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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 14D-9
(AMENDMENT NO. 1)
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(D)(4) OF THE
SECURITIES EXCHANGE ACT OF 1934
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IMPACT SYSTEMS, INC.
(NAME OF SUBJECT COMPANY)
IMPACT SYSTEMS, INC.
(NAMES OF PERSON(S) FILING STATEMENT)
COMMON STOCK, NO PAR VALUE
(TITLE OF CLASS OF SECURITIES)
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452913 10 6
(CUSIP NUMBER OF CLASS OF SECURITIES)
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KENNETH P. OSTROW
PRESIDENT AND CHIEF EXECUTIVE OFFICER
IMPACT SYSTEMS, INC.
14600 WINCHESTER BOULEVARD
LOS GATOS, CALIFORNIA 95030
(408) 379-0910
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS ON
BEHALF OF THE PERSON(S) FILING STATEMENT)
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WITH COPIES TO:
ARTHUR F. SCHNEIDERMAN, ESQ.
BLAIR W. STEWART, JR., ESQ.
SELIM DAY, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
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This Amendment No. 1 amends the Solicitation/Recommendation Statement on
Schedule 14D-9 (as amended, the "Schedule 14D-9") filed by Impact Systems, Inc.
(the "Company") relating to the tender offer by Voith Sulzer Paper Technology
North America Inc. ("Parent") and Voith Sulzer Acquisition Corp. (the
"Purchaser"), a wholly owned subsidiary of Parent to purchase all of the
outstanding shares of Common Stock of the Company upon the terms and subject to
the conditions set forth in the Offer to Purchase, dated December 18, 1997 (as
amended). Capitalized terms used and not otherwise defined herein have the
meanings ascribed to them in the Schedule 14D-9.
ITEM 3. IDENTITY AND BACKGROUND
Item 3 of the Schedule 14D-9 is hereby amended by adding the following
information:
Strategic Alliance Agreement. On December 3, 1997, Elsag Bailey Process
Automation N.V. ("Elsag Bailey") the holder of approximately 23% of the
Company's outstanding shares of Common Stock, entered into a strategic alliance
with an affiliate of Parent (the "Alliance") which generally provides for a
working relationship that integrates Elsag Bailey's DCS into the product line
offered by affiliates of Parent, and in particular paper machinery, and which is
not contingent upon any potential business combination between Parent and the
Company. In addition to other arrangements, under the Alliance, an affiliate of
Parent and Elsag Bailey will pursue joint research and development of each
parties' respective products and technologies, cross marketing of their
respective products and the cross purchase of each other's products where
appropriate.
ITEM 4. THE SOLICITATION OR RECOMMENDATION
Item 4 of the Schedule 14D-9 is hereby amended by amending paragraph (4)
under "Factors Considered by the Board" to read as follows:
(4) the view of the Board of Directors, based in part upon the opinion of
Management, regarding the unlikelihood of a superior offer arising, because the
Company had held discussions with two other companies about potential business
combination transactions and because of the limited number of potential
purchasers in the Company's industry.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS
Exhibit 11 -- Strategic Alliance Agreement, dated December 3, 1997, by and
between Voith Sulzer Papiertechnik GmbH & Co. KG and Elsag
Bailey Process Automation N.V.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
By: /s/ KENNETH P. OSTROW
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Name: Kenneth P. Ostrow
Title: President and Chief Executive
Officer
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EXHIBIT 11
STRATEGIC ALLIANCE AGREEMENT
This Strategic Alliance Agreement (the "Agreement") is made and entered into
this 3rd day of December, 1997, by and between Voith Sulzer Papiertechnik GmbH &
Co. KG ("Voith Sulzer"), located at Sankt Poltener Straise 43, D-89522
Heidenhelm, Germany, and Elsag Bailey Process Automation N.V. ("EBPA"), located
at The World Trade Center, Schiphol Boulevard 157, 1118 BG Luchthaven, Schiphol,
The Netherlands.
WHEREAS, Voith Sulzer is a world wide paper technology company with subsidiaries
and affiliates involved in various aspects of the paper industry, including
manufacturing of paper machines and related equipment for use by paper
manufacturers; and
WHEREAS, EBPA is a world wide supplier of enterprise management and process
control systems, instrumentation products and analytical systems and equipment
with particular expertise in distributed process control applications for use in
various industrial applications, in particular the paper industry; and
WHEREAS, both Voith Sulzer and EBPA recognize the potential synergies that could
potentially be achieved through a global strategic alliance; and
WHEREAS, EBPA is entering into this Strategic Alliance in reliance upon Voith
Sulzer's commitment to in good faith expand the Strategic Alliance.
Accordingly, the following is a summary of the principal terms that shall serve
as the Strategic Alliance Agreement between Voith Sulzer and EBPA:
1. Formations of Strategic Alliance: The Strategic Alliance shall be
binding, although non-exclusive, and apply globally to EBPA and its
subsidiaries, and to Voith Sulzer and its direct and indirect
subsidiaries. Under the Strategic Alliance Voith Sulzer and EBPA agree
to make good faith efforts to use the others products when selling to
paper industry customers an a global basis, where technically and
commercially feasible. The Strategic Alliance also includes the
following areas of mutual interest, except to the extent inconsistent
with exclusive distribution, agency or similar agreements with third
parties or with applicable law;
- Supplier of Choice. Each party shall treat the other partner as a
"most favored supplier". As a most favored supplier, each partner
will make a good faith effort to offer for sale or recommend to its
customers the other partner's products and services.
- Cross Purchase Agreement. As part of the Strategic Alliance Voith
Sulzer and EBPA agree in good faith to negotiate cross purchase
agreements under which Voith Sulzer and EBPA will each be able to
purchase the others products for resale to their respective
customers. The cross purchase agreements are intended to include
within their scope all
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products currently offered by Voith Sulzer and EBPA, as well as any
newly acquired or future developed products.
- Cross-Marketing of Products. The Strategic Alliance contemplates for
marketing assistance and support in the sales and marketing of each
others products. The Strategic Alliance also contemplates joint
marketing and promotion of products, including the possible
development of joint marketing teams, joint bids and contract
proposals, etc.
- Cooperative Research and Development. Potential cooperative research
and development projects shall be discussed in good faith and where
appropriate Voith Sulzer and EBPA will pursue such projects.
- Formation of Steering Committee. The Strategic Alliance contemplates
the formation of a steering committee to oversee the Strategic
Alliance and provide for executive level contacts between Voith
Sulzer and EBPA.
- Voith Sulzer Affiliates. Voith Sulzer shall introduce EBPA to other
segments of J.M. Voith AG with the intent of exploring potential
expansion of the Strategic Alliance beyond the Paper Technology
segment of J.M. Voith AG into other segments.
- Joint Investment. The parties shall explore joint investments in
current and future products, technology and marketing where such
investments are appropriate and serve the mutual interests of both
parties and furthers the Strategic Alliance.
2. Appointment of Alliance Representatives: Immediately upon the execution
of this Agreement, Voith Sulzer and EBPA shall each appoint an Alliance
Representative. These two individuals shall have the responsibility of
co-ordinating the Strategic Alliance and supervising the implementation
of the Strategic Alliance.
3. Confidentiality: Voith Sulzer and EBPA shall maintain and keep in the
strictest of confidence all information and materials regarding
the subject matter of this Agreement (excepting only disclosures
required under applicable law), as well as any and all information
exchanged between the Parties, and any other matters related to this
Agreement, and shall only use such information and materials solely in
furtherance of the transactions and other matters contemplated herein,
all as set forth in greater detail in a separate Confidentiality
Agreement executed in conjunction herewith. Except as required by law,
neither Voith Sulzer nor EBPA shall issue a press release or make any
public announcement concerning the Agreement or the proposed Strategic
Alliance without first having obtained the other party's prior written
consent.
This Agreement shall be governed by and construed in accordance with the laws of
the Netherlands, without regard to conflicts of law rules thereunder. Any and
all disputes arising under or in connection with this Agreement shall be finally
settled by arbitration in London, England under the then-current Rules of
Conciliation and Arbitration of the International Chamber of Commerce before
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three arbitrators appointed in accordance with the said Rules. The arbitral
proceedings shall be conducted in the English language.
This Agreement shall be valid until December 31, 2003 unless renewed for
additional terms in a subsequent agreement signed between the parties prior to
that date.
VOITH SULZER PAPIERTECHNIK GMBH & CO. KG
By: /s/ H.P. Sollinger
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Dr. H.P. Sollinger
Title: Executive Vice President
ELSAG BAILEY PROCESS AUTOMATION N.V.
By: /s/ M.N. Zaharna
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Title: Group Executive Vice President & COO
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