to enter into this Agreement and to
consummate the Transactions contemplated by this Agreement. The execution and
delivery of this Agreement by Parent and the Purchaser and the consummation by
Parent and the Purchaser of the Transactions contemplated by this Agreement have
been duly authorized by all necessary corporate action on the part of Parent and
the Purchaser, as applicable. This Agreement has been duly executed and
delivered by Parent and the Purchaser and, assuming this Agreement constitutes
the valid and binding obligation of the Company, constitutes a valid and binding
obligation of each such party, enforceable against each such party in accordance
with its terms, except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar Laws now or hereafter in
effect relating to creditors' rights generally and (ii) the remedy of specific
performance and injunctive relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be brought.
The execution and delivery of this Agreement do not, and the consummation of the
Transactions contemplated by this Agreement will not, conflict with, or result
in any violation of, or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or result
in the creation of any lien upon any of the properties or assets of Parent
under, (i) the certificate of incorporation or by-laws of Parent or the
Purchaser, (ii) any judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Parent or the Purchaser or their respective properties
or assets, other than, in the case of clause (ii), any such conflicts,
violations, defaults, rights or Liens that individually or in the aggregate
would not (x) have a Material Adverse Effect or (y) prevent the consummation of
any of the Transactions contemplated by this Agreement. No consent, approval,
order or authorization of, or registration, declaration or filing with, any
Governmental Entity is required by Parent or the Purchaser in connection with
the execution and delivery of this Agreement or the consummation by Parent or
the Purchaser, as the case may be, of any of the Transactions contemplated by
this Agreement, except for (i) if required, the filing of a premerger
notification and report form under the HSR Act, (ii) the filing with the SEC of
(x) the Offer Documents and (y) such reports under the Exchange Act as may be
required in connection with this Agreement and the Transactions contemplated by
this Agreement, (iii) the filing of the Certificate of Merger with the Secretary
of State and appropriate documents with the relevant authorities of other states
in which the Company is qualified to do business, (iv) as may be required by an
applicable state securities or "blue sky" Laws, and (v) such other consents,
approvals, orders, authorizations, registrations, declarations and filings the
failure of which to be obtained or made would not, individually or in the
aggregate, (x) have a Material Adverse Effect or (y) prevent the consummation of
any of the Transactions contemplated by this Agreement.
(c) Information Supplied. None of the information supplied or to be
supplied by Parent or the Purchaser expressly for inclusion or incorporation by
reference in the Schedule 14D-9 or the Proxy Statement will, in the case of the
Schedule 14D-9, at the time the Schedule 14D-9 is filed with the SEC and first
published, sent or given to the Company's stockholders or, in the case of the
Proxy Statement, on the date the Proxy Statement is first mailed to the
Company's stockholders and at the time of the meeting of the Company's
stockholders held to vote on approval and adoption of this Agreement, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.
(d) Financing. Parent has a bank commitment to provide the financing for
the Offer and the Merger and pursuant to such commitment shall provide the
Purchaser with the funds necessary to consummate the Offer and the Merger and
the Transactions contemplated thereby in accordance with the terms hereof and
thereof (the "Financing Commitment"). A copy of the Financing Commitment letter
has been made available to the Company. Parent has accepted the Financing
Commitment pursuant to its terms and has paid all fees due thereunder as of the
date of this Agreement. Parent and Purchaser acknowledge, however, that they are
obligated to accept for payment and promptly pay for all Shares validly tendered
pursuant to the Offer, subject to the satisfaction or waiver of the conditions
to the Offer, and to consummate the Merger as
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contemplated by this Agreement, whether or not the funds contemplated by the
Financing Commitment are obtained.
(e) Interim Operations of the Purchaser. The Purchaser was formed solely
for the purpose of engaging in the Transactions contemplated hereby and has not
engaged in any business activities or conducted any operations other than in
connection with the Transactions contemplated hereby. Parent shall cause
Purchaser to fulfill Purchaser's covenants, agreements and obligations under
this Agreement.
(f) Holding of Shares. As of the date of this Agreement, and at all times
prior to the consummation of the Offer, Parent, Purchaser and their Affiliates
shall not hold any Shares.
ARTICLE V
COVENANTS
Section 5.1 (a) Interim Operations of the Company. Until the acquisition
of the Shares pursuant to the Offer, except as specifically contemplated by this
Agreement, the Company shall and shall cause its Subsidiaries to carry on their
respective businesses in the ordinary course and use all commercially reasonable
efforts consistent with good business judgment to preserve intact their current
business organizations and, subject to complying with subsections (viii) and
(ix) of this Section 5.1(a), keep available the services of their current
officers and key employees and preserve their relationships consistent with past
practice with desirable customers, suppliers, licensors, licensees, distributors
and others having business dealings with them. Without limiting the generality
of the foregoing, the Company covenants and agrees that, except (i) as expressly
contemplated by this Agreement, (ii) as set forth in Schedule 5.1 of the Company
Disclosure Schedule or (iii) as consented to in writing by Parent, which consent
shall not be unreasonably withheld (it being understood that, without limiting
the ability of Parent to reasonably withhold its consent for any reason, the
failure to consent to any transaction that would materially adversely affect the
ability of Parent and/or its Affiliates to conduct the business of the Company
as contemplated by the Parent or impede the ability of any of the parties hereto
to consummate any of the Transactions contemplated hereby shall not be deemed to
be unreasonable), after the date hereof and prior to the consummation of the
Offer as contemplated herein:
(i) neither the Company nor any of its Subsidiaries shall, directly or
indirectly, amend its Certificate of Incorporation or By-laws or similar
organizational documents;
(ii) neither the Company nor any of its Subsidiaries shall: (i)(A)
declare, set aside or pay any dividend or other distribution payable in
cash, stock or property with respect to the Company's capital stock or that
of its Subsidiaries, or (B) redeem, purchase or otherwise acquire directly
or indirectly any of the Company's capital stock or that of its
Subsidiaries; (ii) issue, sell, pledge, dispose of or encumber any
additional shares of, or securities convertible into or exchangeable for,
or options, warrants, calls, commitments or rights of any kind to acquire,
any shares of capital stock of any class of the Company or its
Subsidiaries, other than Shares issued upon the exercise of Options
outstanding on the date hereof in accordance with the Option Plans as in
effect on the date hereof; or (iii) split, combine or reclassify the
outstanding capital stock of the Company or of any of the Subsidiaries of
the Company;
(iii) neither the Company nor any of its Subsidiaries shall acquire or
agree to acquire (A) by merging or consolidating with, or by purchasing a
substantial portion of the assets of, or by any other manner, any business
or any corporation, partnership, joint venture, association or other
business organization or division thereof (including entities which are
Subsidiaries of the Company or any of the Company's Subsidiaries) or (B)
any assets, including real estate, except (x) purchases of inventory,
furnishings, equipment, fuel and other non-material assets in the ordinary
course of business consistent with past practice or (y) expenditures
consistent with the Company's current capital budget previously provided to
Parent as set forth in Schedule 5.1(a) of the Company Disclosure Schedule
(the "Capital Budget");
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(iv) neither the Company nor any of its Subsidiaries shall make any
new capital expenditure or expenditures, other than capital expenditures
not to exceed, in the aggregate, the amounts provided for capital
expenditures in the Capital Budget;
(v) neither the Company nor any of its Subsidiaries shall, except in
the ordinary course of business and consistent with past practice or as
provided for in the Capital Budget, undertake or agree to undertake any
capital expenditures for the construction or acquisition of any plant,
manufacturing or distribution facility, equipment, or other real property
or fixtures except in the ordinary course of business and consistent with
past practice;
(vi) neither the Company nor any of its Subsidiaries shall, except in
the ordinary course of business and except as otherwise permitted by this
Agreement, modify, amend or voluntarily terminate any material contract or
agreement set forth in the SEC Documents to which the Company or any
Subsidiary is a party or waive, release or assign any material rights or
claims;
(vii) neither the Company nor any of its Subsidiaries shall transfer,
lease, license, sell, mortgage, pledge, dispose of, or encumber any
property or assets other than in the ordinary course of business and
consistent with past practice;
(viii) neither the Company nor any of its Subsidiaries shall: (i)
enter into any employment or severance agreement with or, except in
accordance with the existing written policies of the Company, grant any
severance or termination pay to any officer, director or key employee of
the Company or any its Subsidiaries; or (ii) hire or agree to hire any new
or additional key employees or officers at an annual salary in excess of
$125,000;
(ix) neither the Company nor any of its Subsidiaries shall, except as
required to comply with applicable law or expressly provided in this
Agreement, (A) adopt, enter into, terminate or amend any Benefit Plan or
other arrangement for the current or future benefit or welfare of any
director, officer or current or former employee, except to the extent
necessary to coordinate any such Benefit Plans with the terms of this
Agreement, (B) increase in any manner the compensation or fringe benefits
of, or pay any bonus to, any director, officer or employee (except for
normal increases or bonuses in the ordinary course of business consistent
with past practice to employees other than directors, officers or senior
management personnel and that, in the aggregate, do not result in a
significant increase in benefits or compensation expense to the Company and
its Subsidiaries relative to the level in effect prior to such action (but
in no event shall the aggregate amount of all such increases exceed 3% of
the aggregate annualized compensation expense of the Company and its
Subsidiaries reported in the most recent audited financial statements of
the Company included in the SEC Documents)), (C) pay any benefit not
provided for under any Benefit Plan, (D) grant any awards under any bonus,
incentive, performance or other compensation plan or arrangement or Benefit
Plan (including the grant of stock options, stock appreciation rights,
stock based or stock related awards, performance units or restricted stock,
or the removal of existing restrictions in any Benefit Plans or agreements
or awards made thereunder) or (E) except as required by the current terms
thereof take any action to fund or in any other way secure the payment of
compensation or benefits under any employee plan, agreement, contract or
arrangement or Benefit Plan;
(x) neither the Company nor any of its Subsidiaries shall: (i) incur
or assume any long-term debt, or except in the ordinary course of business,
incur or assume any short-term indebtedness in amounts not consistent with
past practice; (ii) incur or modify any material indebtedness or other
liability except as set forth in Schedule 5.1 of the Company Disclosure
Schedule; (iii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the
obligations of any other Person, except in the ordinary course of business
and consistent with past practice; (iv) make any loans, advances or capital
contributions to, or investments in, any other Person (other than to wholly
owned Subsidiaries of the Company, or by such Subsidiaries to the Company,
or customary loans or advances to employees in accordance with past
practice); (v) settle any claims in excess of $100,000 other than in the
ordinary course of business, in accordance with past practice, and without
admission of
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liability; or (vi) enter into any material commitment or transaction in
excess of $100,000 except in the ordinary course of business;
(xi) neither the Company nor any of its Subsidiaries shall change any
of the accounting methods used by it unless required by GAAP;
(xii) neither the Company nor any of its Subsidiaries shall make any
material Tax election or settle or compromise any material Tax liability;
(xiii) neither the Company nor any of its Subsidiaries shall 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 and consistent with past
practice, or of claims, liabilities or obligations reflected or reserved
against in, or contemplated by, the consolidated financial statements (or
the notes thereto) of the Company and its consolidated Subsidiaries;or,
except in the ordinary course of business consistent with past practice,
waive the benefits of, or agree to modify in any manner, any
confidentiality agreement or undertaking to which the Company or any of its
Subsidiaries is a party;
(xiv) neither the Company nor any of its Subsidiaries will enter into
an agreement, contract, commitment or arrangement to do any of the
foregoing, or to authorize, recommend, propose or announce an intention to
do any of the foregoing.
(b) Other Actions. The Company shall not, and shall not permit any of its
Subsidiaries to, take any voluntary action that would result in (i) any of its
representations and warranties set forth in this Agreement that are qualified as
to materiality becoming untrue, (ii) any of such representations and warranties
that are not so qualified becoming untrue in any material manner having a
Material Adverse Effect (iii) any of the conditions to the Offer set forth in
sections (a) and (c) of Exhibit A not being satisfied (subject to the Company's
right to take action specifically permitted by Section 5.4).
Section 5.2 Access; Confidentiality. Upon reasonable notice and subject to
applicable law and any confidentiality provisions in the Company's contracts as
of the date hereof, the Company shall (and shall cause each of its Subsidiaries
to) afford to the officers, employees, accountants, counsel, financing sources
and other representatives of Parent, access, during normal business hours during
the period prior to the Effective Time, to all its properties, books, contracts,
commitments and records, including, at the Parent's discretion, access to
conduct environmental investigations on the terms and conditions set forth in
letter agreements between the Parent and the Company dated April 26, 1996 and
May 10, 1996; provided, however, that the Company shall (and shall cause each of
its Subsidiaries to) furnish promptly to the Parent (a) a copy of each report,
schedule, registration statement and other document filed or received by it
during such period pursuant to the requirements of Federal or state securities
Laws and (b) all other information concerning its business, properties and
personnel as Parent may reasonably request. Except as otherwise agreed to in
writing by the Company, unless and until Parent and the Purchaser shall have
purchased at least a majority of the outstanding Shares pursuant to the Offer,
Parent will be bound by the terms of a confidentiality agreement with the
Company, dated September 26, 1995 (the "Confidentiality Agreement").
Section 5.3 Reasonable Efforts; Notification. (a) Upon the terms and
subject to the conditions set forth in this Agreement, each of the parties
agrees to use all reasonable 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 and the
Merger, and the other Transactions contemplated by this Agreement, including (i)
the obtaining of all necessary actions or nonactions, waivers, consents and
approvals from any Governmental Entity and the making of all necessary
registrations and filings (including filings with any Governmental Entity, if
any) and the taking of all reasonable steps as may be necessary to obtain an
approval or waiver from, or to avoid an action or proceeding by, any
Governmental Entity, (ii) the obtaining of all necessary consents, approvals or
waivers from third parties, (iii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the consummation of any of the Transactions contemplated by this Agreement,
including seeking to have any stay or temporary restraining order entered by
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any court or other Governmental Entity vacated or reversed, and (iv) the
execution and delivery of any additional instruments necessary to consummate the
Transactions contemplated by, and to fully carry out the purposes of, this
Agreement; provided however, that in connection with any filing or submission or
other action required to be made or taken by any Party to effect the Merger and
all other Transactions contemplated hereby, the Company shall not without the
prior written consent of Parent commit to any divestiture transaction and Parent
shall not be required to divest or hold separate or otherwise take or commence
to take any action that, in the reasonable discretion of Parent, materially
limits its ability to conduct the business or its ability to retain, the Company
or any of its affiliates or any material portion of the assets of the Company.
In connection with and without limiting the foregoing, the Company and its Board
of Directors shall (i) take all action necessary to ensure that no state
takeover statute or similar statute or regulation is or becomes applicable to
the Offer, the Merger, this Agreement or any of the other Transactions
contemplated by this Agreement and (ii) if any state takeover statute or similar
statute or regulation becomes applicable to the Offer, the Merger or this
Agreement or any other transaction contemplated by this Agreement, take all
action necessary to ensure that the Offer, the Merger and the other Transactions
contemplated by this Agreement may be consummated as promptly as practicable on
the terms contemplated by this Agreement and otherwise to minimize the effect of
such statute or regulation on the Offer, the Merger, this Agreement and the
other Transactions contemplated by this Agreement.
(b) The Company shall give prompt notice to Parent of (i) any
representation or warranty made by it contained in this Agreement that is
qualified as to materiality becoming untrue or inaccurate in any respect
(including in the case of representations or warranties by the Company, the
Company receiving knowledge of any fact, event or circumstance which may cause
any representation qualified as to the knowledge of the Company to be or become
untrue or inaccurate in any respect) or (ii) the failure by it to comply with or
satisfy in any material respect any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement; provided, however, that
no such notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement and further provided, that if, within ten business days
after receipt of such notice, Parent has not terminated this Agreement pursuant
to Section 7.1(d)(iii) or clause (c) of Annex A hereto and Section 7.1(d)(ii),
then the breach or failure described in such notice shall be deemed to have been
waived by Purchaser and Parent. The Company acknowledges that if after the date
of this Agreement the Company receives knowledge of any fact, event or
circumstance that would cause any representation or warranty that is conditioned
as to the knowledge of the Company to be or become untrue or inaccurate in any
respect, the receipt of such knowledge shall constitute a breach of the
representation or warranty that is so conditioned as of the date of such
receipt.
Section 5.4 No Solicitation. (a) The Company shall not, nor shall it
permit any of its Subsidiaries to, nor shall it authorize (and shall use its
best efforts not to permit) any officer, director or employee of, or any
investment banker, attorney or other advisor or representative of, the Company
or any of its Subsidiaries to, solicit or initiate, or knowingly encourage the
submission of, any Takeover Proposal. Notwithstanding the foregoing, and subject
to compliance with Section 5.4(c), if prior to the acceptance for payment of
Shares pursuant to the Offer, the Board of Directors, after receiving advice
from outside legal counsel to the Company, determines that a failure to act
would be inconsistent with its fiduciary duties to the Company's stockholders
under applicable law, the Company may (A) furnish information with respect to
the Company to any Person in response to an unsolicited request pursuant to a
confidentiality agreement with terms and conditions similar to the
Confidentiality Agreement and (B) participate in discussions and negotiations
regarding any potential Takeover Proposal. Without limiting the foregoing, it is
understood that any violation of the restrictions set forth above by any
director or executive officer of the Company or any of its Subsidiaries, whether
or not such Person is purporting to act on behalf of the Company or any of its
Subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.4(a)
by the Company. For purposes of this Agreement, "Takeover Proposal" means (x)
any proposal or offer from any Person relating to any direct or indirect
acquisition or purchase of all or a substantial part of the assets of the
Company or any of its Subsidiaries or of any class of equity securities of the
Company or any of its Subsidiaries or any tender offer or exchange offer that if
consummated would result in any Person beneficially owning shares of any class
of equity securities of the Company or any of its Subsidiaries, or any merger,
consolidation, business combination, sale of substantially all of the assets,
recapitalization, liquidation, dissolution or similar
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transaction involving the Company or any of its Subsidiaries other than the
Transactions contemplated by this Agreement, or (y) any other transaction the
consummation of which would reasonably be expected to impede, interfere with,
prevent or materially delay the Offer or the Merger.
(b) Subject to compliance by the directors with their fiduciary duties,
neither the Board of Directors of the Company nor any committee thereof shall
(i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to
Parent or the Purchaser, the approval or recommendation by the Board of
Directors or any such committee of the Offer, this Agreement or the Merger, (ii)
approve or recommend, or propose to approve or recommend, any Takeover Proposal
or (iii) enter into any definitive agreement to consummate any Takeover
Proposal. Notwithstanding the foregoing, in the event prior to the time of
acceptance for payment of Shares in the Offer if in the opinion of the Board of
Directors, after receiving advice from outside legal counsel to the Company,
failure to act would be inconsistent with its fiduciary duties to the Company's
stockholders under applicable law, the Board of Directors may (subject to the
terms of this and the following sentences) withdraw or modify its approval or
recommendation of the Offer, this Agreement or the Merger, approve or recommend,
or propose to approve or recommend, a Takeover Proposal, or enter into an
agreement with respect to a Takeover Proposal, in each case at any time after
midnight on the next business day following Parent's receipt of written notice
(a "Notice of Takeover Proposal") advising Parent that the Board of Directors
has received a Takeover Proposal, specifying the material terms and conditions
of such Takeover Proposal and identifying the Person making such Takeover
Proposal; provided that the Company shall not enter into a definitive agreement
to consummate a Takeover Proposal unless the Company shall have furnished Parent
with a Notice of Takeover Proposal within the time frame provided in the
immediately preceding clause in advance of any date that it intends to enter
into such agreement. In addition, if the Company enters into a definitive
agreement with respect to any Takeover Proposal, it shall concurrently with
entering into such agreement pay, or cause to be paid, to Parent the Expenses
(as defined in Section 8.1(b)).
(c) In addition to the obligations of the Company set forth in paragraph
(b) (i) the Company shall advise Parent of any Takeover Proposal, or any
proposal with respect to any Takeover Proposal, the material terms and
conditions of such Takeover Proposal, and the identity of the Person making any
such Takeover Proposal or inquiry.
(d) The Company shall be entitled, in the exercise of the Board of
Directors' fiduciary duties, to notify any Person that has made a Takeover
Proposal of the material terms and conditions of any change or modification to
the terms and conditions of the Offer or Merger, or of any alternative
transaction (a "Responsive Offer"), that may be proposed by Parent, Purchaser or
any of their affiliates. Parent and Purchaser agree that all such Responsive
Offers shall remain open for at least two full business days after receipt by
the Company.
Section 5.5 Publicity. The initial press release with respect to the
execution of this Agreement shall be a joint press release acceptable to Parent
and the Company. Thereafter, so long as this Agreement is in effect and except
in respect of releases and announcements by the Company in connection with a
Takeover Proposal, neither the Company, Parent nor any of their respective
affiliates shall issue or cause the publication of any press release or other
announcement with respect to the Merger, this Agreement or the other
Transactions contemplated hereby without the prior consultation of the other
party.
Section 5.6 Transfer Taxes. All liability for transfer or other similar
Taxes arising out of or related to the Offer and the Merger or the consummation
of any other transaction contemplated by this Agreement, and due to the property
owned by the Company or any of its Subsidiaries or affiliates ("Transfer Taxes")
shall be borne by the Company, and the Company shall file or cause to be filed
all Tax Returns (on behalf of itself or its Subsidiaries) relating to such
Transfer Taxes which are due and shall use its best efforts to cause the
stockholders, to the extent required by law, to cooperate with respect to the
filing of such Tax Returns.
Section 5.7 Indemnification. The Purchaser and the Surviving Corporation
agree that all rights to indemnification existing in favor of the present or
former directors, officers, employees, fiduciaries and agents of the Company or
any of its Subsidiaries (collectively, the "Indemnified Parties") as provided in
the Company's Certificate of Incorporation or By-Laws or the certificate or
articles of incorporation, by-laws or similar organizational documents of any of
the Subsidiaries as in effect as of the Effective Time shall survive
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the Merger and shall continue in full force and effect for three years after the
Effective Time (without modification or amendment, except as required by
applicable law), to the fullest extent permitted by law, and shall be
enforceable by the Indemnified Parties against the Surviving Corporation
provided that in any event Purchaser and Surviving Corporation shall pay and
reimburse expenses in advance of the final disposition of any action or
proceeding to each Indemnified Party to the fullest extent permitted by law. At
the Closing the Surviving Corporation shall expressly and directly assume by
written instrument all such obligations. Purchaser shall cause to be maintained
in effect for not less than three years from the Effective Time the current
policies of the directors' and officers' liability insurance maintained by the
Company (provided that Purchaser may substitute therefor polices of at least
equivalent coverage containing terms and conditions which are no less
advantageous) with respect to matters occurring prior to the Effective Time,
provided that in no event shall Purchaser or the Surviving Corporation be
required to expend to maintain or procure insurance coverage pursuant to this
Section 5.7 any amount per annum in excess of 200% of the aggregate premiums
paid in 1995 on an annualized basis for such purpose. In the event the payment
of such amount for any year is insufficient to maintain such insurance or
equivalent coverage cannot otherwise be obtained, the Surviving Corporation
shall purchase as much insurance as may be purchased for the amount indicated.
The provisions of this Section 5.7 shall survive the consummation of the Merger
and expressly are intended to benefit each of the Indemnified Parties.
Section 5.8 Benefits. For a period of one year following the Effective
Time, Purchaser shall, or shall cause the Surviving Corporation to, provide all
of the employees of the Surviving Corporation and its subsidiaries with employee
benefit plans, programs, policies or arrangements (the "Purchaser Benefit
Plans") as are substantially equivalent, in the aggregate, as those currently
provided by the Company (the "Current Benefit Plans"), so long as such Current
Benefit Plans are not materially more favorable, in the aggregate, than the
benefit plans generally provided to employees of companies within the Company's
industry. In the event such Current Benefit Plans are materially more favorable,
in the aggregate, than the benefit plans generally provided to employees of
companies within the Company's industry, Purchaser shall, or shall cause the
Surviving Corporation to, provide for a period of one year following the
Effective Time to all employees of the Surviving Corporation employee benefit
plans that are substantially equivalent, in the aggregate, to the benefit plans
generally provided to employees of companies within the Company's industry.
Except to the extent that benefits may be duplicated, each Purchaser Benefit
Plan shall give full credit for each employee's period of service with the
Company and its Subsidiaries prior to the Effective time for all purposes for
which such service was recognized under the Company's benefit plans prior to the
Effective Time, including, but not limited to, recognition of service for
vesting, amount of benefits, eligibility to participate, and eligibility for
disability and early retirement benefits (including subsidies relating to such
benefits) and full credit for deductibles satisfied under the benefit plans
toward any deductibles for the same period following the Effective Time, and
shall waive any pre-existing condition limitation for any Company employee
covered under a Benefit Plan immediately prior to the Effective Time.
ARTICLE VI
CONDITIONS
Section 6.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each party shall be subject to the
satisfaction on or prior to the Closing Date of each of the following
conditions, any and all of which may be waived in whole or in part by the
Company, Parent or the Purchaser, as the case may be, to the extent permitted by
applicable law:
(a) Stockholder Approval. This Agreement shall have been approved and
adopted by the requisite vote of the stockholders of the Company, if
required by applicable law and the Certificate of Incorporation, in order
to consummate the Merger;
(b) Statutes; Consents. No statute, rule, order, decree or regulation
shall have been enacted or promulgated by any government or any
governmental agency or authority of competent jurisdiction which prohibits
the consummation of the Merger;
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(c) Injunctions. There shall be no order or injunction of a court or
other governmental authority of competent jurisdiction in effect
precluding, restraining, enjoining or prohibiting consummation of the
Merger; and
(d) Purchase of Shares in Offer. Parent, the Purchaser or their
affiliates shall have purchased Shares pursuant to the Offer.
Section 6.2 Conditions to the Company's Obligation to Effect the
Merger. The obligation of the Company to effect the Merger shall also be
subject to the satisfaction, or waiver by the Company, of the following
conditions:
(a) Prior Performance. The Purchaser and Parent shall have performed
in all material respects its respective obligations under this Agreement
required to be performed by it prior to the Effective Time.
(b) Representations and Warranties. All representations and
warranties of the Purchaser and Parent contained in this Agreement shall
have been true and correct in all material respects at the time made, and
shall be true and correct in all material respects as though made on and as
of such date.
Parent and Purchaser will furnish the Company with such certificates and
other documents to evidence the fulfillment of the conditions set forth in this
Section 6.2 as the Company may reasonably request.
ARTICLE VII
TERMINATION
Section 7.1 Termination. This Agreement may be terminated by written
notice and the Merger contemplated herein may be abandoned at any time prior to
the Effective Time, whether before or after approval of matters presented in
connection with the Merger by the stockholders of the Company:
(a) By the mutual consent of Parent and the Company.
(b) By either of Parent or the Company if any Governmental Entity shall
have issued an order, decree or ruling or taken any other action (which order,
decree, ruling or other action the parties hereto shall use their reasonable
efforts to lift), in each case permanently restraining, enjoining or otherwise
prohibiting the Transactions contemplated by this Agreement and such order,
decree, ruling or other action shall have become final and non-appealable.
(c) By the Board of Directors of the Company:
(i) if the Company has entered into a definitive agreement with
another party to consummate a Takeover Proposal in accordance with Section
5.4(b), provided the Company has complied with all provisions thereof,
including the notice provisions therein, and that it makes simultaneous
payment of the Expenses as required herein; or
(ii) if, prior to the purchase of the Shares pursuant to the Offer,
Parent or the Purchaser breaches or fails in any material respect to
perform or comply with any of its obligations contained herein or breaches
its representations and warranties in any material respect; or
(iii) if Parent or the Purchaser shall have terminated the Offer
without Parent or the Purchaser (a) purchasing the minimum number of Shares
pursuant thereto or (b) failing to pay for the Shares accepted pursuant to
the Offer for purchase, in either case within 60 days of commencement of
the Offer, or if the Offer shall have expired without any Shares being
purchased therein; or
(iv) if Parent, the Purchaser or any of their affiliates shall have
failed to commence the Offer on or prior to five business days following
the date of the initial public announcement of the Offer; provided, that
the Company may not terminate this Agreement pursuant to this Section
7.1(c)(iv) if the Company is in material breach of this Agreement.
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(d) By Parent:
(i) if prior to the purchase of the Shares pursuant to the Offer, the
Board of Directors of the Company shall have withdrawn, or modified or
changed in a manner adverse to Parent or the Purchaser its approval or
recommendation of the Offer, this Agreement or the Merger or shall have
entered into a definitive agreement for the consummation of a Takeover
Proposal in accordance with Section 5.4(b); or
(ii) if the Offer shall have terminated or expired without Parent or
the Purchaser purchasing any Shares thereunder, provided that Parent or the
Purchaser may not terminate this Agreement pursuant to this Section
7.1(d)(ii) if Parent or the Purchaser has failed to purchase the Shares in
the Offer in violation of this Agreement or the terms of the Offer; or
(iii) if, due to an occurrence that if occurring after the
commencement of the Offer would result in a failure to satisfy any of the
conditions set forth in Annex A hereto, Parent, the Purchaser, or any of
their affiliates shall have failed to commence the Offer on or prior to
five business days following the date of the initial public announcement of
the Offer.
Section 7.2 Effect of Termination. In the event of termination of this
Agreement by either the Company or Parent as provided in Section 7.1, this
Agreement shall forthwith become void and have no effect, without any liability
or obligation on the part of Parent, the Purchaser or the Company, other than
the provisions of Section 3.1(p), the proviso of the first sentence and the last
sentence of Section 5.2, this Section 7.2 and Sections 8.1, 8.3, 8.4, 8.5, 8.7,
8.8, 8.9, 8.11, 8.12 and 8.15 and except to the extent that such termination
results from the wilful and material breach by a party of any of its
representations, warranties, covenants or agreements set forth in this
Agreement.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Fees and Expenses. (a) Except as provided below, all fees and
expenses incurred in connection with the Offer, the Merger, this Agreement and
the Transactions contemplated hereby shall be paid by the party incurring such
fees or expenses, whether or not the Offer or the Merger is consummated.
(b) The Company shall pay, or cause to be paid, in same day funds to Parent
all of Parent's reasonably documented out-of-pocket expenses in an amount up to
but not to exceed $1,500,000 (the "Expenses") upon demand if (i) Parent or the
Purchaser terminates this Agreement under Section 7.1(d)(i), (ii) the Company
terminates this Agreement pursuant to Section 7.1(c)(i) or (iii) prior to any
termination of this Agreement, a Takeover Proposal shall have been made and
within nine months of the termination of this Agreement a transaction
constituting a Takeover Proposal is consummated with respect to, or the Company
enters into an agreement with respect to, or approves or recommends a Takeover
Proposal, in each case, made prior to any termination of this Agreement;
provided, however, that in the case of (iii) above in this paragraph (b) such
Expenses shall not be paid if such transaction has a value to the stockholders
of the Company equivalent to or less favorable than the proposed Offer and
Merger and, provided, further, that no payment shall be made if this Agreement
has been terminated pursuant to Section 7.1(c)(ii), Section 7.1(c)(iii)(b) and
Section 7.1(c)(iv) hereof. In addition, if prior to any termination of this
Agreement, any Person or group purchases or otherwise acquires, directly or
indirectly, beneficial ownership of more than 20% or more of the outstanding
voting securities of the Company and additionally, if at any time within 12
months following the termination of this Agreement any such Person or group
consummates a transaction that would otherwise constitute a Takeover Proposal,
there shall be paid to Parent immediately prior to the consummation of such
transaction the Expenses (provided that no such payment shall be made if this
Agreement has been terminated pursuant to Section 7.1(c)(ii) hereof). The amount
of Expenses so payable shall be the amount set forth in an estimate delivered by
Parent, subject to upward or downward adjustment (not to be in excess of the
amount set forth above) upon delivery of reasonable documentation therefor.
For purposes of this Section 8.1(b), "Takeover Proposal" shall mean
Takeover Proposal as defined only in subsection (x) of the last sentence of
Section 5.4(a).
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<PAGE> 30
Section 8.2 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified and supplemented in any and all respects,
whether before or after any vote of the stockholders of the Company contemplated
hereby, by written agreement of the parties hereto (which in the case of the
Company shall include approvals as contemplated in Section 1.4(b)), at any time
prior to the Closing Date with respect to any of the terms contained herein;
provided, however, that after the approval of this Agreement by the stockholders
of the Company, no such amendment, modification or supplement shall reduce the
amount or change the form of the Merger Consideration.
Section 8.3 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any schedule, instrument
or other document delivered pursuant to this Agreement shall survive the
Effective Time. This Section 8.3 shall not limit any covenant or agreement of
the parties which by its terms contemplates performance after the Effective Date
of the Merger.
Section 8.4 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given upon receipt, and shall be given to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) if to Parent or the Purchaser, to:
Getinge Industrier AB
S-31044 Getinge
Sweden
Attn: Carl Bennet
with a copy to:
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue
New York, New York 10022
U.S.A.
Attn: Bertil Lundqvist, Esq.
(b) if to the Company, to:
MDT Corporation
Stratford Hall, Suite 200
1009 Slater Road
Durham, NC 27703
U.S.A.
Attn: J. Miles Branagan
with a copy to:
O'Melveny & Myers
400 South Hope Street
Los Angeles, CA 90071-2899
U.S.A.
Attn: C. James Levin, Esq.
Section 8.5 Interpretation. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. Whenever the words "include", "includes" or "including" are
used in this Agreement they shall be deemed to be followed by the words "without
limitation". As used in this Agreement, the term "affiliate(s)" shall have the
meaning set forth in Rule 12b-2 of the Exchange Act. As used in this Agreement,
any reference to any event, change or effect being material
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<PAGE> 31
or having a Material Adverse Effect on or with respect to any entity (or group
of entities taken as a whole) means such event, change or effect is materially
adverse to the consolidated financial condition, businesses or results of
operations of such entity (or, if used with respect thereto, of such group of
entities taken as a whole).
Section 8.6 Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties.
Section 8.7 Entire Agreement; No Third Party Beneficiaries; Rights of
Ownership. This Agreement and the Confidentiality Agreement (including the
documents and the instruments referred to herein and therein): (a) constitute
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof, and (b) except as provided in Section 5.6 is not intended to confer upon
any Person other than the parties hereto any rights or remedies hereunder.
Section 8.8 Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void, unenforceable or against its regulatory policy,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
Section 8.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
Section 8.10 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that the Purchaser may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to
Parent or to any direct or indirect wholly owned Subsidiary of Parent. Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors and
assigns.
Section 8.11 Enforcement. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Delaware or in Delaware state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any Federal court located in the State of Delaware or
any Delaware state court in the event any dispute arises out of this Agreement
or any of the Transactions contemplated by this Agreement, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (c) agrees that it will not bring any
action relating to this Agreement or any of the Transactions contemplated by
this Agreement in any court other than a Federal or state court sitting in the
State of Delaware.
Section 8.12 Extension; Waiver. At any time prior to the Effective Time,
the parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement or (c) subject to the proviso of
Section 8.2, waive compliance with any of the agreements or conditions contained
in this Agreement. Any agreement on the part of a party to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise shall not constitute a waiver of
those rights.
Section 8.13 Procedure for Termination, Amendment, Extension or Waiver. A
termination of this Agreement pursuant to Section 7.1, an amendment of this
Agreement pursuant to Section 8.2 or an extension or waiver pursuant to Section
8.12 shall, in order to be effective, require in the case of Parent, the
Purchaser or the Company, action by its Board of Directors or the duly
authorized designee of its Board of Directors; provided, however, that in the
event that Purchaser's designees are appointed or elected to the Board of
Directors of the Company as provided in Section 1.4, after the acceptance for
payment of Shares pursuant to
28
<PAGE> 32
the Offer and prior to the Effective Time, except as otherwise contemplated by
this Agreement the affirmative vote of a majority of the directors of the
Company that were not designated by Parent or Purchaser shall be required by the
Company to amend this Agreement by the Company.
Section 8.14 Fiduciary Duty. Notwithstanding anything to the contrary in
this Agreement, no provision of this Agreement shall be construed to prevent the
exercise by any director of the Company (or the Company's actions thereon) of
his or her fiduciary duties as contemplated to be exercised by Section 5.4
hereof.
Section 8.15 Definitions. For purposes of this Agreement:
"Acquiring Person" has the meaning assigned thereto in Section 3.1(n).
"Affiliate" of any Person means any other Person that controls (as
such term is defined in the Exchange Act), is controlled by or is under
common control with such Person.
"Benefit Plans" has the meaning assigned thereto in Section 3.1(j).
"By-laws" means the by-laws of MDT Corporation.
"Certificate of Incorporation" has the meaning assigned thereto in
Section 1.5.
"Certificate of Merger" has the meaning assigned thereto in Section
1.6.
"Certificates" has the meaning assigned thereto in Section 2.2.
"Closing" has the meaning assigned thereto in Section 1.7.
"Closing Date" has the meaning assigned thereto in Section 1.7.
"Code" means the Internal Revenue Code of 1986.
"Company" means MDT Corporation.
"Confidentiality Agreement" has the meaning assigned thereto in
Section 5.2.
"Defect" has the meaning assigned thereto in Section 3.1(x).
"DGCL" means the Delaware General Corporation Law.
"Dissenting Stockholders" has the meaning assigned thereto in Section
2.1(c).
"Distribution Date" has the meaning assigned thereto in Section
3.1(n).
"Effective Time" has the meaning assigned thereto in Section 1.6.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"Environmental Laws" means all foreign, Federal, state and local Laws,
regulations, rules and ordinances relating to pollution or protection of
the environment, including, without limitation, Laws relating to Releases
or threatened Releases of Hazardous Materials into the indoor or outdoor
environment (including, without limitation, ambient air, surface water,
groundwater, land, surface and subsurface strata) or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage,
Release, transport or handling of Hazardous Materials, and all Laws and
regulations with regard to recordkeeping, notification, disclosure and
reporting requirements respecting Hazardous Materials, and all Laws
relating to endangered or threatened species of fish, wildlife and plants.
"Environmental Liabilities and Costs" means all liabilities,
obligations, responsibilities, obligations to conduct cleanup, losses,
damages, deficiencies, punitive damages, consequential damages, treble
damages, costs and expenses (including, without limitation, all reasonable
fees, disbursements and expenses of counsel, expert and consulting fees and
costs of investigations and feasibility studies and responding to
government requests for information or documents), fines, penalties,
restitution and monetary sanctions, interest, direct or indirect, known or
unknown, absolute or contingent, past, present
29
<PAGE> 33
or future, resulting from any claim or demand, by any Person or entity,
whether based in contract, tort, implied or express warranty, strict
liability, joint and several liability, criminal or civil statute,
including any Environmental Law, or arising from a violation of
Environmental Laws or the Release of Hazardous Materials into the
environment.
"ERISA Affiliate" has the meaning assigned thereto in Section 3.1(j).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expenses" has the meaning assigned thereto in Section 8.1.
"Fee Properties" has the meaning assigned thereto in Section 3.1(s).
"Financing Commitment" has the meaning assigned thereto in Section
4.1(d).
"Governmental Entity" has the meaning assigned thereto in Section
3.1(d).
"Hazardous Materials" means all substances defined as hazardous
substances in the National Oil and Hazardous Substances Pollution
Contingency Plan, 40 C.F.R. sec. 300.5, or substances defined as hazardous
substances, hazardous materials, toxic substances, hazardous wastes,
pollutants or contaminants, under any Environmental Law, or substances
regulated under any Environmental Law, including, but not limited to,
petroleum (including crude oil or any fraction thereof), asbestos, and
polychlorinated biphenyls.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"Intellectual Property Rights" has the meaning assigned thereto in
Section 3.1(r).
"Laws" has the meaning assigned thereto in Section 3.1(m).
"Leased Properties" has the meaning assigned thereto in Section
3.1(s).
"Lien" means any conditional sale agreement, default of title,
easement, encroachment, encumbrance, hypothecation, infringement, lien,
mortgage, pledge, reservation, restriction, security interest, title
retention or other security arrangement, or any adverse right or interest,
charge or claim of any nature whatsoever of, on, or with respect to any
asset, property or property interest; provided, however, that the term
"Lien" shall not include
(i) liens for water and sewer charges and current Taxes not yet due
and payable or being contested in good faith;
(ii) mechanics', carriers', workers', repairers', materialmens',
warehousemens' and other similar liens arising or incurred in the
ordinary course of business;
(iii) any interest or title of a lessor (or its creditors) or
lessee under any lease (including any lien granted by such lessor or
lessee and any lien arising under Article 2 of the Uniform Commercial
Code or the filing of any Uniform Commercial Code financing statement
with respect to any such lease); or
(iv) all liens approved in writing by the other party hereto.
"Material Adverse Change" or "Material Adverse Effect" means, when
used in connection with the Company or Parent, any change or effect (or any
development that, insofar as can reasonably be foreseen, is likely to
result in any change or effect) that has a material adverse effect on (a)
the business, properties, assets, financial condition or results of
operations of such party and its Subsidiaries taken as a whole or (b) the
ability of the Company or Parent to perform its obligations hereunder.
"Merger" has the meaning assigned thereto in Section 1.5.
"Merger Consideration" has the meaning assigned thereto in Section
2.1.
"Minimum Condition" has the meaning assigned thereto in Annex A.
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<PAGE> 34
"Notice of Takeover Proposal" has the meaning assigned thereto in
Section 5.4(b).
"Offer" has the meaning assigned thereto in Section 1.1.
"Offer Documents" has the meaning assigned thereto in Section 1.3.
"Offer Price" has the meaning assigned thereto in Section 1.1.
"Offer to Purchase" has the meaning assigned thereto in Section 1.1.
"Option Plan" has the meaning assigned thereto in Section 2.5(a).
"Options" has the meaning assigned thereto in Section 2.5(a).
"Parent" means Getinge Industrier AB.
"Paying Agent" has the meaning assigned thereto in Section 2.2(a).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permits" has the meaning assigned thereto in Section 3.1(m)(ii).
"Person" means an individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
"Product" has the meaning assigned thereto in Section 3.1(x).
"Proxy Statement" has the meaning assigned thereto in Section 1.8.
"Purchaser" means Getinge Acquisition Corporation.
"Real Property" has the meaning assigned thereto in Section 3.1(s).
"Release" means any release, spill, emission, discharge, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment (including, without
limitation, ambient air, surface water, groundwater, and surface or
subsurface strata) or into or out of any property, including the movement
of Hazardous Materials through or in the air, soil, surface water,
groundwater or property.
"Rights" means the Common Stock Purchase Rights issued by the Company
pursuant to the Rights Agreement.
"Rights Agreement" means the agreement dated February 12, 1990,
between the Company and Bank of America, N.T. & S.A., as amended pursuant
to the agreement dated August 1, 1992, between the Company and Chemical
Trust Company of California as successor rights agent.
"Schedule 14D-9" has the meaning assigned thereto in Section 1.3.
"SEC" means the United States Securities and Exchange Commission.
"SEC Documents" has the meaning assigned thereto in Section 3.1(e).
"Secretary of State" means the Secretary of State of Delaware.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" has the meaning assigned thereto in Section 1.1.
"Special Meeting" has the meaning assigned thereto in Section 1.8.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, joint venture or other entity in which such Person (i) owns,
directly or indirectly, 50% or more of the outstanding voting securities or
equity interests, (ii) is entitled to elect at least a majority of the
Board of Directors or similar governing body, or (iii) is a general
partner.
"Surviving Corporation" means MDT Corporation.
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<PAGE> 35
"Takeover Proposal" has the meaning assigned thereto in Section
5.4(a).
"Tax Returns" has the meaning assigned thereto in Section 3.1(k)(iv).
"Taxes" has the meaning assigned thereto in Section 3.1(k)(iv).
"Transactions" has the meaning assigned thereto in Section 1.2(a).
"Transfer Taxes" has the meaning assigned thereto in Section 5.6.
"WARN Act" has the meaning assigned thereto in Section 3.1(w).
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<PAGE> 36
IN WITNESS WHEREOF, Parent, the Purchaser and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
GETINGE INDUSTRIER AB
By: /s/ Carl Bennet
------------------------------------
Name: Carl Bennet
Title: Managing Director
GETINGE ACQUISITION CORP.
By: /s/ Lars-Peter Harbing
------------------------------------
Name: Lars-Peter Harbing
Title: President
MDT CORPORATION
By: /s/ J. Miles Branagan
------------------------------------
Name: J. Miles Branagan
Title: President
33
<PAGE> 37
ANNEX A
Certain Conditions of the Offer. Notwithstanding any other provisions of
the Offer, and in addition to (and not in limitation of) the Purchaser's rights
to extend and amend the Offer at any time in its sole discretion (subject to the
provisions of the Merger Agreement), the 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 the Purchaser's
obligation to pay for or return tendered Shares promptly after termination or
withdrawal of the Offer), pay for, and may delay the acceptance for payment of
or, subject to the restriction referred to above, the payment for, any tendered
Shares, and may terminate or amend the Offer as to any Shares not then paid for,
if (i) there shall not have been validly tendered and not withdrawn prior to the
expiration of the Offer such number of Shares which would constitute at least
66 2/3% of the Shares outstanding on a fully diluted basis (the "Minimum
Condition"), (ii) any applicable waiting period under the HSR Act has not
expired or terminated, or (iii) at any time on or after the date of the Merger
Agreement and before the time of payment for any such Shares, any of the
following events shall occur or shall be determined by the Purchaser, in its
sole discretion but subject to the provisions of the Merger Agreement, to have
occurred:
(a) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction promulgated, entered, enforced,
enacted, issued or deemed applicable to the Offer or the Merger by any
domestic or foreign Federal or state governmental regulatory or
administrative agency or authority or court or legislative body or
commission which directly or indirectly (1) prohibits, or imposes any
material limitations, other than limitations generally affecting the
industries in which the Company and Parent conduct their business, on,
Parent's or the Purchaser's ownership or operation (or that of any of their
respective Subsidiaries or affiliates) of all or a material portion of the
Company's businesses or assets as a whole, or compels Parent or the
Purchaser or their respective Subsidiaries and affiliates to dispose of or
hold separate any material portion of the business or assets of the Company
or Parent in each case taken as a whole, (2) prohibits, or makes illegal,
the acceptance for payment, payment for or purchase of Shares or the
consummation of the Offer, the Merger or the other transactions
contemplated by the Merger Agreement, (3) results in the material delay in
the ability of the Purchaser, or renders the Purchaser unable, to accept
for payment, pay for or purchase a material amount of the Shares, or (4)
imposes material limitations on the ability of the Purchaser or Parent
effectively to exercise full rights of ownership of the Shares including,
without limitation, the right to vote the Shares purchased by it on all
matters properly presented to the Company's stockholders;
(b) there shall have occurred (1) any general suspension of trading
in, or limitation on prices for, securities in the NASDAQ National Market
System, for a period in excess of three hours, (2) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States or Sweden (whether or not mandatory), (3) a commencement of a
war, armed hostilities or other international or national calamity directly
or indirectly involving the United States or Sweden and having a Material
Adverse Effect or materially adversely affecting or delaying the Offer, (4)
any limitation (whether or not mandatory) by any Swedish or United States
governmental authority on the extension of credit by banks or other
financial institutions in a manner which prohibits the extension of funds
under the Financing Commitment, (5) in the case of any of the foregoing
existing at the time of the commencement of the Offer, a material
acceleration or worsening thereof;
(c) (1) the representations and warranties of the Company set forth in
the Merger Agreement shall not be true and correct in any material respect
as of the date of the Merger Agreement and as of consummation of the Offer
as though made on or as of such date, (2) the Company shall have failed to
comply with its covenants and agreements under the Merger Agreement in all
material respects or (3) there shall have occurred any events or changes
which have had individually or in the aggregate a Material Adverse Effect
on the Company and its Subsidiaries taken as a whole; provided, however,
that for purposes of determining the trueness and correctness of the
representations and warranties under clause (c)(1) and for purposes of
clause (c)(3), no change or effect shall be deemed a Material Adverse
Effect to the extent that such change or effect arises (i) from
developments, events or changes arising out of the Transactions and
specifically relating to Parent as the acquiror of the Company or (ii) from
general
A-1
<PAGE> 38
economic conditions or matters generally affecting the industries in which
the Company conducts its business;
(d) the Company's Board of Directors shall have withdrawn, or modified
or changed in a manner adverse to Parent or the Purchaser (including by
amendment of the Schedule 14D-9) its recommendation of the Offer, the
Merger Agreement, or the Merger, or recommended another proposal or offer,
or the Board of Directors of the Company, upon request of the Purchaser,
shall fail to reaffirm such approval or recommendation or shall have
resolved to do any of the foregoing; or
(e) the Merger Agreement shall have terminated in accordance with its
terms;
which in the sole judgment of Parent or the Purchaser but subject to the
provisions of the Merger Agreement, in any such case, and regardless of the
circumstances (including any action or inaction by Parent or the Purchaser)
giving rise to such conditions makes it inadvisable to proceed with the
Offer and/or with such acceptance for payment of or payments for Shares.
Subject to the provisions of the Merger Agreement, the foregoing conditions
are for the sole benefit of Parent and the Purchaser and may be asserted by the
Purchaser or, subject to the terms of the Merger Agreement may be waived by
Parent or the Purchaser, in whole or in part at any time and from time to time
in the sole discretion of Parent or the Purchaser provided that the condition
set forth in clause (e) above may be waived only by the mutual consent of Parent
or Purchaser and the Company. The failure by Parent or the Purchaser at any time
to exercise any of the foregoing rights shall not be deemed a waiver of any such
right and each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time.
A-2
